UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SUSAN B. LONG, et al., Plaintiffs,

v. DEPARTMENT OF HOMELAND SECURITY, Defendant. Case No. 1:14-cv-00807 (CRC)

MEMORANDUM OPINION Plaintiffs Susan B. Long and Davi d Burnham are professors at Sy racuse University and co-directors of the university’s Transactional Records Access C learinghouse (“TRAC”). In November 2013, Long and Burnham, on TRAC’s behalf, lodged a Fre edom of Information Act (“FOIA”) request with Immigrati on and Customs Enforcement (“ICE ”), a bureau of the Department of Homeland Security ( “DHS” or the “Department”). T he request sought all data from three large databases ma intained by ICE and broader electr onic data maintained by U.S. Customs and Border Protection. L ong and Burnham also asked to be classified as representatives of an educational institution and t he news media, which would e ntitle them to reduced FOIA processing fees. In support of the ir fee classification reques t, they explained that TRAC regularly analyzes and distills data obtained from fede ral agencies into reports on government operations in areas of public interest, includi ng immigration enforcement, wh ich are published on TRAC’s website and through other means. Although ICE’s FOIA office had prev iously treated TRAC as both an educational and news media requester, this time it denied Long and Burnham’s re quest, claiming they had not adequately explained how the pa rticular information they sought would serve TRAC’s2 educational and journalistic m issions. Long and Burnham sued D HS to overturn ICE’s determination, and both sides have moved for summary judgment. While ICE might object to the breadth of TRAC’s FOIA request a nd question the originality and accuracy of its research reports, denying it preferred requester s tatus is not the way to handle those concerns. Long and Burnham adequately justified their reque st for both educational and new s media status. The Court will therefore grant their motion for summary judgment and deny the Department’s.
I. Background In November 2013, Long and Burnham filed a request under the Fr eedom of Information Act, 5 U.S.C. § 552, seeking all data f rom three separate ICE d atabases: (1) the Enforcement Integrated Database (“EID”), a shared, operational database within ICE containing information on the detention and removal of undoc umented immigrants, including their biographical data, criminal history, and encounters wi th law enforcement agents; ( 2) the Integrated Decision Support System, which contains selected data drawn from the larger EID; and (3) the General Counsel Electronic Management System, a legal case management database used by ICE attorneys. The request also sought unspecified C ustoms and Border Protection d ata libraries and repositories. 1

1 The request specifically sought: Part A: All information [“data”] currently recorded in: (i) the Enforcement Integrated Database (EID), (ii ) ICE’s Integrated Decision Suppo rt (IIDS) system, (iii) the General Counsel Electr onic Management System (GEMS), and (iv) the U.S. Customs and Border Protect ion data repositories/data wareh ouses/data marts. Part B: With respect to the information systems mentioned in Part A, any information [“descrip tive records”] prepar ed since the beginnin g of FY 2004 or having applicability to systems e xisting during this time perio d describing: (i) any of their contents, (ii) any ch anges in the coverage or scope of their contents, (iii) any of the processes, tools, ins tructions or methods for adding , deleting, modifying, checking, or validating their contents, (iv) whether any of their contents is currently maintaine d or updated, (v) the uses curre ntly made of any of their contents, or (vi) the distribution of any of their conten ts to other data systems, or to individuals, offices, units , organizations, or locations whether inside and3 In their FOIA request, Plaintiffs also asked to be charged redu ced processing fees as news media and educational institution requesters. Compl. ¶ 17; 5 U .S.C. § 552(a)(4 )(A)(ii)(II). 2 In support of their request, Plaintiffs explained: TRAC is a research data cente r at Syracuse University, and unde r the direction of its co-directors, Long and Burnham, carries out an active progr am of scholarly research. As its name implies, TRAC as part of its educational and service mission also serves as a clearinghouse and regularly responds t o inquiries from the press, scholars, public in terest groups, and other members of the public on where to find government informa tion and the specific types of information available. One of our specialties is computerized federal data bases maintained by agencies to record day-by-day ac tivities required for managing the agency and reporting on its performance to various oversight bodies. TRAC actively seeks to promote public understanding of the operation of the federal go vernment’s immigration enforcement program s through the gathering and diss emination of this information. At TRAC, we actively gather information of i nterest to the public, transform this informa tion utilizing our editorial and research expertise into various works—including com puterized knowledge bases and r eports—and make these works available to the public. Recent TRAC reports o n immigration issues can be viewed at: http://t rac.syr.edu/immigration/report s/. Id. On numerous previous occasions, ICE and other divisions of DHS had classified Plaintiffs, acting on behalf of TRAC, as news media and educational institu tional requesters. E.g., Pls.’ Opp’n & Cross-Mot. Summ. J. Exs. B–D (letters from ICE granting preferred requester status). This time, however, ICE indicate d that it would treat Plaintiff s as “non-commercial” requesters. Decl. of Fernando Pineiro, S ept. 4, 2014, Ex. 2 (“Pineiro Decl. ”). After Plaintiffs appealed that designation, ICE changed its con clusion, finding that Plaintiff s should be charged even higher fees as commercial requesters. Id. Ex. 5 at 3. Following an e xchange of letters, I CE reiterated its

outside the agency, how and when s uch distributions occur or sh ould occur and what specific contents is in cluded in each distribution. Compl. ¶ 16.

2 Plaintiffs also sought a public interest fee waiver. See Dec l. of Fernando Pineiro, Sept. 4, 2014, Ex. 1. Because Plaintiffs have not challenged ICE’s denial of their waiver request, that issue is not before the Court. See Pls.’ Opp’n & Cross Mot. Summ. J. at33 n.15.4 determination that Plaintiffs w ere commercial requesters. Id. Exs. 6, 7. Plaintiffs then brought this suit alleging viol ations of FOIA and the Administrative Pr ocedure Act, and both parties have now moved for summary judgment. 3 The Court held a hearing on May 27, 2015.
II. Analysis FOIA requires all agencies to prom ulgate regulations (1) specif ying applicable fees for processing requests and (2) es tablishing guidelines for determi ning when fees should be waived or reduced. 5 U.S .C. § 552(a)(4)(A)(i). 4 Congress incorporated fee wa ivers and reductions into FOIA so that “fees [would] not be used as an obstacle to disclo sure of requested information.” Eudey v. Cent. Intelligence Agency, 478 F. Supp. 1175, 1177 (D. D.C. 1979). Courts review agency decisions on requester sta tus and fee waiver requests th rough a “ de novo review of the record” that was before the a gency. Cause of Action v. Federal Trade Comm’n, 961 F. Supp. 2d 142, 153 (D.D.C. 2013); accord 5 U.S.C. § 552(a)(4)(A)(vii). There are three levels of fees t hat a FOIA requester may be cha rged. If records are requested for a commercial use, the agency may charge for searc hing for, reviewing, and duplicating them. 5 U.S.C. § 552(a) (4)(A)(ii)(I). If records are not sought for commercial use, the fees must be limited to reasona ble charges for searching an d duplicating. Id. § 552(a)(4)(A)(ii)(III). And if the requester is an educational or non-commercial scientific institution, or a representative of the news media, the fees ar e further reduced, as the agency may only charge for duplicati ng. Id. § 552(a)(4)(A)(ii)(II). In o rder to determine which category applies, the agency looks to the activities of the requester an d its likely use of the records. See

3 Plaintiffs have consented to the dismissal of their second cl aim, under the Administrative Procedure Act. Pls.’ Opp’n & Cross Mot. Summ. J. at 1–2. The Court will therefore dismiss that claim.
4 DHS regulations governing fees f or processing FOIA requests a re codified at 6 C.F.R. § 5.11.5 Elec. Privacy Info. Ctr . v. Dep’t of Def., 241 F. Supp. 2d 5, 1 2 (D.D.C. 2003) (holding that a requester’s history of publishing unique works was more than en ough to justify news media status). Plaintiffs contest ICE’ s refusal to classify them as representatives of both an educational institution and the news media.
A. Educational Institution Status Long and Burnham contend that th ey should have been charged the reduced processing fees set for educational institutions. DHS regulations define an “educational institution” to include “an institution of undergraduate higher education [or] an institution of graduate higher education . . . that operates a pr ogram of scholarly research.” 6 C.F.R. § 5.11(b)(4). To be classified in this category, “a requester must show that the re quest is authori zed by and is made under the auspices of [an educational] institution and that the records are not sought for a commercial use but are sought to f urther scholarly research.” Id. Office of Management and Budget (“OMB”) guidelines—to whi ch agency regulations must conf orm, 5 U.S.C. § 552(a)(4)(A)(i)—provide the follo wing example to guide agencies in determining whether professors qualify for “ educational” status: [A] request from a professor of geology at a State university f or records relating to soil erosion, writt en on letterhead of the Department of Geo logy, could be presumed to be from an educationa l institution. A request from the same person for drug information from the Food and Drug Administration in f urtherance of a murder mystery he is writing w ould not be presumed to be an ins titutional request, regardless of whether it was written on institutional stationary. OMB Uniform Freedom of Informa tion Act Fee Schedule and Guideli nes, 52 Fed. Reg. 10,012, 10,014 (Mar. 27, 1987) (“OMB Fee Guidelines”). In their initial preferred stat us request, Long and Burnham exp lained to ICE that they are Syracuse University professors a nd that TRAC is a Syracuse Univ ersity research institute operating under their direction. T hey further indicated that T RAC carries out an active program6 of scholarly research specializ ing in gathering and analyzing f ederal government data and that TRAC publishes its findings in res earch reports available on it s website, which is hosted on Syracuse University servers. Aft er ICE denied their request, L ong and Burnham submitted a 2006 letter drafted by TRAC’s atto rneys in connection with an e arlier preferred status request and a six-page white paper elaborat ing on TRAC’s res earch activitie s and Plaintiffs’ relationship to the organization. Pineiro Decl. E x. 6 (attachments to letter d ated Feb. 24, 2014). Long and Burnham also drew ICE’s atten tion to numerous bulletins and som e 25 immigration-related reports that TRAC has published ov er the last nine years. For example, just one month before Plaintiffs filed their FOIA reque st TRAC published a report ana lyzing immigrant detention rates before and after new ICE guidelin es went into effect. See TRAC , New ICE Detainer Guidelines Have Little Impact, Oct. 1, 2013, ava ilable at http://trac.syr. edu/immigration/reports/333/. Long and Burnham contend that this inf ormation was sufficient to jus tify classifying them as representatives of an educational institution. DHS begs to differ, offering three reasons for its conclusion t hat Plaintiffs do not qualify for the reduced fees charged t o educational institutions. Firs t, it questions the extent of TRAC’s connections to Syracuse Universit y, noting that TRAC’s website indicates that the center has locations outside of Syracuse a nd receives funding from parties other than the university. Def.’s Mot. Summ. J. at 14. But nothing in the FOIA statute or its im plementing regulations limits the definition of “educational in stitution” to an entity with only one location or funding source. Nor does the existence of TRAC’s other locations or funding sources demonstrate that TRAC’s connection to Syracuse Universit y is somehow contrived. FOIA’s legislative history, moreover, instructs that “[a] requestmade by a professor . . . should b e presumed to have been made by the [educational] institution.” Sack v. Dep’t of Def., 6 F. Supp. 3d 78, 93 (D.D.C. 2013); see also7 OMB Fee Guidelines (noting that a letter from a professor on un iversity letterhead “could be presumed to be from an educationa l institution”). Plaintiffs a re professors who made the request for records for use in their r esearch at a university research center. They were therefore entitled to a presumption of educational status. Because DHS has not offer ed any persuasive evidence to rebut that presumption, the Court finds that Plaintiffs met the ir burden to establish that their request was authorized by and under the auspices of Syracuse Un iversity. DHS next argues that Long and Burnha m are not entitled to educa tional requester status because they failed to demonstrate that the particular records they seek will further scholarly research. The Department specif ically faults Plaintiffs for no t indicating whether the data “will be transformed into scholarly or nonc ommercial research” or “will actually be placed in . . . TRAC reports.” Def’s Mot. Summ. J. a t 19. While Plaintiffs perhaps could have satisfied the Department’s concerns by simpl y providing the requested represe ntation, the materials they submitted to ICE detailed TRAC’s extensive history of analyzing records from federal databases and publishing its findings in reports on immigration enforceme nt. Given TRAC’s established methodology and publication history, t he most logical conclusio n for ICE to have drawn was that Plaintiffs intended to use the re quested data for similar resea rch reports in the future. DHS correctly points out that TRAC’s prior history is not necessari ly dispositive because a requester’s status can change. See Nat’l Sec. Archive v. Dep’t of Def., 88 0 F.2d 1381, 1388 (D.C. Cir. 1989) (“If the [requester’s] intenti on to publish works derived from the documents it requests does not pan out, it will be open to [the agency] to argue that the [req uester] is no longer a representative of the news media.”); Long v. D ep’t of Justice, 450 F. Supp. 2d 42 , 84 (D.D.C. 2007) (denying a request to determine the status of a requester wit hout referenc e to a specific fee request). Yet ICE has offered nothing to suggest tha t TRAC has altered its resear ch methodology since the agency8 last granted it pref erred requester status. As a result, ICE e rred in concluding that Plaintiffs did not demonstrate an intended schol arly use for the requested rec ords. In a similar vein, DHS maintains that Long and Burnham have fai led to prove that they lack a commercial interest in the requested records. See 6 C.F .R. § 5.11(b)(4) (requiring educational requester s to show that the r ecords “are not soughtfor a commercial use”). The government’s concern in this re gard is not entirely unwarranted . In addition to its research and publication activities , TRAC (as its name suggests) also serves as a clearinghouse for much of the data it obtains from the govern ment. It places certain data on a non-public section of its website—called the “TRACFED Dat a Warehouse”—and charges subscri ption fees to query it. As will be further discussed belo w, serving as a data vendor or wholesaler is inconsistent with news media requester statu s. E.g., Judicial Watch, Inc. v. Dep ’t of Justice, 185 F. Supp. 2d 54, 59–60 (D.D.C. 2002) (refusing to grant news media status to an “information vendor or middleman”). It could also reflect a commercial rather than sc holarly motive for a records request. That being said, “Congress did not i ntend for scholars (or jour nalists and public interest groups) to forego compensation w hen acting within the scope of their professional roles.” Campbell v. Dep’t of Justice, 164 F.3d 20, 35–36 (D.C. Cir. 199 9) (concluding that a bona fide scholar’s book profits did not make his activities “primarily c ommercial” for purposes of calculating a FOIA public interes t fee waiver). Consistent wit h that principle, TRAC’s subscription service does not disqualify it from educational re quester status so long as the request is being made to further TRAC’ s scholarly mission and not princ ipally to enable it to sell the raw data to third parties. The Court has already concluded that Pl aintiffs established TRAC’s scholarly interest in the reco rds. And Long and Burnham disavo wed any overriding commercial9 interest in the records by expl aining to ICE that they are not remunerated for their work with TRAC beyond their university salar ies and that TRAC, as a non-p rofit organization, charges subscription fees only to partia lly defray its operating costs. Pineiro Decl. Ex. 6 at 8. Accordingly, Plaintiffs adequate ly demonstrated a lack of comme rcial interest in the requested data and ICE improperly denied the ir request for educational re quester status on that basis.
B. News Media Status Plaintiffs also requested that th e agency classify them as repr esentatives of the news media. FOIA provides that a rep resentative of the news media m ay only be charged for document duplication. 5 U.S.C. § 552(a)(4)(A)(ii)(II). The statute exp lains that a “repr esentative of the news media” is an entity that “gathers information of potential interest to a segment of the public, uses its editorial skills to tur n the raw materials into a dist inct work, and distributes that work to an audience.” Id. DHS regulations further define a representa tive of the news media as a “person actively gathering news for an ent ity that is organized and ope rated to publish or broadcast news to the public” that is “about cur rent events or that would be o f current interest to the public.” 6 C.F.R. § 5.11(b)(6). Like educat ional requesters, a news mediarequester may not seek the information for commercial use. Id. § 5.11(b)(1). Recognizing , however, that many news organizations are for-profit en tities, the regulation explains that a news media requester may make products available “for purchas e or subscription” without the r equest being c onsidered for commercial use. Id. § 5.11(b)(6) . The legislative history of this preferred fee category indicates the bill sponsors believed “[i]tis critical that the phrase ‘r epresentative of the news media’ be broadly interpreted if the act i s to work as expected.” Nat’l Sec. Archive, 880 F.2d at 1386. Plaintiffs described TRAC’s rele vant news media experience in t heir correspondence to ICE. They indicated that TRAC transforms large amounts of datait receives from the10 government into distinct works t hat are available to the public , and they explained that TRAC’s fundamental purpose is to provide i nformation to the American p eople, Congress, public interest groups, and other parties regard ing the enforcement activities of the federal government. Pineiro Decl. Ex. 1 at 2, 6, 15. TRAC’s work i n that regard is reflect ed in some 130 recent reports on immigration issues, more than 25 of which examined “the activit ies and functions of ICE.” Pls.’ Opp’n & Cross-Mot. Summ. J. a t 7–8; id. Ex. F (listing immigrat ion-related reports). These reports include analysis, stati stics, trends, and other conclus ions that a lay person would not be able to draw simply by revie wing the raw data. E.g., id. Ex. J(analyzing “[w]ha t happened to the roughly 1,500 individuals taken in to custody by Immigration and Customs Enforcement (ICE) in a typical work day” on a state- by-state level). Plaintiffs fur ther explained that TRAC’s reports are published on its website, whic h received some five million visi ts in 2013, and are frequently cited by other news organizations. P ineiro Decl. Ex. 6 at 6. And it is clear, Plainti ffs contend, that the enforcement of immigration laws is a topic of current interest to the public. These activities might seem to pl ace TRAC well within the heart land of organizations that Congress envisioned as news medi a. Not satisfied, DHS points t o four purported deficiencies in Plaintiffs’ submissions that it contends disqualify TRAC from n ews media status. First, DHS claims that TRAC’s reports are not news because they do not inc orporate “information from a range of sources.” Def.’s Mot . Summ. J. at 23. Incorporating information from a range of sources, however, is not essentia l for news media status. See Nat’l Sec. Archive, 880 F.2d at 1387 (holding that, although the reque ster combined records “wi th documents from other sources,” that activity was not ne cessary or sufficient for a r equester to be considered news media). Even if it were require d, TRAC’s reports appear to inc lude at least some information from other sources. E.g., Pls.’ Opp’n & Cross-Mot. Summ. J. Ex . G (listing as sources California11 and San Francisco official guida nce on immigration detainers). This rationale therefore does not constitute grounds for ref using news media status. DHS next argues that Plaintiffs “ simply regurgitate the statuto ry language” without specifically demonstrating why res earch based on the requested records will be of interest to the public. Def.’s Mot. Summ. J. a t 22–24. But the agency cites n o case, statute, or regulation to support its skepticism regarding the public’s interest in repor ts based on the requested records. The Court has little difficulty c oncluding that information abo ut enforcement of our immigration laws would be of interest to t he public. Because the record wa s sufficient for the agency to reach the same conclusion, it erred i n denying Plaintiffs’ fee classi fication request on that basis. ICE also refused to categorize TR AC as a news media requester b ecause it determined that Plaintiffs had failed to prove that TRAC will turn the raw datainto a distinct work to be distributed to the public. D ef.’s Mot. Summ. J. at 23, 25–28. To support that determination, DHS relies primarily on two cases uphol ding agency denials of news media status. Neither supports the Department’s position here. T he requester in the first cas e described itself as “a public interest law firm [that] speci alizes in deterring, monitoring, uncovering, and addressing public corruption in government.” Judicial Watch, 185 F. Supp. 2d at 57. Analogizing the organization’s past treatment of requested records—allowing peo ple to inspect them at its offices and posting copies online—to that of a private library, id. at 59, the court concluded that “[m]erely making available inform ation” does not reflect the pu blishing effort required to be classified as news media for purposes of FOIA, id. at 60. The second requester was a self-styled “nonprofit organization that uses public advocacy and legal ref orm strategies to ensure greater transparency in government and prot ect taxpayer interests and e conomic freedom.” Cause of Action, 961 F. Supp. 2d at 150. As for creating distinct works , the organization c ould not identify12 any information it had previousl y published or describe a work it planned to create. Id. at 162. The only evidence it offered regar ding its intent and ability t o disseminate information was its “relationships with media c ontacts.” Id. at 163. In addition, the organization’s website was inoperable at the time of the r equest, and it could not estimat e how many people had viewed its content. Id. Neither reque ster considered publication part of its mission or had a history of drafting and dissemina ting unique works. TRAC, on the other hand, describes itself as a research institu te. It has published immigration reports and bulletins accessed by millions of peopl e, and Plaintiffs stated to the agency that it will continue to do so in the future. Here, aga in, Plaintiffs might have avoided unnecessary litigati on by explaining how they intended to use t he requested records. But they were not required to do so. See J udicial Watch, Inc. v. Rossot ti, 326 F.3d 1309, 1314 (D.C. Cir. 2003) (reversing a district court that required “pointless spec ificity” regarding an appellant’s plan to disseminate information). TRA C’s past activities amply demo nstrated its ability to transform the requested data into a distin ct work and distribute it to th e public. The agency therefore had no basis for requesting furth er detail on this topic. Finally, DHS suggests that TRAC should not be considered part o f the news media because its research is insufficiently original. See Def.’s Mo t. Summ. J. at 27 (arguing that producing TRAC’s research reports requires no ed itorial skill b ecause they “simply summarize” information obtained from the government). The Department cite s no support for ICE’s refusal to grant preferred status based on its subjective assessment of TRAC’s editorial skill. Once Plaintiffs had demonstrated the ir ability to publish reports, I CE should not have attempted to “evaluate the quality of [the re questers’] scholarship or to sp ecify a minimum level of expertise required.” Edmonds Inst. v. D ep’t of Interior, 460 F. Supp. 2d 63, 75 (D.D.C. 2006) (finding the13 plaintiff was entitled to a public interest fee waiver because it had reasonably stated how it will “convey information to the publ ic” (quoting 6 C.F.R. § 5.11(k)( 2)(iii))). Plaint iffs’ uncontested representations that they intend and have t he ability to dissem inate new research to the public were sufficient to meet the defi nition of representatives of th e news media.
C. Declaratory Relief In addition to a status determina tion with respect to this FOIA request, Plaintiffs seek a declaration that TRAC is entitle d to both educational and news media status for all future requests. It is within the Court’ s power to issue a declaratory judgment in a FOIA matter. In Payne Enterprises, Inc. v. Unite d States, for example, the D.C. Circuit upheld a declaratory judgment that the Air Force viol ated FOIA by refusing “in everycase” to disclose information until after lawsuits were filed. 837 F.3d 486, 494 (D.C. Cir. 1988). Plaintiffs, who are frequent FOIA requesters, argue that sim ilar declaratory relief is appro priate here because ICE’s denial of preferred status in this case portends similar adverse determin ations in the future. They also claim that imposition of substantial fees has impeded their res earch and publication activities. The Court, however, declines to issue a declaratory judgment. Agencies must make an independent fee status determi nation for each request and, as P laintiffs acknowledge, ICE has granted TRAC preferred status i n the past. Plaintiffs therefor e have not shown that ICE has violated FOIA by systematically r ejecting their fee classificat ion requests. While ICE may have erroneously denied TRACs’ requestin the case, TRAC could alter its research activities in the future or request information tha t is inconsistent with its sch olarly or journalistic interests. Absent evidence of either devel opment, the Court is confident t hat ICE will assess future TRAC requests in accordance with the r easoning set forth in this opi nion.14 III. Conclusion For the foregoing reasons, the Court will grant in part Plainti ffs’ Cross Motion for Summary Judgment, dismiss CountII of the Complaint, and deny D HS’s Motion for Summary Judgment. An Order will accompany this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge Date: June 29, 2015