September 26, 2002

MEMORANDUM FOR ALL FOIA COORDINATORS

FROM: MIRIAM MILLER, Co-Counsel for Administrative Law

SUBJECT: Fees and Fee Waivers 

The purpose of this memorandum is to ensure that the Department’s procedures for assessing fees and for appraising fee waiver requests are applied consistently and fairly by all DOL agencies in compliance with the statutory requirements of the Freedom of Information Act (FOIA).  Attached are brief discussions of the categories of requesters and fees and the fee waiver standard.

FOIA has always provided that fees should be assessed when records are requested pursuant to that statute’s authority.  In 1986 amendments to the FOIA, Congress established the current fee structure and fee waiver standard.  Specific limitations and restrictions were set for the assessment of fees.  The amended fee waiver provision set a standard for waiving fees when disclosure of the records would inform the public about government operations.

In April 1987, to assist federal agencies in addressing fee waivers requests, the Department of Justice issued its "New FOIA Fee Waiver Policy Guidance" to the heads of all federal departments and agencies, which remains in effect today.  That Guidance advised that:

The Department of Justice stands committed to encouraging agencies to waive fees under FOIA whenever the statutory fee waiver standard is met.  By the same token, of course, agencies also are expected to respect the balance drawn in the statute, safeguarding federal funds by granting waivers or reductions only where it is determined that the statutory standard is satisfied.

With respect to charging fees, agencies must ensure that requesters are placed into the correct category for assessing fees; and that those fees are correctly assessed.  With respect to fee waivers, it is particularly important to remember that no group is presumptively entitled to a fee waiver; and that fee waiver determinations are made on a case-by-case basis.  It is entirely irrelevant that a requester may have received a fee waiver for another request.

Please disseminate this memo and its attachments to all FOIA Disclosure Officers and Processors.  As always, if you have any questions concerning this memorandum or wish to discuss how to handle a particular request, do not hesitate to contact me.  A copy of this memo and the attachments discussing categories of requesters and fees, and the fee waiver standard, will be posted on the SOL Web site.  You may wish to direct your Disclosure Officers and FOIA requesters to this site, as well as to the discussion of fees and fee waivers at the Department of Justice’s FOIA Web site.

Attachments
A - Categories of Requesters and Fees
B - Application of FOIA's Fee Waiver Standard