Case 1:16-cv-00951 Document 1 Filed 05/19/16 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DAVID YANOFSKY
582 Market Street
Suite 314
San Francisco, California 94104
Plaintiff,
v.
UNITED STATES DEPARTMENT
OF COMMERCE
1401 Constitution Avenue, NW
Washington, D.C. 20230

Civil Action No. _____________________

Defendant.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

David Yanofsky (Plaintiff or Mr. Yanofsky), by and through his undersigned
counsel, hereby alleges as follows:
1.

This is an action under the Freedom of Information Act, 5 U.S.C. 552

(FOIA), for declaratory, injunctive, and other appropriate relief brought by David Yanofsky, a
journalist and staff reporter for Quartz (qz.com), a digital news publication of The Atlantic
Monthly Group, Inc.
2.

By this action, Plaintiff seeks to compel the Department of Commerce (DOC or

Defendant) to comply with its obligations under FOIA to release records concerning foreign
travel to and from the United States that Mr. Yanofsky requested in connection with his
reporting. Despite acknowledging that the records requested by Plaintiff are agency records
subject to FOIA, Defendant has unlawfully withheld the requested records by, inter alia,
unlawfully denying Plaintiffs request for a fee waiver and informing Plaintiff that he would
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have to purchase the requested records at a cost of at least $173,775.00, an amount far in excess
of the fees Defendant is permitted to charge under FOIA.
PARTIES
3.

Plaintiff David Yanofsky is a journalist and reporter for Quartz (qz.com), a digital

publication of The Atlantic Monthly Group, Inc. His reporting is primarily data-driven, relying
on the analysis of datasets to identify newsworthy trends and to otherwise gather the news and
report on matters of public interest and concern. Mr. Yanofsky reports extensively on issues
relating to travel and tourism for Quartz. For example, he has written news stories concerning
airport security screening by the Transportation Security Administration (TSA), a U.S.
Department of Justice (DOJ) investigation into possible airfare price collusion, the potential
spread of the Zika virus as a result of international travel, technical problems that interfere with
airline operations, the increased volume of passenger air travel within the United States, and
trends in foreign travel to the United States. See David Yanofsky, TSA is our No. 1 problem
right now: Long security lines are frustrating US airlines, too, Quartz, Apr. 12, 2016, at
http://qz.com/659461; David Yanofsky, The TSA can now require you to be body scanned,
Quartz, Dec. 24, 2015, at http://qz.com/581525; David Yanofsky, The United States is
investigating airfare price collusion, Quartz, July 1, 2015, at http://qz.com/443028; David
Yanofsky, Zika is just one flight away from these 57 countries, Quartz, Jan. 30, 2016, at
http://qz.com/605711; David Yanofsky, Tech glitches keep plaguing US airlines. This
dashboard keeps track of them all., Quartz, Oct. 29, 2015, at http://qz.com/535967; David
Yanofsky, More people are flying in the US than ever before, Quartz, Jan. 5, 2016, at
http://qz.com/585887; David Yanofsky, More than a third of Brazilians who travel to the US go
to the happiest place on earth, Quartz, Sept. 27, 2013, at http://qz.com/128367.

Case 1:16-cv-00951 Document 1 Filed 05/19/16 Page 3 of 19

4.

Defendant United States Department of Commerce is an agency of the federal

government within the meaning of 5 U.S.C. 551 and 5 U.S.C. 552(f) that has possession,
custody, and/or control of the records that Plaintiff seeks. The International Trade
Administration (ITA) is a bureau within the DOC. The National Travel and Tourism Office
(NTTO) and the Office of Travel and Tourism Industries (OTTI) are offices within the ITA.
Among other duties, NTTO and OTTI manage the Visitors Arrival Program (I-94 Program)
and the United States International Air Traveler Statistics Program (I-92 Program). The
DOCs headquarters is located at 1401 Constitution Avenue NW, Washington, D.C. 20230.
JURISDICTION AND VENUE
5.

This Court has subject matter jurisdiction over this action and personal

jurisdiction over Defendant pursuant to 5 U.S.C. 552(a)(4)(B) and 28 U.S.C. 1331.

6.

Venue lies in this district under 5 U.S.C. 552(a)(4)(B).

FACTS

7.

As alleged in detail below, in February 2016 Mr. Yanofsky filed a FOIA request

(the Request) with the DOC seeking data files and associated technical documentation related
to the I-94 Program and I-92 Program. In the Request, Mr. Yanofsky sought both a fee benefit
as a representative of the news media pursuant to 5 U.S.C. 552(a)(4)(A)(ii) and a fee waiver
pursuant to 5 U.S.C. 552(a)(4)(A)(iii).
8.

In March 2016 the DOC denied the Request. It claimed that the records sought

by Mr. Yanofsky must be purchased through NTTO, an office within the DOC, and are not
available under the FOIA[.] On information and belief, it would cost Plaintiff at least
$173,775.00 to purchase the records he has requested.
9.

The records that Mr. Yanofsky has requested are sought in connection with his

reporting on matters of public interest and concern relating to foreign travel to and from the
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United States. Among other things, as described in more detail below, the requested records
provide information about foreign tourists, immigrants, and U.S. nationals entering the United
Statessuch as their countries of origin, points of entry, and intended destinations within the
United Stateswhich is of public interest. In addition, the requested records contain data used
by the DOC and other government agencies to calculate and publish official estimates and
projections related to foreign travel and tourismofficial estimates and projections that Plaintiff
seeks to evaluate and whose accuracy is central to public understanding of these programs. The
records requested by Plaintiff also inform government decision making on other matters of
public concern, such as visa allocations, infrastructure at ports and border crossings, and
strategies to ease the entry and exit process for visitors to and from the United States; access to
those records will thus enable Plaintiff to inform the public of the basis for those government
decisions. Finally, the requested records will allow Plaintiff to report on the type of information
the federal government collects and shares about foreign travelers to and from the United States,
whether it collects and shares that information effectively, and whether the DOC is effectively
managing the I-92 and I-94 Programs.
The DOCs I-94 Program
10.

Through its I-94 Program, the DOC prepares and publishes certain reports related

to overseas non-United States resident visitor arrivals to the United States, as well as visitors
from Mexico and Canada, using data derived from Department of Homeland Security (DHS)
Form I-94 arrival records and other records. Plaintiff is informed and believes that the I-94
Program is the only source for certain information about foreign visitors arrivals to the United
States by country of residency based on Form I-94 arrival records.
11.

The Customs and Border Patrol (CBP), a component of DHS, issues Form I-94

to most foreign visitors who are lawfully admitted to the United States and to foreigners who
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change immigration status while in the United States. Form I-94 documents reflect certain
information about foreign visitors, such as the visitors arrival and departure dates, lawful
admission, evidence of the approved length of her or his stay and terms of admission to the
United States, biographical information, visa and passport information, and the address and
phone number where the visitor can be reached while in the United States.
12.

DHS provides the DOC with raw data collected from Form I-94 records on an at

least monthly basis. Once the data is received, the DOC retains, analyzes, and manipulates the
data to create various reports and publications, some of which it sells for a fee. For example,
each month, the DOC analyzes the data and creates and publishes a report entitled Summary of
International Travel to the United States, which consists of 35 tables providing information
about foreign visitors to the United States. The DOC sells monthly, quarterly, and annual
subscriptions to this report for a fee.
13.

In addition to the Summary of International Travel to the United States, the DOC

also maintains a data file called Air Arrivals I-94 Database (Detail Arrival Records) (the I-94
Data File), which consists of anonymized data about foreign visitors to the United States.
14.

The DOC sells CD-ROMs with quarterly or annual publications of its I-94 Data

File for a fee. It maintains websites on which it lists the prices for CD-ROMs of current and
historical I-94 Data Files. According to these websites, CD-ROMs of the 2015, 2014, 2013,
2012, and 2011 I-94 Data Files cost $13,820.00, $13,165.00, $12,780.00, $12,170.00, and
$10,165.00, respectively.
The DOCs I-92 Program
15.

The DOC creates and publishes statistical data about air traffic between the

United States and other countries through its I-92 Program. It uses data from Advanced

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Passenger Information System (APIS) arrival/departure records, formerly known as I-92

arrival/departure records, to create reports and other publications as part of its I-92 Program.
16.

As part of its I-92 Program, the DOC analyzes the APIS data and creates and

publishes the U.S. International Air Travel Statistics Report on a monthly, quarterly, and annual
basis. This report consists of tables providing detailed statistical information about the volume
of passenger travel between the United States and other countries, broken out by United States
citizen and non-United States citizen air traffic, carriers, scheduled and charter flights, United
States and foreign gateway airports, and countries and regions. The DOC sells single issues or
annual subscriptions to the monthly or quarterly reports, as well as a subscription to the annual
report, for a fee.
17.

In addition to the U.S. International Air Travel Statistics Report, the DOC also

maintains and utilizes a data file related to the report (the I-92 Data File), which consists of
anonymized data about air traffic between the United States and other countries.
18.

The DOC sells I-92 Data Files for a fee. It maintains websites on which it lists

the prices for the current and historical I-92 Data Files. I-92 Data Files can be purchased either
for internal use only or for resale. According to the DOCs website, the 2015, 2014, 2013,
2012, and 2011 I-92 Data Files, if purchased for internal use only, cost $23,745.00,
$23,280.00, $22,600.00, $21,540.00, and $20,510.00, respectively.
Plaintiffs Prior FOIA Request
19.

On March 10, 2015, Plaintiff sent a FOIA request via email to ITA, a bureau

within DOC, seeking access to and copies of the I-94 Data Files and the I-92 Data Files for 2011,
2012, 2013, and 2014, and their associated technical documentation (the Prior Request).
Plaintiff requested that the records be provided in electronic format. A true and correct copy of
the Prior Request is attached hereto as Exhibit A and incorporated by reference herein.
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20.

In the Prior Request, Plaintiff sought both a fee benefit as a representative of the

news media under 5 U.S.C. 552(a)(4)(A)(ii) and a fee waiver under 5 U.S.C.
552(a)(4)(A)(iii).
21.

The Prior Request complied with all applicable DOC regulations regarding the

submission of FOIA requests.

22.

On May 26, 2015, having received no response from the DOC, Plaintiff contacted

the Office of Government Information Services (OGIS) for assistance regarding the Prior
Request. From June 4, 2015 to June 25, 2015, Plaintiff communicated via email with Christa
Lemelin, OGIS Facilitator, about the status of the Prior Request.
23.

In a letter from Justin Guz, FOIA Officer (hereinafter Mr. Guz) dated June 24,

2015, the DOC denied the Prior Request (the Prior Request Denial Letter). A true and correct
copy of the Prior Request Denial Letter is attached hereto as Exhibit B and incorporated by
reference herein.
24.

The Prior Request Denial Letter stated that the DOC denied the request for the I-

94 Data Files because they are maintained by CIC Research, Inc., not ITA. The Prior Request
Denial Letter further stated that the DOC denied the request for the I-92 Data Files because
records which are published and offered for sale are excluded from the definition of subsection
5 U.S.C. 552(a)(2) records and need not be proactively disclosed even if doing so would
otherwise be required. The Prior Request Denial Letter also stated that NTTO, an office within
the DOC, can help you obtain the records you seek and enclosed an NTTO Publications Order
Form.
Plaintiffs Administrative Appeals from the DOCs Denial of the Prior Request
25.

On July 2, 2015, Mr. Yanofsky submitted an administrative appeal from the

denial of his Prior Request via email to the DOC (the July 2 Administrative Appeal). A true
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and correct copy of the July 2 Administrative Appeal is attached hereto as Exhibit C and
incorporated by reference herein.
26.

In the July 2 Administrative Appeal, Plaintiff argued that the DOC maintains the

I-94 Data Files, that FOIA obligates the DOC to release the I-92 Data Files, and that the DOC
had not fulfilled its obligation to do so by making the I-92 Data Files available for sale. In
addition, Plaintiff renewed his request for a fee waiver under 5 U.S.C. 552(a)(4)(A)(iii).
Plaintiff stated that he does not have a commercial interest in the records and that he is gathering
information on a matter of current interest to the public, namely, the manner in which tourism
and travel affect the United States economy.
27.

By letter dated November 17, 2015 from Benjamin Friedman, Assistant General

Counsel for Litigation, Employment, and Oversight, the DOC denied the July 2 Administrative
Appeal (the July 2 Administrative Appeal Denial). A true and correct copy of that denial is
attached hereto as Exhibit D and incorporated by reference herein.
28.

The July 2 Administrative Appeal Denial acknowledged that Plaintiff correctly

argue[s] that the I-94 records are in fact agency records for FOIA purposes and that the I-92
records cannot properly be withheld under 5 U.S.C. 552(a)(2).
29.

The July 2 Administrative Appeal Denial nevertheless stated that Plaintiffs

appeal was being denied on an alternative basis. Specifically, it stated that the requested
records were being withheld pursuant to 5 U.S.C. 552(a)(4)(A)(vi) (the Displacement
Provision). The July 2 Administrative Appeal Denial stated that the Displacement Provision
provides that FOIA fees are superseded by fees chargeable under a statute specifically
providing for setting the level of fees for particular types of records and that 15 U.S.C 1525
is such a statute with regard to the records requested by Plaintiff. It concluded by saying that

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that the records requested by Mr. Yanofsky are not available under the FOIA pursuant to the
Displacement Provision and must instead be purchased through NTTO.
30.

The July 2 Administrative Appeal Denial did not address Plaintiffs request for a

fee waiver. It stated: Additionally, because no records are being released in response to this
appeal, there is no need to address your request for a fee waiver.
31.

On November 30, 2015, Plaintiff informed OGIS that his July 2 Administrative

Appeal had been denied.

32.

On December 14, 2015, Plaintiff, through Marisa Johnson, counsel to The

Atlantic Monthly Group, Inc., submitted a second administrative appeal from the denial of his
Prior Request to the DOC by mail (the December 14 Administrative Appeal). A true and
correct copy of the December 14 Administrative Appeal is attached hereto as Exhibit E and
incorporated by reference herein.
33.

Plaintiff submitted the December 14 Administrative Appeal to address the DOCs

denial of the Prior Request on the basis of the Displacement Provision, a purported ground for
denying Plaintiffs Prior Request which had been raised by the DOC for the first time in its July
2 Administrative Appeal Denial. Writing on behalf of Plaintiff, Ms. Johnson stated in the
December 14 Administrative Appeal that the Displacement Provision did not excuse the DOC
from FOIAs fee waiver requirements and, in any event, that 15 U.S.C. 1525 does not
constitute a superseding fee statute under the Displacement Provision.
34.

In addition, the December 14 Administrative Appeal argued that even if 15

U.S.C. 1525 applies to the requested records, the fees demanded for the requested records
exceed the fees permissible under 15 U.S.C. 1525. Plaintiff calculated that, under the fees set
forth on the DOCs website for the I-92 Data Files and I-94 Data Files, the records sought by the
Prior Request would cost $136,210.00.
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35.

On December 14, 2015, Ms. Johnson, on behalf of Plaintiff, sent a copy of the

December 14 Administrative Appeal to OGIS via email and requested that OGIS provide
Plaintiff with assistance with the Prior Request.
36.

By letter dated December 28, 2015 from Mr. Friedman, the DOC refused to

consider the December 14 Administrative Appeal (December 14 Administrative Appeal

Denial). A true and correct copy of the that denial is attached hereto as Exhibit F and
incorporated by reference herein.
37.

The December 14 Administrative Appeal Denial stated that the the DOCs earlier

denial of Plaintiffs July 2 Administrative Appeal was the DOCs final administrative action on
the matter and that Plaintiff was not entitled to a new appeal.
38.

On February 11, 2016, Hirsh Kravitz, Attorney-Advisor at OGIS, contacted Ms.

Johnson and stated that OGIS would reach out to the agency and inquire about [Plaintiffs]
case.
39.

On February 24, 2016, Plaintiff received, via email, a letter from James V.M.L.

Holzer, Director of OGIS, in response to Plaintiffs request for assistance. The letter stated that
OGIS could offer no further assistance and would close Plaintiffs case.
Plaintiffs February 26, 2016 FOIA Request
40.

On February 26, 2016, Plaintiff, through Ms. Johnson, sent a second FOIA

request to the DOC (the Request). Ms. Johnson emailed the Request on Plaintiffs behalf as an
attachment to an email addressed to [email protected]. True and correct copies of Ms. Johnsons
email transmitting Plaintiffs Request and of the Request are attached hereto as Exhibits G and
H, respectively, and incorporated by reference herein.
41.

As with the Prior Request, the Request sought access to and copies of the I-94

Data Files and the I-92 Data Files and their associated technical documentation. Specifically,
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Mr. Yanfosky requested access to and copies of OTTIs Air Arrivals I-94 Annual Datafile
from 2015, 2014, 2013, 2012 and 2011 and their associated technical documentation. Mr.
Yanofsky also requested access to and copies of OTTIs U.S. International Air Travel Statistics
Report (APIS/I-92) Data Files for 2015, 2014, 2013, 2012 and 2011 and their associated
technical documentation. Plaintiff requested that the records be provided in electronic format.
42.

In the Request, Mr. Yanofsky sought both a fee benefit as a representative of the

news media under 5 U.S.C. 552(a)(4)(A)(ii) and a fee waiver under 5 U.S.C.
552(a)(4)(A)(iii).
43.

In support of Plaintiffs request for a fee waiver, the Request stated, first, that the

requested records shed light on the operations and activities of the DOC and other government
agencies and provided specific examples. Second, the Request stated that disclosure of the
requested records is likely to contribute significantly to the publics understanding of the
operations of the DOC and other government agencies because the records provide the only
source of data collected about foreign travel and tourism based on Form I-94 and [APIS]
arrival/departure records. Finally, the Request stated that the records are not requested
primarily for Plaintiffs financial benefit but rather for use in connection with Plaintiffs
reporting for Quartz.
44.

The Request acknowledged that the DOC previously denied the Prior Request and

concluded that Plaintiff must pay the fees set forth on the DOCs website in order to obtain the
requested records. Based on the fees set forth on the DOCs website for the I-92 Data Files and
I-94 Data Files, Plaintiff calculated that the Request, which included records from 2015, would
cost $173,775.00.
45.

As part of the Request, Plaintiff attached and incorporated by reference his

December 14 Administrative Appeal that is attached hereto as Exhibit E, and asked that the DOC
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consider the arguments raised in that December 14 Administrative Appeal when determining
whether to grant or deny the Request.
46.

The Request complied with all applicable DOC regulations regarding the

submission of FOIA requests.

Plaintiffs First Administrative Appeal
47.

The DOC did not respond to Plaintiffs Request within twenty business days of its

submission.
48.

On March 28, 2016, Ms. Johnson submitted, on Mr. Yanofskys behalf, an

administrative appeal of the DOCs failure to respond to the Request within twenty business
days, as required by FOIA (the First Administrative Appeal). A true and correct copy of the
First Administrative Appeal is attached hereto as Exhibit I and incorporated by reference herein.
49.

The First Administrative Appeal reiterated Plaintiffs requests for a fee benefit

and fee waiver, as well as Plaintiffs request that the DOC consider the arguments raised in the
December 14 Administrative Appeal attached to the Request when determining whether to grant
or deny it.
50.

One day later, on March 29, 2016, by letter from Mr. Friedman, the DOC

responded to the First Administrative Appeal (hereinafter the First Administrative Appeal
Denial). A true and correct copy of that letter is attached hereto as Exhibit J and incorporated
by reference herein.
51.

The First Administrative Appeal Denial stated that the First Administrative

Appeal was not a proper appeal because the DOC had not received the Request, and, as a
result, had not denied it. The First Administrative Appeal Denial stated that Mr. Friedman was
redirecting the Request to ITA for response.

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Defendants Response to the Request

52.

On or about March, 30, 2016, Plaintiff received a letter from Mr. Guz on behalf

of the DOC denying the Request (the Denial Letter). A true and correct copy of the Denial
Letter is attached hereto as Exhibit K and incorporated by reference herein.
53.

The Denial Letter stated that the requested records were being withheld under 5

U.S.C. 552(a)(4)(A)(vi)the Displacement Provisionand that 15 U.S.C 1525 acts as a

superseding fee statute with regard to the requested records. The Denial Letter further stated that
the requested records are not available under the FOIA pursuant to the displacement
provision[,] and must instead be purchased through NTTO.
54.

The Denial Letter did not substantively address Plaintiffs request for a fee

waiver. It stated: As for your request for a fee waiver, there are no fees to charge in processing
this request.
Plaintiffs Second Administrative Appeal
55.

On March 31, 2016, Ms. Johnson submitted an administrative appeal regarding

the DOCs denial of the Request on Mr. Yanofskys behalf via email to [email protected]
(the Second Administrative Appeal). A true and correct copy of the Second Administrative
Appeal is attached hereto as Exhibit L, and incorporated by reference herein.
56.

The Second Administrative Appeal appealed the DOCs determination that the

requested records are properly withheld pursuant to the Displacement Provision and the DOCs
failure to grant Plaintiff a fee waiver. It argued that the requested records cannot be withheld
pursuant to the Displacement Provision for three reasons: first, 15 U.S.C. 1525 does not
qualify as a superseding fee statute for purposes of FOIAs Displacement Provision; second,
even assuming, arguendo, that 15 U.S.C. 1525 is a superseding fee statute, the Displacement
Provision does not permit an agency to withhold records; and third, the Displacement Provision
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applies only to FOIAs fee setting requirements and not to FOIAs fee waiver requirements.
Finally, the Second Administrative Appeal again set forth the reasons Plaintiff is entitled to a fee
waiver.
57.

On April 8, 2016, Plaintiff received an email from the DOC confirming receipt of

the Second Administrative Appeal on March 31, 2016.

58.

As of the filing of this Complaint, Plaintiff has received no further

communication from Defendant concerning Plaintiffs Second Administrative Appeal or the

Request.
CAUSES OF ACTION
Count I
Violation of FOIA for Unlawful Withholding of Agency Records
59.

Plaintiff repeats, realleges, and incorporates the allegations set forth in the

foregoing Paragraphs 1 through 58 as though fully set forth herein.

60.

Defendant is an agency subject to FOIA. 5 U.S.C. 552(f), 551.

61.

Plaintiffs Request properly seeks records within the possession, custody, and/or

control of Defendant under FOIA.

62.

Defendant failed to provide access to or copies of records responsive to Plaintiffs

Request, in violation of FOIA. 5 U.S.C. 552(a)(3)(A).

63.

Plaintiff has or is deemed to have exhausted applicable administrative remedies

with respect to his Request. 5 U.S.C. 552(a)(6)(C)(i).

Count II
Violation of FOIA for Failure to Grant Fee Waiver
64.

Plaintiff repeats, realleges, and incorporates the allegations set forth in the

foregoing Paragraphs 1 through 58 as though fully set forth herein.

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65.

Defendant is an agency subject to FOIA. 5 U.S.C. 552(f), 551.

66.

Plaintiffs Request properly seeks records within the possession, custody, and/or

control of Defendant under FOIA.

67.

Plaintiffs Request sets forth facts establishing that he is entitled to a fee waiver

pursuant to 5 U.S.C. 552(a)(4)(A)(iii).

68.

Defendant unlawfully refused to grant Plaintiffs request for a fee waiver.

69.

Plaintiff has or is deemed to have exhausted applicable administrative remedies

with respect to his Request. 5 U.S.C. 552(a)(6)(C)(i).

Count III
Violation of FOIA for Improper Assessment of Fees
by Improper Application of 5 U.S.C. 552(a)(4)(A)(vi) and 15 U.S.C. 1525
70.

Plaintiff repeats, realleges, and incorporates the allegations set forth in the

foregoing Paragraphs 1 through 58 as though fully set forth herein.

71.

Defendant is an agency subject to FOIA. 5 U.S.C. 552(f), 551.

72.

Plaintiffs Request properly seeks records within the possession, custody, and/or

control of Defendant under FOIA.

73.

FOIA provides that nothing in [5 U.S.C. 552(a)(4)(A)] shall supersede fees

chargeable under a statute specifically providing for setting the level of fees for particular types
of records. 5 U.S.C. 552(a)(4)(A)(vi).
74.

15 U.S.C. 1525 states, in part, that the Secretary of Commerce is authorized,

upon the request of any person, firm, organization, or others, public or private, to make special
studies on matters within the authority of the Department of Commerce; to prepare from its
records special compilations, lists, bulletins, or reports; to perform the functions authorized

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by section 1152 of this title; and to furnish transcripts or copies of its studies, compilations, and
other records; upon the payment of the actual or estimated cost of such special work.
75.

15 U.S.C. 1525 is not a statute specifically providing for setting the level of

fees for particular types of records within the meaning of 5 U.S.C. 552(a)(4)(A)(vi).
76.

15 U.S.C. 1525, which authorize[s] the Secretary of Commerce upon the

request of any person, firm, organization, or others, public or private to undertake special
work does not apply to the records requested by Plaintiff.
77.

Citing 5 U.S.C. 552(a)(4)(A)(vi) and 15 U.S.C. 1525, Defendant has

unlawfully refused to process Plaintiffs Request, and seeks to require Plaintiff to pay fees in
excess of $170,000 to obtain the records sought by Plaintiffs Request, in violation of FOIA.
78.

Plaintiff has or is deemed to have exhausted applicable administrative remedies

with respect to his Request. 5 U.S.C. 552(a)(6)(C)(i).

Count IV
Violation of FOIA for Failure to Grant News Media Fee Status
79.

Plaintiff repeats, realleges, and incorporates the allegations set forth in the

foregoing Paragraphs 1 through 58 as though fully set forth herein.

80.

Defendant is an agency subject to FOIA. 5 U.S.C. 552(f), 551.

81.

Plaintiffs Request properly seeks records within the possession, custody, and/or

control of Defendant under FOIA.

82.

Plaintiffs Request sets forth facts supporting a determination that he is a

representative of the news media pursuant to 5 U.S.C. 552(a)(4)(A)(ii)(II).

83.

Defendant failed to make a determination with respect to Plaintiffs request for

news media fee status or grant him news media fee status, in violation of FOIA. 5 U.S.C.
552(a)(4).
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84.

Defendant unlawfully seeks to require Plaintiff to pay fees in excess of those that

may be assessed for a representative of the news media under FOIA in order to obtain the
records he has requested. 5 U.S.C. 552(a)(4)(A).
85.

Plaintiff has or is deemed to have exhausted applicable administrative remedies

with respect to his Request. 5 U.S.C. 552(a)(6)(C)(i).

Count V
Violation of FOIA for Improper Assessment of Fees Under 15 U.S.C. 1525
86.

Plaintiff repeats, realleges, and incorporates the allegations set forth in the

foregoing Paragraphs 1 through 58 as though fully set forth herein.

87.

Defendant is an agency subject to FOIA. 5 U.S.C. 552(f), 551.

88.

Plaintiffs Request properly seeks records within the possession, custody, and/or

control of Defendant under FOIA.

89.

15 U.S.C. 1525 states, in part, that the Secretary of Commerce is authorized,

upon the request of any person, firm, organization, or others, public or private, to make special
studies on matters within the authority of the Department of Commerce; to prepare from its
records special compilations, lists, bulletins, or reports; to perform the functions authorized
by section 1152 of this title; and to furnish transcripts or copies of its studies, compilations, and
other records; upon the payment of the actual or estimated cost of such special work.
90.

Plaintiff alleges, in the alternative, that if 15 U.S.C. 1525 applies to the records

Plaintiff has requested and is a statute specifically providing for setting the level of fees for
particular types of records within the meaning of 5 U.S.C. 552(a)(4)(A)(vi), Defendant
unlawfully seeks to require Plaintiff to pay fees in excess of those allowed by 15 U.S.C. 1525
to obtain the records he has requested.

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Case 1:16-cv-00951 Document 1 Filed 05/19/16 Page 18 of 19

91.

Plaintiff has or is deemed to have exhausted applicable administrative remedies

with respect to his Request. 5 U.S.C. 552(a)(6)(C)(i).

REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests this Court:
(1) order Defendant to immediately disclose, in their entirety, all records responsive to
Plaintiffs Request;
(2) issue a declaration that Plaintiff is entitled to disclosure of the requested records;
(3) issue a declaration that 15 U.S.C. 1525 is not a statute specifically providing for setting
the level of fees for particular types of records within the meaning of 5 U.S.C.
552(a)(4)(A)(vi);
(4) issue a declaration that Defendant has improperly assessed the fees it may charge for
disclosure of the requested records under FOIA or, in the alternative, under 15 U.S.C.
1525;
(5) issue a declaration that Plaintiff is entitled to a fee benefit as a representative of the news
media;
(6) issue a declaration that Plaintiff is entitled to a fee waiver;
(7) award Plaintiff reasonable attorney fees and costs reasonably incurred in this action
pursuant to 5 U.S.C. 552(a)(4)(E); and
(8) grant such other relief as the Court may deem just and proper.

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Case 1:16-cv-00951 Document 1 Filed 05/19/16 Page 19 of 19

Dated: May 19, 2016

Respectfully submitted,
_s/Katie Townsend_____________
Katie Townsend
D.C. Bar No. 1026115
[email protected]
Bruce D. Brown
D.C. Bar No. 457317
[email protected]
Adam A. Marshall
D.C. Bar No. 1029423
[email protected]
THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th St. NW, Suite 1250
Washington, DC 20005
Phone: 202.795.9303
Facsimile: 202.795.9310
Email: [email protected]
Counsel for Plaintiff
David Yanofsky
Caitlin Vogus*
Email: [email protected]
THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th St. NW, Suite 1250
Washington, DC 20005
Phone: 202.795.9300
Facsimile: 202.795.9310
Of Counsel for Plaintiff
David Yanofsky
*Application to practice in the District of
Columbia pending; practicing under the
supervision of Plaintiffs counsel of record

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