Yanofsky v. Department of Commerce

Cross MOTION for Summary Judgment

D.D.C.October 31, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID YANOFSKY, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant. Civil Action No. 1:16-cv-00951 (KBJ) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7, and in accordance with the Scheduling Order entered by this Court on September 2, 2016, David Yanofsky (“Yanofsky” or “Plaintiff”) respectfully moves the Court for summary judgment in his favor and against the United States Department of Commerce (the “DOC” or “Defendant”) as to (1) the DOC’s refusal to grant Plaintiff’s request for a fee benefit and fee waiver in connection with his February 26, 2016 Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, request and (2) the DOC’s improper withholding of records responsive to that request from Plaintiff. In support of this Motion for Summary Judgment (“Motion”) and in Opposition to Defendants’ Motion for Summary Judgment, Plaintiff submits the following: (1) Memorandum of Law; (2) Statement of Material Facts as to Which There Is No Genuine Issue and Response to Defendant’s Statement of Material Facts; and (3) Declaration of David Yanofsky. This Motion is based on the foregoing concurrently filed documents, all pleadings, records, and files in the above-captioned case, and on such argument as may be presented by counsel at any hearing on this Motion. Case 1:16-cv-00951-KBJ Document 21 Filed 10/31/16 Page 1 of 2 2 Plaintiff respectfully requests an oral hearing on his Motion pursuant to Local Rules 7(f) and 78.1 at a date and time that is convenient for the Court. Dated: October 31, 2016 Respectfully submitted, /s/ Katie Townsend Katie Townsend DC Bar No. 1026155 Bruce D. Brown DC Bar No. 457317 Adam A. Marshall DC Bar No. 1029423 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15th St. NW, Suite 1250 Washington, DC 20005 Phone: 202.795.9300 Facsimile: 202.795.9310 Email: ktownsend@rcfp.org Email: bbrown@rcfp.org Email: amarshall@rcfp.org Counsel for Plaintiff Case 1:16-cv-00951-KBJ Document 21 Filed 10/31/16 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID YANOFSKY, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant. Civil Action No. 1:16-cv-00951 (KBJ) MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 1 of 34 i TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................................... i INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 4 LEGAL STANDARDS .................................................................................................................. 8 ARGUMENT .................................................................................................................................. 8 I. FOIA contains specific fee provisions designed to facilitate access to agency records for requestors like Plaintiff; Plaintiff clearly meets the statutory requirements for both a fee benefit and a fee waiver under FOIA. ................................................................................. 8 II. Because the DOC has abandoned the only argument it made at the administrative stage for denying Plaintiff’s request for a fee waiver, Plaintiff is entitled to summary judgment in his favor as to that dispositive issue. ............................................................................. 12 III. Even if the Court goes beyond the administrative record, Plaintiff is still entitled to summary judgment in his favor because there is no applicable superseding fee statute; FOIA’s Displacement Provision does not apply here. ...................................................... 14 A. A superseding fee statute must “specifically provid[e] for setting the level of fees” for “particular types of records” and must require, not merely permit, the agency to collect fees. ............................................................................................................................... 14 B. No superseding fee statute applies to the records at issue here. ................................... 16 IV. Even if FOIA’s Displacement Provision did apply—which it does not—Plaintiff would still be entitled to summary judgment in his favor because the Displacement Provision does not affect FOIA’s fee waiver provision. ............................................................... 21 V. The DOC’s position undermines Congress’s intent and the purpose of the Act. ............. 24 CONCLUSION ............................................................................................................................. 29 Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 2 of 34 i TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 8 Bensman v. Nat’l Park Serv., 806 F. Supp. 2d 31 (D.D.C. 2011) ................................................ 12 Campbell v. United States Dep’t of Justice, 164 F.3d 20 (D.C. Cir. 1998) .................................. 11 Carney v. United States Dep’t of Justice, 19 F.3d 807 (2d Cir. 1994) ......................................... 11 Cause of Action v. Fed. Trade Comm’n, 799 F.3d 1108 (D.C. Cir. 2015) ................................... 11 *Envtl. Prot. Info. Ctr. v. United States Forest Serv., 432 F.3d 945 (9th Cir. 2005) ....... 15, 16, 20 EPA v. Mink, 410 U.S. 73 (1973) ............................................................................................. 8, 28 Friends of Coast Fork v. United States Dep’t of Interior, 110 F.3d 53 (9th Cir. 1997) ............... 13 Hayden v. United States Dep’t of Justice, 413 F. Supp. 1285 (D.D.C. 1976) .............................. 28 In Defense of Animals v. Nat’l Inst. of Health, 543 F. Supp. 2d 83 (D.D.C. 2008) ........................ 8 Judicial Watch, Inc. v. General Servs. Admin., No. Civ. A. 98-2223(RMU), 2000 WL 35538030 (D.D.C. Sept. 25, 2000) ...................................................................................................... 10, 12 Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) .............................................. 8, 9 N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57 (D.D.C. 2010) ............................... 8 Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) ................................................ 3 Nat’l Right to Work Legal Defense and Educ. Found., Inc. v. United States Dep’t of Labor, 828 F. Supp. 2d. 183 (D.D.C. 2011) ......................................................................................... 13 *Oglesby v. United States Dep’t of Army, 79 F.3d 1172 (D.C. Cir. 1996) ............................ passim Perkins v. United States Dep’t of Veterans Affairs, 754 F. Supp. 2d 1 (D.D.C. 2010) ................ 13 Pharm. Research & Mfrs. of America v. United States Dep’t of Health and Human Servs., 43 F. Supp. 3d 28 (D.D.C. 2014) ................................................................................................ 6 Pub. Employees for Envtl. Responsibility v. United States Dep’t of Commerce, 968 F. Supp. 2d 88 (D.D.C. 2013) ........................................................................................ 2, 12 SDC Development Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976) ................................... 26, 27 Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 3 of 34 ii St. Hilaire v. Dep’t of Justice, Office of Special Investigations, Civil Action No. 91-0078-LFO, 1991 WL 190089 (D.D.C. Sept. 10, 1991) ............................................................................... 21 United States Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989) ................................................................................................................ 3, 9 Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) ................................................................................. 28 Statutes 15 U.S.C. § 1525 ................................................................................................................... 5, 6, 16 22 U.S.C. § 2455 ........................................................................................................... 7, 18, 19, 20 22 U.S.C. § 2458 ....................................................................................................................... 7, 19 31 U.S.C. § 9701 ..................................................................................................................... 16, 17 44 U.S.C. § 1708 (1982) ......................................................................................................... 15, 18 *5 U.S.C. § 552 ...................................................................................................................... passim 7 U.S.C. § 1387 ............................................................................................................................. 15 Pub. L. 99-570............................................................................................................................... 23 Pub. L. No. 114–113, 129 Stat. 2286–7 (2015) .................................................................... 2, 7, 17 Pub. L. No. 93-502 ........................................................................................................................ 23 Rules 15 C.F.R. § 4.11 ..................................................................................................................... passim *5 C.F.R § 1303.30 ........................................................................................................... 15, 16, 20 Fed. R. Civ. P. 56 ............................................................................................................................ 8 Fed. R. Evid. 201 ............................................................................................................................ 6 Other Authorities *132 Cong. Rec. Part 19 (1986) .............................................................................................. 23, 24 *132 Cong. Rec. Part 20 (1986) ............................................................................................. passim 52 Fed. Reg. 10012 (1987) ........................................................................................................... 15 81 Fed. Reg. 39895 ....................................................................................................................... 19 Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 4 of 34 iii H.R. Rep. No. 99-560 (1986) ............................................................................................ 25, 26, 27 Justin Antonipillai, Dep’t of Commerce, Remarks at SHIFT Conference, San Francisco, August 30, 2016 in Medium, available at https://perma.cc/4CHP-T6SG?type=image .......................... 28 Michael Russo, Are Bloggers Representatives of the News Media Under the Freedom of Information Act?, 40 Colum. J.L. & Soc. Probs. 225 (Winter 2006) ......................................... 9 Office of Mgmt. & Budget Circular A-25, available at https://www.whitehouse.gov/omb/circulars_a025 .................................................................... 19 United States Census Bureau, Data, http://www.census.gov/data.html (last visited Oct. 31, 2016) ........................................................................................................ 27 United States Dep’t of Homeland Security, Yearbook of Immigration Statistics, https://www.dhs.gov/yearbook-immigration-statistics (last visited Oct. 31, 2016) ................. 27 United States Dep’t of Labor, Bureau of Labor Statistics, Overview of BLS Statistics on Employment, http://www.bls.gov/bls/employment.htm (last visited Oct. 31, 2016) ................ 27 Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 5 of 34 1 INTRODUCTION This case concerns the applicability of the fee provisions of the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA” or the “Act”) to certain records of the Department of Commerce (“DOC”). David Yanofsky (“Plaintiff”), a journalist and reporter for the digital publication Quartz, submitted a FOIA request to the DOC seeking copies of certain DOC data files concerning foreign travel to and from the United States. Despite conceding that the requested data files are agency records subject to FOIA, the DOC has refused to grant Plaintiff’s request for a public interest fee waiver or to acknowledge his entitlement to a fee benefit as a representative of the news media, as required by the Act. Instead, the DOC argues that it may withhold the records requested by Plaintiff unless and until he pays what the DOC refers to as “applicable fees,” see Mem. of Law In Support Of Def.’s Mot. for Summ. J. (“DOC Mem.”), ECF No. 20, at 3, totaling $173,775.00—an amount, notably, omitted from the DOC’s brief. Nothing in the Act, however, nor in any other statute, authorizes the DOC to disregard FOIA’s specific provisions entitling Plaintiff to a fee benefit and a fee waiver, or to charge Plaintiff whatever amount of “fees” it chooses before it complies with his FOIA request. As set forth herein, Plaintiff is entitled to summary judgment in his favor for three separate reasons. First, in reviewing an agency’s denial of a public interest fee waiver, courts are limited to the administrative record. 5 U.S.C. § 552(a)(4)(A)(vii). Prior to this litigation, in an attempt to justify its refusal to comply with the Act’s requirement that it waive any fees in response to Plaintiff’s FOIA request, see id. § 552(a)(4)(A)(iii), the DOC asserted baseless legal arguments that it has since conceded have no merit. Dispositive for purposes of this case, the DOC has expressly abandoned the only argument it raised at the administrative stage for denying Plaintiff’s request for a fee waiver under FOIA. Thus, because the Court, in evaluating the Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 6 of 34 2 propriety of that denial, may “consider only the arguments and justifications of the parties that appear in the administrative record,” Pub. Employees for Envtl. Responsibility v. United States Dep’t of Commerce, 968 F. Supp. 2d 88, 99 (D.D.C. 2013) (“PEER”) (emphasis added), it may not consider the new (and only) justification offered by the DOC in its motion for summary judgment that the Consolidated and Further Continuing Appropriations Act, 2016, Pub. L. No. 114–113, 129 Stat. 2286–7 (2015) purportedly justifies its denial of Plaintiff’s request for a fee waiver—an argument that appeared for the first time in the DOC’s Answer. Id. (stating that the Court, in evaluating the propriety of an agency’s denial of a request for a fee waiver, “may not consider any arguments that appear for the first time in pleadings”). In short, there is no dispute that Plaintiff is entitled to a fee waiver here because the DOC has abandoned the only argument to the contrary that appears in the administrative record before the Court. Summary judgment should be granted in Plaintiff’s favor for that reason alone. Second, even if this Court were to reach the DOC’s newfound argument that a general provision in a routine budget bill that makes no mention of FOIA, whatsoever, displaces FOIA’s fee provisions with respect to the records at issue, Plaintiff would still be entitled to summary judgment in his favor. The DOC’s latest argument is just as meritless as its earlier, abandoned one. Congress has placed strict limits on what types of statutes may displace the normal fee schedules—i.e. the types and amounts of fees—applicable to FOIA requests. See 5 U.S.C. § 552(a)(4)(A)(vi). If a statute does not meet those requirements, it does not displace any of FOIA’s generally applicable fee schedules. Here, there is simply no applicable statute that meets those requirements and, accordingly, FOIA’s generally applicable fee schedules, as well as both its fee waiver and fee benefit provisions, apply to Plaintiff’s FOIA request. Because there is no statute that permits the DOC to demand that Plaintiff, a member of the news media who is Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 7 of 34 3 entitled to a fee benefit under FOIA, see 5 U.S.C. § 552(a)(4)(A)(ii), pay tens or hundreds of thousands of dollars in “fees” before his FOIA request is processed, summary judgment should be granted in Plaintiff’s favor. Third, and finally, even if there were a superseding fee statute applicable to the records at issue here—which there is not—it would not affect Plaintiff’s statutory entitlement to a public interest fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii). Regardless of whether FOIA’s fee schedules are displaced by a superseding fee statute, FOIA’s fee waiver provision continues to apply, and does precisely what it states: it requires an agency to furnish records “without any charge,” id., in response to requests, like Plaintiff’s, that serve the underlying purpose of the Act, which is “to open agency action to the light of public scrutiny.” United States Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 772–73 (1989) (“Reporters Committee”) (quotations omitted). Because Plaintiff is entitled to a waiver of any and all fees under 5 U.S.C. § 552(a)(4)(A)(iii) regardless of whether or not there is a superseding fee statute that applies, Plaintiff is entitled to summary judgment in his favor. While the DOC accuses Plaintiff of attempting to “circumvent” supposedly “applicable fees,” see DOC Mem., ECF No. 20, at 3, in fact, it is the DOC that is attempting to circumvent FOIA. By arguing that it may require Plaintiff to purchase agency records for an extraordinary amount far in excess of what FOIA permits, the DOC threatens to undermine the Act—a statute that is a “structural necessity in a real democracy.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004). This Court should reject the DOC’s erroneous contention that an agency may place records subject to FOIA out of the practical reach of the press and public by charging exorbitant fees not authorized by the Act. For all the reasons set forth herein, this Court should deny the DOC’s motion and enter summary judgment in favor of Plaintiff. Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 8 of 34 4 BACKGROUND On March 10, 2015, in connection with his reporting for Quartz, Plaintiff sent a FOIA request to the DOC seeking access to and copies of data files related to two programs administered by the DOC, the I-94 and I-92 Programs, that concern foreign travel to and from the United States (the “Prior Request”). Pl.’s Combined Statement of Material Facts as to which there is no Genuine Issue and Resp. to Def.’s Statement of Material Facts (hereinafter “SMF”) ¶¶ 27-30. Specifically, the Prior Request sought access to and copies of the “Air Arrivals I-94 Annual Datafile” and the “U.S. International Air Travel Statistics Report (APIS/I-92) Data Files,” as well as their associated technical documentation (the “I-94 Data File” and the “I-92 Data File”), for four calendar years: 2014, 2013, 2012, and 2011. Id. ¶ 28. Plaintiff requested a fee benefit as a representative of the news media pursuant to 5 U.S.C. § 552(a)(4)(A)(ii), as well as a public interest fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). Id. ¶ 30. The DOC denied the Prior Request. Id. ¶ 31. It asserted that the I-94 Data Files were not agency records subject to FOIA and, as to the I-92 Data Files, stated that “records which are published and offered for sale are excluded from the definition of subsection 5 U.S.C. § 552(a)(2) records and need not be proactively disclosed even if doing so would otherwise be required.” Id. ¶¶ 32–33. Plaintiff administratively appealed the denial of his Prior Request. Id. ¶ 35. In response, the DOC changed its rationale for denying Plaintiff’s Prior Request. Id. ¶¶ 41-43. Conceding that the data files were, in fact, agency records subject to FOIA, the DOC stated that the administrative appeal was instead being denied on an “alternative basis”: that the requested records fell within 5 U.S.C. § 552(a)(4)(A)(vi) (FOIA’s “Displacement Provision”), id. ¶¶ 40-42, which states: “Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.” In denying Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 9 of 34 5 Plaintiff’s administrative appeal, the DOC stated that 15 U.S.C. § 1525 (the “Special Works Statute”) was “[t]he relevant superseding fee statute in this case[.]” Id. ¶ 43. The DOC informed Plaintiff that he should contact the National Travel and Tourism Office (“NTTO”), an office of the DOC, if he was interested in purchasing the data files. Id. ¶ 44. On December 14, 2015, Plaintiff’s counsel sent a letter to the DOC challenging its assertions, raised for the first time in its denial of Plaintiff’s administrative appeal, that the Special Works Statute was a superseding fee statute and that the Displacement Provision permitted the DOC to withhold the requested records. Id. ¶¶ 46–51. On December 28, 2015, the DOC responded that “[t]he fact that [Plaintiff’s] appeal was denied under a basis different than that asserted by ITA does not confer upon him any entitlement to a new appeal” and that its previous denial of Plaintiff’s administrative appeal was the DOC’s “final administrative action on the matter.” Id. ¶ 53. On February 26, 2016, Plaintiff sent a new FOIA request to the DOC seeking access to and copies of the I-94 Data File and I-92 Data File for five calendar years: 2015, 2014, 2013, 2012 and 2011 (the “Request”). Id. ¶ 54, 58. Plaintiff requested that the records be provided in electronic format and, again, requested both a fee benefit as a representative of the news media under 5 U.S.C. § 552(a)(4)(A)(ii) and a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii). Id. ¶¶ 59, 60–66. The Request attached all of the correspondence between Plaintiff and the DOC regarding the Prior Request. Id. ¶ 55. Among other things, the Request stated that, based on the DOC’s response to his Prior Request, Plaintiff understood the DOC’s position to be that he was not entitled to either a fee benefit or a fee waiver under FOIA and, to the extent he wanted access to the I-92 and I-94 Data Files, would have to purchase them from the DOC for $173,775.00, an Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 10 of 34 6 amount that was reflected on the DOC’s websites.1 Id. ¶¶ 67–70. The Request restated the reasons why Plaintiff was entitled to both a fee benefit and a fee waiver under FOIA and incorporated by reference Plaintiff’s counsel December 14, 2015 letter to the DOC. Id. ¶¶ 56– 57, 60–66. On March 30, 2016, the DOC sent Plaintiff a letter denying the Request (the “Denial Letter”).2 Id. ¶ 76. The Denial Letter stated that the I-92 and I-94 Data Files were being withheld under the Displacement Provision, and that the Special Works Statute, 15 U.S.C. § 1525, was the “[t]he relevant superseding fee statute in this case.” Id. ¶ 77–79. The Denial Letter did not provide any other basis for denying Plaintiff’s Request. See id. The Denial Letter included a link to a DOC website “explaining how to purchase the I-94 and I-92 [Data Files] and outlining the required fees” and enclosed an order form that it said Plaintiff could use to purchase the records. Id. ¶¶ 79–81. The DOC did not grant Plaintiff’s request for a fee waiver, stating: “As for your request for a fee waiver, there are no fees to charge in processing this request.” Id. ¶¶ 83–84. On March 31, 2016, Plaintiff administratively appealed the denial of his Request (the “Administrative Appeal”). Id. ¶ 85. The Administrative Appeal stated the following three reasons why the Special Works Statute and Displacement Provision did not authorize the DOC to withhold the I-94 and I-92 Data Files. First, the Special Works Statute is not a superseding fee 1 Plaintiff requests that the Court take judicial notice pursuant to Fed. R. Evid. 201 of the DOC websites listing the DOC’s stated prices for the I-92 and I-94 Data Files for 2015, 2014, 2013, 2012, and 2011. See Pharm. Research & Mfrs. of America v. United States Dep’t of Health and Human Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014) (taking judicial notice of a Food and Drug Administration website and noting that “[c]ourts in this jurisdiction have frequently taken judicial notice of information posted on official public websites of government agencies”). True and correct copies of these websites are attached as Ex. A to the Yanofsky Decl. 2 The DOC did not respond to the Request within twenty business days, as required by FOIA. See 5 U.S.C. § 552(a)(6)(A)(i); SMF ¶ 71. On March 28, 2016, Plaintiff administratively appealed from the DOC’s constructive denial of his Request. SMF ¶ 72. In response, the DOC stated that it had not received the Request. Id. ¶ 75. The next day, March 30, 2016, the DOC denied the Request. Id. ¶ 76. Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 11 of 34 7 statute for purposes of FOIA’s Displacement Provision. Id. ¶ 86. Second, even assuming, arguendo, that the Special Works Statute is a superseding fee statute, the Displacement Provision does not permit an agency to withhold records. Id. ¶ 87. And in any event, third, the Displacement Provision would apply only to FOIA’s fee setting requirements; it does not affect the Act’s fee waiver provision. Id. ¶ 88. Finally, the Administrative Appeal again set forth the reasons why Plaintiff is entitled to a fee waiver under FOIA. Id. ¶ 89. On April 8, 2016, Plaintiff received an email from the DOC confirming receipt of his Administrative Appeal on March 31, 2016. Id. ¶ 92. The DOC did not respond to the Administrative Appeal. Id. ¶ 93–94. On May 19, 2016, Plaintiff initiated this lawsuit against the DOC challenging its unlawful withholding of agency records, its failure to grant Plaintiff a fee waiver or fee benefit as required by FOIA, and its improper assessment of fees under the Act. See SMF ¶ 95; Compl., ECF No. 1. In its Answer, filed on July 16, 2016, the DOC expressly abandoned its argument that the Special Works Statute is a superseding fee statute that authorizes it to withhold the records requested by Plaintiff under FOIA’s Displacement Provision. See SMF ¶ 97; Def.’s Answer and Affirmative Defenses (“Answer”), ECF No. 14, at ¶¶ 29, 53 (stating that the Special Works Statute had been “cited in error”). Instead, the DOC took the position that the Consolidated and Further Continuing Appropriations Act, 2016, Pub. L. No. 114–113, 129 Stat. 2286–7 (2015) (the “Appropriations Act”) was “the superseding fee statute applicable to the February 2016 Request.” SMF ¶ 98; Answer ¶ 53. The portion of the Appropriations Act relied upon by the DOC also cites two provisions of the Mutual Educational and Cultural Exchange Act of 1961 (the “MECEA”), 22 U.S.C. §§ 2455(f) and 2458(c), which the DOC argues authorizes it to charge “fees for reports and data offered for sale under the I-92 and I-94 Programs.” See DOC Mem., ECF No. 20, at 4. Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 12 of 34 8 LEGAL STANDARDS FOIA was enacted to “permit access to official information long shielded unnecessarily from public view.” EPA v. Mink, 410 U.S. 73, 80 (1973) (superseded by statute on other grounds). “Intended to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed,” the Act “requires federal agencies to disclose information upon request . . . .” Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003) (“Rossotti”) (internal citations and quotation marks omitted). “FOIA cases are typically and appropriately decided on motions for summary judgment.” In Defense of Animals v. Nat’l Inst. of Health, 543 F. Supp. 2d 83, 93 (D.D.C. 2008). Generally, summary judgment should be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In assessing cross-motions for summary judgment, “[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). In any FOIA action “by a requester regarding the waiver of fees” the Court “shall determine the matter de novo[,]” provided, however, “[t]hat the court’s review of the matter shall be limited to the record before the agency.” 5 U.S.C. § 552(a)(4)(A)(vii). ARGUMENT I. FOIA contains specific fee provisions designed to facilitate access to agency records for requestors like Plaintiff; Plaintiff clearly meets the statutory requirements for both a fee benefit and a fee waiver under FOIA. FOIA contains detailed provisions governing the fees that agencies may charge to cover the cost of processing a FOIA request. First, FOIA places requestors in one of three categories: Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 13 of 34 9 (1) requesters seeking records for commercial use, who may be charged for the costs of searching for, reviewing, and duplicating documents; (2) requesters seeking records for noncommercial use, who may be charged for search and duplication costs, not including the first two hours of search time or the first one hundred pages of duplication; and (3) representatives of the news media and other specified entities seeking records for noncommercial use. See 5 U.S.C. §§ 552(a)(4)(A)(ii)(I)–(III), 552(a)(4)(A)(iv)(II). Pursuant to the Act, the third category of requestors—which includes “representatives of the news media,” like Plaintiff—are entitled to a fee benefit and may be charged only for duplication costs, not including the first one hundred pages of duplication. Id. § 552(a)(4)(A)(ii)(II), (a)(4)(A)(iv)(II). In addition, FOIA contains a fee waiver provision requiring that records “shall be furnished without any charge . . . if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” Id. § 552(a)(4)(A)(iii) (emphasis added). Both FOIA’s fee benefit and fee waiver provisions facilitate the purpose of the Act, which aims “to open agency action to the light of public scrutiny.” Reporters Committee, 489 U.S. at 772–73 (quotations omitted). By requiring that fees be reduced or waived when a journalist seeks records in order to inform the public about government activities, FOIA’s fee provisions encourage reporters like Plaintiff to use FOIA as a means of “ensur[ing] an informed citizenry.” Rossotti, 326 F.3d at 1309 (internal quotations omitted); see also Michael Russo, Are Bloggers Representatives of the News Media Under the Freedom of Information Act?, 40 Colum. J.L. & Soc. Probs. 225, 228 (Winter 2006) (“[B]y favoring journalists, with their professional skills and broad distribution networks, FOIA subsidizes those requests most likely to inform the public.”). “This is precisely the type of open and accountable government Congress meant to Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 14 of 34 10 encourage by enacting FOIA, particularly its public interest fee-waiver provision.” Judicial Watch, Inc. v. General Servs. Admin., No. Civ. A. 98-2223(RMU), 2000 WL 35538030 at *11 (D.D.C. Sept. 25, 2000). The Request at issue here directly serves the core purpose of the Act and falls squarely within FOIA’s fee benefit and fee waiver provisions. Indeed, when those fee provisions are properly applied, it is clear that Plaintiff meets the statutory requirements entitling him to both a fee benefit as a representative of the news media and a public interest fee waiver. First, the administrative record establishes that Plaintiff, a journalist who seeks the requested records for use in his reporting, is entitled to a fee benefit. See 5 U.S.C. § 552(a)(4)(A)(ii)(II). The Request states, inter alia, that Plaintiff is a journalist for Quartz, that he intends to use the requested records to gather information of potential interest to the public—namely, information about the operations of the DOC and other government agencies and about travel and tourism in the United States—that he will use his editorial skills to turn the requested records into a distinct work, and that he intends to distribute that work to the readers of Quartz. SMF ¶ 61. In addition, because the Request specifies that it is made to support Plaintiff’s reporting, see id., Plaintiff has demonstrated that the records are not being sought for a “commercial use.” See 15 C.F.R. § 4.11(b)(6) (“A request for records that supports the news-dissemination function of the requester shall not be considered to be for a commercial use.”). Accordingly, FOIA permits the DOC to charge Plaintiff only duplication costs, not including the first one hundred pages of duplication. 5 U.S.C. §§ 552(a)(4)(A)(ii)(II), 552(a)(4)(A)(iv)(II). The administrative record also demonstrates that Plaintiff is entitled to a public interest fee waiver. See 5 U.S.C. § 552(a)(4)(A)(iii). A request for a fee waiver must satisfy three criteria. “Disclosure of the requested information must: (1) shed light on ‘the operations or Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 15 of 34 11 activities of the government’; (2) be ‘likely to contribute significantly to public understanding’ of those operations or activities; and (3) not be ‘primarily in the commercial interest of the requester.’” Cause of Action v. Fed. Trade Comm’n, 799 F.3d 1108, 1115 (D.C. Cir. 2015) (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). The Act “is to be liberally construed in favor of waivers for noncommercial requesters.” Citizens for Responsibility & Ethics in Wash. v. United States Dep’t of Health & Human Servs., 481 F. Supp. 2d 99, 106 (D.D.C. 2006) (internal quotation omitted). Plaintiff’s Request specifies four ways that the records at issue will shed light on the operations and activities of the DOC and other government agencies. See SMF ¶¶ 62–66. In addition, the Request shows that Plaintiff will disseminate the requested records to a reasonably broad audience of interested persons by using them to write news stories for Quartz. See id. ¶ 66; Cause of Action, 799 F.3d at 1116 (stating that, with regard to the second factor, “‘the relevant inquiry . . . is whether the requester will disseminate the disclosed records to a reasonably broad audience of persons interested in the subject.’” (quoting Carney v. United States Dep’t of Justice, 19 F.3d 807, 815 (2d Cir. 1994))). Finally, the Request makes clear that Plaintiff intends to use the requested records to report the news, and thus that he does not seek the records for “commercial use.” See Campbell v. United States Dep’t of Justice, 164 F.3d 20, 35–36 (D.C. Cir. 1998) (scholar who wrote books as a profession does not have a commercial interest in the dissemination of his book within the meaning of FOIA, “as Congress did not intend for scholars (or journalists and public interest groups) to forego compensation when acting within the scope of their professional roles”). Accordingly, FOIA requires that the DOC furnish the requested records to Plaintiff “without any charge.” 5 U.S.C. § 552(a)(4)(A)(iii). Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 16 of 34 12 In sum, Plaintiff clearly meets the statutory requirements entitling him to both a fee benefit as a representative of the news media and a fee waiver under FOIA. Because, as set forth in detail below, these fee provisions are fully applicable to the FOIA Request at issue here, the DOC’s refusal to comply with these provisions violates the Act.3 II. Because the DOC has abandoned the only argument it made at the administrative stage for denying Plaintiff’s request for a fee waiver, Plaintiff is entitled to summary judgment in his favor as to that dispositive issue. Plaintiff has been attempting to obtain I-92 and I-94 Data Files since March of 2015. During that time, the DOC’s proffered basis for withholding those records and denying Plaintiff a fee benefit and fee waiver has changed repeatedly. Because the Court’s review is limited to the administrative record in any action regarding a fee waiver, 5 U.S.C. § 552(a)(4)(A)(vii), and because the DOC has abandoned the only reason it provided Plaintiff for denying his request for a fee waiver at the administrative stage, Plaintiff is entitled to summary judgment on that issue. In reviewing an agency’s denial of a request for a public interest fee waiver, the Court is “limited to the record before the agency.” 5 U.S.C. § 552(a)(4)(A)(vii). The Court “may only consider only the arguments and justifications of the parties that appear in the administrative record and may not consider any arguments that appear for the first time in pleadings.” PEER, 968 F. Supp. 2d at 99 (emphasis added). Thus, once litigation commences, both the requester and the agency are limited to the arguments contained in the administrative record. See Bensman v. Nat’l Park Serv., 806 F. Supp. 2d 31, 43 (D.D.C. 2011); Judicial Watch, 2000 WL 35538030 at *4.. “[T]he agency must stand on whatever reasons for denial it gave in the administrative 3 Even if Plaintiff were not entitled to a waiver of all fees under 5 U.S.C. § 552(a)(4)(A)(iii), which he is, FOIA would still prohibit the DOC from assessing any search or duplication fees in connection with the Request. FOIA prohibits an agency from assessing such fees if it fails to comply with the time limits set forth in the Act for making a determination in response to either a FOIA request or an administrative appeal if no “exceptional circumstances,” as defined by the statute, apply. 5 U.S.C. § 552(a)(4)(A)(viii). Here, the DOC never responded, at all, to Plaintiff’s Administrative Appeal. See SMF ¶¶ 93–94. Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 17 of 34 13 proceeding. If those reasons are inadequate, and if the requesters meet their burden, then a full fee waiver is in order.” Friends of Coast Fork v. United States Dep’t of Interior, 110 F.3d 53, 55 (9th Cir. 1997); see also Perkins v. United States Dep’t of Veterans Affairs, 754 F. Supp. 2d 1, 6, n.5 (D.D.C. 2010) (stating that “the Court may not consider reasons for denial not raised by defendant in its denial letter”) (citation omitted). As discussed in detail above, the DOC relied exclusively on the Special Works Statute to deny Plaintiff’s Request for the I-92 and I-94 Data Files at the administrative stage, arguing that it was a superseding fee statute for purposes of FOIA’s Displacement Provision. See SMF ¶ 76–79. After this lawsuit was filed, however, the DOC conceded that the Special Works Statute—the DOC’s only basis for denying Plaintiff’s request for a public interest fee waiver that appears in the administrative record—is inapplicable, averring in its Answer that it had repeatedly relied on that statute “in error.” See Answer, ECF 14, at ¶¶ 29, 53. Because the DOC has conceded that its argument premised on the Special Works Statute was without merit, see id., summary judgment should be entered as to Plaintiff’s entitlement to a waiver of all fees under 5 U.S.C. § 552(a)(4)(A)(iii). The Special Works Statute was the sole basis that the DOC provided in its Denial Letter for refusing Plaintiff’s request for a fee waiver; it is the only argument in the administrative record, and the DOC has not pursued it in this litigation. Thus, the DOC presents no viable legal challenge to Plaintiff’s entitlement to a fee waiver to this Court, whose review is limited solely to the administrative record. See 5 U.S.C. § 552(a)(4)(A)(vii); Nat’l Right to Work Legal Defense and Educ. Found., Inc. v. United States Dep’t of Labor, 828 F. Supp. 2d. 183, 188 (D.D.C. 2011) (noting plaintiff’s concessions, both express and by failing to raise specified arguments). Accordingly, the Court should deny the DOC’s motion for summary judgment and enter summary judgment in favor of Plaintiff, as the Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 18 of 34 14 DOC is required to furnish all records responsive to the Request to Plaintiff “without any charge.” 5 U.S.C. § 552(a)(4)(A)(iii). III. Even if the Court goes beyond the administrative record, Plaintiff is still entitled to summary judgment in his favor because there is no applicable superseding fee statute; FOIA’s Displacement Provision does not apply here. A. A superseding fee statute must “specifically provid[e] for setting the level of fees” for “particular types of records” and must require, not merely permit, the agency to collect fees. In order to qualify as a superseding fee statute for purposes of FOIA’s Displacement Provision, a statute must meet several requirements. First, according to the plain language of FOIA, such a statute must both identify “particular types of records” to which it applies, and “specifically provid[e] for setting the level of fees” for those records. 5 U.S.C. § 552(a)(4)(A)(vi). In the only case in which the D.C. Circuit has interpreted the Displacement Provision, the Court applied these statutory requirements to hold that 44 U.S.C. § 2116(c) (“NARA § 2116”) was a superseding fee statute. Oglesby v. United States Dep’t of Army, 79 F.3d 1172, 1177–78 (D.C. Cir. 1996) (quoting NARA § 2116). In so holding, the Court explained that NARA § 2116—which “authorizes the Archivist ‘to recover the costs for making or authenticating copies or reproductions of materials transferred to his custody’” and provides that “‘[s]uch fee shall be fixed . . . at a level which will recover, so far as practicable, all elements of such costs . . . .’”—both specifically identified “particular types of records” and expressly provided for setting the level of fees for the copying of such records. Id. (quoting NARA § 2116) (alteration in original). In addition, as guidelines issued by the Office of Management and Budget (“OMB”)— the agency charged by Congress with establishing government-wide guidelines with respect to FOIA’s fee provisions, 5 U.S.C. § 552(a)(4)(A)(i)—make clear, a “statute specifically providing Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 19 of 34 15 for setting the level of fees for particular types of records” is defined as “any statute that specifically requires a government agency . . . to set the level of fees for particular types of records.” 5 C.F.R § 1303.30(b) (the “OMB Guidelines”) (emphasis added). In promulgating the OMB Guidelines, the OMB emphasized that “a qualifying statute must require, not merely permit, an agency to establish fees for particular documents.” 52 Fed. Reg. 10012 (1987) (emphasis added); see also Envtl. Prot. Info. Ctr. v. United States Forest Serv., 432 F.3d 945, 949 (9th Cir. 2005) (“EPIC”) (citing OMB Guidelines to hold that 7 U.S.C. § 1387 is not a superseding fee statute because it does not require the collection of fees). Thus, statutes “which only provide a general discussion of fees without explicitly requiring that an agency set and collect fees for particular documents” do not qualify as superseding fee statutes for purposes of FOIA’s Displacement Provision. 5 C.F.R. § 1303.30 (emphasis added). As required by statute, 5 U.S.C. § 552(a)(4)(A)(i), the DOC’s own FOIA regulations follow the OMB’s requirements and state that a superseding fee statute is one “that specifically requires an agency to set and collect fees for particular types of records.” 15 C.F.R. 4.11(k) (emphasis added). The legislative history of the Displacement Provision underscores Congress’s intent that there be strict requirements a statute must meet in order for it to qualify as a superseding fee statute under FOIA’s Displacement Provision. In connection with the 1986 amendments to FOIA, which added the Displacement Provision to the Act, Representatives English and Kindness, the House sponsors of the amendment, issued a joint statement identifying 44 U.S.C. § 1708 (1982), which “allows the Public Printer to set charges at cost plus a fifty percent surcharge to recover indirect costs,” as an example of a superseding fee statute. 132 Cong. Rec. 29618 (1986) (the “English-Kindness Statement”). In contrast, the English-Kindness statement Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 20 of 34 16 cited the so-called User Fee Statute, 31 U.S.C. § 9701, as an example of a statute that does not qualify as a superseding fee statute because it does not “establish a specific level of fees.” Id. The User Fee Statute provides that an agency head “may prescribe regulations establishing the charge for a service or thing of value provided by the agency.” 31 U.S.C. § 9701; see also 5 C.F.R § 1303.30(b) (citing the User Fee Statute as an example of a statute that is not a superseding fee statute because, inter alia, it “only provide[s] a general discussion of fees without explicitly requiring that an agency set and collect fees for particular documents”). B. No superseding fee statute applies to the records at issue here. Given these requirements, it is unsurprising that the DOC abandoned its frivolous argument—the only argument it made at the administrative stage—that the Special Works Statute is a superseding fee statute. The Special Works Statute states, in pertinent part: The Secretary of Commerce is authorized, upon the request of any person, firm, organization, or others, public or private, 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; to perform the functions authorized by section 1152 of this title; and to furnish transcripts or copies of its studies, compilations, and other records; upon the payment of the actual or estimated cost of such special work. 15 U.S.C. § 1525 (emphasis added). By its plain language, the Special Works Statute merely “authorizes,” but does not specifically require, the Secretary of Commerce to recover the “actual or estimated cost” of certain “special work” done by the DOC upon request. Id. It is, thus, not a superseding fee statute. See 5 C.F.R § 1303.30(b); 15 C.F.R. 4.11(k); EPIC, 432 F.3d at 949. And, even if the DOC had not abandoned its earlier, misplaced reliance on that statute, it would provide no support for the DOC’s claim that FOIA’s Displacement Provision applies here.4 4 Even assuming, arguendo, that the Special Works Statute was a superseding fee statute, it does not allow the DOC to charge Plaintiff in excess of $170,000 for copies of the I-92 and I-94 Data Files. The Special Works Statute would permit the Secretary to collect only the “actual or estimated cost” of “furnish[ing] transcripts or copies of” those “records.” 15 U.S.C. § 1525. In other words, in this case, that would be the actual cost of providing Plaintiff Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 21 of 34 17 DOC’s newfound argument that the Appropriations Act is a superseding fee statute— which was raised for the first time in its Answer, and is the basis for the DOC’s motion for summary judgment—fares no better. The portion of the Appropriations Act that the DOC relies upon states: [T]he provisions of the first sentence of section 105(f) and all of section 108(c) of the [MECEA] (22 U.S.C. 2455(f) and 2458(c)) shall apply in carrying out [the activities of the DOC specified in this provision]; and that for the purpose of this Act, contributions under the provisions of the [MECEA] shall include payment for assessments for services provided as part of these activities. See DOC Mem., ECF No. 20, at 4 (quoting Pub. L. No. 114-113, 129 Stat. 2287 (2015)). This provision, on its face, falls far short of satisfying the requirements of a superseding fee statute. First, it does not identify any “particular types of records.” 5 U.S.C. § 552(a)(4)(A)(vi). Indeed, the closest it comes is a vague reference to “services provided as part of [the DOC’s] activities.” Pub. L. No. 114-113, 129 Stat. 2287 (2015). In this respect, the Appropriations Act is similar to the User Fee Statute, which refers merely to “a service or thing of value provided by the agency.” 31 U.S.C. § 9701. Both Congress and the D.C. Circuit have recognized that such language is insufficient and concluded that the User Fee Statute is not a superseding fee statute. See 132 Cong. Rec. 29618 (1986);Oglesby, 79 F.3d at 1177 (stating that “‘a thing of value’ clearly does not describe ‘particular types of records’” (emphasis in original)). In short, unlike NARA § 2116, which explicitly applied to “‘materials transferred to [the Archivist’s] custody’” and which the D.C. Circuit found to be a superseding fee statute, Oglesby, 79 F.3d at 1177, the provision of the Appropriations Act cited by the DOC does not refer to any “particular types of with electronic copies of the existing records he has requested, an amount that would certainly fall well below $173,775.00. Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 22 of 34 18 records.” 5 U.S.C. § 552(a)(4)(A)(vi). For this reason alone, the section of the Appropriations Act cited by the DOC is not a superseding fee statute. Second, it does not “specifically provid[e] for setting the level of fees” for any particular type of records. Id. Rather, the provision of the Appropriations Act cited by the DOC merely defines the word “contributions” as that term is used in MECEA to “include payment for assessments for services provided as part of” certain DOC activities. In contrast, NARA § 2116, for example, provides that fees should be set “‘at a level which will recover, so far as practicable, all elements of’” duplication or authentication costs. See Oglesby, 79 F.3d at 1177 (quoting NARA § 2116). Similarly, 44 U.S.C. § 1708, which Congress identified as an example of a superseding fee statute, provides that fees should be fixed at cost plus a fifty percent surcharge. See 132 Cong. Rec. 29618 (1986). The provision of the Appropriations Act cited by the DOC makes no mention of any level of fees, or fee setting at all; it certainly does not specify particular fees like NARA § 2116 or 44 U.S.C. § 1708. Thus, for this reason as well, the Appropriations Act is not a superseding fee statute for purposes of FOIA’s Displacement Provision. The provisions of the MECEA referred to in this portion of the Appropriations Act also fail to provide any support for the DOC’s position in this case. The first sentence of Section 105(f) of MECEA states: Foreign governments, international organizations and private individuals, firms, associations, agencies, and other groups shall be encouraged to participate to the maximum extent feasible in carrying out this chapter and to make contributions of funds, property, and services which the President is authorized to accept, to be utilized to carry out the purposes of this chapter. 22 U.S.C. § 2455(f). Section 108(c) of MECEA provides: In connection with activities [related to cultural exchanges and United States participation in international fairs and expositions abroad], the President is authorized to provide for all necessary Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 23 of 34 19 expenditures involved in the selection, purchase, rental, construction, or other acquisition of exhibits and materials and equipment therefor, and the actual display thereof, including but not limited to costs of transportation, insurance, installation, safekeeping and storage, maintenance and operation, rental of space, and dismantling. Id. § 2458(c). Neither of these provisions have anything to do with the DOC’s obligations under FOIA. They do not discuss records, let alone identify particular types of records. Nor do they address the setting of a level of fees for records. They merely provide that certain entities outside the U.S. government are encouraged to contribute funds for certain DOC activities and that the President is authorized to provide expenditures for exhibits, materials, equipment, and displays related to cultural exchanges or international fairs or expositions. See id. §§ 2455(f), 2458(c).5 Third, and finally, the Appropriations Act does not specifically require the DOC to collect fees for particular records. As noted above, the provision of the Appropriations Act cited by the DOC merely defines “contributions” under the MECEA to include “payment for 5 Defendant cites a Notice of revised fee schedule, 81 Fed. Reg. 39895, as authority purportedly supporting its claim that the MECEA authorizes it to collect fees for the I-92 and I-94 Data Files. See DOC Mem., ECF No. 20, at 3. That Notice was published by the DOC on June 20, 2016, more than one month after Plaintiff filed this lawsuit. The Notice appears to be nothing more than a post hoc attempt to manufacture a purported justification for the position taken by the DOC in this case. To Plaintiff’s knowledge, such a Notice has never before been published by the DOC, despite its administration of the I-92 and I-94 programs for “many years.” See 81 Fed. Reg. 39895. In any event, the Notice has no legal effect. It was not promulgated pursuant to notice and receipt of public comment, as required by FOIA. See 5 U.S.C. § 552(a)(4)(A)(i) (requiring agencies to “promulgate regulations, pursuant to notice and receipt of comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced”). Further, the fees purportedly established in the Notice conflict with the fee schedules set forth in the OMB Guidelines, also in contravention of the Act. See 5 U.S.C. § 552(a)(4)(A)(i) (stating that agency regulations promulgating the schedule of fees applicable to the processing of requests “shall conform” to the OMB Guidelines, which “shall provide for a uniform schedule of fees for all agencies”). Although the Notice claims it is promulgated pursuant to OMB Circular A-25, that circular specifically states that its guidance applies only to the extent permitted by law and that “where a statute prohibits the assessment of a user charge on a service or addresses an aspect of the user charge . . . the statute shall take precedence over the Circular.” See Office of Mgmt. & Budget Circular A-25, available at https://www.whitehouse.gov/omb/circulars_a025. Because FOIA addresses the fees that may be charged for agency records, it, and not OMB Circular A-25, controls in this case. In any event, as it falls outside the administrative record, the Notice cannot be considered by the Court in evaluating the DOC’s denial of Plaintiff’s request for a fee waiver. 5 U.S.C. § 552(a)(4)(A)(vii). Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 24 of 34 20 assessments for services provided.” It does not require the DOC to collect such “contributions” nor any other fees. Likewise, the provisions of the MECEA cited in the portion of the Appropriations Act relied upon by the DOC include no language requiring the DOC to collect fees. See 22 U.S.C. § 2455(f) (stating that contributions of funds “shall be encouraged” (emphasis added)). Accordingly, none of the authority cited by the DOC meets the requirements set by the OMB Guidelines or the DOC’s own regulations for a superseding fee statute. See 5 C.F.R § 1303.30(b);15 C.F.R. 4.11(k). The conclusion reached by the D.C. Circuit in Oglesby that NARA § 2116 is a superseding fee statute, see 79 F.3d at 1177–78, does not preclude this Court from concluding, in this case, that a statute must require the DOC to impose fees in order to be a superseding fee statute. Although NARA § 2116 only “authorize[d]” the Archivist to provide for the setting of the level of fees for particular types of records, id. at 1177, as the Ninth Circuit stated in EPIC, “the [OMB Guidelines] were not before, and were not considered by, the Oglesby court.” 432 F.3d at 949. Here, the OMB Guidelines, as well as the DOC’s own regulation stating that a superseding fee statute must “specifically require[]” the agency to set and collect fees, 15 C.F.R. § 4.11(k), are before the Court. In sum, even if the Court went beyond the administrative record to reach the argument raised by the DOC for the first time in its Answer, which it need not do, see supra Section II, Plaintiff would still be entitled to summary judgment in his favor. Neither the Special Works Statute previously relied upon by the DOC, nor the Appropriations Act, is a superseding fee statute, and FOIA’s Displacement Provision has no application here. Accordingly, the Act’s generally applicable fee schedules, as well as its fee benefit and fee waiver provisions, apply. Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 25 of 34 21 Because Plaintiff has demonstrated that he is entitled to both a fee benefit as a representative of the news media and a fee waiver under FOIA, summary judgment should be entered in his favor. IV. Even if FOIA’s Displacement Provision did apply—which it does not—Plaintiff would still be entitled to summary judgment in his favor because the Displacement Provision does not affect FOIA’s fee waiver provision. Even if there were a superseding fee statute applicable to the I-92 and I-94 Data Files, which there is not, Plaintiff would still be entitled to summary judgment on the dispositive issue of his entitlement to a fee waiver. FOIA’s Displacement Provision applies only to FOIA’s fee setting provisions. Thus, even when it applies, it has no effect on FOIA’s fee waiver provision. Accordingly, the Displacement Provision, even if it was applicable here, provides no basis for the DOC to deny Plaintiff the fee waiver to which he is statutorily entitled. Notwithstanding the DOC’s misleading suggestion to the contrary, neither the D.C. Circuit nor any other court has addressed whether FOIA’s Displacement Provision supplants FOIA’s fee waiver provision. Indeed, despite the DOC’s disingenuous claim that Oglesby “fully supports [its] position” on that issue, DOC Mem., ECF No. 20, at 4, the D.C. Circuit in Oglesby expressly left open the question of whether the Displacement Provision “excuses a qualified agency only from FOIA’s fee-setting requirements, and not from the fee-waiver provision.” Oglesby, 79 F.3d at 1178 (emphasis in original); see also St. Hilaire v. Dep’t of Justice, Office of Special Investigations, Civil Action No. 91-0078-LFO, 1991 WL 190089 at *5 (D.D.C. Sept. 10, 1991) (leaving open the “question of statutory interpretation as to whether the [Displacement Provision] under FOIA encompasses the ‘waiving’ of fees”). The Court in Oglesby could not have been clearer, stating: We wish, however, to make it clear that we are in no way ruling on a separate argument which Oglesby failed to raise in a timely fashion. In a motion filed after oral argument, Oglesby pressed the claim that the FOIA subsection (vi) exception excuses a qualified agency only from FOIA's fee-setting requirements, and not from Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 26 of 34 22 the fee-waiver provision. [. . .] We refer to this argument only to emphasize that our narrow ruling today on the argument Oglesby did successfully make is not intended to bar a future challenge on broader grounds. Oglesby, 79 F.3d at 1178 (emphasis in original). The language and structure of FOIA demonstrate that Congress intended the Act’s fee waiver provision to function exactly the way one would expect—namely, requiring the waiver of all applicable fees—even when a superseding fee statute displaces FOIA’s generally applicable fee schedules. FOIA’s general fee schedules, addressing both the types of fees that may be charged (search, review, duplication) and the amount of fees that may be charged to certain types of requesters (commercial, educational, representative of the news media, etc.), appear in one subsection of the Act. See 5 U.S.C. § 552(a)(4)(A)(ii). FOIA’s fee waiver provision, on the other hand, appears in a separate subsection. See 5 U.S.C. § 552(a)(4)(A)(iii). The Displacement Provision states that “[n]othing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.” 5 U.S.C. § 552(a)(4)(A)(vi) (emphasis added). In other words, if another statute specifically modifies the fee schedule for particular types of records as described in 5 U.S.C. § 552(a)(4)(A)(ii), that other statute displaces FOIA’s generally applicable fee schedules. The Displacement Provision does not apply to FOIA’s separate fee waiver provision, which means exactly what it says in all circumstances: if its requirements are met, an agency must waive any fees that would otherwise be chargeable to the requestor. See id. § 552(a)(4)(A)(iii). The DOC’s own FOIA regulations support this interpretation of the Act. The portion that addresses superseding fee statutes states that “[t]he fee schedule of this section does not apply to fees charged under any statute (except for the FOIA) that specifically requires an agency to set and collect fees for particular types of records.” 15 C.F.R. § 4.11(k) (emphasis added). Thus, Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 27 of 34 23 the DOC regulations indicate that only the fee schedule is affected by a superseding fee statute; FOIA’s fee waiver provision is left unaffected. The legislative history of the 1986 Amendments to FOIA, which made several changes to FOIA’s fee provisions, also demonstrates that the Displacement Provision applies only to FOIA’s generally applicable fee schedules, and not its fee waiver provision. At the time of those amendments, a fee waiver provision was already part of FOIA, having been added by the 1974 amendments. See Pub. L. No. 93-502. The 1986 amendments made significant changes to FOIA’s fee provisions, including, inter alia: (1) setting forth several categories of requesters, with different types of fees applicable to each, now found at 5 U.S.C. § 552(a)(4)(A)(ii); (2) adding the Displacement Provision now found at 5 U.S.C. § 552(a)(4)(A)(vi); and (3) broadening the fee waiver provision found in 5 U.S.C. § 552(a)(4)(A)(iii). See Pub. L. 99-570, § 1803; 132 Cong. Rec. 29616–19 (1986) (English-Kindness Statement). In floor statements in support of the 1986 amendments, Senator Leahy, the sponsor of the Senate bill, and Representatives English and Kindness, sponsors of the House bill, stated of the newly added Displacement Provision: “The fee schedules in the FOIA do not supersede fees chargeable under a statute that specifically provides for setting of a level of fees for particular types of records. This provision does not change current law.” 132 Cong. Rec. 14299 (1986) (Leahy Statement) (emphasis added); 132 Cong. Rec. 29618 (English-Kindness Statement). Particularly in the context of the larger changes made by the 1986 amendments, these statements reflect Congress’s intent in adding the Displacement Provision, which was merely to clarify that existing fee schedules set by statute would not be superseded by the amendments. See id. In contrast, when discussing the 1986 amendment’s expansion of FOIA’s fee waiver provision, both the Leahy Statement and the English-Kindness Statement stated: Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 28 of 34 24 All of the fees chargeable to any requester may be waived or reduced if disclosure of the information is in the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. 132 Cong. Rec. 14298 (emphasis added); see also 132 Cong. Rec. 29617. In short, not only is there no evidence in the legislative history that the Displacement Provision was intended to override FOIA’s fee waiver provision, but floor statements from its sponsors show the exact opposite: that all of the fees that might be assessed to a requester, whether by the general fee schedules or another statute, should be waived if they meet the statutory requirements, regardless of whether the Displacement Provision applies. See id. Accordingly, even if there were a superseding fee statute that applied to the I-92 and I-94 Data Files requested by Plaintiff and triggered the Displacement Provision, FOIA’s fee waiver provision would still apply. Nothing in the Displacement Provision, nor anywhere else in the Act, authorizes the DOC to deny Plaintiff’s request for a public interest fee waiver. Because, as discussed previously, see supra Section I, Plaintiff has demonstrated that he is entitled to a fee waiver, this Court should grant Plaintiff’s motion for summary judgment as to that issue. V. The DOC’s position undermines Congress’s intent and the purpose of the Act. The 1986 amendments to FOIA were intended to address what Congress viewed as the growing problem of agencies asserting “copyright-like controls” over agency records—by, for example, charging fees that were not based on the direct cost of disseminating those records— despite the fact that the Copyright Act does not permit the copyright of government information. Congress identified this problem as a powerful threat to the purpose of FOIA, because copyright- like controls effectively place agency records outside the reach of the public. Contrary to this intent, the DOC is now attempting to assert such controls over the I-92 and I-94 Data Files. Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 29 of 34 25 As the English-Kindness Statement indicates, Congress was greatly concerned when it amended FOIA in 1986 about the trend of agencies imposing fees in excess of the actual costs of disseminating records and intended even the Displacement Provision to be used by agencies only to recover only the actual cost of disseminating records. See 132 Cong Rec. 29618 (1986) (“This new language simply clarifies that statutes setting specific alternative bases for recovering dissemination costs can supersede FOIA fees.” (Emphasis added)). A report by the House Committee on Government Operations, incorporated by reference in the English-Kindness Statement, elaborates on Congress’s concern about agencies charging exorbitant fees for documents far above the actual costs of their dissemination. See 132 Cong. Rec. 29618 (1986) (incorporating by reference H.R. Rep. No. 99-560 (1986) (the “House Report”)); House Report at 11, 27. For instance, the House Report specifically criticized the National Library of Medicine’s (“NLM”) treatment of Medlars, a bibliographical database of medical and scientific articles maintained by the NLM, for creating what it the House Report characterized as “copyright-like controls over public data”—“controls” very similar to those being asserted by the DOC with respect to the I-92 and I-94 Data Files. House Report at 27. The House Report noted, first, that the NLM charged fees for access to Medlars that were greater than “the direct cost of disseminating the information,” which would include only “the cost of magnetic tape, duplicating, and delivery.” House Report at 29. Second, the House Report said that the NLM restricted redisclosure of Medlars data through licensing agreements, which required licensees to agree not to duplicate, resell, or redistribute the data, despite the NLM’s admission that it had “no specific authority” to prohibit the duplication or resale of Medlars tapes. House Report 29–30. Finally, the House Report said that the NLM refused to disclose the database pursuant to FOIA at the cost of dissemination and without any restriction Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 30 of 34 26 on reuse or redissemination. House Report at 32–33. The House Report expressly stated that SDC Development Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976) (“SDC”)—a Ninth Circuit decision holding that the NLM was not required to release Medlars pursuant to FOIA because it was not an “agency record”—was “incorrect both as a matter of law and as a matter of policy.” House Report 35.6 Perhaps presciently, the House Report expressed concern “that the model of information control established by the NLM might be used elsewhere in government.” House Report at 36. And, indeed, two decades later the DOC is now applying each of the disfavored copyright-like controls once asserted by the NLM over Medlars to the I-92 and I-94 Data Files at issue here. The “prices” that the DOC charges for the I-92 and I-94 Data Files is far more than the actual cost of their dissemination. Although the DOC never acknowledges the precise amount of “fees” it claims are “applicable” to the I-92 and I-94 Data Files in either its Answer or Motion for Summary Judgment, according to publicly available websites on which the DOC lists prices for the I-92 and I-94 Data Files, Plaintiff would be required to pay at least $173,775.00 for access to those records if he purchased them at their listed “price.” In addition, the DOC websites reflect a different price “for internal use only” than “for resale” of the I-92 Data Files, suggesting that the DOC is attempting to restrict redissemination of those records. Finally, the DOC refuses to disclose the I-92 and I-94 Data Files in accordance with FOIA, arguing that it “is not seeking to protect its information but, rather, its system for delivering that information.” DOC Mem., ECF No. 20, at 5. Although not identified in the DOC’s brief, this rationale is drawn directly from SDC, the case identified by House Report as “incorrect as both a matter of law and as a matter of 6 The Medlars database is now available for free through an online system known as Medlars Online, or MEDLINE. See https://www.ncbi.nlm.nih.gov/pubmed/ Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 31 of 34 27 policy.” See SDC, 542 F.2d at 1120 (“The agency is seeking to protect not its information, but rather its system for delivering that information.”); House Report at 33, 35. The DOC’s treatment of the I-92 and I-94 Data Files is plainly contrary to the intent of Congress, as described in the House Report and embodied in the 1986 amendments to FOIA, which added the Displacement Provision to the Act. As the English-Kindness statement said, “FOIA is intended to foster the free market in ideas and information. Nonexempt government information compiled at taxpayers[’] expense should be widely available so that the benefits of the information can be shared.” 132 Cong. Rec. 29617 (1986). Indeed, it should go without saying that the mere fact that government information may have a commercial value does not mean that government agencies are permitted to charge more than the cost of dissemination for access to such information. In fact, a wide variety of commercially valuable government databases are made available to the public for free. See, e.g., United States Census Bureau, Data, http://www.census.gov/data.html (last visited Oct. 31, 2016) (providing free access to data from Census surveys in the American FactFinder); United States Dep’t of Homeland Security, Yearbook of Immigration Statistics, https://www.dhs.gov/yearbook-immigration-statistics (last visited Oct. 31, 2016) (providing a free compendium of tables with data on certain foreign nationals in the United States); United States Dep’t of Labor, Bureau of Labor Statistics, Overview of BLS Statistics on Employment, http://www.bls.gov/bls/employment.htm (last visited Oct. 31, 2016) (providing links to free databases of information about national, state, and local employment, among other data). The DOC’s position in this case is also contrary to the fundamental purpose of FOIA, which “was intended by Congress to enable individuals to inform themselves of their government’s activities.” Hayden v. United States Dep’t of Justice, 413 F. Supp. 1285, 1288 Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 32 of 34 28 (D.D.C. 1976). For 50 years, FOIA has served the goal of providing “access to official information long shielded unnecessarily from public view[.]” Mink, 410 U.S. at 80 (superseded by statute on other grounds). And, as the DOC itself has publicly acknowledged, access to government data is essential to the public knowledge necessary for the free exchange of ideas and information. One DOC official recently stated that the agency intends “to make government data more open, available and consumable” and that the DOC’s measure of its own progress on data transparency “really comes down to how easy it is for everyone — and I mean everyone — in the country to access public data — and have full and equal access and opportunity to put that data to work.” Justin Antonipillai, Dep’t of Commerce, Remarks at SHIFT Conference, San Francisco, August 30, 2016 in Medium, archived at https://perma.cc/4CHP-T6SG?type=image. That sentiment is noticeably absent from the DOC’s position in this case, where it argues that a journalist should be required to pay $173,775.00 for access to government data. The DOC’s position is not only contrary to law, but stands to fundamentally undermine FOIA’s mandate of “broad disclosure of government records to the public[.]” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 33 of 34 29 CONCLUSION For the foregoing reasons, the DOC’s Motion for Summary Judgment should be denied and the Court should enter summary judgment in favor of Plaintiff. Dated: October 31, 2016 Respectfully submitted, /s/ Katie Townsend Katie Townsend DC Bar No. 1026155 Bruce D. Brown DC Bar No. 457317 Adam A. Marshall DC Bar No. 1029423 The Reporters Committee for Freedom of the Press 1156 15th St. NW, Suite 1250 Washington, DC 20005 Phone: 202.795.9300 Facsimile: 202.795.9310 Email: ktownsend@rcfp.org Email: bbrown@rcfp.org Email: amarshall@rcfp.org Counsel for Plaintiff Case 1:16-cv-00951-KBJ Document 21-1 Filed 10/31/16 Page 34 of 34 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID YANOFSKY, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant. Civil Action No. 1:16-cv-00951 (KBJ) PLAINTIFF’S COMBINED STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE AND RESPONSE TO DEFENDANT’S STATEMENT OF MATERIAL FACTS Pursuant to Local Rule 7(h), Plaintiff David Yanofsky (“Plaintiff” or “Yanofsky”) hereby submits his combined statement of material facts as to which there is no genuine issue and response to the statement of material facts submitted by Defendant United States Department of Commerce (“Defendant” or the “DOC”) (“Defendant’s SMF”). PLAINTIFF’S RESPONSE TO DEFENDANT’S STATEMENT OF MATERIAL FACTS1 1. The “I-92 Program” and “I-94 Program” are part of the Department of Commerce’s (“DOC”) international trade activities through the International Trade Administration (“ITA”), a bureau of DOC. The programs sell government reports and data to the public. Declaration of Ronald Erdmann (“Erdmann Decl.”) ¶ 2. RESPONSE: Undisputed. To the extent that Defendant’s SMF ¶ 1 contains statements of fact outside the scope of the administrative record, such statements of fact should 1 The numbered paragraphs in Plaintiff’s Response correspond to those in Defendant’s SMF, which fails to comply with the requirement in the Court’s General Order and Guidelines for Civil Cases, ECF No. 3, that there shall be “only one factual assertion in each numbered paragraph.” In accordance with the Court’s General Order, Plaintiff’s response restates each paragraph of Defendant’s SMF in full and, immediately thereafter, states Plaintiff’s response. Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 1 of 21 2 be disregarded by the Court in reviewing Defendant’s denial of Plaintiff’s request for a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii).2 To the extent that Defendant’s SMF ¶ 1 may be read as stating that the I-92 and I-94 Programs are authorized to “sell government reports and data” subject to the Freedom of Information Act, 5 U.S.C. § 552, (hereinafter “FOIA” or the “Act”) in lieu of complying with the Act—which is a legal argument and/or conclusion of law—it is disputed and, in any event, should be disregarded by the Court.3 2. The “I-92 Program” is a joint effort between the Department of Homeland Security, Customs and Border Protection, and the DOC/ITA National Travel and Tourism Office to provide international air traffic statistics to the government and the travel industry. The system is a source of data on all international flights to and from the United States. It reports the total volume of air traffic and various subsets of traffic. The I-92 Program is administered by the ITA. Erdmann Decl. ¶ 3. RESPONSE: Undisputed. To the extent that Defendant’s SMF ¶ 2 contains statements of fact outside the scope of the administrative record, such statements of fact should 2 See Local Rule 7(h)(2) (stating that in “cases in which judicial review is based solely on the administrative record,” a motion for summary judgment “shall include a statement of facts with references to the administrative record”); 5 U.S.C. § 552(a)(4)(A)(vii) (“In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, That the court’s review of the matter shall be limited to the record before the agency.”). 3 See Local Rule 7(h)(1) (stating that a motion for summary judgment “shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue”) (emphasis added); Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153 (D.C. Cir. 1996) (rejecting assertion that “relevant facts” section of opposition memorandum satisfied then-applicable Rule 108(h) governing statements of undisputed material facts for, among other things, “repeatedly blending factual assertions with legal argument”); Robertson v. Am. Airlines, Inc., 239 F. Supp. 2d 5, 9 (D.D.C. 2002) (rejecting statement of material facts as noncompliant with this Court’s local rules because it incorporated a memo that “liberally mixe[d] facts with argument”); Schoenman v. FBI, 573 F. Supp. 2d 119, 126 n.2 (D.D.C. 2008) (stating that “the so-called ‘facts’ included in [Plaintiff’s] Statement [of Material Facts] are not facts at all, but rather legal arguments” and that defendant “should have specifically responded to each so-called fact by noting that it consisted of legal argument”). Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 2 of 21 3 be disregarded by the Court in reviewing Defendant’s denial of Plaintiff’s request for a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii). See supra n.2. 3. ITA uses the statistics it collects under the I-92 Program to publish the U.S. International Air Travel Statistics Report on a monthly, quarterly, and annual basis. DOC sells single issues or annual subscriptions to the monthly or quarterly reports, as well as a subscription to the annual report, for a fee. DOC also maintains and utilizes a data file related to the report (“I-92 Data File”), which consists of anonymized data about air travelers between the United States and other countries. DOC sells the data file for a fee. Erdmann Decl. ¶ 4. RESPONSE: Undisputed. To the extent that Defendant’s SMF ¶ 3 contains statements of fact outside the scope of the administrative record, such statements of fact should be disregarded by the Court in reviewing Defendant’s denial of Plaintiff’s request for a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii). See supra n.2. To the extent that Defendant’s SMF ¶ 3 may be read as stating that the DOC is authorized to “sell” records subject to FOIA “for a fee” in lieu of complying with the Act—which is a legal argument and/or conclusion of law—it is disputed and, in any event, should be disregarded by the Court. See supra n.3. 4. The “I-94 International Arrivals Program” or “I-94 Program” provides the official U.S. monthly and annual overseas visitor arrivals to the United States along with select Mexican and Canadian visitor statistics. The information is presented in a report entitled the Summary of International Travel to the United States with 35 tables of information about non-U.S. resident visitor arrivals. DOC sells monthly, quarterly, and annual subscriptions to this report for a fee. DOC also sells quarterly and annual publications of a data file called “Air Arrivals I-94 Database (Detail Arrival Records)” (“I-94 Data File”), which consists of anonymized data about foreign visitors to the United States. Erdmann Decl. ¶ 5. Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 3 of 21 4 RESPONSE: Undisputed. To the extent that Defendant’s SMF ¶ 4 contains statements of fact outside the scope of the administrative record, such statements of fact should be disregarded by the Court in reviewing Defendant’s denial of Plaintiff’s request for a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii). See supra n.2. To the extent that Defendant’s SMF ¶ 4 may be read as stating that the DOC is authorized to “sell” records subject to FOIA “for a fee” in lieu of complying with the Act—which is a legal argument and/or conclusion of law—it is disputed and, in any event, should be disregarded by the Court. See supra n.3. 5. As part of the I-92 and I-94 Programs, ITA collects, retains, and expends user fees pursuant to delegated authority under the Mutual Educational and Cultural Exchange Act as authorized in annual appropriations acts. Erdmann Decl. ¶ 6. RESPONSE: Disputed. The DOC’s assertion that the “ITA collects, retains, and expends user fees pursuant to delegated authority under the Mutual Educational and Cultural Exchange Act as authorized in annual appropriation acts” is a legal argument and/or conclusion of law, not a fact, and should be disregarded by the Court. See supra n.3. This paragraph also contains purported statements of fact that are outside the scope of the administrative record, which should be disregarded by the Court in reviewing Defendant’s denial of Plaintiff’s request for a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii). See supra n.2. 6. The I-92 and I-94 Program publications are provided only to those persons and entities that pay the applicable fee. Erdmann Decl. ¶ 7. RESPONSE: Disputed in part. Undisputed that the DOC provides I-92 and I-94 Program publications “only to those persons and entities that pay” a fee charged by the DOC. Disputed that the fee charged by the DOC is the “applicable” fee. The DOC’s assertion that the fees it charges for access to I-92 and I-94 Program data are the “applicable” fees is a legal Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 4 of 21 5 argument and/or conclusion of law, not a fact, and should be disregarded by the Court. See supra n.3. 7. The NTTO has several subscribers to the I-92 Program publications, which tend to be aviation industry clients (airlines, airports, consultants, a manufacturer and related), foreign or regional national tourism offices, tourism industry consultants, tourism bureaus, and U.S. federal agencies. The NTTO has several subscribers to the I-94 Program publications, which tend to be state and city tourism offices, aviation/tourism industry consultants, shopping entities, federal agencies, and other travel related firms. In addition, interested individuals and entities may simply purchase annual reports and Excel files from either program. Erdmann Decl. ¶ 8. RESPONSE: Undisputed but immaterial. Whether or not the DOC has “several subscribers” to its I-92 and/or I-94 publications or data is not material to whether those records are subject to FOIA, and whether Plaintiff is entitled to a fee benefit and/or fee waiver under FOIA as to his February 26, 2016 FOIA Request. To the extent that Defendant’s SMF ¶ 7 may be read as stating that the DOC may lawfully require “interested individuals and entities” to “purchase annual reports and Excel files from either program” in lieu of complying with the Act—which is a legal argument and/or conclusion of law—it is disputed and, in any event, should be disregarded by the Court. See supra n.3. To the extent that Defendant’s SMF ¶ 7 contains statements of fact outside the scope of the administrative record, such statements of fact should be disregarded by the Court in reviewing Defendant’s denial of Plaintiff’s request for a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii). See supra n.2. 8. On February 26, 2016, Plaintiff David Yanofsky filed a FOIA request, (the “Request”) with DOC seeking records related to the I-94 Program and I-92 Program. Specifically, Plaintiff sought: Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 5 of 21 6 access to and copies of OTTI’s “Air Arrivals I-94 Annual Datafile” from 2015, 2014, 2013, 2012 and 2011 and its associated technical documentation [and] . . . access to and copies of OTTI’s “U.S. International Air Travel Statistics Report (APIS/I-92) Data Files” for 2015, 2014, 2013, 2012 and 2011 and its associated technical documentation. Erdmann Decl. ¶ 9. RESPONSE: Undisputed. 9. Plaintiff requested to receive the files in electronic format. Erdmann Decl. ¶ 10. RESPONSE: Undisputed. 10. In the Request, Plaintiff sought 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). Erdmann Decl. ¶ 11. RESPONSE: Undisputed. 11. On March 28, 2016, Plaintiff’s counsel submitted a letter which purported to “appeal[] ITA’s failure to respond to [Plaintiff’s] request within twenty business days[.]” Erdmann Decl. ¶ 12. RESPONSE: Disputed in part, but immaterial. Undisputed that Plaintiff’s counsel submitted a letter to Defendant on March 28, 2016 appealing “the DOC’s failure to respond to [Plaintiff’s] Request within twenty business days.” Compl. ¶ 48; Ans. ¶ 48. Disputed that Plaintiff’s counsel’s March 28, 2016 letter only “purported” to be an administrative appeal. See Erdmann Decl. Ex. B. Immaterial because Plaintiff subsequently administratively appealed the DOC’s March 30, 2016 denial of his FOIA request. See Defendant’s SMF ¶¶ 13–14. 12. On March 29, 2016, DOC responded to Plaintiff’s counsel in a letter stating that ITA had not received the Request and, hence, had not denied any records. The author of the letter Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 6 of 21 7 further stated that he was redirecting the Request, attached to Plaintiff’s March 28 letter, to ITA. Erdmann Decl. ¶ 13. RESPONSE: Disputed in part, but immaterial. Undisputed that the DOC’s March 29, 2016 letter to Plaintiff’s counsel stated that Plaintiff’s March 28, 2016 letter “does not constitute a proper appeal because ITA has not received the February 26 request and, hence, has not denied any records.” Erdmann Decl. Ex. C. Undisputed that the DOC’s March 29, 2016 letter also stated, “I am redirecting to ITA the request that is attached to your March 28, 2016 letter for that bureau to respond to you.” Id. Disputed that ITA did not receive Plaintiff’s February 26, 2016 FOIA Request, which Plaintiff’s counsel transmitted via email to FOIA@trade.gov. Declaration of David Yanofsky (“Yanofsky Decl.”) ¶ 13; Erdmann Decl. ¶ 9 & Ex. A. Immaterial because the DOC denied Plaintiff’s FOIA Request on March 30, 2016, a denial that was administratively appealed by Plaintiff on March 31, 2016. See Defendant’s SMF ¶¶ 13–14. 13. On March 30, 2016, ITA FOIA Officer Justin Guz sent a letter to Plaintiff stating that the records sought were being withheld under 5 U.S.C. § 552(a)(4)(A)(vi). Erdmann Decl. ¶ 14. RESPONSE: Undisputed that on March 30, 2016, ITA FOIA Officer Justin Guz sent a letter to Plaintiff stating, inter alia, that “[b]oth the I-94 and the I-92 records are being withheld under 5 U.S.C. § 552(a)(4)(A)(vi).” Erdmann Decl. Ex. D. To the extent Defendant’s SMF ¶ 13 may be read as stating that it lawfully withheld records under 5 U.S.C. § 552(a)(4)(A)(vi)—which is a legal argument and/or conclusion of law—it is disputed and, in any event, should be disregarded by the Court. See supra n.3 14. On March 31, 2016, Plaintiff’s counsel submitted a letter appealing ITA’s decision on the Request. Erdmann Decl. ¶ 15. Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 7 of 21 8 RESPONSE: Undisputed. 15. Plaintiff has not paid or agreed to pay the fee for the I-92 and I-94 publications it seeks through its FOIA request. Erdmann Decl. ¶ 16. RESPONSE: Disputed in part. Undisputed that Plaintiff has not paid or agreed to pay $173,775.00 for access to and copies of the records he requested through his FOIA request. Yanofsky Decl. ¶ 4–5; Erdmann Decl. Ex. A. Disputed that the amount the DOC seeks to charge Plaintiff for complying with his FOIA request is “the fee” that Plaintiff may be charged under the Act. Erdmann Decl. Ex. A. To the extent that Defendant’s SMF ¶ 15 may be read as stating that the DOC may lawfully require Plaintiff to pay whatever “fee” it chooses before complying with Plaintiff’s FOIA Request—which is a legal argument and/or conclusion of law—it is disputed and, in any event, should be disregarded by the Court. See supra n.3. PLAINTIFF’S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE 16. Plaintiff is a journalist and staff reporter for Quartz (qz.com), a digital news publication of The Atlantic Monthly Group, Inc. Yanofsky Decl. ¶ 1. 17. The DOC manages the I-92 Program and I-94 Program, which concern foreign travel to and from the United States. Compl. ¶ 4; Ans. ¶ 4; Erdmann Decl. ¶ 2–5. 18. The DOC maintains and uses a data file related to the U.S. International Air Travel Statistics Report (the “I-92 Data File”). Compl. ¶ 17; Ans. ¶ 17; Erdmann Decl. ¶¶ 2, 4. 19. The DOC has possession, custody, and/or control of the I-92 Data Files. Compl. ¶ 61; Ans. ¶ 61. 20. The DOC maintains websites that are publicly available at http://travel.trade.gov/research/reports/i92/index.html and Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 8 of 21 9 http://travel.trade.gov/research/reports/i92/historical/index.html where it lists prices for current and historical I-92 Data Files. Yanofsky Decl. ¶ 3, Ex A; Erdmann Decl. Ex. A. 21. The DOC websites list the following prices for the 2015, 2014, 2013, 2012, and 2011 I-92 Data Files “for internal use only,” respectively: $23,745.00, $23,280.00, $22,600.00, $21,540.00, and $20,510.00. Compl. ¶ 18; Ans. ¶ 18; Yanofsky Decl. ¶ 4, Ex. A. 22. The DOC has possession, custody, and/or control of the “Air Arrivals I-94 Database (Detail Arrival Records)” (the “I-94 Data File”). Compl. ¶ 61; Ans. ¶ 61. 23. The I-94 Data File consists of anonymized data about foreign visitors to the United States. Compl. ¶ 13; Ans. ¶ 13; Erdmann Decl. ¶ 5. 24. The DOC maintains websites that are publicly available at http://travel.trade.gov/research/reports/i94/index.html and http://travel.trade.gov/research/reports/i94/historical/index.html where it lists prices for current and historical I-94 Data Files. Yanofsky Decl. ¶ 3, Ex A; Erdmann Decl. Ex. A. 25. The DOC websites state that the I-94 Data Files may be obtained as a “[q]uarterly datafile” or an “[a]nnual datafile.” Yanofsky Decl. ¶ 5, Ex. A; Compl. ¶ 14; Ans. ¶ 14; Erdmann Decl. ¶ 5. 26. The DOC websites list the following prices for CD-ROMs of the “annual datafile” for the 2015, 2014, 2013, 2012, and 2011 I-94 Data Files, respectively: $13,820.00, $13,165.00, $12,780.00, $12,170.00, and $10,165.00. Compl. ¶ 14; Ans. ¶ 14; Yanofsky Decl. ¶ 5, Ex. A. 27. On March 10, 2015, Plaintiff submitted a FOIA request to ITA (the “Prior Request”). Yanofsky Decl. ¶ 6, Ex. B. 28. The Prior Request sought: access to and copies of the Office of Travel & Tourism Industries’ [I-94 Data File] from 2014, 2013, 2012, and 2011 and its associated Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 9 of 21 10 technical documentation [and] . . . access to and copies of the Office of Travel & Tourism Industries’ [I-92 Data File] from 2014, 2013, 2012, and 2011 and its associated technical documentation. Yanofsky Decl. ¶ 6, Ex. B. 29. In the Prior Request, Plaintiff requested to receive the information in electronic format. Yanofsky Decl. ¶ 6, Ex. B. 30. In the Prior Request, Plaintiff sought 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). Yanofsky Decl. ¶ 7, Ex. B. 31. By letter dated June 24, 2015 from ITA FOIA Officer Justin Guz, the DOC denied the Prior Request (the “Prior Request Denial Letter”). Yanofsky Decl. ¶ 8, Ex. C. 32. Regarding the I-94 Data Files, the Prior Request Denial Letter stated that “ITA does not maintain the records [Plaintiff] requested” and that the records “are maintained by CIC Research, Inc.” Yanofsky Decl. Ex. C. 33. Regarding the I-92 Data Files, the Prior Request Denial Letter stated that ITA uses the data to “develop the reports that ITA promptly publishes and offers for sale” and that “[u]nder the FOIA, records which are published and offered for sale are excluded from the definition of subsection 5 U.S.C. § 552(a)(2) records and need not be proactively disclosed even if doing so would otherwise be required.” Yanofsky Decl. ¶ 8, Ex. C. 34. The Prior Request Denial Letter stated that “ITA’s National Travel and Tourism Office (NTTO) can help [Plaintiff] obtain the records [he] seek[s]” and enclosed an order form that the letter stated would “allow [Plaintiff] to obtain these records through NTTO.” Yanofsky Decl. Ex. C. Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 10 of 21 11 35. On July 2, 2015, Plaintiff administratively appealed the DOC’s denial of the Prior Request (the “July 2 Administrative Appeal”). Yanofsky Decl. ¶ 9, Ex. D. 36. The July 2 Administrative Appeal argued that ITA maintains the I-94 Data Files. Yanofsky Decl. Ex. D. 37. The July 2 Administrative Appeal argued that 5 U.S.C. § 552(a)(2) is not applicable to the I-92 Data Files. Yanofsky Decl. Ex. D. 38. The July 2 Administrative Appeal argued that Plaintiff is entitled to 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). Yanofsky ¶ 9, Decl. Ex. D. 39. By letter dated November 17, 2015 from Benjamin Friedman (“Friedman”), the Assistant General Counsel for Litigation, Employment, and Oversight of the DOC, the DOC denied the July 2 Administrative Appeal (the “July 2 Administrative Appeal Denial”). Yanofsky Decl. ¶ 10, Ex. E. 40. The July 2 Administrative Appeal Denial stated: “In [Plaintiff’s] appeal, [Plaintiff] correctly argue[s] that the I-94 records are in fact ‘agency records’ for FOIA purposes. [Plaintiff] also correctly argue[s] that the I-92 records cannot properly be withheld under 5 U.S.C. § 552(a)(2).” Yanofsky Decl. ¶ 10, Ex. E. 41. The July 2 Administrative Appeal Denial further stated: “After considering [Plaintiff’s] arguments, [Plaintiff’s] appeal is denied on an alternative basis.” Yanofsky Decl. Ex. E. 42. The July 2 Administrative Appeal Denial further stated: . . . [O]n appeal, both sets of ITA records are being withheld on under [sic] 5 U.S.C. § 552(a)(4)(A)(vi), which provides that FOIA fees are superseded by “fees chargeable under a statute specifically Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 11 of 21 12 providing for setting the level of fees for particular types of records.” This is referred to as the “displacement provision.” Under the displacement provision, 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. Yanofsky Decl. ¶ 10, Ex. E. 43. The July 2 Administrative Appeal Denial further stated: “The relevant superseding fee statute in this case is 15 U.S.C. § 1525 . . . .” Yanofsky Decl. ¶ 10, Ex. E. 44. The July 2 Administrative Appeal Denial further stated: “If you are interested in purchasing [the I-92 and I-94 Data Files], please contact the National Travel and Tourism Office . . . .” Yanofsky Decl. Ex. E. 45. The July 2 Administrative Appeal Denial further stated: “[B]ecause no records are being released in response to this appeal, there is no need to address your request for a fee waiver.” Yanofsky Decl. Ex. E. 46. On December 14, 2015, Marisa Johnson (“Johnson”), counsel to The Atlantic Monthly Group, Inc. and Quartz, sent a letter on Plaintiff’s behalf to Friedman in response to the July 2 Administrative Appeal Denial (the “December 14 Administrative Appeal”). Yanofsky Decl. ¶ 11, Ex. F. 47. The December 14 Administrative Appeal stated, inter alia, that 5 U.S.C. § 552(a)(4)(A)(vi)’s “‘Displacement Provision’ does not provide a basis for denying a fee waiver where the records are of significant public interest.” Yanofsky Decl. Ex. F. 48. The December 14 Administrative Appeal further stated: “The [Prior Request] is for newsgathering and news dissemination, not for any commercial interest. The data in the Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 12 of 21 13 requested reports is of critical public interest, and could be used to provide critical understanding of the ‘operations and activities of the government.’” Yanofsky Decl. Ex. F. 49. The December 14 Administrative Appeal further stated that the requested records will provide “insight into the data that policy makers are using to craft critical decisions including visa allocation and levels of infrastructure investment at ports and border crossings;” “the ability to test the strength of DOC’s statistical calculations on travel to the United States, which policy makers rely on;” and “assessing the efficacy of the accounting apparatus of the ITA’s Office of Travel and Tourism Industries.” Yanofsky Decl. Ex. F. 50. The December 14 Administrative Appeal further stated that 15 U.S.C. § 1525 “does not constitute a superseding fee statute as defined by the Displacement Provision” because “[w]here, as here, a statute simply authorizes an agency to charge fees, it does not constitute a superseding fee provision and cannot serve as the basis for imposing exorbitant fees on a FOIA applicant.” Yanofsky Decl. Ex. F. 51. The December 14 Administrative Appeal further stated that “the $136,210.00 fees demanded for the requested records bears no relationship to the ‘actual or estimated costs’ of making them available in electronic format.” Yanofsky Decl. Ex. F. 52. By letter dated December 28, 2015 from Friedman, the DOC responded to the December 14 Administrative Appeal (the “December 14 Administrative Appeal Denial”). Yanofsky Decl. ¶ 12, Ex. G. 53. The December 14 Administrative Appeal Denial stated, inter alia, that “[t]he fact that Mr. Yanofsky’s appeal was denied under a basis different than that asserted by ITA does not confer upon him any entitlement to a new appeal” and that the July 2 Administrative Appeal Denial was the DOC’s “final administrative action on the matter.” Yanofsky Decl. ¶ 12, Ex. G. Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 13 of 21 14 54. On February 26, 2016, Johnson submitted a new FOIA request on Plaintiff’s behalf to the DOC (the “Request”) via email to FOIA@trade.gov. Compl. ¶ 40, Ex. G; Erdmann Decl. ¶ 9, Ex. A; Yanofsky Decl. ¶ 13. 55. Attached to the Request were the Prior Request, the Prior Request Denial Letter, the July 2 Administrative Appeal, the July 2 Administrative Appeal Denial, the December 14 Administrative Appeal, and the December 14 Administrative Appeal Denial. Yanofsky Decl. ¶ 13. 56. The Request stated, inter alia, that the DOC “should consider the arguments made in support of Mr. Yanofsky’s prior request that it previously declined to consider, as well as the additional information” provided in the Request. Erdmann Decl. Ex. A. 57. The Request expressly incorporated the arguments set forth in the December 14 Administrative Appeal by reference. Erdmann Decl. Ex. A. 58. The Request sought “access to and copies of the [I-94 Data Files] from 2015, 2014, 2013, 2012, and 2011 and its associated technical documentation [and] . . . access to and copies of the [I-92 Data Files] from 2015, 2014, 2013, 2012, and 2011 and its associated technical documentation.” Erdmann Decl. Ex. A. 59. In the Request, Plaintiff requested to receive the information in electronic format. Erdmann Decl. Ex. A; Yanofsky Decl. ¶ 13. 60. In the Request, Plaintiff sought a fee benefit as a representative of the news media pursuant to 5 U.S.C. § 552(a)(4)(A)(ii). Erdmann Decl. Ex. A; Yanofsky Decl. ¶ 14. 61. Regarding Plaintiff’s request for a fee benefit, the Request stated that: Mr. Yanofsky, a journalist for Quartz, is a member of the news media. Mr. Yanofsky intends to use the requested records to gather information of potential interest to the public, namely, information about the operations of the DOC and other government agencies and Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 14 of 21 15 about travel and tourism in the United States. Mr. Yanofsky will use his editorial skills to turn the requested records into a distinct work and will distribute that work to the readers of Quartz via its website, qz.com. Erdmann Decl. Ex A. 62. In the Request, Plaintiff also sought a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). Erdmann Decl. Ex. A; Yanofsky Decl. ¶ 14. 63. Regarding Plaintiff’s request for a fee waiver, the Request stated that: Mr. Yanofsky is entitled to a fee waiver because the disclosure of the requested records (1) sheds light on the operations or activities of the government; (2) is likely to contribute significantly to the public understanding of those operations or activities; and (3) is not primarily in the commercial interest of the requester. Erdmann Decl. Ex. A. 64. The Request further stated that “[t]he requested records shed light on the operations and activities of the DOC and other government agencies” by providing: • “evidence of the information that the federal government collects from about [sic] foreign visitors to the United States, the information the federal government collects about air traffic to and from the United States, and the government’s efficacy in collecting this information;” • “information about how OTTI fulfills its mission to collect and disseminate travel and tourism information under the U.S. International Air Travel Statistics (I-92 data) Program and the Visitor Arrivals Program (I-94), which will allow the public to assess the efficacy of OTTI and its expenditure of funding allocated to it;” • “official and up-to-date data on foreign travel to and from the United States, which will allow the public to test and evaluate the accuracy of official DOC and other government statistics on travel that are calculated using this data;” and Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 15 of 21 16 • “insight into the data that policy makers use to make decisions, such as visa allocation and levels of infrastructure investment at ports and border crossings.” Erdmann Decl. Ex. A. 65. The Request further stated that: The requested records are likely to contribute significantly to the public’s understanding of the operations of the DOC and other government agencies because they provide the only source of data collected about foreign travel and tourism based on Form I-94 and Advanced Passenger Information System (APIS) arrival/departure records, formerly known as I-92 arrival/departure records. Erdmann Decl. Ex. A. 66. The Request further stated that “the records are not requested primarily for the commercial benefit of Mr. Yanofsky” and that “Mr. Yanofsky, a representative of the news media, intends to use the requested records to report and write news stories for Quartz about the operations of the DOC and other government agencies, as well as the impact of travel and tourism on the United States.” Erdmann Decl. Ex. A. 67. The Request further stated that “we understand that it is the DOC’s position that the requested records are not available pursuant to FOIA and are available only pursuant to 5 U.S.C. § 1525” and that “the DOC is of the view that Mr. Yanofsky is not entitled to a fee benefit or a fee waiver.” Erdmann Decl. Ex. A. 68. The Request further stated that: For the reasons stated in [the December 14 Administrative Appeal], we believe this position is incorrect as a matter of law. . . . In the event that the DOC plans to again assert this erroneous legal position as a basis for denying Mr. Yanofsky’s new request, we ask that you consider the arguments raised in [the December 14 Administrative Appeal]. . . .” Erdmann Decl. Ex. A; Yanofsky Decl. ¶ 16. Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 16 of 21 17 69. The Request cited to four DOC websites containing prices for the 2015 and historical I-92 and I-94 Data Files. Erdmann Decl. Ex. A. 70. The Request further stated that, if Mr. Yanofsky were required to pay the fees listed on the DOC websites in order to obtain the requested records, “[b]y our calculations, these fees would total $173,775.00 for this request, which includes records from 2015.” Erdmann Decl. Ex. A; Yanofsky Decl. ¶ 15. 71. The DOC did not respond to the Request within twenty business days of the date it was submitted to the DOC. Yanofsky Decl. ¶ 17. 72. On March 28, 2016, Johnson submitted an administrative appeal on Plaintiff’s behalf to the DOC. Erdmann Decl. Ex. B; Compl. ¶¶ 48-49; Ans. ¶¶ 48-49; Yanofsky Decl. ¶ 18. 73. The administrative appeal stated: “This letter constitutes an administrative appeal on behalf of [Plaintiff] of the failure of the [ITA] of the [DOC] to respond to [Plaintiff’s] February 26, 2016 request for records . . . under [FOIA] within the time limits prescribed by FOIA.” Erdmann Decl. Ex. B; Compl. ¶¶ 48-49; Ans. ¶¶ 48-49. 74. By letter dated March 29, 2016 from Friedman, the DOC responded to the March 28, 2016 administrative appeal. Erdmann Decl. Ex. C; Compl. ¶ 50; Ans. ¶ 50; Yanofsky Decl. ¶ 19. 75. Friedman’s March 29, 2016 letter stated that Plaintiff’s March 28, 2016 letter “does not constitute a proper appeal because ITA has not received the [Request] and, hence, has not denied any records” and that Friedman was “redirecting to ITA the request that is attached to your March 28, 2016 letter for that bureau to respond to you.” Erdmann Decl. Ex. C; Yanofsky Decl. ¶ 19. 76. By letter dated March 30, 2016 from ITA FOIA Officer Justin Guz, the DOC denied the Request (the “Denial Letter”). Erdmann Decl. Ex. D; Yanofsky Decl. ¶ 20. Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 17 of 21 18 77. The Denial Letter stated, inter alia, that both the I-92 and I-94 Data Files were being “withheld under 5 U.S.C. § 552(a)(5)(A)(vi),” which is “referred to as the displacement provision.” Erdmann Decl. Ex. D; Yanofsky Decl. ¶ 20. 78. The Denial Letter further stated that: Under the displacement provision, 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. . . . The relevant superseding fee statute in this case is 15 U.S.C. § 1525 . . . . Erdmann Decl. Ex. D; Yanofsky Decl. ¶ 20. 79. The Denial Letter further stated that: Both the I-94 and I-92 records you requested are compilations of data which the ITA has authority to assemble and provide to members of the private sector upon request and payment of the specified fees gathered in order to “support the cost of this program” (see http://travel.trade.gov/research/index.html, explaining how to purchase the I-94 and I-92 records and outlining the required fees). As a result, these records are not available under the FOIA pursuant to the displacement provision. Erdmann Decl. Ex. D. 80. The Denial Letter further stated that “ITA’s National Travel and Tourism Office (NTTO) can help you obtain the records you seek.” Erdmann Decl. Ex. D; Yanofsky Decl. ¶ 22. 81. The Denial Letter enclosed an order form that it stated would “allow [Plaintiff] to obtain [the requested] records through NTTO.” Erdmann Decl. Ex. D; Yanofsky Decl. ¶ 22. 82. The Denial Letter did not grant Plaintiff’s request for a fee benefit as a member of the news media. Erdmann Decl. Ex. D. 83. The Denial Letter did not grant Plaintiff’s request for a fee waiver. Erdmann Decl. Ex. D. Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 18 of 21 19 84. The Denial Letter stated: “As for your request for a fee waiver, there are no fees to charge in processing this request.” Erdmann Decl. Ex. D. 85. On March 31, 2016, Plaintiff’s counsel submitted an administrative appeal on Plaintiff’s behalf to the DOC appealing its March 30, 2016 denial of the Request (the “Administrative Appeal”). Erdmann Decl. Ex. E; Yanofsky Decl. ¶ 23. 86. The Administrative Appeal stated, inter alia, that “the requested records cannot be withheld under FOIA’s Displacement Provision because 15 U.S.C. § 1525 does not qualify as a superseding fee statute under that provision[]” because the statute “does not require the Secretary of Commerce to establish fees for particular documents.” Erdmann Decl. Ex. E. 87. The Administrative Appeal further stated that “assuming arguendo that 15 U.S.C. § 1525 is a superseding fee statute under FOIA’s Displacement Provision . . . FOIA’s Displacement Provision does not allow an agency to withhold, wholesale, records requested under FOIA.” Erdmann Decl. Ex. E. 88. The Administrative Appeal further stated that “assuming arguendo that 15 U.S.C. § 1525 is a superseding fee statute under FOIA’s Displacement Provision . . . FOIA’s Displacement Provision applies only to FOIA’s fee setting requirements and does not apply to FOIA’s fee waiver requirements.” Erdmann Decl. Ex. E. 89. The Administrative Appeal further stated that Plaintiff “is entitled to a fee waiver because disclosure of the requested records (1) will shed light on the operations or activities of the government; (2) are likely to contribute significantly to the public understanding of those operations or activities; and (3) are not primarily in the commercial interest of the requester[,]” and set forth facts and arguments in support thereof. Erdmann Decl. Ex. E. Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 19 of 21 20 90. The Administrative Appeal cited to four DOC websites containing prices for the 2015 and historical I-92 and I-94 Data Files. Erdmann Decl. Ex. E. 91. The Administrative Appeal further stated that Plaintiff “is entitled to a fee waiver and is not required to pay the fees listed on the [DOC] website in order to obtain the requested records[,]” which, “[b]y our calculations . . . would total $173,775.00 for this request, which includes records from 2015.” Erdmann Decl. Ex. E. 92. On April 8, 2016, Plaintiff received an email from Cindy Kelton, an administrative assistant in the DOC Office of General Counsel, acknowledging that the DOC had received the Administrative Appeal on March 31, 2016. Compl. ¶ 57; Ans. ¶ 57; Yanofsky Decl. ¶ 25. 93. Plaintiff did not receive any determination from the DOC with respect to the Administrative Appeal within twenty business days. Compl. ¶ 58; Ans. ¶ 58; Yanofsky Decl. ¶ 26. 94. Plaintiff has not received a response to the Administrative Appeal from the DOC. Yanofsky Decl. ¶ 26. 95. Plaintiff initiated this lawsuit on May 19, 2016. Compl. (ECF No. 1). 96. The DOC filed its Answer to the Complaint on July 22, 2016 (the “Answer”). Answer (ECF No. 14). 97. The DOC’s Answer states that “the superseding fee statute cited in ITA’s Determination (15 U.S.C. § 1525) was cited in error . . . .” Answer ¶ 53. 98. The DOC’s Answer further states that “the superseding fee statute applicable to the February 2016 Request is the Consolidated Appropriations Act, 2016 Pub. L. No. 114-1113, 129 Stat. 2286-7 (2015) (‘Consolidated Appropriations Act for 2016’).” Answer ¶ 53. Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 20 of 21 21 99. The DOC’s Answer is the first time it cited the Consolidated Appropriations Act for 2016 as a basis for denying Plaintiff’s Request. See Erdmann Decl. Ex. D; Answer ¶ 53. 100. The DOC did not assert that the Appropriations Act for 2016 is a superseding fee statute for purposes of FOIA’s Displacement Provision in connection with Plaintiff’s Request at the administrative stage. See Erdmann Decl. Ex. D. Dated: October 31, 2016 Respectfully submitted, /s/ Katie Townsend Katie Townsend DC Bar No. 1026155 Bruce D. Brown DC Bar No. 457317 Adam A. Marshall DC Bar No. 1029423 The Reporters Committee for Freedom of the Press 1156 15th St. NW, Suite 1250 Washington, DC 20005 Phone: 202.795.9300 Facsimile: 202.795.9310 Email: ktownsend@rcfp.org Email: bbrown@rcfp.org Email: amarshall@rcfp.org Counsel for Plaintiff Case 1:16-cv-00951-KBJ Document 21-2 Filed 10/31/16 Page 21 of 21 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID YANOFSKY, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant. Civil Action No. 1:16-cv-00951 (KBJ) DECLARATION OF DAVID YANOFSKY I, David Yanofsky, declare as follows: 1. I am a journalist and staff reporter for Quartz (qz.com), a digital news publication of The Atlantic Monthly Group, Inc., a position I have held since August 20, 2012. I have personal knowledge of the matters stated in this declaration. 2. I have reviewed the declaration of Ronald Erdmann, Deputy Director for Research within the National Travel and Tourism Office (“NTTO”) of the International Trade Administration (“ITA”), a bureau of the Department of Commerce, that was filed in support of the Department of Commerce’s Motion for Summary Judgment in this case, ECF No. 20-1 (the “Erdmann Decl.”). 3. The Department of Commerce (“DOC”) sells data files for its I-92 Program and I-94 Program (the “I-92 Data Files” and the “I-94 Data Files,” respectively). The DOC maintains publicly available websites on which it lists prices for the I-92 Data Files and I-94 Data Files. True and correct copies of the DOC websites stating prices for the I-92 and I-94 Data Files for Case 1:16-cv-00951-KBJ Document 21-3 Filed 10/31/16 Page 1 of 7 2 2015, 2014, 2013, 2012, and 2011 (the “DOC Websites”) are attached hereto, collectively, as Exhibit A. 4. According to the DOC Websites, the I-92 Data Files can be purchased “for internal use only” or “for resale.” The DOC Websites do not state a price for the I-92 Data Files when purchased “for resale,” except for the 2011 Data File, which the DOC Websites state costs $48,615 when purchased for resale. The DOC Websites list the following prices for the 2015, 2014, 2013, 2012, and 2011 I-92 Data Files when purchased “for internal use only,” respectively: $23,745, $23,280, $22,600, $21,540, and $20,510. 5. The DOC Websites provide two prices for the 2015, 2014, 2013, and 2012 I-94 Data File, depending on whether the data file is purchased as an “[a]nnual datafile” or a “[q]uarterly datafile.” The DOC Websites state that the “quarterly datafile” is available “[f]or internal use only.” The DOC Websites provide a single price for the 2011 I-94 Data File, which the DOC Websites state is “[a]nnual, available quarterly” and “[f]or internal use only.” The DOC Websites list the following prices for the 2015, 2014, 2013, and 2012 annual I-94 Data File, respectively: $13,820, $13,165, $12,780, and $12,170. The DOC Websites state that the price of the 2011 I-94 Data File is $10,165. 6. On March 10, 2015, I sent a Freedom of Information Act (“FOIA”) request to ITA (the “Prior Request”). A true and correct copy of the Prior Request is attached as Exhibit B. The Prior Request sought, in electronic format, “access to and copies of the [I-94 Data Files] from 2014, 2013, 2012, and 2011 and its associated technical documentation [and] . . . access to and copies of the [I-92 Data Files] from 2014, 2013, 2012, and 2011 and its associated technical documentation.” Case 1:16-cv-00951-KBJ Document 21-3 Filed 10/31/16 Page 2 of 7 3 7. In the Prior Request, I 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). 8. On June 24, 2015, ITA FOIA Officer Justin Guz sent me a letter, a true and correct copy of which attached hereto as Exhibit C, denying the Prior Request. The letter stated that CIC Research, Inc., not ITA, maintains the I-94 Data Files and that “FOIA applies only to records in the agency’s possession or control at the time the agency begins its search for responsive records.” Regarding the I-92 Data Files, the letter stated, “Under the FOIA, records which are published and offered for sale are excluded from the definition of subsection 5 U.S.C. § 552(a)(2) records and need not be proactively disclosed even if doing so would otherwise be required.” The letter also stated that NTTO could “help [me] obtain the records [I] seek” and enclosed an order form. 9. On July 2, 2015, I filed an administrative appeal of the denial of the Prior Request with the Assistant General Counsel for Litigation, Employment, and Oversight of DOC (the “July 2 Administrative Appeal”). A true and correct copy of the July 2 Administrative Appeal is attached as Exhibit D. In the July 2 Administrative Appeal, I renewed my request for a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). I stated that I do not have a commercial interest in the records and that I am gathering information on a matter of current interest to the public, namely, the manner in which tourism and travel affect the United States economy. 10. On November 17, 2015, DOC Assistant General Counsel for Litigation, Employment, and Oversight, Benjamin Friedman, sent me a letter, a true and correct copy of which is attached hereto as Exhibit E, denying the July 2 Administrative Appeal on an “alternative basis” (the “July 2 Administrative Appeal Denial”). The July 2 Administrative Appeal Denial stated that I “correctly argue that the I-94 records are in fact ‘agency records’ for FOIA purposes” and that Case 1:16-cv-00951-KBJ Document 21-3 Filed 10/31/16 Page 3 of 7 4 “the I-92 records cannot properly be withheld under 5 U.S.C. § 552(a)(2).” The July 2 Administrative Appeal Denial also stated that, on appeal, the I-92 and I-94 Data Files were being withheld pursuant to 5 U.S.C. § 552(a)(4)(A)(vi), which “is referred to as the ‘displacement provision.’” The July 2 Administrative Appeal Denial stated: Under the displacement provision, 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. . . . The relevant superseding fee statute in this case is 15 U.S.C. § 1525 . . . . 11. On December 14, 2015, Marisa Johnson, counsel to The Atlantic Monthly Group, Inc. and Quartz, sent a letter on my behalf to Mr. Friedman to appeal the “alternative basis” upon which the July 2 Administrative Appeal was denied (the “December 14 Administrative Appeal”). A true and correct copy of the December 14 Administrative Appeal, without its attachments, is attached hereto as Exhibit F. 12. On December 28, 2015, Mr. Friedman sent a letter to Ms. Johnson, a true and correct copy of which is attached hereto as Exhibit G, responding to the December 14 Administrative Appeal. The letter stated that “[t]he fact that Mr. Yanofsky’s appeal was denied under a basis different than that asserted by ITA does not confer upon him any entitlement to a new appeal” and that the July 2 Administrative Appeal Denial was DOC’s “final administrative action on the matter.” 13. On February 26, 2016, Ms. Johnson sent a new FOIA request on my behalf to ITA (the “Request”) via email to FOIA@trade.gov. A true and correct copy of the Request is attached as Exhibit A to the Erdmann Decl. Exhibit A of the Erdmann Decl. does not include the attachments that were attached to the Request. Attached to the Request were the Prior Request Case 1:16-cv-00951-KBJ Document 21-3 Filed 10/31/16 Page 4 of 7 5 attached hereto as Exhibit B, the denial of the Prior Request attached hereto as Exhibit C, the July 2 Administrative Appeal attached hereto as Exhibit D, the July 2 Administrative Appeal Denial attached hereto as Exhibit E, the December 14 Administrative Appeal attached hereto as Exhibit F, and the December 28, 2015 letter from Mr. Friedman attached hereto as Exhibit G. The Request sought, in electronic format, “access to and copies of the [I-94 Data Files] from 2015, 2014, 2013, 2012, and 2011 and its associated technical documentation [and] . . . access to and copies of the [I-92 Data Files] from 2015, 2014, 2013, 2012, and 2011 and its associated technical documentation.” 14. In the Request, I sought 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). 15. The Request stated that if DOC required me to pay the fees listed on the DOC Websites to obtain the requested I-94 and I-92 Data Files, we had calculated that the cost would total $173,775. We calculated this cost based on the prices listed on the DOC Websites, attached hereto as Exhibit A, for the 2015, 2014, 2013, 2012, and 2011 I-92 Data Files when sold “for internal use only” and for the 2015, 2014, 2013, and 2012 annual I-94 Data Files and 2011 I-94 Data File. 16. The Request also stated that if DOC planned to deny the Request on the same basis asserted in the July 2 Administrative Appeal Denial, it should “consider the arguments raised in the [December 14 Administrative Appeal],” which was attached to the Request. 17. DOC did not respond to the Request within twenty business days of the date Ms. Johnson submitted it to DOC. 18. On March 28, 2016, Ms. Johnson submitted an administrative appeal on my behalf to the DOC Assistant General Counsel for Litigation, Employment, and Oversight of DOC Case 1:16-cv-00951-KBJ Document 21-3 Filed 10/31/16 Page 5 of 7 6 appealing DOC’s failure to respond to the Request within twenty business days. A true and correct copy of the March 28, 2016 administrative appeal is attached as Exhibit B to the Erdmann Decl. Exhibit B does not include the attachments attached to the March 28, 2016 administrative appeal. Attached to the March 28, 2016 administrative appeal were the Request, which is attached to the Erdmann Decl. as Exhibit A, and all of its attachments as described in Paragraph 13. 19. On March 29, 2016 Mr. Friedman sent Ms. Johnson a letter in response to the March 28, 2016 administrative appeal, a true and correct copy of which is attached to as Exhibit C to the Erdmann Decl. Mr. Friedman’s letter stated that ITA had not received the Request and that it was being redirected to ITA for response. 20. On March 30, 2016, FOIA Officer Justin Guz sent me and Ms. Johnson a letter denying the Request (the “Denial Letter”), a true and correct copy of which is attached to the Erdmann Decl. as Exhibit D. The Denial Letter stated that both the I-92 and I-94 Data Files were being withheld under 5 U.S.C. § 552(a)(5)(A)(vi), which is “referred to as the displacement provision.” The Denial Letter stated: Under the displacement provision, 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. . . . The relevant superseding fee statute in this case is 15 U.S.C. § 1525 . . . . 21. The Denial Letter did not provide any other basis for the denial of the Request. 22. The Denial Letter stated that NTTO could “help [me] obtain the records [I] seek” and enclosed and order form. Case 1:16-cv-00951-KBJ Document 21-3 Filed 10/31/16 Page 6 of 7 Case 1:16-cv-00951-KBJ Document 21-3 Filed 10/31/16 Page 7 of 7 EXHIBIT A Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 1 of 21 10/14/2016 TINET -- Market Analysis: Visitor Arrivals Program (I-94 Form) http://travel.trade.gov/research/reports/i94/index.html 1/2 Visitor Arrivals Program (I94 Record) Location: Market Analysis: Visitor Arrivals Program (I94 Record) 2015 Publications | Historical Summary of International Travel to the United States 2015 Publications Annual Price Monthly 1 Subscription (printfile) $1,150.00 Monthly 1 Subscription (printfile & Excel) $2,020.00 Quarterly 2 Subscription (printfile) $960.00 Quarterly 2 Subscription (printfile & Excel) $1,770.00 Annual 3 Issue (printfile) $690.00 Annual 3 Issue (printfile & Excel) $1,220.00 Combined 2014 & 2015 Monthly 1 Subscription (printfile) $1,740.00 Monthly 1 Subscription (printfile & Excel) $3,070.00 Quarterly 2 Subscription (printfile) $1,450.00 Quarterly 2 Subscription (printfile & Excel) $2,610.00 Annual 3 Issue (printfile) $940.00 Annual 3 Issue (printfile & Excel) $1,650.00 These data files are for the purchaser's use only. Resale arrangements must be made through the National Travel and Tourism Office (NTTO). Air Arrivals I94 Database (Detail Arrival Records) 2015 Publications Annual Price Annual datafile $13,820.00 Quarterly datafile (For Internal use only) $15,510.00 Custom Reports (to your specs) and Trend Data 2015 Publications Annual Price Available in print, excel and adobe format. Call for Quote Each report contains international visitor arrival statistics by world regions and select countries (including top 20), type of visa, mode of transportation, age groups, states visited (first intended address only), and the top ports of entry (for select countries). Data sources include: Overseas DHS/CBP I94 Program data; Canadian visitation data (Stats Canada) and Mexican visitation data (Banco de Mexico). (1) Monthly subscription provides twelve monthly reportsthe current month and yeartodate. (2) Quarterly subscription provides a series of four publications (March, June, September and December) which Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 2 of 21 10/14/2016 TINET -- Market Analysis: Visitor Arrivals Program (I-94 Form) http://travel.trade.gov/research/reports/i94/index.html 2/2 highlight the month and yeartodate. (3) Annual report provides one report with the December and final annual visitor arrival figures. Please use the NTTO Publications Order form to place your order. Before you go to the order form, please note and use the item description, item # and price above and insert it into the NTTO Publication Order form. Then, to complete your order, please enter the other required information on the form. There are two ways to order NTTO publications: 1. Print the PDF form, complete it and fax to : 2024822887 2. Save the fillable PDF form to your computer, type directly to the form and email your order form to ntto@trade.gov. Questions? Please email us at ntto@trade.gov or fax us at (202) 4822887.There are two ways to order NTTO publications: Thank you for your support of NTTO's programs. Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 3 of 21 10/14/2016 TINET -- Market Analysis: Visitor Arrivals Program (I-94 Form) http://travel.trade.gov/research/reports/i94/historical/index.html 1/2 Visitor Arrivals Program (I94 Form) Location: Market Analysis: Visitor Arrivals Program (I94 Form) 2014 Publications | Current Publications View: 2014 | 2013 | 2012 | 2011 | 200810 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 199996 | 199592 Summary of International Travel to the United States 2014 Publications Annual Price Monthly 1 Subscription (printfile) $1,095.00 Monthly 1 Subscription (printfile & Excel) $1,920.00 Quarterly 2 Subscription (printfile) $910.00 Quarterly 2 Subscription (printfile & Excel) $1,685.00 Annual 3 Issue (printfile) $655.00 Annual 3 Issue (printfile & Excel) $1,165.00 Combined 2013 & 2014 Monthly 1 Subscription (printfile) $1,660.00 Monthly 1 Subscription (printfile & Excel) $2,925.00 Quarterly 2 Subscription (printfile) $1,385.00 Quarterly 2 Subscription (printfile & Excel) $2,485.00 Annual 3 Issue (printfile) $890.00 Annual 3 Issue (printfile & Excel) $1,575.00 These data files are for purchase's use only. Resale arrangements must be made through the National Travel and Tourism Office (NTTO). Air Arrivals I94 Database (Detail Arrival Records) 2014 Publications Annual Price Annual datafile (CDROM) $13,165.00 Quarterly datafile (CDROM) (For Internal use only) $14,775.00 Custom Reports (to your specs) and Trend Data 2014 Publications Annual Price Available in print, excel and adobe format. Call for Quote Each report contains international visitor arrival statistics by world regions and select countries (including top 20), Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 4 of 21 10/14/2016 TINET -- Market Analysis: Visitor Arrivals Program (I-94 Form) http://travel.trade.gov/research/reports/i94/historical/index.html 2/2 type of visa, mode of transportation, age groups, states visited (first intended address only), and the top ports of entry. for select countries Data sources include: Overseas DHS/CBP 'electronic' I94W for arrivals of citizens from Visa Waiver Program countries and I94 nonVWP; Canadian (from Stats Canada) and Mexican travelers (Banco de Mexico) (1) Monthly subscription provides twelve monthly reports* which contains the current month and yeartodate. (2) Quarterly subscription provides a series of four publications* (March, June, September, December) which highlight the month and yeartodate. (3) Annual report provides one report with the December** and final annual visitor arrival figures NTTO will issue the basic monthly/quarterly reports* in electronic printfile only (.pdf) with the annual** in print and/or printfile formats. Please use the NTTO Publications Order form to place your order. Before you go to the order form, please note and use the item description, item # and price above and insert it into the NTTO Publication Order form. Then, to complete your order, please enter the other required information on the form. There are two ways to order NTTO publications: 1. Print the PDF form, complete it and fax to : 2024822887 2. Save the fillable PDF form to your computer, type directly to the form and email your order form to ntto@trade.gov. Questions? Please email us at ntto@trade.gov or fax us at (202) 4822887.There are two ways to order NTTO publications: Thank you for your support of NTTO's programs. Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 5 of 21 10/14/2016 TINET -- Market Analysis: Visitor Arrivals Program (I-94 Form) http://travel.trade.gov/research/reports/i94/historical/2013.html 1/2 Visitor Arrivals Program (I94 Form) Location: Market Analysis: Visitor Arrivals Program (I94 Form) 2013 Publications | Current Publications View: 2013 | 2012 | 2011 | 200810 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 199996 | 199592 Summary of International Travel to the United States 2013 Publications Annual Price Monthly 1 Subscription (printfile) $1,060.00 Monthly 1 Subscription (printfile & Excel) $1,860.00 Quarterly 2 Subscription (printfile) $880.00 Quarterly 2 Subscription (printfile & Excel) $1,635.00 Annual 3 Issue (printfile) $635.00 Annual 3 Issue (printfile & Excel) $1,130.00 Combined 2012 & 2013 Monthly 1 Subscription (printfile) $1,610.00 Monthly 1 Subscription (printfile & Excel) $2,840.00 Quarterly 2 Subscription (printfile) $1,345.00 Quarterly 2 Subscription (printfile & Excel) $2,410.00 Annual 3 Issue (printfile) $860.00 Annual 3 Issue (printfile & Excel) $1,525.00 These data files are for purchaser's use only. Resale arrangements must be made through the Office of Travel and Tourism Industries (OTTI). Air Arrivals I94 Database (Detail Arrival Records) 2013 Publications Annual Price Annual datafile (CDROM) $12,780.00 Quarterly datafile (CDROM) (For Internal use only) $14,345.00 Each report contains international visitor arrival statistics by world regions and select countries (including top 20), type of visa, mode of transportation, age groups, states visited (first intended address only), and the top ports of entry. for select countries Data sources include: Overseas DHS 'electronic' I94W for arrivals of citizens from Visa Waiver Program countries and DHS I94 nonVWP; Canadian (from Stats Canada) and Mexican travelers (Banco de Mexico) Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 6 of 21 10/14/2016 TINET -- Market Analysis: Visitor Arrivals Program (I-94 Form) http://travel.trade.gov/research/reports/i94/historical/2013.html 2/2 1 Monthly subscription provides twelve monthly reports* which contains the current month and yeartodate. 2 Quarterly subscription provides a series of four publications* (March, June, September, December) which highlight the month and yeartodate. 3 Annual report provides one report with the December** and final annual visitor arrival figures OTTI will issue the basic monthly/quarterly reports* in electronic printfile only (.pdf, .doc or .wpd) with the annual** in print and/or printfile formats. Please use the OTTI Publications Order form to place your order. Before you go to the order form, please note and use the item description, item #, and price above and insert it into the OTTI Publication Order form. Then, to complete your order, please enter the other required information on the form. There are two ways to order OTTI publications: 1. Print the PDF form, complete it and fax to: 2024822887 2. Save the fillable PDF form to your computer, type directly to the form and email your order form to: otti@trade.gov Question? Please email us at: otti@trade.gov or fax us at (202) 4822887. Thank you for the support of OTTI's programs. Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 7 of 21 10/14/2016 TINET -- Market Analysis: Visitor Arrivals Program (I-94 Form) http://travel.trade.gov/research/reports/i94/historical/2012.html 1/2 Visitor Arrivals Program (I94 Form) Location: Market Analysis: Visitor Arrivals Program (I94 Form) 2012 Publications | Current Publications View: 2012 | 2011 | 200810 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 199996 | 199592 Summary of International Travel to the United States 2012 Publications Annual Price Monthly 1 Subscription (printfile) $1,010.00 Monthly 1 Subscription (printfile & Excel) $1,770.00 Quarterly 2 Subscription (printfile) $840.00 Quarterly 2 Subscription (printfile & Excel) $1,555.00 Annual 3 Issue (printfile) $605.00 Annual 3 Issue (printfile & Excel) $1,075.00 Combined 2011 & 2012 Monthly 1 Subscription (printfile) $1,535.00 Monthly 1 Subscription (printfile & Excel) $2,705.00 Quarterly 2 Subscription (printfile) $1,280.00 Quarterly 2 Subscription (printfile & Excel) $2,295.00 Annual 3 Issue (printfile) $820.00 Annual 3 Issue (printfile & Excel) $1,450.00 These data files are for purchaser's use only. Resale arrangements must be made through OTTI. Air Arrivals I94 Database (Detail Arrival Records) 2012 Publications Annual Price Annual datafile (CDROM) $12,170.00 Quarterly datafile (CDROM) (For Internal use only) $13,660.00 Each report contains international visitor arrival statistics by world regions and select countries (including top 20), type of visa, mode of transportation, age groups, states visited (first intended address only), and the top ports of entry for select countries. Data sources include: Overseas DHS 'electronic' I94W for arrivals of citizens from Visa Waiver Program countries; DHS I94 nonVWP and MexicoAir only; Canadian (from Stats Canada) and Mexican travelers (Banco de Mexico). 1 Monthly subscription provides twelve monthly reports* which contain the current month and yeartodate. 2 Quarterly subscription provides a series of four publications* (March, June, September, December) which highlight the month and yeartodate. 3 Annual report provides one report with the December** and final annual visitor arrival figures Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 8 of 21 10/14/2016 TINET -- Market Analysis: Visitor Arrivals Program (I-94 Form) http://travel.trade.gov/research/reports/i94/historical/2012.html 2/2 OTTI will issue the basic monthly/quarterly reports* in electronic printfile only (.pdf, .doc or .wpd) with the annual** in print and/or printfile formats. Please use the OTTI Publications Order form to place your order. Before you go to the order form, please note and use the item description, item #, and price above and insert it into the OTTI Publication Order form. Then, to complete your order, please enter the other required information on the form. There are two ways to order OTTI publications: 1. Print the PDF form, complete it and fax to: 2024822887 2. Save the fillable PDF form to your computer, type directly to the form and email your order form to: otti@trade.gov Question? Please email us at: otti@trade.gov or fax us at (202) 4822887. Thank you for the support of OTTI's programs. Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 9 of 21 10/14/2016 TINET -- Market Analysis: Visitor Arrivals Program (I-94 Form) http://travel.trade.gov/research/reports/i94/historical/2011.html 1/2 Visitor Arrivals Program (I94 Form) Location: Market Analysis: Visitor Arrivals Program (I94 Form) 2011 Publications | Current Publications View: 200810 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 199996 | 199592 Summary of International Travel to the United States 2011 Publications Annual Price Monthly 1 Subscription (printfile) $960.00 Monthly 1 Subscription (printfile & Excel) $1,685.00 Quarterly 2 Subscription (printfile) $800.00 Quarterly 2 Subscription (printfile & Excel) $1,430.00 Annual 3 Issue (printfile) $575.00 Annual 3 Issue (printfile & Excel) $1,020.00 Combined 2010 & 2011 Monthly 1 Subscription (printfile) $1,460.00 Monthly 1 Subscription (printfile & Excel) $2,575.00 Quarterly 2 Subscription (printfile) $1,215.00 Quarterly 2 Subscription (printfile & Excel) $2,185.00 Annual 3 Issue (printfile) $780.00 Annual 3 Issue (printfile & Excel) $1,380.00 Each report contains international visitor arrival statistics by world regions and select countries (including top 20), type of visa, mode of transportation, age groups, states visited (first intended address only), and the top ports of entry. for select countries Data sources include: Overseas DHS 'electronic' I94W for arrivals of citizens from Visa Waiver Program countries and DHS I94 nonVWP; Canadian (from Stats Canada) and Mexican travelers (Banco de Mexico) 1 Monthly subscription provides twelve monthly reports* which contains the current month and yeartodate. 2 Quarterly subscription provides a series of four publications* (March, June, September, December) which highlight the month and yeartodate. 3 Annual report provides one report with the December** and final annual visitor arrival figures OTTI will issue the basic monthly/quarterly reports* in electronic printfile only (.pdf, .doc or .wpd) with the annual** in print and/or printfile formats. Air Arrivals I94 Database (Detail Arrival Records) 2011 Publications Annual Price Annual, available quarterly (CDROM) (For internal use only) $10,165.00 (Overseas and Mexico air arrival records includes country of origin, airline, date of arrival, age, gender, ports of entry, visa type, state to be visitedpersonal information not included) Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 10 of 21 10/14/2016 TINET -- Market Analysis: Visitor Arrivals Program (I-94 Form) http://travel.trade.gov/research/reports/i94/historical/2011.html 2/2 Please use the OTTI Publications Order form to place your order. Before you go to the order form, please note and use the item description, item #, and price above and insert it into the OTTI Publication Order form. Then, to complete your order, please enter the other required information on the form. There are two ways to order OTTI publications: 1. Print the PDF form, complete it and fax to: 2024822887 2. Save the fillable PDF form to your computer, type directly to the form and email your order form to: otti@trade.gov Question? Please email us at: otti@trade.gov or fax us at (202) 4822887. Thank you for the support of OTTI's programs. Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 11 of 21 10/14/2016 TINET -- Market Analysis: U.S. International Air Travel Statistics (I-92 data) Program http://travel.trade.gov/research/reports/i92/index.asp 1/2 NTTO Home About NTTO Overview Tourism Policy Industry Analysis Export Assistance Latest Statistics/Outreach Inbound Travel To the U.S. Outbound Travel From the U.S. Research Programs Survey of Intl. Air Travelers Monthly Statistics Travel Industry News Subscribe For Free Archive Common Uses Unsubscribe Catalog Your Orders Links Ask NTTO U.S. International Air Travel Statistics (I92 data) Program Location: Market Analysis: U.S. International Air Travel Statistics (I92 data) Current Publications Historical U.S. International Air Travel Statistics Report (APIS/I92) 1 2016 Publications and Prices Single Issue Annual Price Monthly Reports (printfile) $180 $1,995 Monthly Reports (printfile & Excel) $260 $2,985 Quarterly Reports (printfile) $465 $1,800 Quarterly Reports (printfile & Excel) $685 $2,690 Annual Report (printfile) $1,400 Annual Report (printfile & Excel) $2,090 Combinations (20% Discount) # Reports Monthly, Quarterly and Annual Reports (printfile) 17 $4,160 Monthly, Quarterly and Annual Reports (printfile & Excel) 17 $6,215 Monthly and Annual Reports (printfile) 13 $2,720 Monthly and Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 12 of 21 10/14/2016 TINET -- Market Analysis: U.S. International Air Travel Statistics (I-92 data) Program http://travel.trade.gov/research/reports/i92/index.asp 2/2 Annual Reports (printfile & Excel) 13 $4,060 Quarterly and Annual Reports (printfile) 5 $2,560 Quarterly and Annual Reports (printfile & Excel) 5 $3,825 Data Files, for internal use only 12 $23,745 Data Files, for resale Contact NTTO To order any of the above reports, please click here. 1 U.S. International Air Travel Statistics Report is based on the Advance Passenger Information System (APIS) obtained from the Department of Homeland Security, U.S. Customs & Border Protection. Replaced the legacy paper based I92. Reports present the following: Nonstop passenger (including crew and nonrevs) air traffic between U.S. and foreign ports/gateways Arrivals and departures by country and ports of embarkation and debarkation U.S. citizens and nonU.S. citizens; U.S. and foreign flag totals; Scheduled and chartered traffic Includes all international (overseas, Mexico and Canada) Note: Nonstop air traffic is segment data and does not necessarily reflect total 'visitation' between the U.S. and a foreign country. For visitation estimates please see Survey of International Air Travelers here. Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 13 of 21 10/14/2016 TINET -- Market Analysis: U.S. International Air Travel Statistics (I-92 data) Program http://travel.trade.gov/research/reports/i92/historical/2014.html 1/2 U.S. International Air Travel Statistics (I92 data) Program Location: Market Analysis: U.S. International Air Travel Statistics (I92 data) Historical Publications Current 2014 | 2013 | 2012 | 2011 | 200810 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | 199598 | 199094 U.S. International Air Travel Statistics Report (APIS/I92) 1 2014 Publications and Prices Single Issue Annual Price Monthly Reports (printfile) $165 $1,860 Monthly Reports (printfile & Excel) $245 $2,785 Quarterly Reports (printfile) $445 $1,675 Quarterly Reports (printfile & Excel) $660 $2,510 Annual Report (printfile) $1,305 Annual Report (printfile & Excel) $1,950 Combinations (20% Discount) # Reports Monthly, Quarterly and Annual Reports (printfile) 17 $3,870 Monthly, Quarterly and Annual Reports (printfile & Excel) 17 $5,795 Monthly and Annual Reports (printfile) 13 $2,530 Monthly and Annual Reports (printfile & Excel) 13 $3,785 Quarterly and Annual Reports (printfile) 5 $2,380 Quarterly and Annual Reports (printfile & Excel) 5 $3,565 Data Files, for internal use only $23,280 Data Files, for resale Contact NTTO To order any of the above reports, please click here. 1 U.S. International Air Travel Statistics Report is based on the Advance Passenger Information System (APIS) obtained from the Department of Homeland Security, U.S. Customs & Border Protection. Replaced the legacy paper based I92. Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 14 of 21 10/14/2016 TINET -- Market Analysis: U.S. International Air Travel Statistics (I-92 data) Program http://travel.trade.gov/research/reports/i92/historical/2014.html 2/2 Reports present the following: Nonstop passenger (including crew and nonrevs) air traffic between U.S. and foreign ports/gateways Arrivals and departures by country and ports of embarkation and debarkation U.S. citizens and nonU.S. citizens; U.S. and foreign flag totals; Scheduled and chartered traffic Includes all international (overseas, Mexico and Canada) Note: Nonstop air traffic is segment data and does not necessarily reflect total 'visitation' between the U.S. and a foreign country. For visitation estimates please see Survey of International Air Travelers here. Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 15 of 21 10/14/2016 TINET -- Market Analysis: U.S. International Air Travel Statistics (I-92 data) Program http://travel.trade.gov/research/reports/i92/historical/2013.html 1/2 U.S. International Air Travel Statistics (I92 data) Program Location: Market Analysis: U.S. International Air Travel Statistics (I92 data) Historical Publications Current 2013 | 2012 | 2011 | 200810 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | 199598 | 199094 U.S. International Air Travel Statistics Report (APIS/I92) 1 2013 Publications and Prices Single Issue Annual Price Monthly Reports (printfile) $160 $1,805 Monthly Reports (printfile & Excel) $235 $2,705 Quarterly Reports (printfile) $430 $1,625 Quarterly Reports (printfile & Excel) $640 $2,435 Annual Report (printfile) $1,265 Annual Report (printfile & Excel) $1,895 Combinations (20% Discount) # Reports Monthly, Quarterly and Annual Reports (printfile) 17 $3,755 Monthly, Quarterly and Annual Reports (printfile & Excel) 17 $5,625 Monthly and Annual Reports (printfile) 13 $2,455 Monthly and Annual Reports (printfile & Excel) 13 $3,675 Quarterly and Annual Reports (printfile) 5 $2,310 Quarterly and Annual Reports (printfile & Excel) 5 $3,460 Data Files, for internal use only $22,600 Data Files, for resale Contact OTTI To order any of the above reports, please click here. 1 U.S. International Air Travel Statistics Report is based on the Advance Passenger Information System (APIS) obtained from the Department of Homeland Security, U.S. Customs & Border Protection. Replaced the legacy paper based I92. Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 16 of 21 10/14/2016 TINET -- Market Analysis: U.S. International Air Travel Statistics (I-92 data) Program http://travel.trade.gov/research/reports/i92/historical/2013.html 2/2 Reports present the following: Nonstop passenger (including crew and nonrevs) air traffic between U.S. and foreign ports/gateways Arrivals and departures by country and ports of embarkation and debarkation U.S. citizens and nonU.S. citizens; U.S. and foreign flag totals; Scheduled and chartered traffic Includes all international (overseas, Mexico and Canada) Note: Nonstop air traffic is segment data and does not necessarily reflect total 'visitation' between the U.S. and a foreign country. For visitation estimates please see Survey of International Air Travelers here Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 17 of 21 10/14/2016 TINET -- Market Analysis: U.S. International Air Travel Statistics (I-92 data) Program http://travel.trade.gov/research/reports/i92/historical/2012.html 1/2 U.S. International Air Travel Statistics (I92 data) Program Location: Market Analysis: U.S. International Air Travel Statistics (I92 data) Historical Publications Current 2012 | 2011 | 200810 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | 199598 | 199094 U.S. International Air Travel Statistics Report (APIS/I92) 1 2012 Publications and Prices Single Issue Annual Price Monthly Reports (printfile) $150 $1,720 Monthly Reports (printfile & Excel) $225 $2,575 Quarterly Reports (printfile) $540 $2,085 Quarterly Reports (printfile & Excel) $815 $3,215 Annual Report (printfile) $975 Annual Report (printfile & Excel) $1,460 Combinations (20% Discount) # Reports Monthly, Quarterly and Annual Reports (printfile) 17 $3,825 Monthly, Quarterly and Annual Reports (printfile & Excel) 17 $5,795 Monthly and Annual Reports (printfile) 13 $2,160 Monthly and Annual Reports (printfile & Excel) 13 $3,220 Quarterly and Annual Reports (printfile) 5 $2,450 Quarterly and Annual Reports (printfile & Excel) 5 $3,740 Data Files, for internal use only $21,540 Data Files, for resale Contact OTTI To order any of the above reports, please click here. 1 U.S. International Air Travel Statistics Report is based on the Advance Passenger Information System (APIS) obtained from the Department of Homeland Security, U.S. Customs & Border Protection Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 18 of 21 10/14/2016 TINET -- Market Analysis: U.S. International Air Travel Statistics (I-92 data) Program http://travel.trade.gov/research/reports/i92/historical/2012.html 2/2 Reports present the following: Nonstop passenger (including crew and nonrevs) air traffic between U.S. and foreign ports/gateways Arrivals and departures by country and ports of embarkation and debarkation U.S. citizens and nonU.S. citizens; U.S. and foreign flag totals; Scheduled and chartered traffic Includes overseas, Mexico and Canada (new in 2011) Note: Nonstop air traffic is segment data and does not reflect total 'visitation' between the U.S. and a foreign country. For visitation estimates please see Survey of International Air Travelers here Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 19 of 21 10/14/2016 TINET -- Market Analysis: U.S. International Air Travel Statistics (I-92 data) Program http://travel.trade.gov/research/reports/i92/historical/2011.html 1/2 U.S. International Air Travel Statistics (I92 data) Program Location: Market Analysis: U.S. International Air Travel Statistics (I92 data) Historical Publications Current 2011 | 200810 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | 199598 | 199094 U.S. International Air Travel Statistics Report (I92) 1 2011 Publications and Prices Single Issue Annual Price Monthly Reports (printfile) $140 $1,635 Monthly Reports (printfile & Excel) $210 $2,450 Quarterly Reports (printfile) $510 $1,985 Quarterly Reports (printfile & Excel) $775 $3,060 Annual Report (printfile) $925 Annual Report (printfile & Excel) $1,390 Combinations (20% Discount) # Reports Monthly, Quarterly and Annual Reports (printfile) 17 $3,640 Monthly, Quarterly and Annual Reports (printfile & Excel) 17 $5,515 Monthly and Annual Reports (printfile) 13 $2,055 Monthly and Annual Reports (printfile & Excel) 13 $3,065 Quarterly and Annual Reports (printfile) 5 $2,330 Quarterly and Annual Reports (printfile & Excel) 5 $3,560 Data Files, for internal use only $20,510 Data Files, for resale $48,615 To order any of the above reports, please click here. 1 U.S. International Air Travel Statistics Report is based on the I92 Aircraft Vessel Reports obtained from the Department of Homeland Security, U.S. Customs & Border Protection Reports present the following: Nonstop passenger (including crew and nonrevs) air traffic between U.S. and foreign ports/gateways Arrivals and departures by country and ports of embarkation and debarkation U.S. citizens and nonU.S. citizens; U.S. and foreign flag totals; Scheduled and chartered traffic Includes overseas and Mexico. Includes Canada Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 20 of 21 10/14/2016 TINET -- Market Analysis: U.S. International Air Travel Statistics (I-92 data) Program http://travel.trade.gov/research/reports/i92/historical/2011.html 2/2 Note1: Quarterlies and annual editions include late reports not included in the monthly reports Note2: Nonstop air traffic is segment data and does not reflect total 'visitation' between the U.S. and a foreign country. Case 1:16-cv-00951-KBJ Document 21-4 Filed 10/31/16 Page 21 of 21 EXHIBIT B Case 1:16-cv-00951-KBJ Document 21-5 Filed 10/31/16 Page 1 of 2 David M Yanofsky 613 Foothill Road Beverly Hills, CA 90210 617.383.9266 dyanofsky@qz.com March 10, 2015 Freedom of Information Officer 202.482.7937 FOIA@trade.gov International Trade Administration Room 4001 14th and Constitution Avenue, N.W. Washington, D.C. 20230 FOIA REQUEST Fee benefit requested Fee waiver requested Dear FOIA Officer: Pursuant to the federal Freedom of Information Act, 5 U.S.C. § 552, I request access to and copies of the Office of Travel & Tourism Industries’ “Air Arrivals I-94 Database Annual Datafile” from 2014, 2013, 2012, and 2011 and its associated technical documentation. I also request access to and copies of the Office of Travel & Tourism Industries’ “U.S. International Air Travel Statistics Report (APIS/I-92) Data files” from 2014, 2013, 2012, and 2011 and its associated technical documentation. I would like to receive the information in electronic format. As a representative of the news media I am only required to pay for the direct cost of duplication after the first 100 pages. Through this request, I am gathering information on the manner in which tourism and travel affect the US economy a matter that is of current interest to the public. This information is being sought on behalf of Quartz, an Atlantic Media publication, for dissemination to the general public. Please waive any applicable fees. Release of the information is in the public interest because it will contribute significantly to public understanding of a significant driver of the US economy. If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all segregable portions of otherwise exempt material. I, of course, reserve the right to appeal your decision to withhold any information or to deny a waiver of fees. As I am making this request as a journalist and this information is of timely value, I would appreciate your communicating with me by telephone or email, rather than by mail, if you have questions regarding this request. I look forward to your reply within 20 business days, as the statute requires. Thank you for your assistance. Sincerely, David M Yanofsky Case 1:16-cv-00951-KBJ Document 21-5 Filed 10/31/16 Page 2 of 2 EXHIBIT C Case 1:16-cv-00951-KBJ Document 21-6 Filed 10/31/16 Page 1 of 5 Case 1:16-cv-00951-KBJ Document 21-6 Filed 10/31/16 Page 2 of 5 Case 1:16-cv-00951-KBJ Document 21-6 Filed 10/31/16 Page 3 of 5 Case 1:16-cv-00951-KBJ Document 21-6 Filed 10/31/16 Page 4 of 5 Case 1:16-cv-00951-KBJ Document 21-6 Filed 10/31/16 Page 5 of 5 EXHIBIT D Case 1:16-cv-00951-KBJ Document 21-7 Filed 10/31/16 Page 1 of 6 David M Yanofsky 613 Foothill Road Beverly Hills, CA 90210 617.383.9266 dyanofsky@qz.com July 2, 2015 Submitted via email Office of the Assistant General Counsel for Administration 202.482.3151 FOIAAppeals@doc.gov US Department of Commerce Room 5898-C 14th and Constitution Avenue, N.W. Washington, DC 20230 cc Justin Guz, justin.guz@trade.gov Freedom of Information Act Appeal Dear Administrator: This is an appeal under the Freedom of Information Act, 5 U.S.C. §552, regarding request number DOC-ITA-2015-001055. On March 10, 2105, I requested access to and copies of documents from the International Trade Administration (ITA) under the Freedom of Information Act. My request was for the following electronic documents from the Office of Travel & Tourism Industries (OTTI, a division of the ITA): 1. “Air Arrivals I-94 Database Annual Datafile” from 2014, 2013, 2012, and 2011 and its associated technical documentation (the “I-94 Documents”); and 2. “U.S. International Air Travel Statistics Report (APIS/I-92) Data files” from 2014, 2013, 2012, and 2011 and its associated technical documentation (the “I-92 Documents”). I also requested a fee waiver on the grounds that I am a representative of the news media, in particular Quartz, an Atlantic Media publication, and release of this information is in the public interest as it will contribute to the public understanding of a significant driver of the U.S. economy. On June 24, 2015, I received a response in a letter signed by Mr. Justin Guz of the International Trade Administration, denying my request on the following grounds: 1. With regard to the I-94 Documents, the ITA does not maintain the records; and 2. With regard to the I-92 Documents, since the ITA proactively provides the information for sale, it is not required to produce it under FOIA. Both of these arguments are invalid, and I hereby appeal the denial of my request. Copies of my original FOIA request and the ITA’s denial are enclosed. Below are facts supporting the release of the I-94 Documents, the I-92 Documents and the need for a fee waiver. Case 1:16-cv-00951-KBJ Document 21-7 Filed 10/31/16 Page 2 of 6 THE ITA HAS ADMITTED IT MAINTAINS THE I-94 DOCUMENTS AND IT HAS IDENTIFIED NO EXEMPTION THAT COULD JUSTIFY WITHHOLDING THEM In its reply the ITA has indicated that it does “not maintain” the I-94 Documents but rather that they are maintained by a private company, CIC Research, Inc. The ITA reply also indicates that it is “not required to create or compile a record to satisfy a FOIA request.” These statements are blatantly false and misleading. The information I requested is compiled and kept in the possession and control of the National Travel and Tourism Office (NTTO), a division of the OTTI which functions as the U.S. federal tourism office. According to its own website1, “a core responsibility [of the NTTO] is to collect, analyze, and disseminate international travel and tourism statistics for the U.S. Travel and Tourism Statistical System. As a result NTTO is charged with managing, improving, and expanding the system to fully account and report the impact of travel and tourism in the United States.” As the I-94 Documents are part of the travel and tourism statistical system, the NTTO must be managing and thus integrating them into the agency’s record system, regardless of the role CIC Research may play in assisting the ITA. To further clarify this point, in response to the denial letter, on June 30, 2015 I called the NTTO and spoke to Richard Champley a Sr. Research Analyst at the OTTI. When I asked Mr. Champley how quickly the NTTO can send out the I-94 data, he told me they could do it in “about a day.” When I asked if the NTTO sends it from its Washington Office he said "yes." He added that the NTTO could email the records too. Mr. Champley made no reference to CIC Research. Thus, the ITA’s letter makes no sense under the circumstances and in any event is not an exemption under FOIA. The ITA has provided no basis – and I am not aware of any – to claim that the I-94 Documents are not in the possession, custody, or control of the agency or that they are exempt from disclosure under FOIA. Case 1:16-cv-00951-KBJ Document 21-7 Filed 10/31/16 Page 3 of 6 Perhaps not surprisingly, the ITA did not include in its denial any reference to the fact that it compiles and offers for sale the I-94 Documents on its own website2 for a fee. The mere existence of the data I am requesting on the NTTO’s website belies their assertion that they do not maintain the I-94 Documents. The ITA clearly would not have to create or compile any records simply to satisfy this FOIA request. However, for the reasons set forth below regarding the release of the I-92 Documents, merely making them available for general sale does not satisfy the agency’s FOIA requirements. SECTION 552(a)(2) IS NOT APPLICABLE TO THE I-92 DOCUMENTS AS MERELY OFFERING THEM FOR SALE DOES NOT CONSTITUTE SATISFYING A REQUEST FOR RECORDS The ITA seeks to absolve itself of the responsibility to release the I-92 Documents under FOIA by claiming that, since it publishes and offers them for sale, the documents are “excluded from the definition of subsection 5 U.S.C. §552(a)(2) records and need not be proactively disclosed even if doing so would otherwise be required.” While it is true that the I-92 Documents are provided for sale on its website3, the ITA both misreads the statute and arrives at an illogical conclusion. The statute reads: (2) Each agency, in accordance with published rules, shall make available for public inspection and copying-- (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and (C) administrative staff manuals and instructions to staff that affect a member of the public; Case 1:16-cv-00951-KBJ Document 21-7 Filed 10/31/16 Page 4 of 6 (D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D); unless the materials are promptly published and copies offered for sale. The I-92 Documents do not meet any of the criteria for subsections (A), (B), (C), or (E) above. With regard to subsection (D), paragraph (3) reads: (3)(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon request for records which (A) (i) reasonably describes such records and (B) (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. It is clear that 5 U.S.C. §552(a)(2)(D) is meant to apply only to those records which have previously released upon request. For the foregoing reasons, the ITA must release the I-94 and I-92 Documents to me under FOIA. REPRESENTATIVES OF THE NEWS MEDIA ARE ENTITLED TO WAIVED OR REDUCED FEES AND SELLING DOCUMENTS VIOLATES 5 U.S.C. §552(a)(4)(A) If the ITA seeks to satisfy its FOIA requirements by making the materials for sale online, it must account for the reduced and/or waived fees applicable to representatives of the news media. The fees that may be charged are limited to “reasonable standard charges for document search, duplication, and review” (5 U.S.C. §552(a)(4)(A)(ii)). According to the ITA’s own website4, news media representatives may be required to pay only “duplication costs... (after the first 100 pages).” Case 1:16-cv-00951-KBJ Document 21-7 Filed 10/31/16 Page 5 of 6 Furthermore, 5 U.S.C. §552(a)(4)(A)(iii) goes on to state: Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. I have contacted the NTTO to request the I-94 and I-92 Documents with waived fees, and have had my requested denied by phone. There is nowhere on the online order form to identify myself as a representative of the news media, or to indicate that disclosure of the information is in the public interest. I renew my request for a waiver of fees. I do not have a commercial interest in the records, and am a representative of the news media seeking information as part of news gathering. I am gathering information on the manner in which tourism and travel affect the US economy: a matter that is of current interest to the public. If my request for a fee waiver is denied, I agree to pay reasonable duplication fees for the processing of this request. If you anticipate the fee will exceed $25.00, please contact me in advance of incurring the charges. As I am making this request as a journalist and this information is of timely value, I would appreciate your expediting the consideration of my appeal in every way possible, including communicating with me by telephone or email, rather than by mail. In any case, I will expect to receive your decision within 20 business days, as required by statute. Thank you for your consideration of this matter. Sincerely, David Yanofsky !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 http://travel.trade.gov/research/ 2 http://travel.trade.gov/research/programs/i94/index.html 3 http://travel.trade.gov/research/reports/i92/historical/index.html 4 http://travel.trade.gov/research/! Case 1:16-cv-00951-KBJ Document 21-7 Filed 10/31/16 Page 6 of 6 EXHIBIT E Case 1:16-cv-00951-KBJ Document 21-8 Filed 10/31/16 Page 1 of 3 Case 1:16-cv-00951-KBJ Document 21-8 Filed 10/31/16 Page 2 of 3 Case 1:16-cv-00951-KBJ Document 21-8 Filed 10/31/16 Page 3 of 3 EXHIBIT F Case 1:16-cv-00951-KBJ Document 21-9 Filed 10/31/16 Page 1 of 4 Case 1:16-cv-00951-KBJ Document 21-9 Filed 10/31/16 Page 2 of 4 Case 1:16-cv-00951-KBJ Document 21-9 Filed 10/31/16 Page 3 of 4 Case 1:16-cv-00951-KBJ Document 21-9 Filed 10/31/16 Page 4 of 4 EXHIBIT G Case 1:16-cv-00951-KBJ Document 21-10 Filed 10/31/16 Page 1 of 2 Case 1:16-cv-00951-KBJ Document 21-10 Filed 10/31/16 Page 2 of 2 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID YANOFSKY, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant. Civil Action No. 1:16-cv-00951 (KBJ) INDEX OF EXHIBITS TO DECLARATION OF DAVID YANOFSKY Exhibit A: DOC websites stating prices for the I-92 and I-94 Data Files for 2015, 2014, 2013, 2012, and 2011 (the “DOC Websites”) Exhibit B Plaintiff’s March 10, 2015 Freedom of Information Act (“FOIA”) Request (the “Prior Request”) Exhibit C June 24, 2015 denial letter (the “Prior Request Denial Letter”) Exhibit D Plaintiff’s July 2, 2015 administrative appeal (the “July 2 Administrative Appeal”) Exhibit E November 17, 2015 administrative appeal denial letter (the “July 2 Administrative Appeal Denial”) Exhibit F Plaintiff’s December 14, 2015 administrative appeal (the “December 14 Administrative Appeal”) Exhibit G December 28, 2015 administrative appeal denial letter (the “December 14 Administrative Appeal Denial”) Case 1:16-cv-00951-KBJ Document 21-11 Filed 10/31/16 Page 1 of 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID YANOFSKY, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant. Civil Action No. 1:16-cv-00951 (KBJ) [PROPOSED] ORDER Upon consideration of the Motion for Summary Judgment filed by Defendant the United States Department of Commerce (“Defendant”) and the Motion for Summary Judgment filed by Plaintiff David Yanofsky (“Plaintiff”), the memoranda of law, statements of material fact to which there is no genuine issue, and supporting declarations and exhibits filed therewith, as well as all oppositions and responses thereto, it is HEREBY ORDERED that: 1. Defendant’s Motion for Summary Judgment is DENIED; and 2. Plaintiff’s Motion for Summary Judgment is GRANTED; 3. Plaintiff is entitled to a waiver of fees as to his February 26, 2016 Freedom of Information Act (“FOIA”) request under 5 U.S.C. § 552(a)(4)(A)(iii). Defendant is hereby ordered to furnish Plaintiff with all records responsive to that FOIA Request “without any charge,” id., within seven days of the date of this order. IT IS SO ORDERED, this __________ day of _____________, 2016. HON. KETANJI BROWN JACKSON United States District Judge Case 1:16-cv-00951-KBJ Document 21-12 Filed 10/31/16 Page 1 of 1 CERTIFICATE OF SERVICE I hereby certify that on October 31, 2016 an electronic copy of the following documents was filed with the Clerk of Court for the United States District Court for the District of Columbia using the Court’s CM/ECF system and was served electronically upon all parties in the case: • Plaintiff’s Motion for Summary Judgment; • Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment and in Support of Plaintiff’s Motion for Summary Judgment; • Plaintiff’s Combined Statement of Material Facts as to Which There is no Genuine Issue and Response to Defendant’s Statement of Material Facts; and • Declaration of David Yanofsky and exhibits thereto. I certify that all participants in the case are CM/ECF users and that service will be accomplished by the CM/ECF system. /s/ Katie Townsend d Case 1:16-cv-00951-KBJ Document 21-13 Filed 10/31/16 Page 1 of 1