The department had been trying to charge $16,770 for the most recent year of data.
Above the forwarded email I sent to my editor in March 2015 were the following remarks: “FYI, FOIAing two databases because they charge $13,000 a piece per year to access them.” Three years later, a federal district court judge says I’m entitled to that data—the only near-comprehensive records of people coming to the United States—for the same fees afforded any other Freedom of Information Act (FOIA) request.
Between these two moments, the government missed administrative and court deadlines, and even changed its reason for denying my request. We’ve learned that there are few, if any, buyers of the data I’m seeking, yet staffers of the office who maintain the data say it generates revenue essential to their operation, and that governments officials couldn’t understand why a media company would want it. In that time, three more years of data have also been released, with the most recent year’s priced at $16,770.
The databases I seek are maintained by the Commerce Department’s International Trade Administration (ITA). They don’t just tally U.S. visitors by their origin, but also by age, residency, port of entry, visa type, and initial destination.
In a new ruling from the U.S. District Court for the District of Columbia filed on March 30, judge Ketanji Brown Jackson agreed with my lawyers from the Reporters Committee for Freedom of the Press. Commerce had no legal basis to charge me exorbitant fees to access government data. My lawyers are representing me in this case pro bono.
Commerce argued that the Mutual Educational and Cultural Exchange Act of 1961 and the Appropriations Act of 2016 taken together constitute a statute that can preempt the FOIA. At its core, Jackson says, the laws that Commerce points to “cannot plausibly be read” to contain the two requirements needed to supersede FOIA rules on charging for government records. They do not contain language about setting fees or mention the specific data I requested.
The case is not without a silver lining for the agency and the government. In a more technical part of the decision, Jackson ruled that what I and my lawyers characterized as an unallowable change of reasoning by the government between the administrative and judicial stages is—in fact—allowable.
“There is a world of difference between providing new reasons for the agency’s decision at the district court stage and merely refining the same legal arguments that the parties advanced,” she wrote, noting that the latter is what happened here: Commerce was keeping the same argument, just citing a different legal basis for it.
The judge has sent my request back to the agency to reevaluate the fees that I should be charged for my request. The data which I was, in essence, told would cost $174,000, will likely cost me less than $30—possibly even nothing at all.
Of course, the government could appeal the decision—or worse, find new ways to resist my unfettered access to the data.
In a reply to that 2015 email about my initial request, my editor wrote: “Cool. Here’s hoping you don’t get a pile of PDFs…”