Over the past few years, the Division of General Law has been concerned that in some instances bureaus and offices, in making their fee waiver determinations under the Freedom of Information Act, have not been considering fully the applicable fee waiver criteria set forth in the Department of the Interior's FOIA regulations. 43 C.F.R. 2.21. This Office continues to see instances where bureaus and offices are not considering all the criteria outlined in the Department's regulations. We also continue to see instances where bureaus and offices are relying on only one factor in denying fee waiver requests, i.e., the availability of the requested records in public reading rooms. The full consideration of the fee waiver criteria during the administrative process of the fee waiver request, including the appeal stage, is crucial because when judicial review occurs, the court's review is limited to the administrative record established before the agency. 5 U.S.C. 552(a)(4)(A)(vii).

This problem was highlighted when on March 27, 1997, the Ninth Circuit rendered an adverse decision in a FOIA fee waiver case involving the Department. Friends of the Coast Fork; Oregon Natural Resources Council v. United States Department of the Interior, United States Fish and Wildlife Service, et al., Civil No. 95-35996 (Ninth Circuit, March 27, 1997). This case involved the Fish and Wildlife Service's denial of the plaintiffs' fee waiver requests for information pertaining to the FWS's decision not to list the Western Pond Turtle under the Endangered Species Act.

In its decision, the Ninth Circuit found that the plaintiffs established a prima facie entitlement for a fee waiver, by meeting in their fee waiver requests, the criteria for obtaining a fee waiver set out in the Department of the Interior's FOIA regulations. The court also found that the Department, in denying the fee waiver requests, improperly considered only one factor; i.e., the availability of the requested materials in the FWS's Portland, Oregon and Sacramento, California reading rooms. The court stated that the Department did not consider the "multi-factor" test set out in the Department's FOIA regulations for granting fee waiver requests and, thus, the Department did not rebut plaintiffs' prima facie case. In reaching its decision, the Ninth Circuit also stated that "requesters bear the initial burden of satisfying the statutory and regulatory standards for a fee waiver . . ., 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 . . . ." The administrative record in this case was not particularly strong in that the initial responses relied almost entirely on the availability of the records in the public rooms, with the result that our administrative appeal decisions affirming the denials were based very much on arguments rather than on solid evidence of public availability. Considering the administrative record in this case, the Department determined that the government would likely be unsuccessful in any further judicial review of this decision. Accordingly, we recommended that the Department of Justice not seek rehearing en banc or certiorari in this case.

The applicable principles for determining whether the legal requirements for granting a fee waiver are met are outlined in the Department's FOIA regulations at 43 C.F.R. 2.21(a). The legal standard governing fee waivers is that disclosure of the requested information must be 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). Under the Department's regulations, three criteria are considered when determining whether disclosure "is likely to contribute significantly to public understanding of the operations or activities of the government," thereby justifying a fee waiver. The three criteria are: (1) Does the record concern the operations and activities of the government? (2) If the record concerns the operations or activities of the government, is its disclosure likely to contribute to public understanding of these operations and activities? (3) If there is likely to be a contribution to public understanding, will that contribution be significant?

In most cases, records possessed by the agency will likely meet the threshold test that they directly concern government operations or activities. On the issue of whether disclosure is likely to contribute to public understanding, the Department's regulations require bureaus and offices to consider the content of the record, the identity of the requester, and the interrelationship between the two. Bureaus and offices must determine if the contents of the requested records are meaningfully informative on the operations or activities of the government, and whether the requester's focus is on contributing to public understanding, rather than on the individual understanding of the requester or a narrow segment of interested persons. As part of this process bureaus and offices should evaluate the identity of the requester in order to determine if he or she has the ability to disseminate the information to the public. On the issue of whether the contribution to public understanding will be significant, the Department's regulations address significance as follows:

A contribution to public understanding will be significant if the information disclosed is new, clearly supports public oversight of Department operations, including the quality of Department activities and the effect of policy and regulations on public health and safety, or otherwise confirms or clarifies data on past or present operations of the Department. A contribution will not be significant if disclosure will not have a positive impact on the level of public understanding of the operations or activities involved that existed prior to the disclosure. In particular, a significant contribution is not likely to arise from disclosure of information already in the public domain because it has, for example, previously been published or is routinely available to the general public in a public reading room.

As so defined, the question of significance is not a subjective one. The legislative history and cases interpreting the statute make clear that agencies are not to make editorial judgments about the newsworthiness of requested documents. The issue is whether, as an objective and factual matter, disclosure will add to the fund of public knowledge.

The fact that a bureau or office maintains the requested documents in its public room is an insufficient basis by itself for determining that release of the documents will not contribute significantly to public understanding. While the availability of a document in a public room is an important factor in determining whether a fee waiver is likely to contribute significantly to the public understanding of the operations and activities of the government, it is only one of the factors to be considered in determining whether to grant a fee waiver request. Therefore, bureaus and offices should not base their fee waiver determinations solely on the fact that the requested documents are available for viewing in its public room.

Once an agency is satisfied that the first requirement for a fee waiver has been met (i.e., the three criteria set forth in the Department's regulations are met), the statutory standard then requires a determination of whether disclosure of the requested information is primarily in the commercial interest of the requester; if it is, then a fee waiver is not warranted. The Department's regulations outline the factors to be considered in determining whether disclosure is primarily in the commercial interest of the requester.

Fee waiver requesters are entitled to full and careful consideration of the merits of their requests. Where the Department undertakes a fee waiver analysis according to the logical sequence of factors outlined in the Department's FOIA regulations, it can be assured of complying with its statutory obligations. As the scope of judicial review of fee waiver determinations is limited to the administrative record established before the agency, it is imperative that the Department create a comprehensive administrative record of each fee waiver denial, specifying in as much detail as reasonably possible each of the grounds upon which it is based.

The first step toward the creation of a comprehensive administrative record is the bureau or office's denial letter. Before denying a fee waiver request, in whole or in part, the bureau or office should evaluate the request under each factor outlined in the Department's FOIA regulations. Further, the bureau or office, in its denial letter, should list and discuss the factors used to reach its determination. By doing this, the requester is put on notice as to the deficiencies of his or her justification for a fee waiver. Should the requester decide to appeal the denial, he or she can rebut the bureau or office's analysis and provide any additional supporting information. The Division of General Law will then address all the relevant fee waiver issues in its legal opinion on the appeal. With the foregoing documentation, and any other relevant communications, the Department will have a comprehensive administrative record for the fee waiver denial. This administrative record should provide the necessary support for the Department's position in any future litigation.

I am requesting that you advise your client bureaus and offices of this fee waiver guidance. Further, when reviewing fee waiver determinations, the designated FOIA attorneys should insure that the bureaus and offices have applied the Department's fee waiver criteria, as well as the guidance provided in this memorandum. Your cooperation in this matter will be helpful to the FOIA requester, and will assist the Division of General Law in its handling of administrative appeals and lawsuits involving fee waiver requests. By copy of this memorandum, I am requesting that the Departmental FOIA Officer distribute this guidance to the bureau and office FOIA Coordinators.

/s/ Timothy S. Elliott

cc: DGL Attorneys 
    Departmental FOIA Officer 
    Department FOIA Appeals Officer