IV. Excessive Fees

As an initial matter, journalists should seek to avoid fees by appealing any denial of placement in the news media requester fee category or a fee waiver. If an agency decides that you fall within the “commercial requester” category because, for example, it believes that the nature of your request is for a purely commercial purpose, you may be faced with search and review fees, in addition to duplication fees. If the agency denies you only a fee waiver, but not placement in the news media requester category, you will still be liable for duplication costs after the first 100 pages. Therefore, you should administratively appeal non-placement in the appropriate fee category or a fee waiver denial. If one or both of those appeals fail and you do not intend to file a lawsuit, you should attempt to negotiate the fees subsequently assessed.

Additionally, especially where your request will generate a high volume of records, you should note that requesting that the records be provided in an electronic format, such as a CD, may reduce duplication fees. The FOIA states that “an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”⁹⁵

You should consult the agency’s fee regulations to determine which format may reduce costs, as well as negotiate with the agency on this issue. DOJ regulations, for example, provide that “copies produced by computer, such as tapes or printouts, components will charge the direct costs, including operator time, of providing the copy.”⁹⁶ In contrast, the agency charges ten cents per page for a paper photocopy.⁹⁷ Depending on the volume of records you seek, requesting records in CD format may, in some cases, result in lower fees than paper copies of individual pages.