NoDAPL Footage (U.S. Army Corps of Engineers)

To Whom It May Concern:

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

Copies of all photographs, pictures, audio, video or other recordings of protests and protestors taken or maintained by your agency and relating to the North Dakota Pipeline or to the Standing Rock Indian Reservation.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, 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,

Michael Best

I am not MuckRock. I use MuckRock as a service. Further, I am a member of the news media and request classification as such. I have previously written about the government and its activities for AND Magazine, MuckRock and Glomar Disclosure and have an open arrangement with each. My articles have been widely read, with some reaching over 100,000 readers. As such, as I have a reasonable expectation of publication and my editorial and writing skills are well established. In addition, I discuss and comment on the files online and make them available through the non-profit Internet Archive, disseminating them to a large audience. While my research is not limited to this, a great deal of it, including this, focuses on the activities and attitudes of the government itself. As such, it is not necessary for me to demonstrate the relevance of this particular subject in advance. Additionally, case law states that “proof of the ability to disseminate the released information to a broad cross-section of the public is not required.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); see Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814-15 (2d Cir. 1994). Further, courts have held that "qualified because it also had “firm” plans to “publish a number of . . . ‘document sets’” concerning United States foreign and national security policy." Under this criteria, as well, I qualify as a member of the news media. Additionally, courts have held that the news media status "focuses on the nature of the requester, not its request. The provision requires that the request be “made by” a representative of the news media. Id. § 552(a)(4)(A)(ii)(II). A newspaper reporter, for example, is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information." As such, the details of the request itself are moot for the purposes of determining the appropriate fee category. As such, my primary purpose is to inform about government activities by reporting on it and making the raw data available and I therefore request that fees be waived.

Should you decide to make a FOIA request on your own and claim you are a member of the news media, you will need to submit evidence that you meet the following definition. Representatives of the news media includes “ any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” See Nat’l Sec. Archive v. DOD, 880 F.2d at 1387.

I have filed "on my own" - using MuckRock does not change that fact. Further, I have provided proof and case law citations that make it clear you have no room to interpret this matter.

I am a member of the news media and request classification as such. I have previously written about the government and its activities for AND Magazine, MuckRock and Glomar Disclosure and have an open arrangement with each. My articles have been widely read, with some reaching over 100,000 readers. As such, as I have a reasonable expectation of publication and my editorial and writing skills are well established. In addition, I discuss and comment on the files online and make them available through the non-profit Internet Archive, disseminating them to a large audience. While my research is not limited to this, a great deal of it, including this, focuses on the activities and attitudes of the government itself. As such, it is not necessary for me to demonstrate the relevance of this particular subject in advance. Additionally, case law states that “proof of the ability to disseminate the released information to a broad cross-section of the public is not required.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); see Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814-15 (2d Cir. 1994). Further, courts have held that "qualified because it also had “firm” plans to “publish a number of . . . ‘document sets’” concerning United States foreign and national security policy." Under this criteria, as well, I qualify as a member of the news media. Additionally, courts have held that the news media status "focuses on the nature of the requester, not its request. The provision requires that the request be “made by” a representative of the news media. Id. § 552(a)(4)(A)(ii)(II). A newspaper reporter, for example, is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information." As such, the details of the request itself are moot for the purposes of determining the appropriate fee category. As such, my primary purpose is to inform about government activities by reporting on it and making the raw data available and I therefore request that fees be waived.

Humphreys Eng Center
CEHEC-OC
7701 Telegraph Rd
Alexandria, VA 22315-3860

April 7, 2017

I am appealing the determination that I am not news media. I am a member of the news media and request classification as such. I have previously written about the government and its activities for AND Magazine, MuckRock and Glomar Disclosure and have an open arrangement with each. My articles have been widely read, with some reaching over 100,000 readers. As such, as I have a reasonable expectation of publication and my editorial and writing skills are well established. In addition, I discuss and comment on the files online and make them available through the non-profit Internet Archive, disseminating them to a large audience. While my research is not limited to this, a great deal of it, including this, focuses on the activities and attitudes of the government itself. As such, it is not necessary for me to demonstrate the relevance of this particular subject in advance. Additionally, case law states that “proof of the ability to disseminate the released information to a broad cross-section of the public is not required.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); see Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814-15 (2d Cir. 1994). Further, courts have held that "qualified because it also had “firm” plans to “publish a number of . . . ‘document sets’” concerning United States foreign and national security policy." Under this criteria, as well, I qualify as a member of the news media. Additionally, courts have held that the news media status "focuses on the nature of the requester, not its request. The provision requires that the request be “made by” a representative of the news media. Id. § 552(a)(4)(A)(ii)(II). A newspaper reporter, for example, is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information." As such, the details of the request itself are moot for the purposes of determining the appropriate fee category. As such, my primary purpose is to inform about government activities by reporting on it and making the raw data available and I therefore request that fees be waived.

Further, my use of a service offered by a NON-PROFIT does not in anyway render my request "commercial" as the group is a NON-PROFIT and the materials are given away for free. As a result, there is no commercial interest but there is journalistic interest.
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On April 5, 2017:
CLASSIFICATION: UNCLASSIFIED

Mr. Best - We sent you a final response concerning your fee waiver request on March 6, 2017. You either have to appeal the fee waiver denial or agree to pay fees. As stated in the letter, no further action will be taken on your FOIA.

Sincerely,

Linda F. Burke
Paralegal Specialist
Phone: 402/995-2603
email: linda.f.burke@usace.army.mil
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On April 5, 2017:
To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 15, 2017. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thanks for your help, and let me know if further clarification is needed.

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On March 6, 2017:
CLASSIFICATION: UNCLASSIFIED

Mr. Best - attached is our response to your email below.

Linda F. Burke
Paralegal Specialist
Phone: 402/995-2603
email: linda.f.burke@usace.army.mil
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On Feb. 26, 2017:
Should you decide to make a FOIA request on your own and claim you are a member of the news media, you will need to submit evidence that you meet the following definition. Representatives of the news media includes “ any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” See Nat’l Sec. Archive v. DOD, 880 F.2d at 1387.

I have filed "on my own" - using MuckRock does not change that fact. Further, I have provided proof and case law citations that make it clear you have no room to interpret this matter.

I am a member of the news media and request classification as such. I have previously written about the government and its activities for AND Magazine, MuckRock and Glomar Disclosure and have an open arrangement with each. My articles have been widely read, with some reaching over 100,000 readers. As such, as I have a reasonable expectation of publication and my editorial and writing skills are well established. In addition, I discuss and comment on the files online and make them available through the non-profit Internet Archive, disseminating them to a large audience. While my research is not limited to this, a great deal of it, including this, focuses on the activities and attitudes of the government itself. As such, it is not necessary for me to demonstrate the relevance of this particular subject in advance. Additionally, case law states that “proof of the ability to disseminate the released information to a broad cross-section of the public is not required.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); see Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814-15 (2d Cir. 1994). Further, courts have held that "qualified because it also had “firm” plans to “publish a number of . . . ‘document sets’” concerning United States foreign and national security policy." Under this criteria, as well, I qualify as a member of the news media. Additionally, courts have held that the news media status "focuses on the nature of the requester, not its request. The provision requires that the request be “made by” a representative of the news media. Id. § 552(a)(4)(A)(ii)(II). A newspaper reporter, for example, is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information." As such, the details of the request itself are moot for the purposes of determining the appropriate fee category. As such, my primary purpose is to inform about government activities by reporting on it and making the raw data available and I therefore request that fees be waived.
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On Feb. 24, 2017:
CLASSIFICATION: UNCLASSIFIED

Mr. Best – You have chosen to make your Freedom of Information Act (FOIA) request through the services of Muckrock. Muckrock charges fees for their services which means they have a commercial interest in the FOIA request. The responsive documents are sent to Muckrock and then Muckrock shares the documents with you. However, Muckrock also may choose to provide the documents to others who pay a fee. Therefore, it is our determination that your request falls into the commercial fee category.

Since we disagree on the appropriate fee category, you have the right to contact the U.S. Army Corps of Engineers FOIA Public Liaison to seek further assistance and to discuss any aspect of your request. Additionally, you have the right to contact the Office of Government Information Services (OGIS) to inquire about the FOIA mediation services they offer. Contact information is as follows:

USACE FOIA Public Liaison:

U.S. Army Corps of Engineers
FOIA Public Liaison
441 G Street, NW
ATTN: CECC-L (Emily Green)
Washington, DC 20314-1000
Email: foia-liaison@usace.army.mil
Phone: 202-761-4791

OGIS:

Office of Government Information Services
National Archives and Records Administration
8601 Adelphi Road--OGIS
College Park, MD 20740-6001
ogis@nara.gov
202-741-5770 (phone)
877-684-6448 (toll free)
202-741-5769 (fax)
ogis.archives.gov (website)

Should you decide to make a FOIA request on your own and claim you are a member of the news media, you will need to submit evidence that you meet the following definition. Representatives of the news media includes “ any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” See Nat’l Sec. Archive v. DOD, 880 F.2d at 1387.

Should you also decide to request a fee waiver, the following criteria are used in determining whether or not a request for a fee waiver will be granted: Fee waivers may be granted: (1) “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 (2) if disclosure “is not primarily in the commercial interest of the requester.” 5 U.S.C. §552(a)(4)(A)(iii). Both of these requirements must be met before the fees for a FOIA request may be waived.

There are four factors we consider in order to determine whether the public interest prong has been met. They are as follows:

First, the subject matter of the requested records, in the context of the request, must specifically concern identifiable “operations or activities of the government.”

Second, in order for the disclosure to “likely to contribute” to an understanding of specific government operations or activities, the disclosable portions of the requested information must be meaningfully informative in relation to the subject matter of the request.

Third, the disclosure must contribute to the understanding of the public at large, as opposed to the individual understanding of the requester or a narrow segment of interested persons. Under this factor, we look to the identity and qualifications of the requester—e.g., expertise in the subject area of the request and ability and intention to disseminate the information to the public.

Lastly, the disclosure must contribute “significantly” to public understanding of government operations or activities. The public’s understanding must be likely to be enhanced by the disclosure to a significant extent.

Under the second prong of the fee waiver test, we look at the following two factors:

First, whether the requester has a commercial interest that would be furthered by the requested disclosure.

Second, whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.”

Linda F. Burke
Paralegal Specialist
Phone: 402/995-2603
email: linda.f.burke@usace.army.mil
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On Feb. 21, 2017:
I am not MuckRock. I use MuckRock as a service. Further, I am a member of the news media and request classification as such. I have previously written about the government and its activities for AND Magazine, MuckRock and Glomar Disclosure and have an open arrangement with each. My articles have been widely read, with some reaching over 100,000 readers. As such, as I have a reasonable expectation of publication and my editorial and writing skills are well established. In addition, I discuss and comment on the files online and make them available through the non-profit Internet Archive, disseminating them to a large audience. While my research is not limited to this, a great deal of it, including this, focuses on the activities and attitudes of the government itself. As such, it is not necessary for me to demonstrate the relevance of this particular subject in advance. Additionally, case law states that “proof of the ability to disseminate the released information to a broad cross-section of the public is not required.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); see Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814-15 (2d Cir. 1994). Further, courts have held that "qualified because it also had “firm” plans to “publish a number of . . . ‘document sets’” concerning United States foreign and national security policy." Under this criteria, as well, I qualify as a member of the news media. Additionally, courts have held that the news media status "focuses on the nature of the requester, not its request. The provision requires that the request be “made by” a representative of the news media. Id. § 552(a)(4)(A)(ii)(II). A newspaper reporter, for example, is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information." As such, the details of the request itself are moot for the purposes of determining the appropriate fee category. As such, my primary purpose is to inform about government activities by reporting on it and making the raw data available and I therefore request that fees be waived.
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On Feb. 21, 2017:
CLASSIFICATION: UNCLASSIFIED

CLASSIFICATION: UNCLASSIFIED

Michael Best - This office has received your Freedom of Information Act (FOIA) request below. Because MuckRock provides a service and charges its customers, this is considered a commercial request. Under the FOIA, your request is in the commercial request fee category. All commercial requesters are charged $24.00 per hour for clerical search and review, $48.00 per hour for professional search and review, $.15 for each printed side of a duplicated page, and $52.00 per hour for computer time. We are putting an estimate together for the cost to process your request. Once we have the estimate, I will send it to you. You will then need to agree in writing to pay the cost before we will begin to process your request.

If you have any questions, please do not hesitate to contact me at the number below.

Sincerely,

Linda F. Burke
Paralegal Specialist
Phone: 402/995-2603
email: linda.f.burke@usace.army.mil
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On Feb. 17, 2017:
Dear Mr. Best:

This is to acknowledge receipt of your Freedom of Information Act (FOIA) request for copies of all photographs, pictures, audio, video or other recordings of protests and protestors taken or maintained by our agency and relating to the North Dakota Pipeline or to the Standing Rock Indian Reservation..

Your request was received in this office, and assigned tracking number FP-17-011077.

My office is responsible for administering the FOIA requests for the USACE Headquarters Offices. I have reviewed your request and determined that, if records exist, they would be located at the USACE Omaha District. Therefore, I am transferring your FOIA request to that District's FOIA Officer, and she will reply to you directly with regard to your letter. I have included the Omaha District FOIA Office contact information below should you wish to contact them directly.

CENWO-OC
1616 Capitol Ave
Omaha, NE 68102-4901
foia-nwo@usace.army.mil
Phone: 402-995-2603
Fax: 402-995-2614

Best regards,

Mary Alice Smith
U.S. Army Corps of Engineers
HECSA - Office of Counsel
7701 Telegraph Road
Alexandria, VA 22315
703-428-8160 (office)
703-428-7221 (fax)
Mary.A.Smith@usace.army.mil

THIS IS A PRIVILEGED COMMUNICATION -ATTORNEY-CLIENT/ATTORNEY WORK-PRODUCT.
DO NOT RELEASE UNDER FOIA.

NOTICE: This email and any attachments constitute non-public information
and may contain legally privileged and confidential information intended
solely for the use of the addressee(s). If you are not the intended
recipient, any reading, dissemination, distribution, copying or other use of
this email, including attachments, is prohibited and may be unlawful. If
you have received this message in error, please delete it, including all
copies and backups, and notify me immediately by telephone at (703) 428-8160
or by email at Mary.A.Smith@usace.army.mil. Thank you.
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On Feb. 15, 2017:
To Whom It May Concern:

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

Copies of all photographs, pictures, audio, video or other recordings of protests and protestors taken or maintained by your agency and relating to the North Dakota Pipeline or to the Standing Rock Indian Reservation.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, 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,

Michael Best

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Filed via MuckRock.com
E-mail (Preferred): requests@muckrock.com

For mailed responses, please address (see note):
MuckRock
DEPT MR 33448
411A Highland Ave
Somerville, MA 02144-2516

PLEASE NOTE: This request is not filed by a MuckRock staff member, but is being sent through MuckRock by the above in order to better track, share, and manage public records requests. Also note that improperly addressed (i.e., with the requester's name rather than "MuckRock News" and the department number) requests might be returned as undeliverable.
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I am appealing the determination that I am not news media. I am a member of the news media and request classification as such. I have previously written about the government and its activities for AND Magazine, MuckRock and Glomar Disclosure and have an open arrangement with each. My articles have been widely read, with some reaching over 100,000 readers. As such, as I have a reasonable expectation of publication and my editorial and writing skills are well established. In addition, I discuss and comment on the files online and make them available through the non-profit Internet Archive, disseminating them to a large audience. While my research is not limited to this, a great deal of it, including this, focuses on the activities and attitudes of the government itself. As such, it is not necessary for me to demonstrate the relevance of this particular subject in advance. Additionally, case law states that “proof of the ability to disseminate the released information to a broad cross-section of the public is not required.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); see Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814-15 (2d Cir. 1994). Further, courts have held that "qualified because it also had “firm” plans to “publish a number of . . . ‘document sets’” concerning United States foreign and national security policy." Under this criteria, as well, I qualify as a member of the news media. Additionally, courts have held that the news media status "focuses on the nature of the requester, not its request. The provision requires that the request be “made by” a representative of the news media. Id. § 552(a)(4)(A)(ii)(II). A newspaper reporter, for example, is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information." As such, the details of the request itself are moot for the purposes of determining the appropriate fee category. As such, my primary purpose is to inform about government activities by reporting on it and making the raw data available and I therefore request that fees be waived.

Further, my use of a service offered by a NON-PROFIT does not in anyway render my request "commercial" as the group is a NON-PROFIT and the materials are given away for free. As a result, there is no commercial interest but there is journalistic interest.