FOIA Memo, Attachment B, fee waivers

Under the FOIA, when fees are to be assessed, they must be charged unless the requester is able to satisfy the statutory requirements for a waiver of those fees. The FOIA’s fee waiver provision contains two requirements, both of which must be satisfied before any fees can be waived or reduced:

Documents shall be furnished without any charge or at a charge reduced if disclosure of the information: (1) is in the public interest because it is likely to contribute significantly to the public’s understanding of the operations or activities of the government, and (2) is not primarily in the commercial interest of the requester.

Guidance on interpreting this provision was provided by the Department of Justice (DOJ) in the Winter/Spring 1987 issue of its "FOIA Update."  The Department's regulations implementing this provision have followed the DOJ guidance.  Requesters carry the burden of proof on both requirements.  To satisfy the first requirement, the requester is required to show that his or her request meets each of the following four elements.  Failure to satisfy any one of these four elements will result in a denial.  If the requester is unable to prevail on the first requirement, the agency need not evaluate the second one. 

The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.  Thus, a requester must assert his or her justifications with reasonable specificity.  For example, where a requester failed to provide any specific support of a general statement that its organization's purpose was to expose government activities that are contrary to law, his request for a fee waiver was denied. 

The second element the requester must demonstrate is the informational value of the records to be disclosed; i.e., whether the disclosure is likely to contribute to an understanding of government operation or activities.  The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be likely to contribute to an increased public understanding of those operations or activities.

The disclosure of information that is already in the public domain in either duplicate or substantially identical form would not be likely to contribute to such understanding since nothing new would be added to the public's understanding.  For example, one court held that: (1) public source material such as newspaper articles, summaries of news articles and public court documents, (2)  repetitive information such as documents containing information derived directly from another document; and (3)  administrative data or other non-substantive information such as routing slips or envelopes that contain no substantive information and transmittal letters documenting only the fact of transmittal of an attached substantive document, would ordinarily not qualify under this element of the fee waiver test.

The third element a requester must address is whether the disclosure of the information will contribute to a public understanding.  The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject.

While no group is presumptively entitled to a fee waiver, the Justice Department advises that an established representative of the news media should readily be able to satisfy this particular element and journalistic credentials should be given special weight.  On the other hand, other fee waiver requests are to be examined in light of the identity and objectives of the requester and the scope of the requester’s proposed dissemination: whether to a large segment of the public, or to a limited subset of persons.  The fact that the organization making the request purportedly on behalf of a membership, which is substantial in size, such as a non-profit group dedicated to one mission is insufficient to satisfy this consideration. ⁽¹⁾ Similarly, a requester’s claim that disclosure to it would create revenue for the federal government does not demonstrate disclosure is in the public interest for fee waiver purposes.

The final element is the significance of the contribution to the public understanding. The disclosure must be likely to contribute significantly to the public’s understanding of government operations or the public’s understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure. In determining whether disclosure of records will contribute “significantly” to the public’s understanding of the operations or activities of the government, it is relevant to consider the subject matter of the request and the ability of the requester to disseminate the information. 

When a requester does satisfy the public interest requirement of the fee waiver standard, it must be determined whether the requester’s commercial interest outweighs the public interest in disclosure.  A commercial requester for FOIA purposes is anyone seeking information for a commercial, trade or profit interest of the requester or some person for whom the requester is acting.  The agency must determine whether any identified commercial interest is sufficiently large, in comparison with the public interest in disclosure and whether that disclosure is primarily in the commercial interest of the requester.  To justify a fee waiver, private gain is weighed against the requester’s public purpose of widely disseminating information to the public.  For example, an alleged public interest in educating the public about the government's efforts to combat organized crime was in one case weighed against the private benefit to the requester for disclosure of his own records to be used in defending against criminal charges.  In that instance, the public interest claim was found to be frivolous.

1. In applying the two-prong test, it is worth reiterating that it is the requester, not the agency, who carries the burden of proof, and the requester must assert his or her justifications with reasonable specificity.  While the agency must explain its refusal to waive fees, when a public interest is not specifically presented, and the requester’s own purposes are unexplained, an agency need not consider hypothetical interest and purposes.  Moreover, fee waiver determinations are made on a case-by-case basis, and it is entirely irrelevant that a requester may have received fee waivers in other cases.