Elizabeth Withnell Daily Activity Oct 2013 (OIA)

To Whom It May Concern:

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

I request a copy of all records for every day in October of 2013 of the following types:
1) All paper or electronic calendars kept by Elizabeth Withnell which keeps her agendas and appointments for any daily activities, appointments, and obligations, etc.
2) All "to do" lists kept by Elizabeth Withnell which were used in routine business to track tasks which Elizabeth Withnell needed to complete for that day, week, or month.
3) A log of all incoming and outgoing phone calls to both Elizabeth Withnell's office and cellular telephone lines including the phone number of the other party, whether the call was inbound or outbound, the length of the call, the and name of the other party if this is included in any log file.

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

Good afternoon Mr. Smathers,

Please find attached a letter acknowledging receipt of your November 1, 2013 FOIA request to DHS I&A.

V/r,

I&A FOIA Officer
Department of Homeland Security
Office of Intelligence and Analysis
UNCLASS: I&AFOIA@hq.dhs.gov
UNCLAS Phone: (202) 447-4883

Please send all correspondence for 14-OIA-0022 to this inbox.

Hello,

Below and attached please find an appeal of commercial requester designation for 14-OIA-0022. A hard copy has been sent to the Associate General Counsel (General Law) at the address below. Please confirm receipt of both copies.

Thank you.

=============

Associate General Counsel (General Law)
245 Murray Lane SW
STOP-0655
Washington, D.C. 20528-0655

November 18, 2013

Dear Administrator:

This is an appeal for 14-OIA-0022. under the Freedom of Information Act, 5 U.S.C. § 552.

On 11/1/13 I made a FOIA request to your agency for your contractor, Elizabeth Withnell’s, October 2013 daily activity records. On 11/15/13, your agency informed me that I was being billed according to the commercial user fee category. I appeal the use of the commercial user fee category and suggest the “all other” fee category as most appropriate for this request.

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 have suggested the “all other” fee category 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 reconsidered, 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

Thank you very much.