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The right to inspect and copy government records does not mean the government must provide free access. Under various state open records acts and the federal Freedom of Information Act, governmental bodies often have the ability to charge requesters fees for the time spent searching for a record, reviewing the record, and for producing a copy of the record. Under the federal FOIA, fees must be “reasonable” and related to the “direct” costs incurred for the search and copy of the records. Check out our state open government guide to find out what the law is in [your state] for charging fees.
The federal government may not charge fees to a requester if it has exceeded the 20 day limit in responding to a noncommercial request, which includes educational, scientific and news media requesters.
Member of the News Media
The news media – "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience" – are not required to pay search or review fees under the federal FOIA. This means that if a news media requester merely inspects the record and does not make a copy, there should be no fee. Under FOIA, the news media also automatically receives the first 100 copies of a document request free.
Digital and new media journalists may very well fit under the federal definition of the news media. FOIA specifically states that "as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities." The definition also provides an example for how freelance journalists can qualify as members of the news media, including showing evidence of past publication. If you "perform an active rather than passive role in dissemination" of news, you are likely to be considered part of the news media.
Ways the statute allows you to demonstrate you are a member of the news media:
Demonstrate a solid basis for expecting publication
Employment with a news entity
Existence of a publication contract
In 2007 Center for Public Integrity v. U.S. Department of Health and Human Services, the federal district court in Washington, D.C. held that CPI was a member of the news media because of its publishing history -- having published several press releases and reports in the past -- and because of the clear, "firm intention" it showed to use the information it requested for future publications. This case followed a 1989 ruling by the U.S. Court of Appeals in Washington, D.C. in National Security Archive v. U.S. Department of Justice holding that the "firm intention" to disseminate information publicly could qualify an organization as a member of the news media.
A new media journalist can establish he or she is a member of the news media by showing that they have a record of past publication, much like a freelance journalist, and that they have a firm intention to use the materials requested for publication and dissemination to the public.
The federal government can charge fees for the search and review of records if the records are requested for commercial use. The news media are not considered commercial users. Many states also lessen fees for members of the news media, however others, like Michigan, allow agencies to charge fees to the media, including fees for the review of materials for purposes of redacting exempt material.
State laws on fees vary, but generally require that fees represent the actual or "reasonable" costs to the agency. Recently, in New Jersey, an appeals court held in Smith v. Hudson County Register that charging excessive fees – i.e. more than the actual cost to the agency – equated to a denial of access. The court required that agencies only charge requesters the actual cost of copying. Shortly after the court's decision, the legislature changed the state’s fee laws. Rather than require actual costs to be determined, there is now a set fee of 5 cents a copy, 7 cents for larger paper. [Check out our State Open Government Guide to see what the law is in [your state] to see how fees for records requests are determined.]
In addition to the above fee benefits media can receive under FOIA, the federal FOIA and some state laws also contain provisions in the law for full or partial fee waivers. Generally these waivers are aimed at disclosures that will in some way benefit the public interest, while having little commercial benefit to the individual requester. The federal FOIA also requires the records to be about government operations and serve to further the public’s understanding of those operations.
Most federal agency regulations and the OMB Guidelines require the agency to inform requesters if a fee is in excess of $25 before the request will be processed and the request will only be processed once the requester agrees to pay the fee. A way to avoid this extra step, if you believe your request will exceed $25 is to include the amount you are willing to pay in your initial request, as shown in our FOIA Letter Generator. If your request exceeds the amount stated in your letter, the agency should contact you for approval before proceeding.
To qualify for a waiver under federal FOIA -- where agencies then "shall" waive or reduce the fees -- you must meet the federal government public interest test. You should always request a fee waiver in your initial records request.
A requester is entitled to a waiver or reduction of fees where "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."
There are six criteria that agencies will consider and should be addressed in your letter when requesting a fee waiver:
The subject of the requested records concerns government operations and activities
The disclosure is likely to contribute to the understanding of these operations or activities
Disclosure will likely result in public understanding of the subject
The contribution to public understanding of government operations or activities will be significant
The requester has a limited commercial interest in the disclosure
The public interest in disclosure is greater than the requester's commercial interest
Because members of the news media are not considered commercial requesters, the first four criteria are the most important to address in your letter. However, because digital and new media journalists are not specifically mentioned as members of the news media, you should firmly establish yourself as a member of the news media within your request.
If an estimated fee is too much for your federal records request, you may contact the FOIA officer at the agency to discuss narrowing your request in hopes of lowering the cost. The Office of Government Information Services is another federal resource that can help mediate a fee dispute.
If you are charged fees that appear excessive, are denied a fee waiver, or improperly charged search fees when you are a member of the news media, you may also appeal to the agency just as you would a substantive denial.
Recent news articles from our website:
April 29, 2011 NJ Court: High cost is denial of access; awards atty’s fees
September 14, 2010 Milwaukee newspaper sues police over records fees, delays
June 18, 2010 Records request leads to dispute over request fees
Federal Open Government Guide Paying Fees
Reporters Committee 50-state Open Government Guide
Citizen Media Law Project Costs and Fees