FOIA isn’t free, we all know that. The Federal government’s estimated spending on FOIA in 2010 was approximately $416 million. Usually, an agency will process its own FOIA requests by searching for, retrieving and reviewing records. But when an agency has to ask a contractor or even another agency to assist with a request, and receives a bill, who pays?
Congress directly addressed FOIA fee issues when it amended FOIA in 1974 and, as noted by the Office of Management and Budget in later fee guidance, “it is quite clear that Congress did intend that agencies recover of their costs.” That 1987 OMB guidance, titled “The Freedom of Information Reform Act of 1986; Uniform Freedom of Information Act Fee Schedule and Guidelines,” implements the 1986 FOIA amendments that set forth the fee category and fee waiver structure currently in place. The Department of Justice’s Office of Information Policy also issued guidance on the FOIA fee provisions.
While FOIA allows for collecting fees and recovering costs, some requesters who qualify for placement in favored fee categories may be charged less or may not be charged at all. The 1986 amendments state that educational, news media and noncommercial scientific requesters pay no search or review fees and only duplication costs after 100 pages. The only “other charges” an agency might be able to pass along to these (or any) requesters, from that OMB Guidance, are for special services such as sending records by express mail or certifications that records are true copies. “Other charges” do not include costs incurred by an agency when working to manage its records or its FOIA processing with a non-agency partner.
Thus, if a requester qualifies as a representative of the news media and has asked for records that require enlisting outside assistance — such as a request for a database that might be managed by a third-party contractor, or a request for records that might be stored at a National Archives records facility — then agencies must process that request, and account for its fees, as it would with any other request. In other words, if an agency couldn’t charge for its own search time, it cannot pass along to a requester a bill containing any search charges.
Some confusion may arise because FOIA also states that direct costs can be passed along to requesters. Direct costs are defined as “those expenditures which an agency actually incurs in searching for and duplicating” records in response to a FOIA request. The OMB Guidance states that in those instances where outside assistance is sought, “agencies should ensure that the ultimate cost to the requester is no greater than it would be if the agency itself had performed these tasks.” In these instances, to remain in line with FOIA’s requirements and OMB’s fee guidance, OGIS recommends that even direct costs of search should not be passed along to requesters who are exempt from paying search fees: educational, news media and noncommercial scientific requesters.
FOIA is an expensive endeavor, but Congress — and the rest of the government and the public — see the benefit it provides and while it may not be cheap to carry out, it’s money well spent.