It’s back-to-school time—you can practically hear the rumbling of school buses and smell the new No. 2 pencils. As students across the country turn their focus from the swimming pool and summer camp toward reading, writing and ‘rithmetic, what better time for us to revisit some FOIA requester basics?
FOIA requesters frequently contact OGIS for help with fee issues. In many cases, we hear from requesters whose request for a fee waiver has been denied. Many of these requesters are representatives of the news media, work for non-commercial scientific institutions, or are academicians making requests on behalf of academic institutions—all populations that seem worthy of such a waiver. So what gives?
Understanding the difference between fee waivers and requester categories is essential. All FOIA requesters are placed in one of three requester categories, and there are different fee structures—and different requirements—associated with each. We’ve created a chart to show the different requester categories and which fees each must pay: search, review, and/or duplication. A requester is placed in a requester category regardless of whether he or she has asked for a fee waiver. This is one of the first steps in the administrative process and one in which the requester should provide sufficient information to help the agency make the determination.
Fee waivers are different from requester categories and demand a much higher threshold for consideration than a requester category. According to the Department of Justice’s guidance on fee waivers, the standard for fee waivers 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. The guidance also states that six analytical factors must be considered in applying the statutory fee waiver standard. Any requester who wishes to pursue a fee waiver must inform the agency how his or her request meets each of these analytical factors.
Requesting a fee waiver may increase the time it takes for the agency to process your request. In most agencies, FOIA processers do not decide whether to grant a fee waiver; in many agencies that decision must be sent up the chain of command or even to the appeals office. This creates another step in the administrative process. If you have not met the six analytical factors discussed in the previous paragraph, tack on some more time in case the agency needs to contact you for additional information to help determine whether you qualify for a fee waiver.
Considering how challenging it can be to meet the threshold for fee waivers, you may instead wish to ensure that you are placed in the most favorable requester category allowable. Agencies determine a requester’s appropriate category by considering how he/she intends to use the information sought, and in some categories, on the identity of the requester. For instance, if your research advances a goal of your educational institution (rather than an individual goal), you may qualify for educational institution status; likewise, if your research will lead to publication by a news media entity, you may be considered a freelance journalist and qualify for news media status.
A requester who thinks that he or she falls into the representative of the news media category should be sure to provide specific information to support this position. For example, demonstrating a publication track record or providing a contract to publish a book is the type of information that will greatly help a FOIA professional determine your requester category. If you believe that an agency has placed you in an inappropriate requester category you should promptly ask the agency to reconsider its decision and provide additional information to support your position that you belong in a different requester category.
Requesting placement in the appropriate requester category at the time of your request is an OGIS best practice and, as stated above, we strongly encourage you to provide the agency with any information it may need to make its decision. But how do you know what information to provide? A great first step is to look at the agency’s FOIA regulations. This document—which should be posted on the agency’s FOIA web site—will provide guidance about what information the agency needs to decide a requester’s category. The Department of Justice’s Guide to the Freedom of Information Act also includes information about requester categories and fee waivers.