A Citizen's Guide On Using The Freedom of Information Act And The Privacy Act Of 1974 To Request government Records: VI D. FEES AND FEE WAIVERS

A CITIZEN'S GUIDE ON USING THE FREEDOM OF INFORMATION ACT
AND THE PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS

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D. FEES AND FEE WAIVERS

FOIA requesters may have to pay fees covering some or all of the costs of processing their requests. As amended in 1986, the law establishes three types of fees that may be charged. The 1986 law makes the process of determining the applicable fees more complicated. However, the 1986 rules reduce or eliminate entirely the cost for small, noncommercial requests.

First, fees can be imposed to recover the cost of copying documents. All agencies have a fixed price for making copies using copying machines. A requester is usually charged the actual cost of copying computer tapes, photographs, and other nonstandard documents.

Second, fees can also be imposed to recover the costs of searching for documents. This includes the time spent looking for material responsive to a request. The 1996 amendments to the FOIA define "search" as a "review, manually or by automated means," of "agency records for the purpose of locating those records responsive to a request." Under the FOIA, an agency need not create documents that do not exist. Computer records found in a data base rather than a file cabinet may require the application of codes or some form of programming to retrieve the information. Under the definition of "search" in the amendments, the review of computerized records would not amount to the creation of records. Otherwise, it would be virtually impossible to get records maintained completely in an electronic format, like computer data base information, because some manipulation of the information likely would be necessary to search the records. A requester can minimize search charges by making clear, narrow requests for identifiable documents whenever possible.

Third, fees can be charged to recover review costs. Review is the process of examining documents to determine whether any portion is exempt from disclosure. Before the 1986 amendments took effect, no review costs were charged to any requester. Review costs may be charged to commercial requesters only. Review charges only include costs incurred during the initial examination of a document. An agency may not charge for any costs incurred in resolving issues of law or policy that may arise while processing a request.

Different fees apply to different requesters. There are three categories of FOIA requesters. The first includes representatives of the news media, and educational or noncommercial scientific institutions whose purpose is scholarly or scientific research. A requester in this category who is not seeking records for commercial use can only be billed for reasonable standard document duplication charges. A request for information from a representative of the news media is not considered to be for commercial use if the request is in support of a news gathering or dissemination function.

The second category includes FOIA requesters seeking records for commercial use. Commercial use is not defined in the law, but it generally includes profitmaking activities. A commercial user can be charged reasonable standard charges for document duplication, search, and review.

The third category of FOIA requesters includes everyone not in the first two categories. People seeking information for personal use, public interest groups, and nonprofit organizations are examples of requesters who fall into the third group. Charges for these requesters are limited to reasonable standard charges for document duplication and search. Review costs may not be charged. The 1986 amendments did not change the fees charged to these requesters.

Small requests are free for a requester in the first and third categories. This includes all requesters except commercial users. There is no charge for the first 2 hours of search time and for the first 100 pages of documents. A noncommercial requester who limits a request to a small number of easily found records will not pay any fees at all.

In addition, the law also prevents agencies from charging fees if the cost of collecting the fee would exceed the amount collected. This limitation applies to all requests, including those seeking documents for commercial use. Thus, if the allowable charges for any FOIA request are small, no fees are imposed.

Each agency sets charges for duplication, search, and review based on its own costs. The amount of these charges is listed in agency FOIA regulations. Each agency also sets its own threshold for minimum charges.

The 1986 FOIA amendments also changed the law on fee waivers. Fees now must be waived or reduced if 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.

The 1986 amendments on fees and fee waivers have created some confusion. Determinations about fees are separate and distinct from determinations about fee waivers. For example, a requester who can demonstrate that he or she is a news reporter may only be charged duplication fees. However, a requester found to be a reporter is not automatically entitled to a waiver of those fees. A reporter who seeks a waiver must demonstrate that the request also meets the standards for waivers.

Normally, only after a requester has been categorized to determine the applicable fees does the issue of a fee waiver arise. A requester who seeks a fee waiver should ask for a waiver in the original request letter. However, a request for a waiver can be made at a later time. The requester should describe how disclosure will contribute to public understanding of the operations or activities of the government. The sample request letter in the appendix includes optional language asking for a fee waiver.

Any requester may ask for a fee waiver. Some will find it easier to qualify than others. A news reporter who is only charged duplication costs may still ask that the charges be waived because of the public benefits that will result from disclosure. A representative of the news media, a scholar, or a public interest group are more likely to qualify for a waiver of fees. A commercial user may find it difficult to qualify for waivers.

The eligibility of other requesters will vary. A key element in qualifying for a fee waiver is the relationship of the information to public understanding of the operations or activities of government. Another important factor is the ability of the requester to convey that information to other interested members of the public. A requester is not eligible for a fee waiver solely because of indigence.

Footnotes