Each federal agency has its own regulations regarding the schedule of fees applicable to the processing of requests for information and establishing procedures and guidelines regarding any waiver or reduction of such fees[i]. The amount of fees varies in accordance with the nature of the request. Thus, the fees chargeable for a request for commercial purpose varies from that charged for a request for noncommercial purpose. Freedom of Information Reform Act of 1986 and Uniform Information Practices Code are two of the regulating statutes in this regard.
It is to be noted that statute setting the fee schedule for requests under the Federal Freedom of Information Act (FOIA) does not supersede the fees chargeable under a statute specifically providing for setting the level of fees for particular types of records[ii].
The applicable state freedom of information law will be the governing law in cases where no specific provision governs the costs for obtaining the particular type of documents requested.
Generally, a federal agency will charge only reasonable standard charges for document search and duplication. However, fee structure varies if the requests are for specific commercial or special-status non-commercial use. “Commercial use request” refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interest of the requester or the person on whose behalf the request is made. In such cases, fees will be charged to cover the full reasonable direct cost of searching for and reproducing records responsive to the request, except that the first 100 pages and the first two hours of search time will be furnished without charge.
An agency will charge only reasonable fees if the request is made by an educational or non-commercial scientific institution for scholarly or scientific research, or by a representative of the news media[iii]. The term “non-commercial scientific institution” refers to an institution that is not operated on a “commercial” basis, and which is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry[iv].
There are specific administrative appeal procedures for determining fee disputes and the procedures are similar to those for denial of requests for records. In the case of judicial review, the court will determine the matter de novo. However, the court’s review will be limited to the record before the agency. The courts generally stood for fee waivers when requesters have made a legitimate showing that the requested information will be used for scholarly research.
Fee structure varies in accordance with the nature of requests and a federal agency may process requests without any charge or at a charge reduced below the standard fees, if disclosure of the information is in the public interest. In the interest of public means information which is likely contribute significantly to public understanding of the operations or activities of the government. The agency will weigh a number of factors to ascertain the degree of public interest like the agency may consider such factors as the size of the segment of the public that could benefit from the information, whether the information would contribute to the public understanding of a particular subject, whether the information is already in the public domain, whether the personal benefit to the requester of the information outweighs the possible benefit to the public, and whether the requester’s purpose in seeking the information is academic, historical research, journalistic, commercial, or of some other public or private nature,etc[v]. However, if the request is for a purely personal purpose like defending pending criminal charges, the fee charges need not be waived[vi].
Certain requesters in the categories of the indigent, the news media, researchers, scholars, and nonprofit public interest groups are presumptively entitled to fee waivers, especially if the requesters publish the information or otherwise make it available to the general public. The requester has the initial burden of proving that the disclosure serves public interest. For this, the requester has to narrate his/her cause with reasonable specificity. Once the requester meets this burden, the burden is on the agency to justify the denial of a requested fee waiver.
Under the Office of Management and Budget (OMB) guidelines, agencies can institute procedures under the Debt Collection Act, to encourage repayment of fees charged for Federal Freedom of Information Act requests.
[i] 5 U.S.C.A. § 552(a)(4)(A)(i).
[ii] 5 U.S.C.A. § 552(a)(4)(A)(i)(vi).
[iii] 5 U.S.C.A. § 552(a)(4)(A)(ii)(II).
[iv] OMB Uniform FOIA Fee Schedule and Guidelines § 6(i).
[v] Ettlinger v. F.B.I., 596 F. Supp. 867 (D. Mass. 1984).
[vi] Diamond v. F.B.I., 548 F. Supp. 1158 (S.D. N.Y. 1982).