trac v. department of homeland security

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SUSAN B. LONG ) Transactional Records Access Clearinghouse ) Syracuse University ) 360 Newhouse II ) Syracuse, NY 13244, ) ) and ) ) DAVID BURNHAM ) Transactional Records Access Clearinghouse ) 1100 G Street N.W., Suite 500 ) Washington, DC 20005, ) ) Plaintiffs, ) v. ) Civil Action No. _____________ ) DEPARTMENT OF HOMELAND SECURITY ) 245 Murray Lane, S.W. ) Washington, DC 20528, ) ) Defendant. ) ________________________________________________)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs, Susan B. Long and David Burnham, bring this action for declaratory and

injunctive relief, alleging as follows:

NATURE OF ACTION

1. This is an action for violation of plaintiffs’ rights under the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552, as amended by the Freedom of Information Reform Act of 1986

(“FIRA”) and the Openness Promotes Effectiveness in our National Government Act of 2007

(“OPEN Government Act”), against the Department of Homeland Security (“DHS”). This is

also an action for violation of plaintiffs’ rights under the Administrative Procedure Act (“APA”),

5 U.S.C. §§ 701-06, and the Declaratory Judgment Act, 28 U.S.C. § 2201, against DHS.

Case 1:14-cv-00807 Document 1 Filed 05/15/14 of 12

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2. DHS has denied plaintiffs’ rights, as requesters acting on behalf of an “educational

institution” and as “representatives of the news media,” not to be charged processing fees (other

than copying fees) in connection with plaintiffs’ FOIA requests to U.S. Customs and

Enforcement (“ICE”), a component of DHS, for agency records. Rather than recognizing

plaintiffs as “educational” and “news media” requesters, ICE and DHS have illegally determined

that plaintiffs should be classified as “commercial” requesters, liable for payment of search,

review and copying fees associated with their FOIA requests.

3. Under the FOIA, whenever an “educational institution” or a “representative of the

news media” requests records from a federal agency, the disclosing agency may not impose upon

the requester the costs of searching for and reviewing the records it releases, so long as the

request is not made for a commercial use. See 5 U.S.C. § 552(a)(4)(A)(ii). The agency may

charge an “educational institution” or a “representative of the news media” only for duplication

costs. Id.

4. Through this action, plaintiffs seek a judgment: (1) declaring that plaintiffs, when

submitting FOIA requests on behalf of the Transactional Records Access Clearinghouse, are

entitled to preferential status as “educational” requesters and as “representatives of the news

media” for purposes of assessing FOIA processing fees; (2) declaring that plaintiffs are not

“commercial” requester for purposes of assessing FOIA processing fees when submitting such

FOIA requests; (3) declaring that ICE’s and DHS’s contrary determinations violate the FOIA

and the APA; and (4) enjoining ICE and DHS to treat plaintiffs as “educational” requesters and

as “representatives of the news media” for existing and future requests submitted on behalf of the

Transactional Records Access Clearinghouse.


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JURISDICTION AND VENUE

5. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. §

2201, 5 U.S.C. § 552(a)(4)(B), and 5 U.S.C. § 702.

6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 and 5 U.S.C. §

552(a)(4)(B).

PARTIES

7. Plaintiff Susan B. Long is an Associate Professor of Managerial Statistics at the

Martin J. Whitman School of Management at Syracuse University. Professor Long serves as Co-

Director of the Transactional Records Access Clearinghouse (“TRAC”), a Syracuse University

data gathering, data research, and data distribution organization. TRAC was established in 1989

as a university center and has several offices including those on Syracuse University’s main

campus and in Washington, D.C. The purpose of TRAC is to provide the American people and

institutions of oversight, such as Congress, news organizations, public interest groups, businesses,

scholars, and lawyers, with comprehensive information about the staffing, spending, and

enforcement activities of the federal government.

8. Plaintiff David Burnham is Co-Director of TRAC, a long-time journalist, and an

Associate Research Professor at the S.I. Newhouse School of Public Communications at

Syracuse University.

9. Defendant DHS is a department of the executive branch of the United States

Government and includes ICE among its components. DHS is an “agency” within the meaning

of 5 U.S.C. § 552(f).


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BACKGROUND

Statutory and Regulatory Framework

10. The FOIA, as amended by the FIRA, authorizes federal agencies to charge a FOIA

requester fees sufficient to recover certain costs of processing the FOIA request. See 5 U.S.C. §

552(a)(4)(A). The FOIA further authorizes federal agencies to promulgate regulations

specifying the schedule of such processing fees and establishing guidelines for determining when

those fees should be waived or reduced. See 5 U.S.C. § 552(a)(4)(A)(i). The FOIA requires that

such regulations “shall conform” to guidelines promulgated by the Office of Management and

Budget (“OMB”), which is authorized to establish guidelines and a uniform schedule of fees for

all agencies. Id.

11. The FOIA expressly limits an agency’s authority to recover processing fees from

certain categories of requesters. In particular, the statute requires that “agency regulations shall

provide that” an “educational . . . institution” or a “representative of the news media” who

requests records from an agency for a non-commercial use may be charged only fees for record

duplication. Such a requester may not be charged fees for searching for or reviewing the records.

5 U.S.C. § 552(a)(4)(A)(ii).

12. In 1987, OMB promulgated fee guidelines pursuant to the FOIA which, according to

OMB, apply to all agencies. See 52 Fed. Reg. 10,012, 10,016 (Mar. 27, 1987).

These regulations provide that “‘educational institution’ refers to . . . an institution of graduate

higher education, [and] an institution of undergraduate higher education . . . which operates a

program or programs of scholarly research.” Id. at 10,014. The regulations define

“representative of the news media” to mean “any person actively gathering news for an entity

that is organized and operated to publish or broadcast news to the public.” Id. at 10,018.


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13. In 2003, DHS promulgated regulations purporting to govern assessment of fees for

processing FOIA requests. See 68 Fed. Reg. 4056, 4061 (Jan. 27, 2003). As relevant to this case,

the DHS regulations mirror the OMB’s government-wide guidelines. The DHS regulations, like

the OMB regulations, require federal agencies to provide records to requesters who were

“educational” requesters or “representatives of the news media” for the cost of reproduction

alone, excluding charges for the first 100 pages. 6 C.F.R. § 5.11(c); see also 52 Fed. Reg. at

10,019 (OMB regulations). In addition, DHS’s regulations define “educational institution” as

“an institution of undergraduate higher education, [and] an institution of graduate higher

education . . . that operates a program of scholarly research.” The regulations further provide

that “[t]o be in this category, a requester must show that the request is authorized by and is made

under the auspices of a qualifying institution and that the records are not sought for a commercial

use but are sought to further scholarly research.” Id., § 5.11(b)(4).

14. The DHS regulations define “[r]epresentative of the news media” to mean “any

person actively gathering news for an entity that is organized and operated to publish or

broadcast news to the public” Id., § 5.11(b)(6). The regulations further defined the term “news”

to mean “information that is about current events or that would be of current interest to the

public.” Id.

15. The DHS regulations provide that “[c]ommercial use request means a request from

or on behalf of a person who seeks information for a use or purpose that furthers his or her

commercial, trade, or profit interests . . . .” Id., § 5.11(b)(1).


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ICE’s Unlawful Refusal To Accord Educational or News Media Status to Plaintiffs

16. By letter to ICE dated November 18, 2013, plaintiffs requested disclosure of agency

records under the FOIA. Specifically, plaintiffs requested the following records:

Part A: All information [“data”] currently recorded in: (i) the Enforcement Integrated Database (EID), (ii) ICE’s Integrated Decision Support (IIDS) system, (iii) the General Counsel Electronic Management System (GEMS), and (iv) the U.S. Customs and Border Protection data repositories/data warehouses/data marts. Part B: With respect to the information systems mentioned in Part A, any information [“descriptive records”] prepared since the beginning of FY 2004 or having applicability to systems existing during this time period describing: (i) any of their contents, (ii) any changes in the coverage or scope of their contents, (iii) any of the processes, tools, instructions or methods for adding, deleting, modifying, checking, or validating their contents, (iv) whether any of their contents is currently maintained or updated, (v) the uses currently made of any of their contents, or (vi) the distribution of any of their contents to other data systems, or to individuals, offices, units, organizations, or locations whether inside and outside the agency, how and when such distributions occur or should occur and what specific contents is included in each distribution.

17. In their letter to ICE dated November 18, 2013, plaintiffs requested that they “be

classified as a representative of the news media under the provisions of the Freedom of

Information Act, and as representatives of an educational or noncommercial scientific institution,

whose purpose includes scholarly, scientific research.” In support of their request for such

classification, plaintiffs stated as follows:

TRAC is a research data center at Syracuse University, and under the direction of its co-directors, Long and Burnham, carries out an active program of scholarly research. As its name implies, TRAC as part of its educational and service mission also serves as a clearinghouse and regularly responds to inquiries from the press, scholars, public interest groups, and other members of the public on where to find government information and the specific types of information available. One of our specialties is computerized federal databases maintained by agencies to record day-by-day activities required for managing the agency and reporting on its performance to various oversight bodies. TRAC actively seeks to promote public understanding of the operation of the federal government’s immigration enforcement programs through the gathering and dissemination of this information. At TRAC, we actively gather information of interest to the public, transform this information utilizing our editorial and research expertise


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into various works -- including computerized knowledge bases and reports -- and make these works available to the public. Recent TRAC reports on immigration issues can be viewed at: http://trac.syr.edu/immigration/reports/.

Plaintiffs further noted that they had previously provided detailed information to ICE in support

of their requests for news media and educational requestor classification. They stated that “we

incorporate by reference in this request’s justification all of the details contained in the August 1,

2006 letter sent on our behalf by our attorneys at Covington & Burling, LLP. Please let us know

if you would like us to furnish an additional copy of this letter for your files.”

18. By letter to plaintiffs dated November 26, 2013, ICE acknowledged receipt of

plaintiffs’ FOIA request. With respect to the assessment of processing fees, the agency stated

that it would charge plaintiffs for fees as “non-commercial” requesters and thus would be

charged fees for search time and duplication costs.

19. By letter to ICE dated December 18, 2013, plaintiffs appealed the previous

determination made by ICE to treat plaintiffs as “non-commercial” requesters, rather than as

news media and educational requesters. In their appeal letter, plaintiffs noted that ICE, in its

letter to plaintiffs dated November 26, 2013, failed to address the specific request plaintiffs had

made to be classified as news media and educational requesters.

20. By letter to plaintiffs dated January 16, 2014, ICE responded to plaintiffs’ letter

dated December 18, 2013. In its letter, ICE informed plaintiffs that the agency determined that

plaintiffs do not qualify for categorization as news media or educational requesters. ICE further

informed plaintiffs that, contrary to its earlier determination (contained in its letter dated

November 26, 2013) that it would charge plaintiffs for fees as “non-commercial” requesters,

“ICE shall charge you for records in accordance with the DHS regulations as they apply to your


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classification as a commercial requester.” (emphasis added). ICE informed plaintiffs of their

right to seek judicial review of the agency’s adverse determination.

21. By letter to ICE dated February 24, 2014, plaintiffs attempted to resolve the issue of

their requester status without resort to litigation. In the body of their letter and in attachments

thereto, plaintiffs provided extensive information detailing their entitlement to classification as

news media and educational requesters under the FOIA. Plaintiffs further explained why they

may not properly be classified as commercial requesters. Plaintiffs noted that they had

“incorporate[d] by reference in this request’s justification all of the details contained in the

August 1, 2006 letter sent on our behalf by our attorneys at Covington & Burling, L.L.P.,” and

again placed the referenced information into the administraive record.

22. By letter to plaintiffs dated March 24, 2014, ICE reiterated its determination that

plaintiffs are classified as commercial requesters and do not qualify for classification as news

media or educational requesters. ICE informed plaintiffs that “[t]his decision is the final action

of [ICE] concerning your FOIA request” and that plaintiffs “may obtain judicial review of this

decision . . . in the United States District Court . . . in the District of Columbia.”

PLAINTIFFS’ CLAIMS FOR RELIEF

COUNT I Violations of the Freedom of Information Act (5 U.S.C. § 552)

23. Plaintiffs re-allege and incorporate the allegations set forth in paragraphs 1 - 22 as if

set forth fully herein.

24. Based on its unlawful and erroneous failure to treat plaintiffs as news media and

educational requesters, and to instead classify plaintiffs as commercial requesters, ICE and

defendant DHS have unlawfully refused to process plaintiffs’ requests for information or to


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disclose requested records unless and until plaintiffs agrees to pay all assessed fees, including

fees for record search and review.

25. Plaintiffs regularly and frequently request information from ICE under the FOIA.

ICE’s failure to treat plaintiffs as news media and educational requesters, and to instead classify

plaintiffs as commercial requesters, constitutes a continuing barrier to plaintiffs’ rights of access

to information under the FOIA.

26. Plaintiffs have exhausted all available administrative remedies with respect to their

requester status.

27. On the basis of the facts alleged above and for such further reasons as plaintiffs may

prove in this action, plaintiffs allege that they qualify as news media and educational requesters,

and may not be classified as commercial requesters under the FOIA, and that ICE and defendant

DHS violated and continue to violate the FOIA, 5 U.S.C. § 552, by assessing search and review

fees against plaintiffs.

28. Plaintiffs further allege that ICE’s refusal to process plaintiffs’ FOIA requests until

plaintiffs agree to pay search and review fees constitutes a wrongful withholding of the requested

agency records, in violation of the FOIA, 5 U.S.C. § 552.

29. To the extent ICE’s actions were or are purportedly authorized or compelled by

regulations defendant DHS promulgated pursuant to the FOIA, including but not limited to 6

C.F.R. § 5.11, such regulations are unlawful under the FOIA, and should therefore be declared to

be invalid.

COUNT II Violations of the Administrative Procedure Act (5 U.S.C. §§ 701-706)

30. Plaintiffs re-allege and incorporate the allegations set forth in paragraphs 1 - 29 as if

set forth fully herein.


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31. On the basis of facts alleged above and for such reasons as plaintiffs may prove in

this action, plaintiffs allege that ICE and defendant DHS have violated the APA, 5 U.S.C. § 706,

by adopting, interpreting, and applying the DHS regulations defining “representative of the news

media,” “educational institution” and “commercial” in a manner that is arbitrary, capricious, an

abuse of discretion, and otherwise not in accordance with law, and lacking in substantial

evidence or factual basis.

32. Among other things, ICE has unlawfully required plaintiffs to demonstrate their

entitlement to preferential fee treatment on the basis of the subject matter of particular requests,

rather than plaintiffs’ long-standing status as gatherers, publishers, and disseminators of news,

and as faculty members of an institution of undergraduate and graduate higher education that

operates a program of scholarly research. Further, ICE has applied the DHS regulations in an

arbitrary and inconsistent manner.

33. Plaintiffs further allege that ICE’s continued policy and practice of requiring

plaintiffs to demonstrate their entitlement to preferred fee status on the basis of the subject matter

of each request is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance

with law.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs pray for relief and a judgment against defendant, as follows:

(1) declaring that plaintiffs qualify as news media and educational requesters for purposes

of assessing processing fees associated with plaintiffs’ FOIA requests submitted to ICE

on behalf of TRAC;


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[email protected]

Counsel for Plaintiff


trac v. department of homeland security

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