FOIA Fee Waivers
Introduction to FOIA fees
In our experience, it is common for FOIA
requesters to assign their requests for fee waivers to a secondary status
in the request letters, making it appear to be almost an afterthought.
This may not be a problem if one is requesting a document of only a
few pages. However, if you seek materials which run into thousands of
pages in length-with associated search and/or duplication costs running
into the thousands of dollars-a denial of a fee waiver request may be
tantamount to a denial of access to the documents themselves. For this
reason, it is crucial to put as much energy into your fee waiver requests
as you put into the document request itself.
In 1986 the FOIA was amended to identify
three types of fees which may be charged. Although the 1986 amendments
make the process of determining the applicable fees more complicated,
they reduced or eliminated entirely the cost for small, noncommercial
In the initial category, fees can be
assessed to cover document duplication costs. All agencies have a fixed
price for making copies using copying machines. You are supposed to
be charged the actual cost of copying computer tapes, photographs, and
other nonstandard documents.
In the second classification, fees may
also be imposed to recover the costs of searching for documents. This
includes the time spent looking for material responsive to a request.
The FOIA defines "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 almost impossible to get
records maintained completely in an electronic format, like computer
data base information, because some manipulation of the information
would likely be necessary to search the records. You can minimize search
charges by making clear, narrow requests for identifiable documents
|""[O]fficial information that sheds light on an agency's performance of its statutory duties falls squarely within [FOIA's] statutory purpose."
|United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989).
In the final category, 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.
Now, 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 which may arise while processing a request.
Moreover, different types of fees may
be assessed against different categories of requesters. The Act stipulates
that there be three categories of document 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. So favored is this category that 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 even though such activity may generate a financial benefit
for the requesting party. Accordingly, it is always a good idea to attempt
to coordinate your information gathering activities with the research
efforts of a member of the news media.
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 included 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. Note that review costs may not
be charged. The 1986 amendments did not change the fees which may be
assessed 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. However, the Act also prohibits a requester
from breaking a big request down into many small requests for the sole
purpose of avoiding paying fees. 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.
The FOIA amendments of 1986 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. However, these amendments on fees and fee
waivers created some confusion. Keep in mind that the initial determinations
regarding the appropriate fee categorization is separate and distinct
from determinations regarding fee waiver requests. By way of 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.
Typically, 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 always
ask for a waiver in the original request letter. Although a request
for a waiver can be made at a later time during the administrative phase
of your requests, it is always the best practice to request it early;
why delay the final resolution of your requests unnecessarily? You should
always describe how disclosure will contribute to public understanding
of the operations or activities of the government. The sample request
letters elsewhere in this site demonstrate fee waiver language for your
Any of the three categories of requester
may seek a fee waiver. Some will find it easier to qualify than others.
For example, a news reporter who is charged only duplication costs may
still ask that the charges be waived because of the public benefits
that will accrue from disclosure of the requested information. 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 will usually find
it difficult to qualify for waivers.
The eligibility of other requesters will
vary. A crucial aspect of 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.
Also note that requester is not eligible for a fee waiver solely because
of indigence, nor are you qualified merely because your group has been
certified as "non-profit" by the IRS. You will also not qualify for
a fee wavier simply because you've been granted one in the past.
How to request FOIA fee waivers
- FOIA's fee standard mandates a waiver or reduction of fees associated
with a request 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." 5 U.S.C.
§ 552(a)(4)(A)(iii). Remember, this mandatory provision only applies
upon a showing by a requester that disclosure of the desired records
will, in fact, further the "public interest." The initial burden
is always upon the requester to make this showing.
- Describe in a clear and concise manner, with as much specificity
as possible, those ways in which you or your group is qualified
to digest (fully comprehend and analyze) and disseminate
(distribute to a larger audience) the requested information to
the public's benefit. Areas of unique expertise and experience,
past actions undertaken relevant to the subject matter of the
requested material (e.g. publicity campaigns, direct actions,
administrative involvement, litigation, etc.), these are the things
which should be noted in laying a foundation for a successful
fee waiver request.
- Describe in a clear and concise manner, with as much specificity
as possible, those ways in which you or your group intend to benefit
the public by use of the material requested. If you intend to
use the information as the basis for litigation, say so, don't
be afraid to cite to prior suits filed by you or your group as
evidence of the ability to do so, this cannot be used as a basis
for denial. NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
143 n. 10 (1975). If you are working on a campaign to ban sport
fishing, say so. Likewise for publication of analysis in a newsletter
or single-issue publication. Always look for ways to distinguish
the benefit accruing to the public interest from the free disclosure
of the materials to you, from the situation which exists in the
- The Ninth Circuit has recently-and neatly-summarized what it
takes to make a prima facia case for fee waiver:
"[plaintiffs] identified why they wanted the administrative
record, what they intended to do with it, [and] to whom they
planned on distributing it. . . ."
Friends of the Coast Fork v. U.S. Dept. of Interior, 110
F 3d. 53, 55 (9th Cir. 1997).
Once this initial case is made, the burden then shifts to the
agency to justify its denial. Further, the agency must stick to
the reasons given at the administrative level to prove their case,
they cannot later employ post hoc rationales.
"True, requesters bear the initial burden of satisfying
the statutory and regulatory standards for a fee waiver, McClellen
Ecological Seepage Situation v. Carlucci, 835 F. 2d 1282,
1284-85 (9th Cir. 1987) (MESS), but the government's denial
letter must be reasonably calculated to put the requester on
notice as to the deficiencies in the requester's case. On judicial
review, we cannot consider new reasons offered by the agency
not raised in the denial letter. Independence Mining Co.,
Inc. v. Babbitt, No. 95-16112, slip op. 649, 668 (9th Cir.
Jan. 23, 1997) (citing Industrial Union Dep't v. American
Petroleum Inst. , 448 U.S. 607, 631 n. 31 (1980)). Taken
together, these principles lead us to the following conclusion:
on judicial review, the agency must stand on whatever reasons
for denial it gave in the administrative proceeding. If those
reasons are inadequate, and if the requesters meet their burden,
then a full fee waiver is in order."
Friends of the Coast Fork v. U.S. Dept. of Interior, 110
F 3d. at 55.
- As noted above, in 1986, Congress amended the criterion of judicial
review of FOIA's fee waiver section, replacing the restrictive "arbitrary
and capricious" threshold of review, by which courts are required
to grant agencies great deference, with the more liberal de
novo review standard. By thus enacting the fee waiver provision
of FOIA, "Congress explicitly recognized the importance and the difficulty
of access to governmental documents for under-funded organizations
Coalition for Safe Power v. U.S. Dep't of Energy, Civ. No. 87-1380PA,
slip op. at 7 (D.Or. July 22, 1988) (citing Better Gov't Ass'n
v. Department of State, 780 F.2d 86, 94 (D.C. Cir. 1986)).
- Congress was particularly concerned that agencies were using
search and copying costs to prevent critical monitoring of their
"Indeed, experience suggests that agencies are most
resistant to granting fee waivers when they suspect that the information
sought may cast them in a less than flattering light or may lead
to proposals to reform their practices. Yet that is precisely
the type of information which the FOIA is supposed to disclose,
and agencies should not be allowed to use fees as an offensive
weapon against requesters seeking access to Government information...."
132 Cong. Rec. S14298 (Sen. Leahy).
- Addressing this concern, FOIA's newly expanded fee waiver provision
was intended specifically to facilitate access to agency records
by citizen "watchdog" organizations, which utilize FOIA to monitor
and mount challenges to governmental activities. See Better
Gov't Ass'n v. Department of State, 780 F.2d 86, 88-89 (D.C.
Cir. 1986)(fee waiver intended to benefit public interest watchdogs).
Fee waivers are essential to such groups, which:
"rely heavily and frequently on FOIA and its fee
waiver provision to conduct the investigations that are essential
to the performance of certain of their primary institutional
activities - publicizing governmental choices and highlighting
possible abuses that otherwise might go undisputed and thus
unchallenged. These investigations are the necessary prerequisites
to the fundamental publicizing and mobilizing functions of these
organizations. Access to information through FOIA is vital to
their organizational missions....
Better Gov't Ass'n, 780 F.2d at 93-94.
"The waiver provision was added to FOIA "in an attempt to prevent
government agencies from using high fees to discourage certain
types of requesters and requests," in a clear reference to requests
from journalists, scholars and, most importantly for our purposes,
nonprofit public interest groups."
- One of the favored goals of FOIA is to promote the active oversight
roles of watchdog public advocacy groups, organizations which actively
challenge agency actions and policies, especially in the courts:
"A requester is likely to contribute significantly to
public understanding if the information disclosed is new; supports
public oversight of agency operations; or otherwise confirms or
clarifies data on past or present operations of the government."
132 Cong. Rec. H9464 (Reps. English and Kindness).
Better Government Association arrived at a comparable
"The waiver provision was added to FOIA 'in an attempt
to prevent government agencies from using high fees to discourage
certain types of requesters and requests,' in a clear reference
to requests from journalists, scholars and, most importantly
for our purposes, nonprofit public interest groups."
Better Gov't Ass'n, 780 F.2d at 94 (emphasis added).
- Courts have noted approvingly the legislative history of the Act
to find that a fee waiver request is likely to pass muster "if the
information disclosed is new; supports public oversight of agency
operations, including the quality of agency activities and the effects
of agency policy or regulations on public health or safety; or, otherwise
confirms or clarifies data on past or present operations of the government."
McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d
1282, 1284-1286 (9th. Cir. 1987). Frame your fee waiver request accordingly.
- However, merely establishing a public interest in the subject matter
of the requested materials is not enough to qualify for a fee waiver,
indeed, "inability to disseminate the information to the public .
. . alone is a sufficient basis for denying the fee waiver request."
Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988). Likewise,
the mere recitation that a requesting party is a non-profit group
in the eyes of the IRS, or that it has been granted public interest
fee waivers in the past will carry no dispositive weight in fee
waiver analysis. Do not rely upon such assertions
alone to qualify your request for a fee waiver; you will lose.
- Practice Tips:
- Any reviewing court is limited in its fee waiver deliberations
to considering only those facts contained in the administrative
record. 5 U.S.C. § 552(a)(4)(vii). Thus, it is of paramount importance
to get all facts which you feel support your waiver request into
the agency record, everything; if it's not before the agency
decision-maker, the judge can not consider it.
- Because the 1986 fee waiver amendments significantly liberalized
reviewing courts' powers to reverse agency waiver denials, pre-1986
case-law cited by the government in support of their denial decisions
may be easily distinguished, and thus rendered irrelevant, on
- Our FOIA requests often include a statement such as the following:
"The requesters plan to make these documents available to the
public at the [your state university's] Law Library. As this is
a facility open to the general public, many people will thereby
have access to the information contained in the materials which
are the subject of this request. Further, as the library is a
Federal Repository, its Congressionally certified status as a
resource to foster openness in government, as well is its role
in facilitating the teaching and research occurring at the University,
will be well served." A statement of this type does not, by itself,
ensure a public interest fee waiver, but there is some legislative
history which suggests the importance Congress placed on this
means of disseminating information into the public realm. Government
agencies "should recognize the vital contributions that libraries
and depositories of public records make to the public's understanding
of the operations of government. All federal agencies should implement
the intended favorable treatment of these organizations under
the FOIA." 135 Cong. Rec. S8466 (daily ed. July 20, 1989) (debate
colloquy, Senator Leahy responding to Senator Kerry's questions
about State Dept. policy of denying fee waivers to libraries).
- The government is currently fighting fee waiver requests with vigor.
For you to prevail, you must lay out a very good basis for the granting
of the waiver. Too often, it appears that groups add their waiver
requests as an afterthought, devoting a few cursory sentences to this
component of their request. Such requests are almost always denied.
Do not let this happen to you. Fee waiver request should be viewed
as a significant part of a FOIA request. It will provide you or your
group little benefit for an agency to agree to disclose the requested
records, but to charge a fee so high that you cannot afford access
to the records you have fought so hard to review.