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.

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Comments on “ICE Rejects My Request To Waive FOIA Fees 'Because .' Yes, 'Because .'”

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44 Comments
Anonymous Coward says:

Re: 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.”

Geno0wl (profile) says:

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!

Loki says:

Re: 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.

Just Another Anonymous Troll says:

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.

James Jensen (profile) says:

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.

Anonymous Coward says:

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?

DogBreath says:

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.

Coyne Tibbets (profile) says:

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).

Anonymous Coward says:

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.

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