[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1204.12]

[Page 65-67]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
 
PART 1204--AVAILABILITY OF OFFICIAL INFORMATION--Table of Contents
 
    Subpart B--Procedures for Obtaining Records Under the Freedom of 
                             Information Act
 
Sec. 1204.12  Fees.

    (a) General. The Board will charge the requester fees for services 
provided in processing requests for information. Those fees will be 
charged according to the schedule in paragraph (d) of this section, and 
will recover the full allowable direct costs that the Board incurs. Fees 
may be charged for time spent searching for information, even if the 
Board fails to locate responsive records, and even if it determines that 
the information is exempt from disclosure.
    (b) Definitions. (1) The term direct costs means the costs to an 
agency for searching for and copying (and in the case of commercial 
requesters, reviewing) documents to respond to a FOIA request. Direct 
costs include, for example, the salary of each employee performing work 
at the rate of $5 per quarter hour. Overhead expenses, such as costs of 
space and of heating or lighting the facility in which the records are 
stored, are not included in direct costs.
    (2) The term search, as defined by 5 U.S.C. 552(a)(3)(D), means 
either manual or automated review of Board records to locate those 
records asked for, and includes all time spent looking for material in 
response to a request, including page-by-page or line-by-line 
identification of material within documents. Searches will be done in 
the most efficient and least expensive way to limit costs for both the 
Board and the requester. Searches may be done manually or by computer 
using existing programming. The Board will make a reasonable effort to 
search for the records in electronic form or format, except when such 
effort would interfere to a large extent with the operation of the 
Board's automated information system.
    (3) The term duplication means the process of copying a document or 
electronically maintained information in response to a FOIA request. 
Copies can take the form of paper, microfilm, audio-visual materials, or 
machine-readable documentation (e.g., magnetic tape or disk), among 
others. The copy provided will be in a form or format requested if the 
record is readily reproducible by the Board in that form or format. The 
Board will make a reasonable effort to maintain its records in forms or 
formats that are reproducible.
    (4) The term review includes the process of examining documents to 
determine whether any portion of them may be exempt from disclosure 
under the FOIA, when the documents have been located in response to a 
request that is for a commercial use. The term also includes processing 
any documents for disclosure, e.g., doing all that is necessary to edit 
them and otherwise prepare them for release. Review does not include 
time spent resolving general legal or policy issues.
    (5) The term commercial use request means a request from or on 
behalf of one who seeks information for a use or purpose that furthers 
the commercial, trade, or profit interests of the requester or the 
person on whose behalf

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the request is made. In deciding whether a requester properly belongs in 
this category, the Board will decide the use the requester will make of 
the documents requested. Also, where the Board has reasonable cause to 
doubt the use a requester will make of the records requested, or where 
that use is not clear from the request, the Board will seek additional 
clarification before assigning the request to a specific category.
    (6) The term educational institution means a preschool, a public or 
private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education that operates a program or programs of scholarly research.
    (7) The term noncommercial scientific institution means an 
institution that is not operated on a ``commercial'' basis as that term 
is used above, and that is operated solely for the purpose of conducting 
scientific research whose results are not intended to promote any 
particular product or industry.
    (8) The term representative of the news media means any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that concerns current events or that would be of current interest to the 
public.
    (c) Categories of requesters. There are four categories of FOIA 
requesters: Commercial use requesters; educational and noncommercial 
scientific institutions; representatives of the news media; and all 
other requesters. To be included in the category of educational and 
noncommercial scientific institutions, requesters must show that the 
request is authorized by a qualifying institution and that they are 
seeking the records not for a commercial use, but to further scholarly 
or scientific research. To be included in the news media category, a 
requester must meet the definition in paragraph (b)(8) of this section 
and the request must not be made for a commercial use. To avoid 
commercial use charges, requesters must show that they should be 
included in a category or categories other than that of commercial use 
requesters. The Board will decide the categories to place requesters for 
fee purposes. It will make these determinations based on information 
given by the requesters and information otherwise known to the Board.
    (d) The Board will not charge a requester if the fee for any request 
is less that $100 (the cost to the Board of processing and collecting 
the fee).
    (1) When the Board receives a request:
    (i) From a commercial use requester, it will charge fees that 
recover the full direct costs for searching for the information 
requested, reviewing it for release at the initial request stage, 
reviewing it after an appeal to determine whether other exemptions not 
considered before the appeal apply to it, and copying it.
    (ii) From an educational and noncommercial scientific institution 
or, to the extent copying exceeds 100 pages, from a representative of 
the news media, it will charge fees only for the cost of copying the 
requested information.
    (iii) From all other requesters, to the extent copying exceeds 100 
pages and search time exceeds 2 hours, it will charge fees for the full 
direct cost of searching for and copying requested records.
    (2) When the Board reasonably believes that a requester or group of 
requesters is attempting to divide a request into more than one request 
to avoid payment of fees, the Board will combine the requests and charge 
fees accordingly. The Board will not combine multiple requests on 
unrelated subjects from one requester.
    (3) When the Board decides that charges for a request are likely to 
exceed $250, the Board will require the requester to pay the entire fee 
in advance before continuing to process the request.
    (4) When a requester has an outstanding fee charge or has not paid a 
fee on time, the Board will require the requester to pay the full amount 
of the estimated fee in advance before the Board begins to process a new 
or pending request from that requester, and before it applies 
administrative time limits for making a decision on the new or pending 
request.

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    (e) Fee schedule. (1) Fees for document searches for records will be 
charged at a rate of $5 per quarter hour spent by each Board employee 
performing the search.
    (2) Fees for computer searches for records will be $5 per quarter 
hour spent by each employee operating the computer equipment and/or 
developing a new inquiry or report.
    (3) Fees for review at the initial administrative level to determine 
whether records or portions of records are exempt from disclosure, and 
for review after an appeal to determine whether the records are exempt 
on other legal grounds, will be charged, for commercial use requests, at 
a rate of $5 per quarter hour spent by each reviewing employee.
    (4) Fees for photocopying records is 20 cents a page, the fee for 
copying audio tapes is the direct cost up to $15 per cassette tape; the 
fee for copying video tapes is the direct cost up to $20 per tape; and 
the fee for computer printouts is 10 cents a page. The fee for 
duplication of electronically maintained information in the requester's 
preferred format will be $21 for copying computer tapes and $4 for 
copying records on computer diskettes, if it is feasible for the Board 
to reproduce records in the format requested. Fees for certified copies 
of the Board's records will include a $4 per page charge for each page 
displaying the Board's seal and certification. When the Board estimates 
that copying costs will exceed $100, it will notify the requester of the 
estimated amount unless the requester has indicated in advance a 
willingness to pay an equal or higher amount.
    (f) Fee waivers. (1) Upon request, the Clerk of the Board, Regional 
Director, or Chief Administrative Judge, as appropriate, will furnish 
information without charge or at reduced rates if it is established that 
disclosure ``is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government.'' This decision will be based on:
    (i) The subject of the request: Whether the subject of the requested 
records concerns the operations or activities of the government;
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities;
    (iii) Whether disclosure of the requested information is likely to 
contribute to public understanding of the subject of the disclosure; and
    (iv) The significance of the contribution the disclosure would make 
to public understanding of government operations or activities.
    (2) If information is to be furnished without charge or at reduced 
rates, the requester must also establish that disclosure of the 
information is not primarily in the commercial interest of the 
requester. This decision will be based on:
    (i) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and, if so,
    (ii) Whether the identified commercial interest of the requester is 
sufficiently large, in comparison with the public interest in 
disclosure, that disclosure is primarily in the commercial interest of 
the requester.
    (3) The requester must establish eligibility for a waiver of fees or 
for reduced fees. The denial of a request for waiver of fees may be 
appealed under subpart C of this part.