August 23, 2016[IH1]Freedom of Information Policy Office U.S. Department of Homeland Security 245 Murray Drive SW STOP-0655 Washington, D.C. 20528-0655
Re: FOIA APPEAL of Request No. 2016-HQFO-00490[IH2]
Color of Change (“COC”) and the Center for Constitutional Rights (“CCR”) (collectively “the Requesters”) appeal the determination of the Department of Homeland Security (“DHS”) to deny expedited processing and to conditionally permit a fee waiver in connection with FOIA Request 2016-HQFO-00490 (“the Request”). Requesters filed the Request on July 5, 2016, seeking information regarding monitoring and surveillance of public protests surrounding police violence, policing reform, racial justice, and the Black Lives Matter movement. [IH3]
On July 18, 2016, DHS denied our requests for expedited processing and conditionally granted our request for a fee waiver pending review of a sample of responsive documents (“DHS Denial”). Pursuant to the Freedom of Information Act, 5 U.S.C. § 552(a)(6), 6 C.F.R. § 5.9(a)[IH4] , the Requesters hereby appeal DHS’s denial of our requests for expedited processing and DHS’s conditional granting of our request for a fee waiver.
Surveillance of the Black Lives Matter movement is now occurring across the nation. See Request at 2-4. In the weeks since our Request was filed, more accounts have emerged exposing the surveillance of protests in New York, Tennessee, San Francisco, Minneapolis, St. Louis and Cleveland, including reports of home-raids and the use of stingrays, all pointing to the existence of systemic, coordinated monitoring of First Amendment protected activity by law enforcement. Moreover, as discussed in our Request, the Black Lives Matter movement continues to generate enormous interest from the media and the public at large; numerous articles have been published in the last eighteen months specifically about law enforcement surveillance of protest activity. Both the scope of law enforcement surveillance of the Black Lives Matter movement and the media’s concerted coverage of it incontrovertibly demonstrate that the public has an urgent need for information and transparency about this pressing matter.[IH5]
1. The DHS Should Grant the Requesters’ Request for Expedited Processing
DHS denied our request for expedited processing by stating that, “You failed to demonstrate a particular urgency to inform the public about the government activity involved in the request beyond the public’s right to know about government activity generally.” DHS Denial at 2. The DHS Denial recites the requirements for expedited processing, but does not address the facts or arguments presented by the Requestors. [IH6]
Requesters are entitled to expedited processing because there is a “compelling need” for the information. 5 U.S.C. § 552(a)(6)(E)(i)(I). A “compelling need” is established when there exists an “urgency to inform the public about an actual or alleged Federal government activity,” when the requester is a “person primarily engaged in disseminating information,” 6 C.F.R. § 15.5(d)(ii). [IH7] The Requesters have demonstrated that an urgent need exists to inform the public about government surveillance of First Amendment protected activity. Indeed, the FBI has recognized not only the overwhelming urgency of our request but also the exceptional interest by the public in the records we seek. In their July 28, 2016 response to our Request, the FBI granted expedited processin[IH8] g, citing 28 C.F.R. 16.5 (e)(1)(iv) (“A matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.”) Moreover, since the Request was submitted on July 5, the urgency to inform the public has only increased dramatically.
Since our request was filed, large campaigns and public events around policing, racial equality, and Black Lives Matter continue to be organized and promoted on a nearly daily basis across the country. In the wake of police shootings of Alton Sterling and Philando Castile in Baton Rouge and Minneapolis, the interest from members of the public to participate in protests and support this movement continues to grow, with the media having an equal interest to report on the issues being raised by nationwide protests. Indeed, in just a two-week period in July, there were over 112 protests in over 88 cities regarding police killings of Black people. In many of these cities, peaceful protests were met with a strong law enforcement presence. Members of the public, particularly those interested in participating in, organizing or supporting these demonstrations, have a right to know the level of governmental surveillance of these protests and what effect that may have on their own privacy and security. [IH9]
As described in our Request, the Requesters are primarily engaged in disseminating information. COC is a nonprofit civil rights advocacy and communications organization that exists to strengthen Black America's political voice. Its mission is to empower its members to make government more responsive to the concerns of Black Americans and to bring about positive political and social change for everyone. Using the Internet, COC enables its members to speak in unison, with an amplified political voice. COC’s primary task is the dissemination of information, and it keeps the public informed about the most pressing issues for Black people in America and give them ways to act, including the government’s record on surveillance of political and social movements. CCR is a non-profit, public interest, legal, and public education organization that for the last 50 years has engaged in litigation, public advocacy and the production of publications in the fields of civil and international human rights. COC, with the aid of CCR, will use their tested resources to publicly disseminate information received from this request. The Request thus qualifies for expedited processing under 6 C.F.R. §5.5(d)(ii).[IH10]
In sum, as our Request made clear, Requesters easily demonstrate that there is a compelling need for the information requested and that we are organizations primarily engaged in the dissemination of information to the public. See 5 U.S.C. § 552(a)(6)(E).
2. The DHS should grant the Requesters’ Request for a Non-Conditional Fee Waiver
DHS erred in only conditionally granting Requestors’ application for a few waiver[IH11] . DHS Denial at 3 (“The fee waiver determination will be based upon a sampling of the responsive documents received from the various DHS program offices.”). As demonstrated below, applicable FOIA regulations obligate DHS to grant Requesters’ request for a non-conditional few waiver.
The Department of Homeland Security has promulgated regulations setting forth factors to be considered in determining whether the statutory criteria for a fee waiver are met. 6 C.F.R. § 5.11(k). [IH12] Nothing in the regulations or statute provide for conditionally granting a fee waiver, determinative upon review of a sample of the requested documents. Instead, the factors outlined in the regulations deal only with subject matter of the request itself, not the results that the agency finds. See, e.g., 6 C.F.R. § 5.11(k)(2)(i) (“The subject of the request”); see also Carney v. Dep’t of Justice, 19 F.3d 807, 814 (“[I]t is relevant to consider the subject matter of the requests and the ability of the requester to disseminate the information.”) (emphasis added). [IH13] There is no basis to withdraw a grant of a fee waiver based on DHS’s evaluation of the usefulness of the material; the Requesters qualify for a fee waiver because the information we seek “is in the public interest because it is likely to contribute significantly to the public understanding of the activities or operations of the government and is not primarily in the commercial interest of the requester[s],” 5 U.S.C. § 552(a)(4)(A)(iii); [IH14] see also 6 C.F.R. § 5.11(k).
Requesters meet the requirements of 6 C.F.R. § 5.11(k) because the subject of the Request concerns the operations or activities of the government, particularly government surveillance of First Amendment protected activity and the disclosure of the information is likely to significantly contribute to a public understanding of government operations or activities due to the Requesters’ expertise in government surveillance and ability to convey the information to a “broad audience of persons.” 6 C.F.R. § 5.11(k)(2)(i)-(iii). Moreover, the Requesters’ primary interest is in disclosure; and Requesters have no commercial interest in the information[IH15] . 6 C.F.R. § 5.11(k)(1)(ii). The primary purpose of this FOIA request is to obtain information to further the public’s understanding of government actions and policies in regards to the surveillance of peaceful protestors. The Requesters will make any information that they receive as a result of this FOIA request available to the public, including the press, at no cost.
In addition, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii), the Requesters qualify as “representatives of the news media,” defined as “any person actively gathering new for an entity that is organized and operated to publish or broadcast news to the public.” 6 C.F.R. § 5.11(b)(6). As described above, the public has an increasingly strong interest in learning about the government’s surveillance of First Amendment protected activity by the Black Lives Matter movement and other related campaigns addressing police brutality and racial justice. The Requesters are non-profit organizations dedicated to civil rights and social activism, and have a proven track-record of compiling, editing and disseminating information and reports to the public about government functions and activities, including the government’s record and position on surveillance, protests, policing and racial justice. See Long v. Dep’t of Homeland Sec., 113 F. Supp.3d 100, 107 (2015) (finding plaintiff’s plan to publish reports permissible “distinct work” under FOIA); see also National Sec. Archive v. Dep’t of Defense, 880 F.2d 1381, 1386 (D.C. Cir. 1989) (“[A]ny person or organization which regularly publishes or disseminates information to the public . . . should qualify for waivers as a ‘representative of the news media.’”). Access to this information is crucial for Requesters and the communities they serve to evaluate governmental surveillance actions and their potential detrimental efforts. [IH16]
For all these reasons, the Requesters are entitled to a full fee waiver under both 5 U.S.C. § 552(a)(4)(A)(iii) and 5 U.S.C. § 552(a)(4)(A)(ii)(II). A fee waiver would fulfill Congress’ legislative intent in amending FOIA. See Judicial Watch Inc. v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) (“Congress amended FOIA to ensure that it be ‘liberally construed in favor of waivers of noncommercial Requester.’”). In the alternative, the Requesters request a limitation of processing fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II). No search fee will be charged for requests by . . . representatives of the news media.”). See also 6 C.F.R. § 5.11(d)(1). If no fee waiver is granted and the fees exceed $250.00, please contact the Requesters to obtain consent to incur additional fees.[IH17]
I certify that everything here is true and correct to the best of my knowledge.