AGS objections to 14-IAFO-0023 (DHS OIA)

Jason Smathers filed this request with the Department of Homeland Security, Office of Intelligence & Analysis of the United States of America.
Tracking # 14-IAFO-0058
Status
Completed

Communications

From: Jason Smathers

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

All records concerning the processing of FOIA request 14-IAFO-0023. Please include all records of communication between AGS and DHS, particularly concerning rational for redactions.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Jason Smathers

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 14, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

From: I&AFOIA

Good afternoon Mr. Smathers,

Please find attached an acknowledgment of your FOIA request to DHS I&A.

V/r,

Priscilla Waters, J.D.
FOIA Officer
Department of Homeland Security
Office of Intelligence and Analysis
UNCLASS: Priscilla.Waters@hq.dhs.gov<mailto:Priscilla.Waters@hq.dhs.gov>
UNCLAS Phone: (202) 447-4883

From: Jason Smathers

FOIA APPEAL

This is an appeal of an adverse determination under the Freedom of Information Act.
My FOIA request was placed in the commercial fee category. I appeal.

Further, the FOIA as amended in 2007 now reads:
(viii) An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6),

My request was submitted on November 14, 2013 and the initial acknowledgment was not made until January 30, 2014, well after the 20 day deadline, thus fees must be limited per the FOIA as quoted above.

I have made FOIA requests to your agency in various capacities. Therefore, it seems prudent to determine the fee category on a case by case basis depending upon the specific request. Although I have made requests in the past as both a representative of the news media and as a personal “all other” requester, I have never made any FOIA request as a commercial user. To be clear, I am not selling the information I receive nor has anyone paid me to obtain this information in this specific FOIA request or any that I have ever filed in the past. Additionally, I have no other commercial motives to make this request.

I suggest the “all other” fee category for this specific request because the primary purpose of this request is my own personal curiosity of a government function. I will be making the records public and they will be reviewed by other members of the news media. However, in this specific case, I am not yet certain if my personal interests will result in turning the information received into a unique work product and published in the news media. Since I am not yet certain if I will be creating a news media piece with this information, I will not venture to argue this should be billed in the news media fee category. I will however argue that billing in the commercial fee category is an untenable position that must be reversed as the result of this appeal, as there is no commercial interest behind this request.

In speaking with other DHS components recently, I understand that the DHS has circulated a memo requiring all requests coming from MuckRock users to be billed using the commercial fee category. The reason I was given over the telephone for this was that MuckRock is charging a fee to make FOIA requests on behalf of their users. First of all, charging a nominal fee for filing a request on another’s behalf is not the same thing as selling the data received. Paying for MuckRock services is more akin to paying a secretary to lick and stamp an envelope. Of course you would not charge all users who use the services of a secretary commercial use fees. Further, for this specific request, I can assure you that I have not paid anyone to make this request on my behalf. Additionally, I believe that the decision to consider MuckRock a commercial user of FOIA comes from a misunderstanding of what MuckRock is. MuckRock is an investigative tools website which provides tools for filing FOIA requests. MuckRock does sell a subscription service to use these tools. However, the end user is directly communicating with the agency. In my case, I am personally writing my own FOIA requests and directly sending them to your agency. I am personally writing this appeal on my own and communicating with you directly. I am using MuckRock to do this for the sake of proper FOIA request tracking. The MuckRock system has created a special email account specific to this FOIA request, so we can communicate about this request and track that communication appropriately. The MuckRock system tracks the date the request was sent and alerts me if too much time passes without a response so I can follow up with you. These tools that MuckRock offers are quite similar to other FOIA users tracking their requests in an Excel spreadsheet; however, MuckRock is far more capable in many ways than Excel. The indiscriminate labeling of MuckRock users as commercial is no more appropriate than labeling all Microsoft Excel users as such.

I trust that upon re-consideration, you will reverse the decision to bill me as a commercial user. However, if you deny this appeal, I see little choice left than to initiate a lawsuit to compel the appropriate fee category use.

I appreciate your timely consideration of my appeal in every way possible. In any case, I will expect to receive your decision within 20 business days, as required by the statute.

Thank you for your assistance.

Very truly yours,
Jason Smathers

From: Jason Smathers

February 4, 2014

This is an appeal of an adverse determination under the Freedom of Information Act.
My FOIA request was placed in the commercial fee category. I appeal.

Further, the FOIA as amended in 2007 now reads:
(viii) An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6),

My request was submitted on November 14, 2013 and the initial acknowledgment was not made until January 30, 2014, well after the 20 day deadline, thus fees must be limited per the FOIA as quoted above.

I have made FOIA requests to your agency in various capacities. Therefore, it seems prudent to determine the fee category on a case by case basis depending upon the specific request. Although I have made requests in the past as both a representative of the news media and as a personal “all other” requester, I have never made any FOIA request as a commercial user. To be clear, I am not selling the information I receive nor has anyone paid me to obtain this information in this specific FOIA request or any that I have ever filed in the past. Additionally, I have no other commercial motives to make this request.

I suggest the “all other” fee category for this specific request because the primary purpose of this request is my own personal curiosity of a government function. I will be making the records public and they will be reviewed by other members of the news media. However, in this specific case, I am not yet certain if my personal interests will result in turning the information received into a unique work product and published in the news media. Since I am not yet certain if I will be creating a news media piece with this information, I will not venture to argue this should be billed in the news media fee category. I will however argue that billing in the commercial fee category is an untenable position that must be reversed as the result of this appeal, as there is no commercial interest behind this request.

In speaking with other DHS components recently, I understand that the DHS has circulated a memo requiring all requests coming from MuckRock users to be billed using the commercial fee category. The reason I was given over the telephone for this was that MuckRock is charging a fee to make FOIA requests on behalf of their users. First of all, charging a nominal fee for filing a request on another’s behalf is not the same thing as selling the data received. Paying for MuckRock services is more akin to paying a secretary to lick and stamp an envelope. Of course you would not charge all users who use the services of a secretary commercial use fees. Further, for this specific request, I can assure you that I have not paid anyone to make this request on my behalf. Additionally, I believe that the decision to consider MuckRock a commercial user of FOIA comes from a misunderstanding of what MuckRock is. MuckRock is an investigative tools website which provides tools for filing FOIA requests. MuckRock does sell a subscription service to use these tools. However, the end user is directly communicating with the agency. In my case, I am personally writing my own FOIA requests and directly sending them to your agency. I am personally writing this appeal on my own and communicating with you directly. I am using MuckRock to do this for the sake of proper FOIA request tracking. The MuckRock system has created a special email account specific to this FOIA request, so we can communicate about this request and track that communication appropriately. The MuckRock system tracks the date the request was sent and alerts me if too much time passes without a response so I can follow up with you. These tools that MuckRock offers are quite similar to other FOIA users tracking their requests in an Excel spreadsheet; however, MuckRock is far more capable in many ways than Excel. The indiscriminate labeling of MuckRock users as commercial is no more appropriate than labeling all Microsoft Excel users as such.

I trust that upon re-consideration, you will reverse the decision to bill me as a commercial user. However, if you deny this appeal, I see little choice left than to initiate a lawsuit to compel the appropriate fee category use.

I appreciate your timely consideration of my appeal in every way possible. In any case, I will expect to receive your decision within 20 business days, as required by the statute.

Thank you for your assistance.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 14, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-IAFO-0058.

Thank you for your help.

From: I&AFOIA

Good afternoon Mr. Smathers,

Please find attached the final response to your FOIA request to DHS I&A 2014-IAFO-0058.

V/r,

Priscilla Waters
Office of Intelligence and Analysis
Freedom of Information Act (FOIA) Officer
Unclass: (202) 447-4883
Unclass: Priscilla.Waters@hq.dhs.gov

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