In the case of Yanofsky v. Department of Commerce, the Department of Commerce has been a little out of sorts: missing court ordered deadlines, requesting extra time to formulate arguments, and changing its legal argument more than once.
Yanofsky, on the other hand, is the writer of this story, so consider the source. I’m suing the US government to compel the release of its data on who’s entering the country, which the commerce department charges a lot of money to access. Since the lawsuit was filed, the government has made two significant filings with the US district court in Washington, DC.
The first came on June 21 and asked the court for an extension to its one-month deadline for filing a complete response to my complaint. The government said it had discovered that the rationale used to deny my request under the Freedom of Information Act (FOIA) was used “in error,” and extra time was needed to formulate a more “appropriate” reason to deny it.
The new argument arrived, one day late, on July 16. The government points to a section of a budget bill (pdf, p. 45–46) passed last year, claiming it gives the commerce department the right to charge a fee for the databases I think should be freely released. It’s the third different reason the government has used to deny my FOIA request, and it’s no better than the others. The section of the bill in question doesn’t even mention the data I seek, which is required by Department of Justice guidelines.
At issue in this case are two databases that chronicle the flow of people into the US. One contains anonymous immigration records; the other, similar statistics about international air travelers. Together, they would tell us a lot about who is entering the country, and for what purpose, at a time when American border policy is under intense scrutiny. (See my original piece for more.)
Typically in lawsuits like this, the government isn’t allowed to change the argument it originally made when denying the FOIA request. It’s not clear yet if the new defense will be allowed by the court.