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Posted Date: September 22, 2011
Last Updated: November 30, 2011
FOIA Fee Waivers
The amended Freedom of Information Act (5 U.S.C. §552) (FOIA) allows agencies to charge fees in connection with the processing of a FOIA request. Though every agency has its own FOIA regulations related to 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.
A requester is placed into one of three requester categories – commercial, non-commercial and all other -- and the fees he or she is charged vary depending on the category. Requesters who qualify for a fee waiver, on the other hand, receive the requested records at no (or greatly reduced) cost. All requesters are placed in a requester category; not all requesters receive a fee waiver, which is granted only after certain statutory requirements are met.
When asking for placement in a particular requester category, a requester must present information that clearly shows how he or she fits within that category. A fee waiver demands a much higher threshold for consideration than a request to be placed in a requester category. According to the Department of Justice’s (DOJ) guidance on fee waivers, the standard for review of fee waiver requests is that disclosure of the information (1) is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and (2) is not primarily in the commercial interest of the requester.
Further, the DOJ guidance says that six analytical factors must be considered in applying the statutory fee waiver standard. A requester who wishes to pursue a fee waiver must show an agency how his/her request meets each of these analytical factors. These factors are, generally:
- The subject matter must concern identifiable “operations or activities of the government,”
- The information must be meaningfully informative in relation to the subject matter of the request,
- The disclosure must contribute to “public understanding,”
- The disclosure must 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.