III. Effect of Failure to Meet Statutory Response Deadlines on Fees

Regardless of whether a full waiver request is granted, an agency cannot assess a “representative of the news media” duplication fees under FOIA if it fails to comply with the statutory deadlines for issuing determinations of FOIA requests and appeals, in the absence of “unusual or exceptional circumstances.”⁹⁰ For example, where an agency did not make a determination on a requester’s fee waiver request within 20 working days — as well as his fee waiver appeal — as required under FOIA, the U.S. District Court for the District of Columbia held the agency was barred from charging the requester any fees.⁹¹

“Unusual circumstances” may arise under FOIA when your request requires an agency to:

a. “search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request”;

b. “search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request”; or

c.  “consult[] . . . with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.”⁹²

While the FOIA does not define “exceptional circumstances,” it does specify that the phrase “does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.”⁹³ However, one factor relevant to a determination of whether “exceptional circumstances” exist is a requester’s refusal “to reasonably modify the scope of a request or arrange an alternative time frame for processing a request . . . after being given an opportunity to do so by the agency.”⁹⁴ Therefore, you should consider negotiating with the agency if necessary in order to set a mutually workable time frame.