II. Fee Waiver
Beyond seeking placement in the “representative of the news media” fee category, you may also argue for a full fee waiver, as the FOIA provides for both types of benefits for journalists. Under the FOIA, an agency must waive or reduce fees in cases 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.”25 In many cases, an agency denies a fee waiver request because a requester has not adequately demonstrated how the request satisfies each component of the fee waiver standard.
The FOIA requires agencies to establish specific procedures for assessing fees and granting fee waivers. A common standard agencies have adopted is a six-part inquiry that appears in DOJ’s FOIA regulations.26
The first four elements in the six-part DOJ inquiry assess the extent of the public interest in the information, while the last two questions pertain to the requester’s commercial interest. The DOJ standard is based on fee waiver policy guidance it has also issued that further interprets each component of the standard.27 In light of the fact that many agencies have adopted the DOJ standard, you should carefully address each element in order to avoid further delays in processing — such as agency requests for further clarification of how you meets the standard — or another denial of the request on appeal. As always, consult individual agency FOIA regulations on fee waivers to ensure you satisfy their particular requirements.
However, we will discuss DOJ regulations as a model to illustrate the issues that can arise in fee waiver appeals.
It is important to make a strong showing of each element of the fee waiver standard on appeal, and “[a] requester seeking a fee waiver bears the initial burden of identifying the public interest to be served.”28 It will not be enough to merely assert that the subject matter of your request is a matter of public interest. As determined by one court, “[w]hen a public interest is asserted but not identified with reasonable specificity, and circumstances do not clarify the point of the requests, it is not arbitrary or capricious for an agency to infer . . . that any benefit to the public from disclosure and waiver would be, at best, indirect and speculative.”29
For example, a court ruled that a requester did not meet this burden in stating that the requested information was “likely to contribute significantly to public understanding of the operations or activities of government,” as this merely repeated the statutory standard.30 Similarly, where a requester organization stated that it would “promote accountable government . . . by disseminating relevant information” that might “benefit the public by identifying areas for future reform as well as deterring future abuses that could otherwise proliferate without scrutiny,” a court found such statements too “perfunctory” and “ephemeral” to satisfy the public interest requirement.31
Notably, the fee waiver provisions are specifically designed to apply to journalists, in addition to a few other categories of requesters. Courts have often affirmed that the public interest standard should “be liberally construed,” as the fee waiver provision was enacted in “‘an attempt to prevent government agencies from using high fees to discourage certain types of requesters and requests, particularly journalists, scholars, and non-profit public interest groups.”32 However, you should make a strong case that you meet the fee waiver elements in order to avoid delays in processing the request or further denials, as you bear the burden of demonstrating that you qualify for a fee waiver.
Finally, if the agency claims that some of the records requested do not qualify for a fee waiver — i.e. only part of the request serves a public interest — you should seek a partial fee waiver for those records that do qualify. Provisions discussing the granting of such partial waivers may be found in the agency’s regulations.33
25 5 U.S.C. § 552(a)(4)(A)(iii).
26 28 C.F.R. § 16.11(k). See, e.g., 32 C.F.R. § 286.28(d)(3); 38 C.F.R. § 1.561(n)(3); 37 C.F.R. § 102.11(k)(2-3).
27 Dep’t of Justice, FOIA Update, Vol. VIII, No. 1 at 3-10 (1987).
28 Nat’l Treasury Emps. Union v. Griffin, 811 F.2d 644, 647 (D.C. Cir. 1987).
29 Id. (internal quotation marks omitted).
30 Sloman v. U.S. Dep’t of Justice, 832 F.Supp. 63, 64, 67-8 (S.D.N.Y. 1993).
31 Judicial Watch, Inc. v. U.S. Dep’t of Justice, 133 F.Supp.2d 52, 54 (D.D.C. 2000).
32 Ettlinger v. F.B.I., 596 F.Supp. 867, 872 (D. Mass. 1984) (citing Senate Comm. on the Judiciary, Amending the Freedom of Information Act, S.REP. NO. 854, 93d Cong., 2d Sess. 11 (1974)). See also Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86, 89 (D.C. Cir. 1986).
33 See, e.g., 43 C.F.R. § 2.8(b)(2); 38 C.F.R. § 1.561(n)(5).
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