| The amended Freedom of Information Act (5 U.S.C. §552) (FOIA) allows agencies to charge certain fees in connection with the processing of FOIA requests. Though every agency has its own FOIA regulations that address FOIA fees, there is a uniform fee schedule and guidelines published by the Office of Management and Budget (available at 52 Federal Register 10,012) that applies to all agencies. Many agencies send FOIA fee estimates to requesters in response to requests. This not only gives the requester an idea of how much it will cost to fulfill his or her request, but also gives the requester an opportunity to narrow the scope of the request to lower the costs. Providing a breakdown of the fee estimate is an OGIS FOIA best practice, and OGIS encourages all agencies to provide this information in fee estimate letters. Fee waiver requests and fee category placement are areas in which OGIS has noticed some confusion. Requesters are obligated to provide certain information to agencies to obtain the favorable fee treatment that comes with certain fee categories including educational, non-commercial scientific or news media requesters. Additionally, if a requester believes the information in his or her request is in the public interest such that he or she should pay no fees at all, it is the requester’s obligation to provide specific information requesting a fee waiver. Be sure you have provided the necessary information for each separate and distinct fee request:
For favorable treatment by placement in the news media fee category, a requester must show he is: - Seeking information that is in the public interest: here is where you explain why the general public (or some subset) is interested in what you're asking for; if you can cite to other news reports on the subject or explain how it might affect health/safety/welfare, that is often helpful;
- Using his editorial skill to turn the raw material into a distinct work: here is where you explain what you plan to write (article, report, etc); and,
- Distributing that work to an audience: state where you will publish this work and if you don't yet know, indicate where you plan to submit it for publication; your track record of past publication is helpful but not indicative of your current expectation of publication so you should add more than just that list you initially provided.
A fee waiver demands a much higher threshold for consideration than a fee category. To obtain a fee waiver you must show that disclosure of the 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
- is not primarily in the commercial interest of the requester.
After you have established those threshold requirements, the agency will consider six analytical factors in applying the statutory fee waiver standard. (You may want to factor in the below analysis the agency will undergo when drafting your fee waiver request.) In evaluating your fee waiver request, the agency will: - Ensure the subject matter concerns identifiable “operations or activities of the government,”
- Ensure the information is meaningfully informative in relation to the subject matter of the request,
- Ensure the disclosure will contribute to “public understanding,”
- Ensure the disclosure will contribute “significantly” to public understanding of government operations or activities,
- Consider the requester’s identity and the circumstances surrounding the request, including whether there is a commercial interest, and
- Balance any potential commercial interest against the public interest in disclosure.
When filing a FOIA request, a requester may ask for “expedited processing” of that request, meaning the agency would process that request “as soon as practicable.” When a request for expedited processing is granted an agency will place the request ahead of other requests that have been pending in the queue awaiting assignment for processing. Generally, to warrant expedited processing, a requester must demonstrate a “compelling need” by showing either that failure to obtain the records would pose an “imminent threat to the life or physical safety of an individual,” or, for a person “primarily engaged in disseminating information” (i.e., a representative of the news media), there is an “urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E).
Most agencies address expedited processing in their regulations and requesters seeking that treatment should consult the agency regulation prior to drafting the request. If you did not provide this information in your initial request, you may wish to contact the agency directly to provide this information in an appeal or to ask for reconsideration of the agency’s decision. You should be sure to provide this information to the agency prior to requesting OGIS assistance. If you are ready to request OGIS assistance now, feel free to contact us at ogis@nara.gov or (877) 684-6448 or fill in the information below and submit your request to OGIS. |
