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Yanofsky v. United States Department of Commerce

United States District Court, District of Columbia

March 30, 2018




         Because the information and records that an agency possesses rightfully belong to the public, one of the key commitments underlying the Freedom of Information Act (“the FOIA”), 5 U.S.C. § 552, is the principle that the federal government should not profit from its dissemination of documents in response to FOIA requests. See H.R. Rep. No. 99-560, at 26 (1986) (explaining that the FOIA reflects “[t]he policy of providing government documents at a price based on the cost of dissemination”). The FOIA accordingly contains an express provision that permits agencies to charge FOIA requesters only those fees that are reasonably necessary to recoup the funds that the government spends on searching for, duplicating, and reviewing responsive documents. See 5 U.S.C. § 552(a)(4)(A)(ii). Significantly for present purposes, however, the statute also contains a provision that clarifies that the FOIA's fee-setting prescriptions do not supersede “a statute specifically providing for setting the level of fees for particular types of records.” Id. § 552(a)(4)(A)(vi).

         The parties in the instant case are engaged in a pitched battle over whether or not Congress intended the Mutual Educational and Cultural Exchange Act of 1961 (“the MECEA”), 22 U.S.C. § 2451, et seq., and the Consolidated Appropriations Act of 2016 (“the Appropriations Act”), Pub L. No. 114-113, § 9(B), 129 Stat. 2242, 2287 (2015) to displace the standard FOIA fee-setting requirements by authorizing an agency practice that allows the Department of Commerce (DOC”) to charge thousands of dollars for certain data files. Plaintiff David Yanofsky filed the instant action after he received a bill for $173, 775 in connection with a FOIA request that he submitted to the DOC for information about the number of visitors and international flights to the United States. (See Def.'s Resp. to Pl.'s Statement of Material Facts as to Which There Is No Genuine Issue (“Consol. SUMF Part II”), ECF No. 23-1, ¶ 70.) The DOC maintains that it regularly disseminates such information as part of a subscription-based program that has many institutional clients, and that the agency properly “collects, retains, and expends user fees pursuant to delegated authority under the [MECEA] as authorized in annual appropriations acts.” (Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 20, ¶ 5.) Yanofsky's five-count complaint claims that the DOC “has unlawfully withheld the requested records by, inter alia, unlawfully denying [Yanofsky's] request for a fee waiver and informing [him] that he would have to purchase the requested records” at a price that is “far in excess of the fees [the DOC] is permitted to charge under the FOIA.” (Compl., ECF No. 1, ¶ 2.)

         Before this Court at present are the parties' cross-motions for summary judgment (see Def.'s Mot.; Pl.'s. Mem. in Opp'n to Def.'s Mot. for Summ. J. and in Supp. of Pl.'s Mot. for Summ. J. (“Pl.'s Mot.”), ECF No. 21-1), which are fully briefed and ripe for decision (see Reply Mem. in Further Supp. of Def.'s Mot. for Summ. J. and in Opp'n to Pl.'s Mot. for Summ J. (“Def.'s Reply”), ECF No. 23; Reply Mem. in Supp. of Pl.'s Mot. for Summ. J. (“Pl.'s Reply”), ECF No. 25). The parties address three related issues in these motions: (1) whether the DOC should be permitted to contend that the MECEA and the Appropriations Act displace the FOIA's fee-setting provisions in the instant proceedings, when the agency did not rely on those statutes in the administrative proceedings below; (2) whether the MECEA and the Appropriations Act together supersede the FOIA's fee-setting provisions; and (3) whether those statutes also displace the FOIA's fee-waiver provisions.

         For the reasons explained below, this Court agrees with the DOC that the agency can argue that the MECEA and the Appropriations Act constitute superseding fee statutes despite not doing so in its administrative proceedings, but given that the MECEA and the Appropriations Act neither identify a “particular type[] of records” nor “set [a] level of fees[, ]” 5 U.S.C. § 552(a)(4)(A)(vi), this Court does not find this argument persuasive. And Oglesby v. United States Department of the Army, 79 F.3d 1172 (D.C. Cir. 1996), definitively forecloses the DOC's arguments to the contrary. Consequently, Plaintiff's cross-motion for summary judgment will be GRANTED and Defendant's motion for summary judgment will be DENIED.[1] A separate Order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND

         A. Yanofsky's FOIA Request And The Accompanying Administrative Proceedings

         1. Yanofsky Seeks Data Files That The DOC Compiles

         On February 26, 2016, Yanofsky filed a FOIA request with the DOC, requesting records relating to that agency's I-92 and I-94 Programs. (See Pl.'s Combined Statement of Material Facts and Resp. to Def.'s Statement of Material Facts (“Consol. SUMF Part I”), ECF No. 21-2, ¶ 8.) The I-92 Program provides “international air traffic statistics to the government and the travel industry” (id. ¶ 2), while the I-94 Program “provides the official U.S. monthly and annual overseas visitor arrivals to the United States” (id. ¶ 4). One of the DOC's bureaus-the International Trade Administration (“the ITA”)-uses the statistics that are collected through the I-92 program to generate a publication called the U.S. International Air Travel Statistics Report, and to create an underlying data file related to that report (“the I-92 Data File”). (See Id. ¶ 3.) Meanwhile, that same bureau uses the information obtained via the I-94 Program to create another record-the Summary of International Travel to the United States-and to generate another data file (“the I-94 Data File”) that consists of anonymized data about foreign visitors to the United States. (See Id. ¶ 4.) The DOC then sells these reports and data files to the public. (See Id. ¶¶ 3-4.)

         In his FOIA request, Yanofsky sought copies of the I-92 and I-94 Data Files from 2011 through 2015, along with the accompanying technical documentation (see id. ¶ 8), and he also requested “a fee benefit as a representative of the news media pursuant to 5 U.S.C. § 552(a)(4)(A)(ii) and a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii)” (id. ¶ 10). Yanofsky supported these requests by explaining that he is a “journalist for Quartz, ” a digital publication of the Atlantic Monthly Group, and that he intended to use the requested records to gather information of potential interest to the public; specifically, “information about the operations of the DOC and other government agencies and about travel and tourism in the United States.” (See Feb. 26, 2016 Request (“FOIA Request”), Ex. A to Erdmann Decl., ECF No. 20-1, at 8; see also Consol. SUMF Part II ¶ 61.) Yanofsky further explained that the requested records would shed light on the operations or activities of the DOC in a manner that was likely to contribute significantly to the public understanding of those operations or activities, and that he was not seeking the records primarily for commercial-interest purposes. (See FOIA Request at 9; Consol. SUMF Part II ¶¶ 63-66.)

         Notably, Yanofsky's February 2016 FOIA request was not the first time he had made these arguments or requested these records. Yanofsky had filed a materially identical FOIA request the year before, on March 10, 2015 (see Consol. SUMF Part II ¶¶ 27-30), but the DOC denied this previous request. Initially, the agency insisted that “ITA does not maintain the [I-94 data] records[, ]” and with respect to the I-92 Data Files, the agency asserted that ITA uses this data to develop reports that are offered for sale, and that “records which are published and offered for sale are excluded from the definition of subsection 5 U.S.C. § 552(a)(2) records[.]” (Id. ¶¶ 32-33 (internal quotation marks omitted).) Yanofsky filed an administrative appeal, after which the DOC subsequently acknowledged that all of the records Yanofsky requested were “agency records” for FOIA purposes, and thus could not be withheld for the reasons previously stated, but the DOC then offered an alternative basis for denying Yanofsky's request. (See Id. ¶¶ 40-41.) It explained that both the I-92 and I-94 Data Files were being withheld based on the FOIA's displacement provision (5 U.S.C. § 552(a)(4)(A)(vi)), and that the relevant superseding fee statute was 15 U.S.C. § 1525. (See Id. ¶¶ 42-43.) Yanofsky filed the FOIA request that is the subject of the instant action in February of 2016, after he unsuccessfully sought to appeal the agency's conclusion that the FOIA's fee-setting requirements had been displaced.[2]

         2. The Administrative Appeal Of Yanofsky's February 2016 FOIA Request

         On March 30, 2016, the DOC sent Yanofsky a letter denying his February 2016 request for the I-92 and I-94 Data Files. The letter explained that all of the “records are being withheld under 5 U.S.C. § 552(a)(4)(A)(vi), which provides that FOIA fees are superseded by ‘fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.'” (See ITA's Resp. to Request (“Denial Letter”), Ex. D to Erdmann Decl., ECF No. 20-1, at 18; see also Consol. SUMF Part II ¶¶ 77-78.) According to the DOC's correspondence, “where documents otherwise responsive to a FOIA request are maintained for distribution by an agency according to a fee schedule that is assessed pursuant to a ‘superseding fee statute, ' requesters must obtain the documents from that source and pay the applicable fees designated by the agency under that statute[.]” (Denial Letter at 18 (citing OMB Fee Guidelines, 52 Fed. Reg. at 10, 012-13, 10, 017-18).)

         The DOC's denial letter to Yanofsky also specifically maintained that the relevant superseding fee statute was 15 U.S.C. § 1525. (See id.) That statute provides:

The Secretary of Commerce is authorized . . . to make special studies on matters within the authority of the Department of Commerce; to prepare from its records special compilations, lists, bulletins, or reports; . . . and to furnish transcripts or copies of its studies, compilations, and other records; upon the payment of actual or estimated cost of such special work.

15 U.S.C. § 1525. In its denial letter, the DOC explained that Section 1525 qualifies as a FOIA displacement statute under 5 U.S.C. § 552(a)(4)(A)(vi), because it specifically provides for setting the level of fees for particular types of records. (See Denial Letter at 19.) Consequently, the denial letter further rejected Yanofsky's request for a fee benefit or a fee waiver (see Consol. SUMF Part II ¶¶ 82-83), and directed him to the DOC's website, where he could “purchase the I-94 and I-92 [Data Files]” by paying the fees outlined by the agency (Denial Letter at 19). Those fees totaled $173, 775. (Consol. SUMF Part II ¶ 70.)

         On March 31, 2016, Yanofsky administratively appealed the denial of his FOIA request and his fee waiver request. (See Id. ¶¶ 85, 91; see also Mar. 31, 2016 Administrative Appeal (“Admin. Appeal”), Ex. E to Erdmann Decl., ECF No. 20-1, at 25-26.)[3] Yanofsky raised three arguments on appeal. First, he argued that a superseding fee statute must require the agency to establish fees for particular documents, and that section 1525 of Title 15 does nothing of the sort. (See Admin. Appeal at 25; see also Consol. SUMF Part II ¶ 86.) Next, Yanofsky maintained that the “FOIA's Displacement Provision does not allow an agency to withhold, wholesale, records requested under FOIA[, ]” but instead only authorizes the agency to charge fees pursuant to a superseding statute rather than FOIA. (Admin. Appeal at 26 & n.1; see also Consol. SUMF Part II 87.) He further noted that, by its own terms, section 1525 permits an agency to “charge only the actual duplication costs associated with providing copies” of existing documents. (Admin. Appeal at 26 & n.1; see also Consol. SUMF Part II ¶ 87.) Finally, Yanofsky argued that the “FOIA's Displacement Provision applies only to FOIA's fee setting requirements and does not apply to FOIA's fee waiver requirements.” (Admin. Appeal at 26 (emphasis in original); see also Consol. SUMF Part II ¶ 88.)

         The DOC acknowledged receipt of Yanofsky's administrative appeal on April 8, 2016. (See Consol. SUMF Part II ¶ 92.) But it did not issue a decision with respect to Yanofsky's appeal within twenty business days, as the FOIA requires. (See Id. ¶ 93.)

         B. Procedural History

         On May 19, 2016, Yanofsky filed the five-count complaint in the instant case, challenging the DOC's withholding of the requested records and its denial of his fee-waiver requests. (See Compl., ECF No. 1, ¶¶ 59-91 (claiming Violation of FOIA for Unlawful Withholding of Agency Records (Count I); Violation of FOIA for Failure to Grant Fee Waiver (Count II); Violation of FOIA for Improper Assessment of Fees by Improper Application of 5 U.S.C. § 552(a)(4)(A)(vi) and 15 U.S.C. § 1525 (Count III); Violation of FOIA for Failure to Grant News Media Fee Status (Count IV); and Violation of FOIA for Improper Assessment of Fees Under 15 U.S.C. § 1525 (Count V)).) Yanofsky's complaint seeks an order requiring the DOC to disclose records responsive to ...

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