For Immediate Release:
July 2, 2015
Susan B. Long, TRAC (315) 443-3563
David Burnham, TRAC (202) 518-9000
David L. Sobel (202) 246-6180
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Judge Rejects DHS Classification of Syracuse University
Research Center as a Commercial Requester

Syracuse, NY, July 2 — In an important FOIA decision, Judge Christopher R. Cooper of the U.S. District Court of the District of Columbia has ruled that the purpose of the Transactional Records Access Clearinghouse (TRAC) is educational and journalistic and not business-related.

The decision is important to TRAC, a part of Syracuse University, because under the law fees charged for obtaining federal records by non-commercial requesters are substantially less than they would be if the data-gathering organization was categorized as commercial.

But in clarifying several key issues underlying the rules to be applied in assessing fees, the decision also may prove significant to other groups who the record shows sometimes are prematurely persuaded to abandon their efforts to obtain government records by the imposition of unjustified fees.

Judge Cooper's ruling focused on the response of Immigration and Customs Enforcement (ICE) to a November 2013 FOIA request from TRAC seeking data on immigration enforcement.

After classifying TRAC as a university scholarly research center serving news purposes for several years, ICE changed its position and began charging commercial-rate fees for the government records that TRAC regularly requests under the Freedom of Information Act. As a result of the agency's reversal of its original policy, TRAC on May 19, 2014 filed suit asserting that its new classification was unlawful.

Judge Cooper ruled that "[t]he fact that TRAC, as a non-profit organization, charges subscription fees [for some information services] to partially defray its operating costs" does not make it a commercial entity. "Congress did not intend for scholars (or journalists and public interest groups) to forego compensation when acting within the scope of their professional roles."

Judge Cooper's decision against the government also helped clarify the standards to be applied on additional issues ICE had raised.

The opinion reiterated that once university faculty submit a FOIA request for records related to a topic on which they have an established research record, they are "entitled to a presumption of educational status." Unless the government offers "persuasive evidence to rebut that presumption" [the requesters have] met their burden to establish that their request was authorized by and under the auspices of [their] University."

An educational requester is also not required "to demonstrate that the particular records they seek will further scholarly research." A requester's "established methodology and publication history" is sufficient to establish the requester's "intended scholarly use for the requested records," unless the government can show otherwise.

As to establishing news media status, the court ruled that: "Once Plaintiffs had demonstrated their ability to publish reports, ICE should not have attempted to 'evaluate the quality of [the requesters'] scholarship or to specify a minimum level of expertise required.' Plaintiffs' uncontested representations that they intend and have the ability to disseminate new research to the public were sufficient to meet the definition of representatives of the news media."

Renowned FOIA attorney David Sobel represented TRAC pro bono in the case.