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

from the why?-because. dept

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.

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