[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR16.11]

[Page 273-278]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
                    CHAPTER I--DEPARTMENT OF JUSTICE
 
PART 16_PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION--Table of Contents
 
  Subpart A_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act
 
Sec. 16.11  Fees.

    (a) In general. Components shall charge for processing requests 
under the FOIA in accordance with paragraph

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(c) of this section, except where fees are limited under paragraph (d) 
of this section or where a waiver or reduction of fees is granted under 
paragraph (k) of this section. A component ordinarily shall collect all 
applicable fees before sending copies of requested records to a 
requester. Requesters must pay fees by check or money order made payable 
to the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include furthering 
those interests through litigation. Components shall determine, whenever 
reasonably possible, the use to which a requester will put the requested 
records. When it appears that the requester will put the records to a 
commercial use, either because of the nature of the request itself or 
because a component has reasonable cause to doubt a requester's stated 
use, the component shall provide the requester a reasonable opportunity 
to submit further clarification.
    (2) Direct costs means those expenses that an agency actually incurs 
in searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. Direct costs 
include, for example, the salary of the employee performing the work 
(the basic rate of pay for the employee, plus 16 percent of that rate to 
cover benefits) and the cost of operating duplication machinery. Not 
included in direct costs are overhead expenses such as the costs of 
space and heating or lighting of the facility in which the records are 
kept.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk), among others. 
Components shall honor a requester's specified preference of form or 
format of disclosure if the record is readily reproducible with 
reasonable efforts in the requested form or format by the office 
responding to the request.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To be in this category, a 
requester must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are not 
sought for a commercial use but are sought to further scholarly 
research.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is defined in 
paragraph (b)(1) of this section, and that is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry. To be in this 
category, a requester must show that the request is authorized by and is 
made under the auspices of a qualifying institution and that the records 
are not sought for a commercial use but are sought to further scientific 
research.
    (6) Representative of the news media, or news media requester, 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 is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only in those instances where they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they must 
demonstrate a solid basis for expecting publication through that 
organization. A publication contract would be the clearest proof, but 
components shall also look to the past publication record of a requester 
in making this determination. To be in this category, a requester must 
not be seeking the requested records for a commercial

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use. However, a request for records supporting the news-dissemination 
function of the requester shall not be considered to be for a commercial 
use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt from 
disclosure. It also includes processing any record for disclosure--for 
example, doing all that is necessary to redact it and prepare it for 
disclosure. Review costs are recoverable even if a record ultimately is 
not disclosed. Review time includes time spent considering any formal 
objection to disclosure made by a business submitter under Sec. 16.8, 
but does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. Components shall ensure 
that searches are done in the most efficient and least expensive manner 
reasonably possible. For example, components shall not search line-by-
line where duplicating an entire document would be quicker and less 
expensive.
    (c) Fees. In responding to FOIA requests, components shall charge 
the following fees unless a waiver or reduction of fees has been granted 
under paragraph (k) of this section:
    (1) Search. (i) Search fees shall be charged for all requests--other 
than requests made by educational institutions, noncommercial scientific 
institutions, or representatives of the news media--subject to the 
limitations of paragraph (d) of this section. Components may charge for 
time spent searching even if they do not locate any responsive record or 
if they withhold the record(s) located as entirely exempt from 
disclosure.
    (ii) For each quarter hour spent by clerical personnel in searching 
for and retrieving a requested record, the fee will be $4.00. Where a 
search and retrieval cannot be performed entirely by clerical 
personnel--for example, where the identification of records within the 
scope of a request requires the use of professional personnel--the fee 
will be $7.00 for each quarter hour of search time spent by professional 
personnel. Where the time of managerial personnel is required, the fee 
will be $10.25 for each quarter hour of time spent by those personnel.
    (iii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, although certain requesters 
(as provided in paragraph (d)(1) of this section) will be charged no 
search fee and certain other requesters (as provided in paragraph (d)(3) 
of this section) will be entitled to the cost equivalent of two hours of 
manual search time without charge. These direct costs will include the 
cost of operating a central processing unit for that portion of 
operating time that is directly attributable to searching for responsive 
records, as well as the costs of operator/programmer salary 
apportionable to the search.
    (2) Duplication. Duplication fees will be charged to all requesters, 
subject to the limitations of paragraph (d) of this section. For a paper 
photocopy of a record (no more than one copy of which need be supplied), 
the fee will be ten cents per page. For copies produced by computer, 
such as tapes or printouts, components will charge the direct costs, 
including operator time, of producing the copy. For other forms of 
duplication, components will charge the direct costs of that 
duplication.
    (3) Review. Review fees will be charged to requesters who make a 
commercial use request. Review fees will be charged only for the initial 
record review--in other words, the review done when a component 
determines whether an exemption applies to a particular record or record 
portion at the initial request level. No charge will be made for review 
at the administrative appeal level for an exemption already applied. 
However, records or record portions withheld under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
whether any other exemption not previously considered applies; the costs 
of that review are chargeable where it is made necessary by such a 
change of

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circumstances. Review fees will be charged at the same rates as those 
charged for a search under paragraph (c)(1)(ii) of this section.
    (d) Limitations on charging fees. (1) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.
    (2) No search fee or review fee will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, 
components will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); and
    (ii) The first two hours of search (or the cost equivalent).
    (4) Whenever a total fee calculated under paragraph (c) of this 
section is $14.00 or less for any request, no fee will be charged.
    (5) The provisions of paragraphs (d) (3) and (4) of this section 
work together. This means that for requesters other than those seeking 
records for a commercial use, no fee will be charged unless the cost of 
search in excess of two hours plus the cost of duplication in excess of 
100 pages totals more than $14.00.
    (e) Notice of anticipated fees in excess of $25.00. When a component 
determines or estimates that the fees to be charged under this section 
will amount to more than $25.00, the component shall notify the 
requester of the actual or estimated amount of the fees, unless the 
requester has indicated a willingness to pay fees as high as those 
anticipated. If only a portion of the fee can be estimated readily, the 
component shall advise the requester that the estimated fee may be only 
a portion of the total fee. In cases in which a requester has been 
notified that actual or estimated fees amount to more than $25.00, the 
request shall not be considered received and further work shall not be 
done on it until the requester agrees to pay the anticipated total fee. 
Any such agreement should be memorialized in writing. A notice under 
this paragraph will offer the requester an opportunity to discuss the 
matter with Department personnel in order to reformulate the request to 
meet the requester's needs at a lower cost.
    (f) Charges for other services. Apart from the other provisions of 
this section, when a component chooses as a matter of administrative 
discretion to provide a special service--such as certifying that records 
are true copies or sending them by other than ordinary mail--the direct 
costs of providing the service ordinarily will be charged.
    (g) Charging interest. Components may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the date of the billing until payment 
is received by the component. Components will follow the provisions of 
the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as 
amended, and its administrative procedures, including the use of 
consumer reporting agencies, collection agencies, and offset.
    (h) Aggregating requests. Where a component reasonably believes that 
a requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, the component may aggregate those requests and charge accordingly. 
Components may presume that multiple requests of this type made within a 
30-day period have been made in order to avoid fees. Where requests are 
separated by a longer period, components will aggregate them only where 
there exists a solid basis for determining that aggregation is warranted 
under all the circumstances involved. Multiple requests involving 
unrelated matters will not be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) and (3) of this section, a component shall not require 
the requester to make an advance payment--in other words, a payment made 
before work is begun or continued on a request. Payment owed for work 
already completed (i.e., a prepayment before copies are sent to a 
requester) is not an advance payment.
    (2) Where a component determines or estimates that a total fee to be 
charged under this section will be more than

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$250.00, it may require the requester to make an advance payment of an 
amount up to the amount of the entire anticipated fee before beginning 
to process the request, except where it receives a satisfactory 
assurance of full payment from a requester that has a history of prompt 
payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any component or agency within 30 days of the date 
of billing, a component may require the requester to pay the full amount 
due, plus any applicable interest, and to make an advance payment of the 
full amount of any anticipated fee, before the component begins to 
process a new request or continues to process a pending request from 
that requester.
    (4) In cases in which a component requires advance payment or 
payment due under paragraph (i)(2) or (3) of this section, the request 
shall not be considered received and further work will not be done on it 
until the required payment is received.
    (j) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute that 
specifically requires an agency to set and collect fees for particular 
types of records. Where records responsive to requests are maintained 
for distribution by agencies operating such statutorily based fee 
schedule programs, components will inform requesters of the steps for 
obtaining records from those sources so that they may do so most 
economically.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request will be furnished without charge or at a charge 
reduced below that established under paragraph (c) of this section where 
a component determines, based on all available information, that the 
requester has demonstrated that:
    (i) Disclosure of the requested 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
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
components will consider the following factors:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government.'' 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.
    (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. 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 already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding where nothing new would be 
added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public shall be considered. It shall be presumed that 
a representative of the news media will satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
enhanced by the disclosure to a significant extent. Components shall not 
make value judgments about whether information that would contribute 
significantly to public understanding of the operations or

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activities of the government is ``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
components will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. Components shall consider any commercial interest 
of the requester (with reference to the definition of ``commercial use'' 
in paragraph (b)(1) of this section), or of any person on whose behalf 
the requester may be acting, that would be furthered by the requested 
disclosure. Requesters shall be given an opportunity in the 
administrative process to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure: Whether any 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.'' A fee waiver 
or reduction is justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. Components ordinarily 
shall presume that where a news media requester has satisfied the public 
interest standard, the public interest will be the interest primarily 
served by disclosure to that requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return shall not be presumed to primarily serve the public 
interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k)(2) and (3) of this section, insofar as 
they apply to each request. Components will exercise their discretion to 
consider the cost-effectiveness of their investment of administrative 
resources in this decisionmaking process, however, in deciding to grant 
waivers or reductions of fees.

[Order No. 2156-98, 63 FR 29593, June 1, 1998; 63 FR 34965, June 26, 
1998; 63 FR 36295, July 2, 1998; 63 FR 51401, Sept. 25, 1998]