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II. How to request FOIA fee waivers
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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 requests.

     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.


  ""[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 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 whenever possible.

     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 review.

     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

  1. 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.

    1. 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.


    2. 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 status quo.


    3. The Ninth Circuit has recently-and neatly-summarized what it takes to make a prima facia case for fee waiver:

    4. "[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.
  2. 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 and individuals." 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)).

    1. Congress was particularly concerned that agencies were using search and copying costs to prevent critical monitoring of their activities:
    2. "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).
    3. 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....

      "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 93-94.
    4. 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 conclusion:
    "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).
  3. 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.
  4. 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.

  5. Practice Tips:

    1. 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.


    2. 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 this ground.


    3. 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).


  6. 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.
 
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