FOIA fees can quickly snarl into knots for agency FOIA professionals and requesters alike. Untangling those knots takes work, but one of the best tools for the task is communication. That’s the central theme that emerged from a recent FOIA Requester Roundtable, sponsored by OGIS and the Office of Information Policy (OIP), Department of Justice (DOJ).
OIP Director Melanie Pustay reminded the participants that figuring out fees requires reading:
- the statute
- agency FOIA regulations
- the Fees and Fee Wavers chapter in the DOJ Guide to FOIA
- the FOIA Fee Guidelines issued in 1987 by the Office of Management and Budget
- OIP Fee Waiver Guidance.
And a little forbearance to work through what one requester called “this black box that is totally nonsensical.”
The biggest confusion may center around fee categories and fee waivers. All FOIA requests are considered in one of three requester categories, and there are different fee structures – and different requirements – associated with each. Fee waivers are different from fee categories and demand a much higher threshold for consideration than a fee category.
Fee estimates should be the start of a conversation between FOIA professionals and requesters, several participants agreed, and it doesn’t have to be a one-on-one conversation. Think about bringing in records managers and IT professionals who know the records and what a search might entail.
“We are beginning to see a real strong effort across the government to have a team approach combined with having a conversation,” said OGIS Director Miriam Nisbet.
Earlier in April, Director Nisbet joined James Hogan, Chief, Defense Freedom of Information Policy Office, in a lively discussion sponsored by the American Society of Access Professionals. And in March, we released our 2013 recommendations, which include facilitating an ongoing discussion about FOIA fees.
Several requesters at the Roundtable noted that some agencies are using outdated definitions of media requesters that don’t reflect changes in the 2007 amendments to FOIA; charging fees if an agency is past the 20-working-day response time and hasn’t articulated “unusual or exceptional circumstances” as required by the statute; and using OMB Guidelines which do not reflect changes to FOIA since the 1996 amendments.
One idea for tackling fees is having a senior FOIA professional review all of the fees estimates to ensure requests are being processed in the most cost-efficient way as required by OMB Guidelines. Another idea is to create a database of how requesters have been treated in the past for the purposes of FOIA fees.
We’d love to hear any ideas you have regarding FOIA fees. Let us hear from you!