Let’s Talk about Fees…

Sometimes even highly-experienced FOIA requesters approach us with questions about FOIA’s admittedly complicated fee structure. We thought it might be useful to break down the current fee structure a little and provide an update on fee provisions included in the FOIA Improvement Act of 2016.

Fee Categories

First, the basic set up for the FOIA fee system is that agencies are allowed to charge certain fees based on the requester’s category. Commercial requesters can be charged all search, review and duplication fees. Requesters that are representatives of the news media, educational institutions, and noncommercial scientific institutions can only be charged for duplication costs – and they receive the first 100 pages for free. Requesters that do not fall into these defined categories are classified as “all other;” these “all other” requesters can be charged search fees – but they get the first two hours free – and for duplication fees – but they get the first 100 pages free. We have included an easy-to-read chart of the categories and allowable charges.

Fee Waivers

Requesters can also ask an agency to waive or reduce fees. Fee waivers demand a much higher threshold for consideration than a fee category.  In order to qualify for a complete or partial fee waiver, 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 (DOJ)’s guidance to agencies on how to carry out FOIA’s fee provisions includes six analytical factors that agencies should consider when deciding whether to waive or reduce fees. To qualify, requesters should address each of these factors in their requests.  A requester’s financial ability to pay is not considered in this process (see this blog post for an extended discussion about the difference between fee waivers and fee categories).

Deadlines and Agency Penalties

Before we talk about deadlines and agency penalties, there are a few terms of art to help you understand when an agency can and cannot charge fees.

• “Unusual circumstances” Is defined in the statute as the need to search for and collect records from field offices, the need to search, collect and review a voluminous amount of records, or the need to consult with another agency or multiple components within the same agency. If an agency has “unusual circumstances” the law provides a ten-working-day extension to respond to the request.
• “Exceptional circumstances” is not clearly defined in the statute. However, the statute does provide some guidance as to what does not qualify and what factors might help determine if exceptional circumstances do exist. If a court finds that exceptional circumstances exist, it may extend the statutory time limits to respond to the request.

The passage of the OPEN Government Act of 2007 added FOIA has included a provision that bars agencies from charging fees if they do not meet certain deadlines for responses. In particular, the amendments to the FOIA prevented an agency from collecting fees if it did not respond to the request within the law’s 20-working-day time limit unless the agency has “unusual” or “exceptional” circumstances.

The FOIA Improvement Act of 2016 further restricts agencies’ ability to charge fees if they miss the time limits, and places new procedural requirements on agencies in order to maintain their ability to charge fees. Currently, agencies are generally not allowed to charge fees if they have “unusual circumstances” but do not respond to the request within the 30-working-day time limit. Agencies retain the ability to charge fees after missing the extended time limit, however, if there are more than 5,000 responsive pages to the request and the agency has made at least three good-faith attempts to reach out to the requester to discuss how to effectively limit the scope of the request. If a court has determined that “exceptional circumstances” exist, the agency now involved in litigation must meet the time limits set by the court in order to be able to charge fees.

We would love to hear any of your thoughts or questions about FOIA fees. Feel free to contact us using the comments section or email us anytime at ogis@nara.gov!