ICE Rejects My Request To Waive FOIA Fees 'Because .' Yes, 'Because .'

from the why?-because. dept

Thu, Apr 3rd 2014 8:50am — Mike Masnick

A few weeks ago, I wrote about the troubling reports that Homeland Security's ICE division had teamed up with domain registrar/hosting company GoDaddy to help censor a Mexican political protest site. GoDaddy had suspended the domain, and when the site's administrators asked why, they were sent information saying that it was from a "Special Agent Homeland Security Investigations." Homeland Security Investigations is part of the new branding for ICE, but it's still the same old ICE. The contact email they were told to reach out to was an @ice.dhs.gov email address.

Given all of this, I filed a Freedom of Information Act request via MuckRock, a service I've used many times in the past to file FOIA requests, without issue. A standard part of doing so, is to ask for a fee waiver. Under FOIA, government agencies can charge for the requested work, but they're supposed to waive the fees if the request is for the public interest or reporting. Basically, the only times they're not supposed to waive the fees is when it's for some sort of (non-reporting) commercial purpose (e.g., a company looking to sell a database that it collects via FOIA requests).

So I was a bit surprised to get back a notice saying that ICE had rejected my fee waiver request. There are very limited reasons for why a government agency can reject such a request, and my request should absolutely have received the waiver. So, I read the waiver rejection letter to find out why, and was... well... a bit surprised to see this:

Specifically, after listing out the six factors, none of which should exclude me from getting the waiver, it says:

Based on my review of your March 4, 2014 letter and for the reasons stated herein, I have determined that your fee waiver request is deficient because .

"Because ." Well, that is kind of useless, no? Either way, the rejection is totally bogus, but to claim that the reason is... " ." is sort of the icing on the cake. They also claim that my "fee waiver request has failed to satisfy each of the required factors."

Except that's not true. I actually satisfy all of the factors. Let's take a look.

Whether the subject of the requested records concerns "the operations or activities of the government."

Why, yes it does. I'm trying to find out why the US government requested GoDaddy censor a political protest site.

Whether the disclosure is "likely to contribute" to an understanding of government operations or activities.

Again, yes, of course it will, because I'll be reporting on the results, contributing to the understanding of why ICE felt the need to try to censor political speech in Mexico.

Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understand of the requestor or a narrow segment of interested persons

Again, since the request is for reporting purposes, and I'll be reporting on the results, this should once again be in favor of the waiver.

Whether the contribution to public understanding of government operations or activities will be "significant."

I would think it would be. After all, we're talking about a government agency censoring a foreign website for no clear reason. That seems rather significant.

Whether the requestor has a commercial interest that would be furthered by the requested disclosure

Nope. And, honestly, this is the main one that they normally use to reject fee waivers. It clearly does not apply here.

Whether the magnitude of any identified commercial interest to the requestor is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requestor.

Again, I have no commercial interest here, but a journalistic one. And, for those who claim that there's a "commercial interest" as a news site, that is specifically exempted from the FOIA definitions of commercial interest. The DHS's own rules note that, when it comes to journalists: "a request for records supporting the news-dissemination function of the requestor shall not be considered to be used for commercial use." And, again, I've done a bunch of FOIA requests and never had a single fee waiver rejected before.

In other words, none of the conditions set forth as reasons why ICE can reject my fee waiver request have been met, and yet ICE still rejected the request -- and rather than explain why (perhaps because they can't), they said "because ." Yay, government.

I'll be appealing this decision shortly, but it hardly inspires much confidence in the FOIA department at ICE to actually be of any help at all in this matter.

Fee Waiver Rejected (PDF)Fee Waiver Rejected (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: dhs, fee waiver, foia, homeland security investigations, ice, rejections

44 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Ninja (profile), 3 Apr 2014 @ 7:02am

[Redac.
I'm guessing they were trying to put a load of black ink there to.
[ link to this | view in thread ]
BentFranklin (profile), 3 Apr 2014 @ 7:12am

Obviously it's because terrorism. You just have to read between the spaces.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 9:03am

and rather than explain why (perhaps because they can't), they said "because .

They are not allowed to say it is because it would reveal illegal acts by a government agency.
[ link to this | view in thread ]
Anonymous Anonymous Coward, 3 Apr 2014 @ 9:04am

Techdirt and Ice
Well, they must be worried about dirty ice!
[ link to this | view in thread ]
Geno0wl (profile), 3 Apr 2014 @ 9:08am

The forgot to check a box
As a person to generates forms I am betting somebody just didn't check a box somewhere.
Based off the "because%20." I would take a good bet that is actually a form where it is supposed to read "because [reason]." where the reason is an open field box or auto-generated based off a group of check boxes.
This in no way invalidates the point of this being ridiculous, just shines a little light on how it ended up saying simply "because ."
yay government transparency!
[ link to this | view in thread ]
Jon Renaut (profile), 3 Apr 2014 @ 9:09am

Incompetence over malice?
It looks to me like she's got some program that generates that document and she just left the "because" field blank. Or, given ICE's understanding of computers, the program just ate the reason and spit out a blank.
[ link to this | view in thread ]
AricTheRed (profile), 3 Apr 2014 @ 9:09am

I knew it!
My mom got a new job.

She would not tell me where. Now I know, because.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 9:09am

So much for that Open and Transparent government Obama promised Americans
[ link to this | view in thread ]
Baldaur Regis (profile), 3 Apr 2014 @ 9:12am

At least they didn't say 'because fuck you'.
[ link to this | view in thread ]
Just Another Anonymous Troll, 3 Apr 2014 @ 9:16am

Pretty sure "Because" is the reason mothers use on their kids when she doesn't want them doing something but doesn't want to find the reason. Not for rejection of your legitimate fee waiver. They were probably hoping that the average citizen wouldn't care enough to pay up or use the appeals process. Transparency, thy name is not the United State Government.
[ link to this | view in thread ]
Baron von Robber, 3 Apr 2014 @ 9:22am

Re:
I don't think if Mitt "47%" Romney was in office, it would be much different.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 9:34am

Re:
Doesn't mean they didn't want to....
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 9:38am

Oh those kids.
I just heard a 5 year old use that exact reasoning yesterday. Well, it is good to know the mind of your government.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 9:48am

it obviously cut off before the reason could be given. It was clearly supposed to say "because...reasons".
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 9:51am

because fuck you, that's why.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 9:52am

Re:
No they were just being more honest this time. It's the same "because" that a parent uses to answer the a child's insolent questioning of "Why". Only in a parent/child relationship, it is appropriate where as when the government gives that sort of answer to citizens, it is not. When they say "because terrorism" they really just mean "because."
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 10:00am

Kill Big Govt "Because"
It's not transparent.
It lies to the citizens.
It uses Double Speak to redefine definitions.
It wastes Billions of $'s a year without retribution.
Insiders can lie to Congress (James the Clapp) without punishment.
etc...etc...etc...
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 10:18am

ICE is just throwing up a few road blocks, trying to get Mike to give up his quest for the truth.
[ link to this | view in thread ]
Loki, 3 Apr 2014 @ 10:25am

Re:
Actually they did, they just didn't put the words on paper.

Again this come down to the government's efforts to redifine the English language. From what I've seen over the past decade, "journalist" has slowly been redifined to be "someone who futhers government or corporate propaganda". they just aren't prepared to say that outright yet, so it's easier to just thumb their nose at people for now.
[ link to this | view in thread ]
Jay (profile), 3 Apr 2014 @ 10:25am

Re:
After their last debacle, he's actually doing them a favor by showing exactly their faults.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 10:25am

Here's your problem. They are not evaluating you or even Techdirt. Because you claimed to be asking on behalf of Muckrock, you carry their baggage. God only knows what kind of requests have been made in their name and what that has done to color them in the eyes of FOIA compliance types.

So are you dropping the whole matter because you have to pay?
[ link to this | view in thread ]
Andrew F (profile), 3 Apr 2014 @ 10:25am

Paywall
You obviously have to sign up for a one-year subscription to access FOIA requests. Otherwise, how else would bureaucrats be incentivized to create responsive content?
[ link to this | view in thread ]
Internet Zen Master (profile), 3 Apr 2014 @ 10:27am

Re:
Hell, if they wanted to be net-lingo savvy, they'd just drop the "..." part and say "because reasons".

Just saying "because ." is incredibly condescending, even for a government agency like ICE. Or incompetent, depending on who you ask.
[ link to this | view in thread ]
DogBreath, 3 Apr 2014 @ 10:38am

Everyone has it all wrong
The "period" isn't a "period", it's a microdot.

There was simply too much information, as to why the request was denied, to fit on the rejection form. So, being the considerate individuals that they are, they gave the required answer in the most appropriate and efficient way they could.

Now if you want to know what is on the microdot, and seeing as how technology has advanced, you will probably need an electron scanning microscope to read it (and the printer with the resolution capable of printing out said microdot if they only sent you an email reply). Or you could just ask ICE what was on the microdot, but that will require another FOIA request, which will more than likely be denied with a page full of microdots as explanations.
[ link to this | view in thread ]
John William Nelson (profile), 3 Apr 2014 @ 10:39am

But bloggers aren't "journalists" . . .
According to Old Media and government entities for whom it is convenient to make this claim . . .

This should also be filed under "government form letter fails."
[ link to this | view in thread ]
weneedhelp (profile), 3 Apr 2014 @ 10:40am

You have been denied because...
But for the low low price of free we will put you and your cohorts on a secret government watch list. All your communications are ours... Because.
[ link to this | view in thread ]
weneedhelp (profile), 3 Apr 2014 @ 10:44am

Re:
Didnt they?
[ link to this | view in thread ]
Oblate (profile), 3 Apr 2014 @ 11:02am

Re: Kill Big Govt "Because"
Why do you think multiple small governments would be better?

Please don't just say 'Because.'
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 11:52am

"Based on my review..."
Based on my review of your rejection of this fee waiver request, I have determined that you are intellectually, legally, and morally deficient because .
[ link to this | view in thread ]
Mike Masnick (profile), 3 Apr 2014 @ 12:05pm

Re:
Because you claimed to be asking on behalf of Muckrock, you carry their baggage.

That's wrong on two counts (you're almost always wrong -- have you noticed?).

One, the request was *via* Muckrock but made it clear this was for Techdirt.

Two, go through the same factors above for Muckrock... and you'll find that none of them apply to Muckrock either.

Three, all my previous FOIA requests have been through Muckrock without a problem.

God only knows what kind of requests have been made in their name and what that has done to color them in the eyes of FOIA compliance types.

That's, um, not how the FOIA process works.

So are you dropping the whole matter because you have to pay?

You really ought to read the full posts before spewing some stupid comment.
[ link to this | view in thread ]
Lurker Keith, 3 Apr 2014 @ 12:29pm

Re:
Had to report you. You obviously didn't read the article. Mike clearly stated he plans to appeal, since the Government not only doesn't have any grounds to reject this request, they didn't even bother to specify any!
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 12:49pm

Re: Re:
OK, well they responded to you as:

Mike Masnick
Muckrock News

not:

Mike Masnick
Techdirt via
Muckrock News

and in the body of the letter they state that they'd reviewed the application thoroughly and determined MUCKROCK NEWS was not entitled to a waiver. No mention of Techdirt. You didn't bother posting the application so who knows what it said.

And I don't know why you're being such a dickhead about this- looks like you're not the only one who has whiffed using MUCKROCK. From their website:

Stats & Figures
9,213 requests filed
1,988 requests succesfully completed
594 requests denied

No info on success with waivers but there are about 6600 of the requests filed that were neither successfully completed or denied outright. I'd guess they fizzled out when the petitioner was told they'd have to pay.
[ link to this | view in thread ]
James Jensen (profile), 3 Apr 2014 @ 12:56pm

Re: Re: Kill Big Govt "Because"
Well, it's at least a little harder to be apathetic when you live there.

I'm reminded, though, of Hagbard's First Law: communication is only possible among equals. The bigger the hierarchy, the more reality gets filtered by underlings too afraid or ambitious to tell the truth to higher-ups. Those at the top end up living in fantasy worlds carefully constructed not to upset them.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 2:21pm

Re: Re:
"So are you dropping the whole matter because you have to pay?"

You really ought to read the full posts before spewing some stupid comment.

Just assuming the inevitable result of an appeal to the same bunch that denied you. We'll see what happens when you are faced with opening your wallet
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 3:23pm

Re: Re: Re:
You didn't bother posting the application so who knows what it said.

You forgot to finish your sentence:

"You didn't bother posting the application so who knows what it said, so I just made shit up instead."

No need to thank me!
[ link to this | view in thread ]
Personanongrata, 3 Apr 2014 @ 3:42pm

Because petty quibbling lickspittle functionaries of the state can arbitrarily decide to deny the FOIA request without fear of retribution.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 4:30pm

Actually found the reason
http://i.imgur.com/Y9vKPOK.jpg
[ link to this | view in thread ]
Coyne Tibbets (profile), 3 Apr 2014 @ 5:07pm

Government sure uses that word a lot
"Because" is used by the government a lot these days.

"Why do you have to record everything?" ("Because.")

"Why do you have to have a no-fly list?" ("Because.")

"Why do we all have to be treated like terrorists at the airport? ("Because.")

Just like when parents use it, the word is used when they don't have a justification or don't want to go into it (which usually means they're not sure of the justification).
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 8:01pm

Re:
It's the understood fuck you that is implied and doesn't have to be explicitly written or stated.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2014 @ 8:14pm

I have not recently read the published requirements for one to receive favorable consideration of a fee waiver, but it does strike me as correct that the burden of proof to qualify for a waiver rests with the requester and not the agency.

Assuming what is listed as the requirements is correct, my admittedly quick glance at the FOIA request asked for a waiver, but did not provide any information demonstrating that the requirements for a waiver were met and why it was believed to be so. Absent such information the burden of proof would necessarily not be satisfied and waiver could be denied (though I know of no rule that would preclude the submittal of an amended letter stating in essence why each of the requirements are believed met.

The above notwithstanding, the reply to your request is not a prime example of what agencies should strive for when responding to requests. I do find it somewhat troubling that the author of the reply did the bare minimum, with no apparent attempt to provide useful input to place your request in satisfactory order. Merely FYI, on the very few occasions I have seen such instances I found a simple telephone call was sufficient to get matters clarified and proceed to a proper resolution. Even when dealing with the government, personal contact and expressing a willingness to work together goes a long way towards a successful conclusion of such matters.
[ link to this | view in thread ]
nasch (profile), 4 Apr 2014 @ 1:41pm

Re: Re: Kill Big Govt "Because"
Please don't just say 'Because.'

Not because. Because .
[ link to this | view in thread ]
nasch (profile), 4 Apr 2014 @ 1:43pm

Re: Re:
That's, um, not how the FOIA process works.

You mean that's not how it's supposed to work? I'm not sure there's convincing evidence that personal bias and/or vendettas don't come into play.
[ link to this | view in thread ]
nasch (profile), 4 Apr 2014 @ 1:46pm

Re:
The above notwithstanding, the reply to your request is not a prime example of what agencies should strive for when responding to requests.

And that's putting it in the best possible light. I would even say putting a very positive spin on it.
[ link to this | view in thread ]
Anonymous Coward, 6 Apr 2014 @ 2:21am

Re:
When he spoke about increased transparency, he was referring to us.
[ link to this | view in thread ]