Fee waivers

You may ask the agency to waive or reduce search and copy fees if you think the fees are too high, or if the fees are fair but the total charges make the request prohibitively expensive. The law provides that the agency “shall” waive or reduce fees if you meet the public interest test described below. And you may be entitled to fee benefits if you fall within a certain category of requester.

The FOIA Reform Act of 1986 set out specific fee provisions for four categories of requesters: (1) commercial use requesters must pay fees for document search, duplication and review; (2) non-commercial requesters from educational or scientific institutions pay no search fees and receive 100 pages of free duplication;
(3) representatives of the news media pay no search fees and receive copies of 100 pages free; (4) all other requesters receive two hours of search time and copies of 100 pages free.11

The Office of Management and Budget issued guidelines for federal agencies to use in writing fee schedules, defining each category of requester.12

You will be considered a representative of the news media if you are actively gathering “news” for an organization that publishes or broadcasts news to the public. That may include bloggers, depending on the manner of publication. An appeals court has ruled that a book author who culls and edits information from documents is entitled to the fee benefits due to representatives of the news media.13

The guidelines attempt to define “news” as information about current events or of current interest to the public. Your request should explain how information sought would meet this definition.

News organizations using new technologies to distribute information qualify if they “perform an active rather than passive role in dissemination” of news. Newsletters generally are included in this category.

The guidelines specifically exclude libraries, which store information and make it available on request, from the definition of “news media.”14

A freelancer may qualify as a representative of the news media by demonstrating a solid basis for expecting publication. A beginning freelancer might have to show a reasonable expectation that a story will be published, perhaps evidenced by a publication contract. Past publication also may assist the agency in making a freelance determination.

Educational institutions also qualify for free search time and copies of 100 pages of documents at no charge. This benefit is available only to requesters from schools with scholarly research programs and when disclosure will serve “a scholarly research goal of the institution, rather than an individual goal.”

Similar treatment is given to requests from scientific institutions when information is requested “solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.”

All other non-commercial requesters, such as nonprofit organizations, pay for document-search time in excess of two hours and duplication in excess of 100 pages.

Commercial-use requesters must pay all costs, including the salaries and benefits of personnel while they decide whether to release information. OMB says these fees are chargeable if disclosure “furthers the commercial, trade, or profit interests of the requester.” An agency will consider the identity of the requester in deciding if the request is for commercial use. Remember, news dissemination is not a commercial use.

Whether or not you are in a category of requesters who receive fee benefits, you may be entitled to a waiver or reduction of fees if disclosure of information is “in the public interest.”

Under language added to FOIA in 1986, 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.”

Congressional authors of this language said in floor statements that they intended that this provision make more requesters eligible for fee waivers.

However, while federal agencies were preparing new fee regulations, the Justice Department issued a lengthy and controversial memorandum saying that the public interest standard under the 1986 amendments would be more difficult for requesters to meet.15 It outlined six criteria agencies should consider before granting fee waivers. You may wish to address these criteria in your request for a fee waiver.

A waiver may be granted if:

• The subject of the requested records concerns government operations and activities.

• The disclosure is likely to contribute to 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.

The last two factors concern the commercial value of the request to the requester. The memo says dissemination of news to the public is not a commercial activity, so news media requesters need to address only the first four criteria if they are seeking more than 100 pages.

Experience shows that requesters seeking a relatively modest number of documents are more likely to be granted fee waivers than those whose requests encompass thousands of pages. In this regard, you may want to show that you have narrowed your request as much as possible and therefore are not unduly burdening the agency.

You may appeal any agency decision regarding fee categories or waivers just as you would an agency’s decision to withhold information. If you are a journalist, call the Reporters Committee for assistance.

A fee waiver request and a request for consideration as a representative of the news media are included in the Sample FOIA Request Letter.

11 Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, §§ 1801-1804, 100 Stat. 3248 (1986).

12 Office of Management and Budget Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 Fed. Reg. 10,012 (1987).

13 Nat’l Security Archive v. Dep’t of Defense, 880 F.2d 1381 (D.C. Cir. 1989), cert. denied, 494 U.S. 1029 (1990).

14 See Nat’l Security Archive v. Dep’t of Defense, above.

15 Memorandum from Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice, to the Heads of Federal Agencies (Apr. 2, 1987).