Yanofsky v. DOC, No. 16-00951, 2018 WL 1583305 (D.D.C. Mar. 30, 2018) (Jackson, J.)

Yanofsky v. DOC, No. 16-00951, 2018 WL 1583305 (D.D.C. Mar. 30, 2018) (Jackson, J.)

Re: Request for records concerning I–92 and I–94 Programs

Disposition: Granting plaintiff's cross-motion for summary judgment; denying defendant's motion for summary judgment

• Fees and Fee Waivers, Fees:  The court holds that "[it] agrees with the DOC that the agency can argue that the [Mutual Educational and Cultural Exchange Act of 1961 ("MECEA")] and the Appropriations Act constitute superseding fee statutes despite not doing so in its administrative proceedings, but given that the MECEA and the Appropriations Act neither identify a 'particular type[ ] of records' nor 'set [a] level of fees[,]' . . . [the] Court does not find this argument persuasive."  The court relates that "[t]he parties in the instant case are engaged in a pitched battle over whether or not Congress intended the [MECEA] and the Consolidated Appropriations Act of 2016 . . . to displace the standard FOIA fee-setting requirements by authorizing an agency practice that allows the Department of Commerce to charge thousands of dollars for certain data files."  The court notes that "FOIA's displacement provision provides that nothing in the FOIA's fee-setting scheme 'shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.'"  "By its plain text, then, the FOIA fee-setting provision is superseded when Congress otherwise (1) 'provid[es] for setting the level of fees[,]' and (2) does so 'for particular types of records.'"  The court finds that "[n]ot even the most probing evaluation of this language could reasonably lead one to conclude that it identifies any 'particular types of records.'"  "That is, neither statute refers to any records, documents, or written materials at all, much less the type of data that the I–92 or I–94 Data Files contain."  Additionally, "nothing in the MECEA or the Appropriations Act speaks to the agency's task of 'setting the level of fees,' as the FOIA's displacement provision requires."  The court concludes that "neither of [these] statutes actually satisfies [the] standard."  "As a result, the DOC must follow the FOIA, and determine the fees that are applicable to [plaintiff's] FOIA request in accordance with the FOIA fee-setting and fee-waiver provisions."