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Case TitleLONG et al v. DEPARTMENT OF HOMELAND SECURITY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2014cv00807
Date Filed2014-05-15
Date Closed2015-08-26
JudgeJudge Christopher R. Cooper
PlaintiffSUSAN B. LONG
PlaintiffDAVID BURNHAM
Case DescriptionSusan Long and David Burnham, co-directors of the Transactional Records Access Clearinghouse at Syracuse University, submitted a FOIA request to Immigration and Customs Enforcement for electronic database records. They also asked to be given news media or educational institution status for fee purposes and included information provided to the agency as part of previous TRAC requests. The agency responded by telling TRAC that it would be considered in the non-commercial category rather than the news media or educational institution category. TRAC appealed the agency's fee status determination. The agency then responded by indicating that it had decided to classify TRAC as a commercial requester rather than a non-commercial requester. Although TRAC tried to resolve the issue without resorting to litigation, the agency said its decision was final. TRAC then filed suit.
Complaint issues: Fee Category - Media or Educational

DefendantDEPARTMENT OF HOMELAND SECURITY
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [15]
FOIA Project Annotation: No one who works with FOIA believes fees allow agencies to recover the costs of implementing their FOIA programs. But fees remain a weapon that agencies occasionally trot out primarily to instill some fiscal discipline in requesters. Sometimes agencies decide to duke it out with some repeat requester whose ability to claim preferential fee status means they are legally entitled to vastly reduced fees. The most memorable of these battles took place in 1989 when the government tried to destroy the nascent National Security Archive by denying them educational or news media fee status. That attempt on the part of the government failed big time and the D.C. Circuit interpreted the fee provisions in National Security Archive v. Dept of Defense, 880 F.2d 1381 (D.C. Cir. 1989), to include entities like the National Security Archive that used government records to issue publications on matters of public interest. As if one disaster wasn't enough, the government essentially tried the same argument in EPIC v. Dept of Defense, 241 F. Supp.2d 5 (D.D.C. 2003), with nearly identical results. Perhaps hoping that their persistence would eventually be rewarded, the government has now targeted TRAC. Although TRAC had been granted educational and media status by the Department Homeland Security in the past, one of the most frequent recipients of its requests, Immigration and Customs Enforcement, suddenly decided that TRAC was no longer entitled to educational or news media status and, instead, should be in the all others category, which provides two hours of free search and 100 pages of free duplication. As if that wasn't enough, ICE then concluded that TRAC was a commercial requester because it charged for access to certain parts of its website to defray the costs of operation. Judge Christopher Cooper didn't take long to throw out all of ICE's arguments. In a decision that chastised ICE for even thinking about such a move, Cooper found that TRAC qualified for both educational and news media fee status. Sue Long and David Burnham, co-directors of TRAC, which is located at Syracuse University, argued that TRAC "carried out an active program of scholarly research specializing in gathering and analyzing federal government data and that TRAC publishes its findings in research reports available on its website, which is hosted on Syracuse University servers." Long and Burnham pointed out that TRAC's relevant publications included some 25 immigration-related reports over the last nine years, including a recent report analyzing the effect of changes in ICE guidelines for immigrant detention. The agency noted that TRAC's website indicated that it had locations outside of Syracuse and that it received some funding from other sources. Cooper responded by observing that "nothing in the FOIA statute or its implementing regulations limits the definition of 'educational institution' to an entity with only one location or funding source. Nor does the existence of TRAC's other locations or funding sources demonstrate that TRAC's connection to Syracuse University is somehow contrived." Cooper pointed out that "plaintiffs are professors who made the request for records for use in their research at a university research center. They were therefore entitled to a presumption of educational status." Although Congress intended the fee categories to facilitate agencies' ability to catalog requesters into pertinent groups, an aside in OMB's Fee Guidance indicating that requesters that would normally be in a preferential fee category might occasionally make a request outside the parameters of their fee category has evolved into an opportunity for agencies to challenge the fee status of such a requester by questioning the subject of the request. ICE did so here, claiming that TRAC failed to show how its request for three databases furthered its educational purpose. Cooper strongly implied that ICE should not have made that argument in the first place. He noted that "while Plaintiffs perhaps could have satisfied the Department's concerns by simply providing the requested representation, the materials they submitted to ICE detailed TRAC's extensive history of analyzing records from federal databases and publishing its findings in reports on immigration enforcement. Given TRAC's established methodology and publication history, the most logical conclusion for ICE to have drawn was that Plaintiffs intended to use the requested data for similar research reports in the future. . .ICE has offered nothing to suggest that TRAC has altered its research methodology since the agency last granted it preferred requester status." Cooper found ICE's concern about TRAC's subscription services to be the most rational argument the agency made. But he pointed out that "that being said, 'Congress did not intend for scholars (or journalists and public interest groups) to forego compensation when acting within the scope of their professional roles.' Consistent with that principle, TRAC's subscription service does not disqualify it from educational requester status so long as the request is being made to further TRAC's scholarly mission and not principally to enable it to sell the raw data to third parties." Cooper then proceeded to dismantle ICE's arguments for denying TRAC news media status. ICE noted that the D.C. Circuit in National Security Archive v. Dept of Defense defined news media as using a variety of sources. Cooper observed that "incorporating information from a range of sources, however, is not essential for news media status." Next, ICE asserted that TRAC had not identified a public interest in the data. Cooper explained that "the agency cites no case, statute, or regulation to support its skepticism regarding the public's interest in reports based on the requested records. The Court has little difficulty concluding that information about enforcement of our immigration laws would be of interest to the public." ICE contended that TRAC had not shown how it would disseminate the raw data to the public. Cooper pointed out that TRAC 'has published immigration reports and bulletins accessed by millions of people, and Plaintiffs stated to the agency that it will continue to do so in the future. Here again, Plaintiffs might have avoided unnecessary litigation by explaining how they intended to use the requested records. But they were not required to do so. TRAC's past activities amply demonstrated its ability to transform the requested data into a distinct work and distribute it to the public." Finally, ICE argued that TRAC's reports were devoid of editorial skill, but simply summarized government data. Cooper explained that "the Department cites no support for ICE's refusal to grant preferred status based on its subjective assessment of TRAC's editorial skill." He added that "Plaintiffs' uncontested representations that they intend and have the ability to disseminate new research to the public were sufficient to meet the definition of representatives of the news media." TRAC had requested a declaratory judgment establishing that TRAC was entitled to educational or news media status for all future requests, noting that it frequently requested records from ICE and would continue to do so in the future. Cooper declined to provide the requested relief. He pointed out that "agencies must make an independent fee status determination for each request and, as Plaintiffs acknowledge, ICE has granted TRAC preferred status in the past. Plaintiffs therefore have not shown that ICE has violated FOIA by systematically rejecting their fee classification requests. While ICE may have erroneously denied TRAC's request in this case, TRAC could alter its research activities in the future or request information that is inconsistent with its scholarly or journalistic interests. Absent evidence of either development, the Court is confident that ICE will assess future TRAC requests in accordance with the reasoning set forth in this opinion."
Issues: Fee Category - Media or Educational
User-contributed Documents
 Declaration in support of DHS motion for summary judgment
Declaration in support of Plaintiffs' SJ Motion
DHS Opposition and Reply to Plaintiff's SJ Motion
Motion to Dismiss or for Summary Judgment
Plaintiffs' Memorandum in Opposition and Summary Judgment Motio
Plaintiffs' Memorandum in Opposition and Summary Judgment Motio
Plaintiffs' Reply Memorandum in support of SJ Motion
Docket Events (Hide)
Date FiledDoc #Docket Text

2014-05-151COMPLAINT against DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 0090-3716422) filed by SUSAN B. LONG, DAVID BURNHAM. (Attachments: # 1 Civil Cover Sheet)(Sobel, David) (Entered: 05/15/2014)
2014-05-152NOTICE of Summonses to be Issued (3) by DAVID BURNHAM, SUSAN B. LONG (Attachments: # 1 Summons to USAO, # 2 Summons to AG)(Sobel, David) (Entered: 05/15/2014)
2014-05-153SUMMONS Issued (3) Electronically as to DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Summons, # 2 Summons, # 3 Consent Form, # 4 Notice of Consent)(kb, ) (Entered: 05/15/2014)
2014-05-15Case Assigned to Judge Christopher R. Cooper. (kb, ) (Entered: 05/15/2014)
2014-06-184Consent MOTION for Extension of Time to Move, Answer or Otherwise Respond to Plaintiff's Complaint by DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 06/18/2014)
2014-06-18MINUTE ORDER granting 4 Defendant's Consent Motion for Extension of Time. Defendant shall have up to and including July 19, 2014, to file a response in this matter. Signed by Judge Christopher R. Cooper on 6/18/14. (lccrc2, ) (Entered: 06/18/2014)
2014-07-215ANSWER to Complaint by DEPARTMENT OF HOMELAND SECURITY.(Borum, Marian) (Entered: 07/21/2014)
2014-07-22MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. As the requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure do not apply, it is hereby ORDERED that the parties shall confer and file a joint proposed schedule for briefing or disclosure by Tuesday, August 5, 2014. Signed by Judge Christopher R. Cooper on 7/22/2014. (lccrc2, ) (Entered: 07/22/2014)
2014-07-236PARTIES JOINT PROPOSED BRIEFING SCHEDULING by DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) Modified on 7/23/2014 to correct docket text (ztcr). (Entered: 07/23/2014)
2014-07-23MINUTE ORDER: Upon consideration of the parties' 6 Joint Proposed Briefing Schedule, it is hereby ORDERED that the parties shall abide by the following deadlines: Defendant's motion for summary judgment will be due on or before September 5, 2014; Plaintiffs' cross-motion for summary judgment and opposition will be due on or before October 6, 2014; Defendant's opposition and reply will be due on or before October 27, 2014; and Plaintiffs' reply will be due on or before November 10, 2014. Signed by Judge Christopher R. Cooper on 7/23/2014. (lccrc2, ) (Entered: 07/23/2014)
2014-09-057MOTION to Dismiss or, in the Alternative , MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Declaration)(Borum, Marian) (Entered: 09/05/2014)
2014-09-098NOTICE of Change of Address by David L. Sobel (Sobel, David) (Entered: 09/09/2014)
2014-10-069Memorandum in opposition to re 7 MOTION to Dismiss or, in the Alternative MOTION for Summary Judgment filed by DAVID BURNHAM, SUSAN B. LONG. (Attachments: # 1 Statement of Facts (Response), # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Declaration of Susan B. Long, # 19 Text of Proposed Order)(Sobel, David) (Entered: 10/06/2014)
2014-10-0610Cross MOTION for Summary Judgment by DAVID BURNHAM, SUSAN B. LONG (Attachments: # 1 Statement of Facts, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Declaration of Susan B. Long, # 19 Text of Proposed Order)(Sobel, David) (Entered: 10/06/2014)
2014-10-2711Memorandum in opposition to re 10 Cross MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 10/27/2014)
2014-10-2712REPLY to opposition to motion re 7 Cross MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) Modified linkage on 10/28/2014 (td, ). (Entered: 10/27/2014)
2014-11-1013REPLY to opposition to motion re 10 Cross MOTION for Summary Judgment filed by DAVID BURNHAM, SUSAN B. LONG. (Sobel, David) (Entered: 11/10/2014)
2015-04-23MINUTE ORDER: In light of the August 2006 correspondence contained at Ex. O of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment [ECF No. 9-16], Plaintiffs are directed to notify the Court by April 27, 2015 if the law firm Covington & Burling, with which the Court was associated from January 2012 to March 2014, represented or otherwise advised Plaintiffs concerning this matter during that time period. See 28 U.S.C. § 455(b)(2). Signed by Judge Christopher R. Cooper on 4/23/2015. (lccrc3, ) (Entered: 04/23/2015)
2015-04-2314NOTICE - Response to Court's Minute Order of April 23, 2015 by DAVID BURNHAM, SUSAN B. LONG (Sobel, David) Modified text on 4/24/2015 (td, ). (Entered: 04/23/2015)
2015-05-06MINUTE ORDER:The parties shall appear on Wednesday, May 27, 2015at 10:00 AM in Courtroom 27A before Judge Christopher R. Cooper for a hearing on the pending motions. Signed by Judge Christopher R. Cooper on 5/6/2015. (tcr) (Entered: 05/06/2015)
2015-05-27Minute Entry for proceedings held before Judge Christopher R. Cooper: Motion Hearing held on 5/27/2015 re Plaintiffs' 10 Cross MOTION for Summary Judgment and Defendant's 7 MOTION to Dismiss or, in the Alternative MOTION for Summary Judgment; Argument heard and this matter is taken under advisement (Court Reporter Lisa Moreira) (tcr) (Entered: 05/27/2015)
2015-06-2915MEMORANDUM AND OPINION re: 7 Motion to Dismiss and, in the Alternative, for Summary Judgment; and 9 Cross-Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 6/29/2015. (lccrc3, ) (Entered: 06/29/2015)
2015-06-2916ORDER GRANTING in part 7 Motion to Dismiss; DENYING 7 Motion for Summary Judgment; and GRANTING in part and denying in part 10 Motion for Summary Judgment. Plaintiffs shall have until July 29, 2015 to petition the Court for an award of attorneys' fees as provided by 5 U.S.C. § 552(a)(4)(E). Signed by Judge Christopher R. Cooper on 6/29/2015. (lccrc3, ) (Entered: 06/29/2015)
2015-07-1717Consent MOTION for Extension of Time to Petition for an Award of Attorney's Fees and Costs by DAVID BURNHAM, SUSAN B. LONG (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 07/17/2015)
2015-07-20MINUTE ORDER granting 17 Consent MOTION for Extension of Time to Petition for an Award of Attorney's Fees and Costs; and that plaintiffs shall have until August 20, 2015, in which to petition the Court for an award of attorneys fees and costs. Signed by Judge Christopher R. Cooper on 7/20/2015. (tcr) (Entered: 07/20/2015)
2015-08-1418TRANSCRIPT OF MOTION HEARING before Judge Christopher R. Cooper held on May 27, 2015; Page Numbers: 1-41. Date of Issuance:August 14, 2015. Court Reporter/Transcriber Lisa A. Moreira, RDR, CRR, Telephone number 202-354-3187, Court Reporter Email Address : Lisa_Moreira@dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 9/4/2015. Redacted Transcript Deadline set for 9/14/2015. Release of Transcript Restriction set for 11/12/2015.(Moreira, Lisa) (Entered: 08/14/2015)
2015-08-1819NOTICE of Settlement in Principle by DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 08/18/2015)
2015-08-2520STIPULATION of Dismissal and Settlement by DAVID BURNHAM, SUSAN B. LONG. (Sobel, David) (Entered: 08/25/2015)
2015-08-2621Order of Dismissal. Signed by Judge Christopher R. Cooper on 08/26/2015. (lccrc3, ) (Entered: 08/26/2015)
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by FOIA Project Staff