The Freedom of Information Act and Bureaucratic Side-stepping by the U.S. Commerce Dept.

I felt I had been the victim of discrimination by the Commerce Dept. In filing an FOIA [freedom of Information Act] request, I had asked for a waiver of fee because it was a ridiculous amount and unnecessary due to the fact that I had requested electronic records. The amount quoted was initially nearly $13,000 for 62,876 single-sided pages.

The letter which follows is one that I received from their legal department. I feel it is important that people who intend to file for a waiver of FOIA fees know how this administration’s bureaucrats can engage in specious arguments to prevent the dissemination of useful data under the FOIA--data, for instance, that could provide evidence that a government agency engages in discrimination with abandon. However, it should be read so as to obtain instruction into the rules regarding fee waivers. For, let’s face it, data requested by the ordinary citizen can easily be made inaccessible via exorbitant copying fees. I thought I had initially answered their criteria, but Ms. Fredericks seems to think she found a way dismiss my request.

Here, I have taken the liberty to comment on her poorly stated opinion. I do not have a law degree but as a citizen in the 99% camp out to show obfuscation and impediment in government, I do not need one. However, when I pursue my right to the judicial review that Ms. Fredericks was kind enough to tell me about, I may find that such a judge might act no differently than Justice Sotomayor in her Donner decision which I’ve commented on in this blog prior to her confirmation. In other words, the scales of justice tilt not in my favor but in that of Big Brother.

My comments in red:



UNITED STATES DEPARTMENT OF COMMERCE
Office of the General Counsel
Washington. D.C. 20230


“April 08 2014” [stamped on letter]

Mr. Angel Jimenez
MuckRock News, Dept MR 6385
P.O. Box 55819
Boston. MA 02202-5819

Dear Mr. Jimenez:


This responds to your Freedom of Information Act (FOIA) (5 U.S.C. § 552) appeal of the U.S. Census Bureau's (Census's) fee determination concerning your FOIA request received by Census on July 30. 2013. That request asked for:

Anonymized Personnel records for the temporary census workers in last U.S. Census. If this is too broad. I would specifically ask for DOB. date-of-termination and reason for termination. along with date-of-application and reason for not hiring. [note that I have asked for 5 fields, at one line per employee (564,000 employees), 60 lines per page, that comes to 9,400 pages NOT 62,876 although the latter may include data that is totally useless in determining discrimination]

You also requested that, "if appropriate. fees be waived [since] this request is in the public interest." You provided that "[t] he requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com. processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage." [MuckRock.com is an organization that facilitates FOIA requests]

By letter dated August 1, 2013, Michael Toland. Freedom of Information Act Officer, Census, denied your request for a fee waiver. Census classified you as falling into the "All Other Requesters" fee category pursuant to 15 C.F.R.. Section 4.11, and informed you that the estimated fee to process this FOIA request was S12,799.03. Census informed you that it would not begin to process your request until it received payment of $12.799.03. [this is interesting because later they state a much lower amount. They hint that the larger amount includes electronic copies but if that’s the case, I calculate the cost associated with those eRecords to be $1,570.83. For what? One or two DVD’s?]

By email received on August 1, 2013, you appealed Census's denial of your request for a fee waiver. Your appeal does not address Census's classification of you within the "All Other Requesters" fee category, and therefore, this issue has been waived and is not addressed in this appeal. [but why should I address it? Obviously “All Other Requesters” was the only pigeon hole I found applicable]

On appeal, you addressed each of the six factors (concerns) identified by Census which are considered when determining whether to grant fee waivers as follows (in italics):

I. The subject of the requested records must concern identifiable operations and
activities of the Federal Government: In response, you assert that. "Taking a census and hiring with equal opportunity is clearly an identifiable operation."
2. The disclosable portions of the requested records must concern meaningful information about Government operations or activities in order to be "likely to contribute" to and increase public understanding of those operations or activities: In response, you claim that. "lf the government is engaging in ageism. these records would show it via appropriate statistical analysis."
3. The disclosure of the requested information must contribute to the understanding of a reasonably broad audience of persons interested in the subject: In response. you contend that. "There are many seniors who apply for work because they are at their wits' end trying to make ends meet and see an opportunity in Census Bureau work. All who want to stamp out discrimination in government would he interested in this disclosure."
4. The disclosure of the requested information is likely to contribute "significantly" to the public's understanding of Government operations or activities: In response, you assert that, "Nothing heats whistleblowing discrimination on the part of a government agency--nothing! I have firsthand experience with the practices of the census Bureau vis-a-vis the older worker. In fact, I filed a complaint which was ignored by the Commerce Dept."
5. Whether the requester has a commercial interest that would be furthered by the requester: In response, you claim that. "Any and all information will be distributed free of charge as previously stated."
6. Whether any identified commercial interest of the requester is sufficiently great. in comparison with the public interest in disclosure, such that the disclosure is not primarily in the commercial interest of the requester: In response. you contend that, "What could possibly be the identified commercial interest that would make me a profit that would he greater than the salaries of thousands of seniors that would be employed by the next census-taking as a result of my whistleblowing?"
[In a previous correspondence, I was told about these criteria, only these criteria, and, if I recall correctly, exactly as stated here. The take away here is to read what Ms. Fredericks has to say and address her criteria in the manner she expects them to be addressed. That way, when you appeal, Ms. Fredericks will really have to put on her “Scalia” cap. I have found this to be typical of bureaucrats: they first hit you with easy to understand statements and then they throw the legalize at you, “Oh,” they imply, “you misinterpreted what we said.” Really? No, you (in this case, Mr. Toland) leave out pertinent information so that I fall into your dastardly traps]


Fee waiver

The FOIA provides for the waiver or reduction of fees if disclosure of the information "is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552 (a)(4)(A)(iii). Both prongs of this two-part test (the public interest prong and the commercial interest prong) must be satisfied by the requester before properly assessable fees are waived or reduced. Brown v. U.S. Patent & Trademark Office, 445 F. Supp. 2d 1347. 1358 (M.D. Fla. 2006); S. Utah Wilderness Alliance v. U.S. Bureau of Land Mgmt.. 402 F. Supp. 2d 82. 86-87 (D.D.C. 2005). FOIA fee waiver determinations are made on a case-by-case basis. Media Access Project v. Federal Communications Commission. 883 F.2d 1063. 1065 (D.C. Cir. 1989); National Security Archive v. Dep't of Defense. 880 F.2d 1381, 1383 (D.C. Cir. 1989) (dictum), cert. denied. 494 1J.S. 1029 (1990). Department regulations establish how these two prongs may be satisfied pursuant to the statutory standard. See 15 C.F.R. § 4.11(k). We have reviewed the information you provided in support of your request for a fee waiver, and have determined that the Census's decision to deny your fee waiver request was in accordance with the standards set forth in the FOIA and the Department of Commerce's regulations. 15 C.F.R. § 4.11.

In order to determine whether the first prong has been met. the Department of Commerce has established four factors which should be considered: (1) whether the subject of the requested records concerns the operations or activities of the government: (2) whether the disclosure is likely to contribute to an understanding of government operations or activities; (3) whether disclosure of the requested information will contribute to the understanding of a reasonably broad audience of persons interested in the subject; and (4) whether the disclosure is likely to contribute significantly to public understanding of government operations or activities. 15 C.F.R. § 4.11(k)(2). It is the influence of all four factors considered together. rather than the failure or success of meeting any particular factor that is determinative. Overall, these four factors can be broken down into two broader considerations: (1) whether the information requested will contribute to a significant public understanding of a specified operation or activity of the government; and (2) whether the requester has established that it has the means to and will actually disseminate the information. [Here begin the murky waters. Let’s rewrite two of the four factors side-by-side: 

(2) whether the disclosure is likely to contribute to an understanding of government operations of activities;
(4) whether the disclosure is likely to contribute significantly to public understanding of government operations or activities.

What is the difference here? #2 is a more general statement and includes #4. So, why bother with #4? Now, let’s look at #1 which says that the records must concern “the operations or activities of the government.” Well, golly, #2 and #4 talk about this so, obviously, # 1 is superfluous. Let’s move on to #3 which says that the records must contribute to the understanding of “a reasonably broad audience interested in the subject.” Gee, that sounds a lot like the “public understanding” mentioned in #4.

Later, my statements on the application were said to use circular reasoning. What could Ms. Frederick’s be called? Mobius? But, let’s go to her attempt at simplification into two “broader considerations.” She keeps #4 but dumps “is likely to contribute” in favor of “will contribute.” I don’t consider the latter to be a “broader consideration,” but where in heaven’s name does she obtain the dictum that I should have “the means to and will actually disseminate the information?” Certainly not from the previous 4 factors.

In your appeal, you state that, "If the government is engaging in ageism, these records would show it via appropriate statistical analysis." In a limited sense, the records concern operations or activities of the government. However, even for information concerning the operations or activities of the government, in order for disclosure to "contribute" to an understanding of a specific operation or activity of the government, the requested records must reveal the information sought. Perkins v. U.S. Dept of Veterans Affairs. 754 F. Supp. 2d I, 6 (D.D.C. 2010). Additionally. "the public's understanding of the subject in question prior to the disclosure must be significantly enhanced by the disclosure." 15 C.F.R. § 4.11(kX2)(iv). In this case. you seek personnel records to determine if Census is engaging in age discrimination in its employment of temporary census workers. I low -ever, you fail to provide any information as to how the requested information will allow you to extract meaningful information about Census's decision making process and actually shed light on the identified government operation. Similarly, your contention that an appropriate statistical analysis will show if Census is engaging in "ageism" is circular in nature and without foundation. Even if the percentage of applicants not hired and/or the percentage of those prematurely terminated were higher for older applicants and employees than for other groups of individuals, you provide no basis that those percentages would show age discrimination on the part of Census. Therefore, even if such personnel records were releasable in their entirety, while the records may reveal the age of each employee during periods of temporary employment, beyond your personal allegations, you provide no explanation for how such records may reveal age discrimination on the part of Census and you offer no details about any type of distinct work or new information that would result from these records. [I could address the poor quality of this argument but, instead, I’ll only ask Ms. Fredericks how she imagines that her sector determines the presence of discrimination in the private sector. Is it not by showing statistically that qualified applicants from amongst, for instance, Blacks or Latinos, or the handicapped were hired in a disproportionately low amount?]


Unless a member of the news media, the requester must substantiate his ability to disseminate information in order to show that he can contribute to the understanding of the public at large. Judicial Watch v. U.S. Dep't of Justice. 122 F. Supp. 2d 5.9-13 (D.D.0 2000). Therefore. as an"All Other Requester." you have the burden of proving your ability to disseminate the requested information. The only details you provide in your appeal regarding dissemination is that. "Any and all information will be distributed free of charge as previously stated." Similarly, in your request you claim that. "The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com., processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage." From the information you provided. we can only presume you are referring to a website located at: https://www.muckrock.com/. Other than stating that you will make the documents available to MuckRock.com, you offer no clear explanation as to how the requested information will be disseminated. See Judicial Watch. 122 F. Supp. 2d at 9 (finding that the requester must have the ability to disseminate the requested information). [Again, my patience wears thin. Has this lawyer not heard of AARP? Or Reddit? There is even a freely available site that facilitates Letters to the Editor of any major newspaper in the country? Any way, what constitutes proof of the ability to disseminate? Tell me what constitutes proof and I’ll provide it. But what they want is for me to provide proof so they can knock it down through one specious argument or another. I know their game]

Further. a requester must demonstrate ability to disseminate the disclosed records to "a reasonably broad audience of interested persons. beyond himself. who are concerned and focused" in the subject of the request. Manley v. Dep't of the Navy. 2008 WL 4326448 at *7 (S.D. Ohio Sept. 22.2008). "Simply maintaining a website is not disseminating information to a broad audience of interested individuals." Brown v. United States Patent and Trademark Office, 445 F.Supp.2d 1347. 1361 (M.D. Fla.. 2006). Here. you fail to make mention of any sort of audience (beyond generically noting "seniors": "older workers": and "all who want to stamp out discrimination in government") that may be interested in the information requested from Census. Additionally, you provide no details as to: the nature and viewership of MuckRock.com . Who would conduct your claimed "appropriate statistical analysis" of the records. or the expertise of those that would conduct such an analysis. Moreover. to demonstrate dissemination to a reasonably broad audience, the requested information must contribute to the public's understanding. not the individual's understanding. Ferrigno v. Dept of Homeland Security, No. 09 civ. 5878, 2011 WL 1345168. at *6 (S.D.N.Y. Mar. 29. 2011). In this case, NA while you claim that. "All who want to stamp out discrimination in government would be interested in this disclosure." at the same time, you explain that you feel discriminated against by Census's employment practices and filed a complaint against the Department. Because you have not offered any concrete plans on what specific information you intend to release and a description of the audience to whom you will disseminate the requested information. you have failed to show that you have the means and will actually disseminate the requested information in a way that will contribute to the understanding of the public at large. [This is information that Mr. Toland should have provided in his dismissal of my request. Instead, he leaves it up to the Legal Dept to attack on the basis of insufficient documentation. I could have easily answered these criteria but I’ve got to wonder to what ends would they have gone to find something, no matter how trivial, that would have me pulling my hair in frustration. These people have something to hide. It is as clear as day to me, and I will pursue it til I see the numbers that substantiate or repudiate my claim that in government operations are taking part in age discrimination and that my fellow citizens would want to know through any all publicly and freely available venues. Furthermore, I know one thing, they better have close to 564,000 records because that’s how many they state they hired in 2010.]

We have considered your appeal by applying the four factors under 15 C.F.R. § 4.11(k)(2) and determine that you fail to show that the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government. Because this request failed to meet the requirements of 15 C.F.R. § 4.11(k)(2). The public interest prong. there is no need for the Department to determine whether or not it meets the commercial interest prong at 15 C.F.R. § 4.11(k)(3).


Fee amount and format

Census's response letter indicated that its fee estimate of S12,799.03 was based in part upon your request to receive records electronically. Under this appeal. in an effort to provide alternatives to you. Census produced the enclosed fee estimates for processing the records via single-sided paper copies (510.644.18) and for processing the records via double-sided paper copies (55.614.10). If you are interested in pursuing Census's processing of the records via paper copies, please contact Mr. Toland at 301-763-2127 or by email at: census.efoia@census.gov. Note that even with payment of anticipated fees, all or part of responsive information may be withheld under applicable FOIA exemptions. [is this a caveat; but most importantly, will they tell me what was withheld?]

Based on the foregoing reasons. your appeal is denied. Upon the payment of the fee estimate provided by Census, Census will begin a search and process your FOIA request. This is a final decision of the Department of Commerce. You have the right to obtain judicial review of this denial of your FOIA fee waiver appeal as provided for in 5 U.S.C. § 552(a)(4)(B). [and, I will, Ms. Fredericks, and, I will; but I have also contacted Senator Menendez to intervene on my behalf to, at the very least, try to get them to give me the electronic records I initially asked for at a reasonable cost, if not free. Congress, btw, should be made to understand that via the charging of exorbitant photocopy or printing fees, every government office has the perfect means of stifling the ordinary citizen in his FOIA requests.]


Sincerely.


Barbara S. Fredericks
Assistant General Counsel
for Administration


Enclosure
cc: Michael Toland


[One last thing, I don’t know what caliber of programmer works for the government but I have worked as a SQL programmer and if I had taken 11 hours (their estimate) to query the database for these records, I would have been kicked out on my ass by the private sector. Anyone with knowledge of the schema would have taken PERHAPS 15 minutes to dump the query comma-delimited. I doubt that the 11 hour figure is real but since so many in the country are computer-illiterate, it is easy for the Commerce Dept to attempt to swindle us. ]

FOIA: DOC-CEN-2013-001317 FEE ESTIMATE

Single-sided printing	Fee
Search (actual salary rate of employee conducting search. plus 16 percent of salary rate excluding the first 2 hours of search) GS-12 step-10 for 10 hours (This excludes the first 2 hours of search.) ($46.64 x 10 hours = $466.40) GS-12 step-2 for 1 hour ($37.07 x I hour = $37.07) $503.47 * 1.16 = $584.02	584.02
Duplication (actual direct cost including operator time. excluding the first 100 pages) 62,976 pages-100 free pages=62,876 pages 62.876 pages x $0.16 = $10,060.16	$10,060.16
Total Fee Estimate	$10,644.18

Double-sided printing	Fee
Search (actual salary rate of employee conducting search, plus 16 percent of salary rate excluding the first 2 hours of search)  GS-12 step-10 for 10 hours (This excludes the first 2 hours of search.) ($46.64 x 10 hours = S466.40) GS-12 step-2 for 1 hour ($37.07 x l hour = $37.07) $503.47 * 1.16 = $584.02	$584.02
Duplication (actual direct cost including operator time, excluding the first 100 pages 62,976 pages-100 free pages=62.876 pages 62,876 pages / 2 (double-sided printing) = 31.438  31.438 pages x $0.16 = $5,030.08	$5,030.08
Total Fee Estimate	$5,6 1 4.1 0