Throwback Thursday: The Difference between FOIA’s Fee Categories and Fee Waiver

In honor of throwback Thursday, we’re bringing up a topic that we’ve covered previously in this post: the difference between FOIA’s fee categories and fee waivers. This topic is an oldie but a goodie, and confusion about the topic abounds.

Let’s start with the basics

FOIA includes three basic requester categories for the purposes of fees:

• commercial requesters;
• educational institutions, noncommercial scientific institutions, representatives of the media; and
• all others.

There are different fees associated with each of these categories. We have broken out the categories and associated fees in an easy-to-read chart. The category that a requester is placed in can make a  large difference in terms of the final bill a requester must pay to receive records.

FOIA also allows requesters to ask the agency to waive or reduce fees. Fee waivers demand a much higher threshold for consideration that a fee category.  In order to qualify for a fee waiver or reduced fees, a requester 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.” The Department of Justice’s guidance to agencies on how to carry out FOIA’s fee provisions includes six analytical factors that agencies should consider when deciding if fees should be waived or reduced. To qualify, requesters should address each of these factors in their requests.  A requester’s ability to pay is not considered in this process.

Now that we have the basics out of the way, let’s move on to what this means for FOIA requesters in practice.

During fiscal year (FY) 2013, federal agencies granted 5,140 requests to waive fees, according to foia.gov; for context, that means that of the 678,391 FOIA requests agencies processed in FY 2013, fee waivers were granted in fewer than 1 percent of the cases. You should also know that asking for a fee waiver could slow the agency’s processing of your request. As we explained in our last blog post on this topic, most FOIA processers do not decide whether to grant a fee waiver; that decision is often sent up the chain of command or even to the appeals office, creating another step in the administrative process.

Requesters often get the best bang for their buck by making a clear case for being placed in a favorable fee category. Agencies place requesters in fee categories based on what and how the documents will be used.  Requesters should start this process by reviewing the agency’s FOIA regulations to make sure they meet the agency’s standards for a certain category, and what information they must provide to be placed in a certain category. If you request to be categorized as a member of the news media, it helps an agency evaluate your request if you include material like links to your published stories or a copy of a contract to publish a book.

You can save yourself a great deal of hassle by making sure you address your fee category status in your initial request. If you feel that an agency has placed you in an incorrect category, though, contact the FOIA officer and provide him or her with additional information to justify placement in another category.

Do you have any great tips for how to deal with FOIA fee issues? Let us know in the comments.