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FOIA COMMENTARY BY ACCESS REPORTS

IV. ANALYSIS

D. Fees

Text:

(a)(4)(A). (i) In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable in the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced. Such shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Budget and Management and which shall provide a uniform schedule of fees for all agencies.

(ii) Such agency regulations shall provide that --

(I) fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use;

(II) fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and

(III) for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication.

(iii) Documents shall be furnished without any charge or at a charge below the fees established under clause (ii) 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.

(iv) Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of process a request under this section. No. fee may be charged by an agency under this section --

(I) if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee; or

(II) for any request described in clause (iii)(II) or (III) of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication.

(v) No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250.

(vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.

(vii) In any action by a requester regarding the waiver of fees under this section, the court shall hear the matter de novo; Provided, That review of the matter shall be limited to the record before the agency.

Discussion:

Congress totally rewrote this paragraph in 1986. It retained the procedure under which each agency is required to publish its own regulations (in accordance with the Administrative Procedure Act's informal rulemaking procedures in 5 U.S.C. §553) setting forth (1) the schedule of fees it will charge in connection with FOIA requests, and (2) its criteria for waiving or reducing these fees. Although Congress did not call for a government-wide fee schedule, it did mandate that all agencies' fee schedules conform to guidelines which it directed the Office of Management and Budget to issue.

OMB published its final guidelines on March 27, 1987 (52 Fed. Reg. 10012) and most agencies had published their individual regulations by the end of the year. There have been surprisingly few challenges to these regulations. Media Access Project v. FCC, 883 F.2d 1063 (D.C. Cir. 1989), involved a challenge to the Federal Communication Commission's fee regulations, but the court dismissed the suit because none of the plaintiffs had actually made an FOIA request to the FCC. A full discussion of the areas of difference is beyond the scope of this analysis, but essentially they concern as dispute over whether agencies should try to maximize their collection of fees, or seek to make the greatest amount of records available at the least cost.

The FOIA had originally limited the amount agencies could charge all requesters to only the direct costs of search and duplication. The new language sets up three categories:

1. commercial use -- can charge for search, duplication, and review;

2. educational or noncommercial scientific institution, or representative of the news media -- can charge only for duplication; and

3. all others -- can charge for search and duplication.

The statutory language expressly limits the charges in all three categories to "the direct costs." It also prohibits agencies from (1) charging any fees which are likely to be less than the costs of collecting and processing them, (2) charging educational and media requesters for the first 100 pages of duplication, and (3) charging all other non-commercial use requesters for the first 100 pages of duplication and the first two hours of search.

Filing a court action does not relieve a requester of the requirement to pay fees. Pollack v. Dept. of Justice, 49 F.3d 115 (4th Cir. 1995).

Unless a requester has previously failed to pay fees assessed, an agency cannot require an advance deposit when the total estimate fees do not exceed $250. At least one court has held, however, that it is permissible to demand payment after completing the processing of the request but before delivery of non-exempt records. Strout v. U.S. Parole Commission, 40 F3d. 136 (6th Cir. 1994).

If there is another statute which sets fees for a particular category of records, it is to take precedence over the FOIA.

There are many fertile subjects for controversy in the above provisions (e.g., what is commercial use?), but the most likely area of disagreement concerns the language stating that fees are to 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.

This language appears on its face to be more restrictive than the previous standard requiring only that agencies determine that disclosure "can be considered as primarily benefitting the general public." Certainly OMB, and the Department of Justice (52 Fed. Reg. 33232-34, Sept. 2, 1987; 1987 Blue Book at 41) have interpreted it as such. The legislative history is extremely ambiguous, but it appears clear that a requester must request a fee waiver from the agency or have his claim dismissed in court for failure to exhaust administrative remedies. AFGE, Local 2787 v. Dept. of Commerce, 907 F.2d 203 (D.C. Cir. 1990). In evaluating such a request, agencies may consider "the identity and objectives of the actual requester." McClain v. Dept. of Justice, 13 F.3d 220, 221 (7th Cir. 1993). Any other result, the court reasoned, would require waiver any time a requester expresses an intent of giving the records to the news media.

In Carney v. Dept. of Justice, 19 F.3d 807 (2d Cir. 1994), the court rejected the agency's position that the requester of a fee waiver was required to demonstrate an ability to disseminate any records received to a broad cross-section of the public. "The relevant inquiry, as we see it, is whether the requester will disseminate the disclosed records to a relatively broad audience of persons interested in the subject." Carney at 815. The court also rejected arguments that either (1) the fact that most of the responsive records were properly withheld as exempt, or (2) previous release of the same records, per se disqualified a requester from eligibility for a fee waiver.

There have also been disputes as to whether a requester qualifies as either an educational institution or a representative of the news media. In National Security Archive v. Dept. of Defense, 880 F.2d 1381 (D.C. Cir. 1989), the court refused to include as educational institutions all organizations having an educational purpose. It also refused to read news media as including organizations which only serve as conduits in making information available to the public; to qualify the organization must act as a publisher in print or other media. "A representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 880 F.2d at 1387. It did not therefore require that an organization publish "news" within the everyday meaning of that word.

The court also rejected a government argument which would have thrown all organizations which planned to sell their work product for a profit from the news media fee category into the commercial use one. Such an interpretation, as the court pointed out, would all but eliminate anyone's being treated as a representative of the news media since "most news media organizations are for profit enterprises." 880 F.2d at 1388.

The Department of Justice guidance does encourage agencies to waive fees altogether, rather than reduce them, when the requester meets the two statutory criteria. (1987 Blue Book at 43, n.4). One of the first appellate courts to consider the question, however, upheld the agency's decision to reduce fees by 25 percent rather than waive them. It also held that the burden of proof was on the requester with regard to the statutory criteria. McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, (9th Cir. 1987). Accord, Larson v. CIA, 843 F.2d 1481 (D.C. Cir. 1988).

Congress did put to rest the question of whether challenges to an agency's refusal to waive or reduce fees should be on an "arbitrary and capricious" standard or a de novo one, but did so in a confusing manner which is all too common in FOIA legislation. It directed that in such cases "the court shall determine the matter de novo, provided that the court's review of the matter shall be limited to the record before the agency."

In Friends of the Coast Fork v. U.S. Dept. of Interior, 110 F.3d 53 (9th Cir. 1997), the court considered an appeal from a denial of a fee waiver request. The only reason cited in the agency's denial was that the records were located in agency reading rooms, the closest of which was 100 miles from the requester's headquarters. The court's opinion makes it clear that agencies must build an administrative record to justify denials of fee waiver requests:

[O]n 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 [statutory] burden [of showing that disclosure is in the public interest], a full fee waiver is in order.

110 F.3d at 55.

With regard to the reading room justification, the court said that it depended on the specific circumstances. It held that it was not adequate here because: (1) the distance requester would have to travel to the nearest reading room; and (2) the fact that the records consisted of 2500 pages of highly technical information meant that requesters had to have a copy to conduct any meaningful study.

For another example of a court's finding that the agency's justification for denying a fee waiver was inadequate, see Campbell v. U.S. Dept. of Justice, 164 F.3d 20 (D.C. Cir. 1998). The court held that neither the fact that the information contained in the responsive records was already in the public domain, nor the conclusion that the information is repetitious but not duplicative, automatically justifies denial of a fee waiver. "A scholar has a strong interest in reviewing each repetition of a given topic within a file or set of files to explore nuances and assess the manner in which the government handled the information."

Next Section: E. The Complaint