FOIA Update: New Fee Waiver Policy Guidance

January 1, 1987

FOIA Update
Vol. VIII, No. 1
1987

New Fee Waiver Policy Guidance

[The following is the full text of the Department of Justice fee waiver policy guidance memorandum issued to the heads of all federal agencies on April 2, 1987, by Stephen J. Markman, Assistant Attorney General, Office of Legal Policy.]

Under the Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, §§ 1801-1804, 100 Stat. 3207, 3207-48 (1986), all federal agencies subject to the Freedom of Information Act ("FOIA") are required to promulgate revised regulations implementing the FOIA's amended fee and fee waiver provisions. The Office of Management and Budget has prepared Uniform Freedom of Information Act Fee Schedule and Guidelines ("OMB Fee Guidelines"), 52 Fed. Reg. 10011 (March 27, 1987), and the revised FOIA fee regulations issued by each agency must conform with the OMB Fee Guidelines.

One provision of the Freedom of Information Reform Act requires that individual agency regulations set forth "procedures and guidelines for determining when such fees should be waived or reduced." 5 U.S.C. § 552(a)(4)(A)(i) (effective April 25, 1987). The OMB Fee Guidelines address neither this requirement nor the new statutory standard governing the waiver of FOIA fees, 5 U.S.C. § 552(a)(4)(A)(iii).

To assist agencies in implementing this provision, and in accordance with the statutory responsibility of the Department of Justice to encourage agency compliance with the FOIA, see 5 U.S.C. § 552(e), I am providing the following advisory fee waiver policy guidance to all federal agencies on behalf of the Attorney General, see 28 C.F.R. § 0.23(c) (1986). (1)

The Department of Justice stands committed to encouraging agencies to waive fees under the FOIA whenever the statutory fee waiver standard is met. By the same token, of course, agencies also are expected to respect the balance drawn in the statute, safeguarding federal funds by granting waivers or reductions only where it is determined that the statutory standard is satisfied.

This guidance advises agencies of the factors which should be considered in applying the new statutory fee waiver standard. As the Supreme Court has made clear in interpreting the FOIA, the Act is to be applied according to "[t]he plain language of the statute itself." (2) Part I of this memorandum addresses the new statutory fee and fee waiver structure, Part II sets forth specific fee waiver factors recommended for each agency to include in its revised FOIA regulations, and Part III explains the derivation and application of those factors under the language of the new statutory fee waiver standard.
 
 

I. NEW STATUTORY FEE WAIVER STANDARD

Prior to its amendment in 1986, the FOIA provided for the charging of fees for document search and duplication, and further provided that such fees should be waived or reduced wherever that was found to be "in the public interest because furnishing the information can be considered as primarily benefiting the general public." 5 U.S.C. § 552(a)(4)(A) (1982).

As amended, effective April 25, 1987, the FOIA establishes three levels of fees that may be charged: Depending on the identity of the requester and his use of requested information, 5 U.S.C. § 552(a)(4)(A)(ii) provides for the charging of fees for document duplication alone for certain categories of requesters; fees for search time and duplication, and for review time as well, in the case of commercial requesters; and, for all other requesters, fees for search time and duplication. A separate provision of the amended FOIA provides for the waiver or reduction of applicable fees upon the satisfaction of a revised statutory fee waiver standard.

The FOIA's new fee waiver standard, found at 5 U.S.C. § 552(a)(4)(A)(iii), more specifically defines the term "public interest" and provides:

Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if 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.

This new statutory fee waiver standard thus sets forth two basic requirements, both of which must be satisfied before fees properly assessable can be waived or reduced. (3) First, it must be established that "disclosure of the [requested] information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government." Second, it must be established that "disclosure of the information . . . is not primarily in the commercial interest of the requester."

Where these two statutory requirements are satisfied, based upon information supplied by a requester or otherwise made known to an agency, the waiver or reduction of a FOIA fee is compelled by the statute and should be granted freely and promptly by the agency. (4) Where one or both of these requirements is not satisfied, a fee waiver is not warranted under the statute.

II. SUMMARY OF FEE WAIVER GUIDANCE

The Department of Justice recommends that each federal agency employ the following six factors when, as required by the Freedom of Information Reform Act, it revises its regulations to set forth "guidelines for determining when [FOIA] fees should be waived or reduced." The remainder of this guidance memorandum elaborates upon the derivation and application of these factors. In summary, these factors are as follows:

A. 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."

(1) The subject of the request: Whether the subject of the requested records concerns "the operations or activities of the government";

(2) The informative value of the information to be disclosed: Whether the disclosure is "likely to contribute" to an understanding of government operations or activities;

(3) The contribution to an understanding of the subject by the general public likely to result from disclosure: Whether disclosure of the requested information will contribute to "public understanding"; and

(4) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute "significantly" to public understanding of government operations or activities.

B. Disclosure of the Information "is Not Primarily in the Commercial Interest of the Requester."

(1) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so

(2) The primary interest in disclosure: Whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is "primarily in the commercial interest of the requester."

III. APPLICATION OF FEE WAIVER FACTORS

The six enumerated factors elaborated upon below are those which the new statutory standard, by its plain language, requires agencies to take into consideration in determining whether the two basic requirements for a fee waiver or reduction are met. They should be applied to fee waiver requests sequentially, on a case-by-case basis.

A. 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."

This first part of the new statutory fee waiver standard sets forth a specific definition of the crucial term "public interest." As distinguished from the previous statutory language, which spoke only generally of a disclosure's benefit to the public, this language specifies the public benefit resulting from disclosure to be considered in making fee waiver determinations. In so doing, it establishes a more particular "public interest" standard to be met as a threshold matter, with the result that some disclosures that might have met the more general public interest standard under the previous standard will not satisfy the standard as revised.

The plain language of this first basic requirement encompasses four related considerations. A careful analysis of them, in sequence, is necessary to lead to a proper determination of whether a request satisfies the statute's specific "public interest" requirement.

(1) The Subject of the Request: Whether the Subject of the Requested Records Concerns "the Operations or Activities of the Government."

Initially, an agency should consider whether the subject of the requested records, in the context of the request, concerns the operations or activities of the government in the first place. A more general public interest in the subject of a record, which was the broader focus of the previous statutory standard, no longer is sufficient. Rather, the subject matter of the requested records must specifically concern identifiable operations or activities of the federal government -- with a connection between them that is direct and clear, not remote or attenuated. As the D.C. Circuit Court of Appeals recently indicated in applying the predecessor fee waiver standard, "the links between furnishing the requested information and benefiting the general public" should not be "tangential," "less than obvious," or "at best tenuous." National Treasury Employees Union v. Griffin, 811 F.2d 644, 647-48 (D.C. Cir. 1987); see also American Federation of Government Employees v. Department of Commerce, 632 F. Supp. 1272, 1278 (D.D.C. 1986) (claims of public benefit under previous standard rejected as "too ephemeral").

While in most cases records possessed by a federal agency will likely meet this threshold, there are cases in which requested records do not directly concern government operations or activities and therefore would fail to meet it. A prime example can be records in an agency's possession that were generated by a non-government entity, records which often are sought for their intrinsic informational content alone. Where requesters manifestly seek records for their intrinsic content apart from their informative value with respect to specific government operations or activities, they can hardly hold real prospect for contributing to public understanding of those operations or activities. In the case of such requests, whether for records submitted to an agency or generated by it, this threshold consideration is not satisfied.

(2) The Informative Value of the Information to be Disclosed: Whether the Disclosure is "Likely to Contribute" to an Understanding of Government Operations or Activities.

Next, an agency should determine whether the disclosure in question is likely to contribute to an understanding of government operations or activities. This requires an analysis of the substantive content of the disclosable portions of the records requested, in order to determine whether their disclosure will in fact be informative regarding the particular government activities or operations that are connected to the subject matter of the request. The agency to whose operations the records pertain ordinarily is in the best position to make this determination.

Although the subject matter of a FOIA request may directly concern certain government operations or activities, if the records (or record portions) which can be released in response to that request contain nothing that is meaningfully informative on such operations or activities, then the requested FOIA disclosure would not at all contribute to an understanding of them. Further, even where information is meaningful in and of itself, it does not necessarily hold great potential for contributing to increased public understanding. Thus, the foundation for a proper fee waiver analysis must be a close appraisal of the particular information that is to be disclosed, with careful attention to the potential that it holds for contributing to the public understanding of government operations or activities.

In this connection, an agency should also consider whether the requested information is already in the public domain, either in a duplicative or a substantially identical form. If it is, then disclosure of the information would not be likely to contribute to an understanding of government operations or activities, as nothing new would be added to the public record. This principle properly applied under the previous statutory fee waiver standard, see, e.g., Blakey v. Department of Justice, 549 F. Supp. 362, 364-65 (D.D.C. 1982), aff'd mem., 720 F.2d 215 (D.C. Cir. 1983), and should continue to be applicable.

(3) The Contribution to an Understanding of the Subject by the Public Likely to Result from Disclosure: Whether Disclosure of the Requested Information Will Contribute to "Public Understanding."

An agency next should consider whether disclosure will contribute to the understanding of the public at large, as opposed to the individual understanding of the requester or a narrow segment of interested persons. See Crooker v. Department of the Army, 577 F. Supp. 1220, 1223 (D.D.C. 1984) (rejecting fee waiver under previous standard for information of interest to "a small segment of the scientific community," which would not "benefit the public at large"), appeal dismissed as frivolous, No. 84-5089 (D.C. Cir. June 22, 1984).

The proper focus thus must be on the contribution to public understanding, rather than personal benefit to be derived by the requester. See National Treasury Employees Union v. Griffin, 811 F.2d at 648 (rejecting "union's suggestion that its size insures that any benefit to it amounts to a public benefit"). Thus, a requester's indigency, for example, does not entitle him to a fee waiver; there must be a credible showing of a contribution to the public's understanding that would result from disclosure. Cf. Ely v. United States Postal Service, 753 F.2d 163, 165 (D.C. Cir.) (holding under previous fee waiver standard that indigency alone did not satisfy statutory requirement that disclosure must primarily benefit general public), cert. denied, 471 U.S. 1106 (1985). This is only appropriate, given that a fee waiver necessarily involves the "expenditure of public funds." Id.; see also Burriss v. CIA, 524 F. Supp. 448, 449 (M.D. Tenn. 1981) ("[I]n simple terms, the public should not foot the bill unless it will be the primary beneficiary of the [disclosure].").

For purposes of this analysis, the identity of the requester should be considered, in order for an agency to determine whether the requester is in a position to contribute to public understanding through the requested disclosure. A requester's identity and qualifications -- e.g., expertise in the subject area and ability and intention to disseminate the information to the general public -- should be evaluated. Accord Eudey v. CIA, 478 F. Supp. 1175, 1177 (D.D.C. 1979) (articulating such approach under previous fee waiver standard). Specialized knowledge often is required to extract, synthesize and effectively convey information to the public and requesters vary in their ability to do so. Where not readily apparent to an agency, requesters should be asked to describe specifically their qualifications, the nature of their research, the purposes for which they intend to use the requested information, and their intended means of dissemination to the public.

Bare assertions by requesters that they are "researchers" or have "plans to author a book" are insufficient evidence that a contribution to understanding by the general public will ultimately result from a disclosure. See Burriss v. CIA, 524 F. Supp. at 449 (holding such assertions insufficient under prior law to establish that general public would be ultimate beneficiary of disclosure). It reasonably may be presumed, however, that those "representatives of the news media," as defined in the OMB Fee Guidelines, (5) who have access to the means of public dissemination, readily will be able to satisfy this aspect of the statutory requirement. Accord FOIA Update, Fall 1983, at 14.

This consideration is not satisfied simply because a fee waiver request is made by a library or other record repository, or a requester who intends merely to disseminate information to such an institution. Such requests, like those of other requesters, should be analyzed to identify a particular person who will actually use the requested information in scholarly or other analytic work and then disseminate it to the general public; absent that, it cannot be determined that disclosure to the requester will contribute to the public's understanding of government operations or activities. Accord National Treasury Employees Union v. Griffin, 811 F.2d at 647 (observing under previous standard that public benefit should be "identified with reasonable specificity"). Thus, such requesters should make the same fee waiver showing that a person would have to make to obtain a fee waiver directly, including a representation by that person of intent to perform the work involved.

(4) The Significance of the Contribution to Public Understanding: Whether the Contribution to Public Understanding of Government Operations or Activities Will be "Significant."

Lastly, an agency is required by the statute to determine whether an identified contribution to public understanding of government operations or activities will be a "significant" one, i.e., such that the general public's understanding of the subject matter in question likely will be enhanced by the disclosure to a significant extent.

This final step in the "public interest" analysis requires an agency to focus as realistically as possible on the precise nature of the public contribution likely to result from a disclosure. It necessarily involves an assessment of the likely impact of the disclosure on the public's understanding of the subject in question, as compared to the level of public understanding of that subject existing prior to the disclosure. A differential analysis between the two should be undertaken in order to determine whether the contribution likely to result from the disclosure can be regarded as "significant."

The determination of "significance," which will require the exercise of especially careful judgment in many cases, is essentially an objective rather than a subjective determination. The agency's decision properly turns on whether the disclosure is likely to lead to a significant contribution to public understanding. This does not permit a separate value judgment by the agency as to whether the information, even though it in fact would contribute significantly to public understanding of the operations or activities of the government, is "important" enough to be made public.

If the agency determines that the likely contribution to public understanding is significant -- and each agency disclosing its own records under the FOIA is in the best position to evaluate the disclosable portions and reach such a judgment regarding their likely contribution to public understanding of government operations or activities -- then the fee waiver standard's "public interest" requirement is fully satisfied.

B. Disclosure of the Information "is Not Primarily in the Commercial Interest of the Requester."

Once an agency is satisfied that the first requirement for a fee waiver has been met, the statutory standard then requires a determination of whether disclosure of the requested information is primarily in the commercial interest of the requester; if it is, then a waiver is not warranted. To apply this second basic requirement, an agency must determine the magnitude of any commercial interest of the requester (or person upon whose behalf the requester may be acting) that would be furthered by disclosure, and then compare it to that of the public interest already identified.

(1) The Existence and Magnitude of a Commercial Interest: Whether the Requester has a Commercial Interest that Would be Furthered by the Requested Disclosure.

An agency must first determine as a threshold matter whether the request involves any commercial interest of the requester and, if so, assess the magnitude of that commercial interest. Only commercial interests that would be served by disclosure -- as opposed to other personal, non-commercial interests -- should be considered. A "commercial interest" is one that furthers a commercial, trade or profit interest as those terms are commonly understood. See OMB Fee Guidelines, sec. 6g. Accord, e.g., American Airlines, Inc. v. National Mediation Board, 588 F.2d 863, 870 (2d Cir. 1978) (defining "commercial" in Exemption 4 as meaning anything "pertaining or relating to or dealing with commerce"); see also Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 644 F. Supp. 344, 346 (D.D.C. 1986) (entity's "non-profit status is not by itself determinative") (appeal pending). Thus, not only profit-making corporations but individuals or other organizations may have a commercial interest to be served by disclosure, depending upon the circumstances involved.

If the requester's interest in the records sought is unclear, it is entirely proper for agencies to consider and draw reasonable inferences from the requester's identity and the circumstances surrounding the request in determining the existence of a commercial interest. Where an agency reasonably believes that such circumstances suggest the existence of a commercial interest in disclosure, the requester should be given an opportunity in the administrative process to provide further information rebutting such reasonable inferences or clarifying the circumstances of the request where necessary. Accord National Treasury Employees Union v. Griffin, 811 F.2d at 647; see also OMB Fee Guidelines, sec. 6g.

Where a commercial interest is found to exist, and it would be furthered through the disclosure sought, the magnitude of that commercial interest must then be assessed. In making such an assessment, an agency should reasonably consider the role that such FOIA-disclosed information plays with respect to the requester's commercial interests, as well as the extent to which FOIA disclosures serve those interests overall.

(2) The Primary Interest in Disclosure: Whether the Magnitude of the Identified Commercial Interest of the Requester is Sufficiently Large, in Comparison with the Public Interest in Disclosure, that Disclosure is "Primarily in the Commercial Interest of the Requester."

Once a requester's commercial interest has been found to exist, the statute requires that an agency then determine whether disclosure of the information would be "primarily" in that interest. This requires the balancing of the requester's commercial interest against the public interest in disclosure that has been identified. Fundamentally, this balancing process is the same as that required under the previous fee waiver standard -- except that, once the more specific "public interest" standard is satisfied, the balance is now only between the magnitude of the public interest and the magnitude of requester's commercial interest, as those terms are used in the statute.

Where the "public interest" standard is satisfied as discussed above, and that public interest can fairly be regarded as greater in magnitude than the requester's commercial interest in disclosure, a fee waiver or reduction must be granted. Conversely, even where sufficient public interest exists to meet that more particular standard, a fee waiver is not warranted under the statute if the requester's commercial interest in disclosure is found to be greater than the public interest to be served, because disclosure would then be "primarily" in the requester's commercial interest.

Such comparisons, of course, require careful attention. For example, although newsgathering organizations usually have a commercial interest in obtaining information, the traditional process of newsgathering and dissemination by established news media organizations, as a rule, should not be considered to be "primarily" in their commercial interest; because of their established role in providing information to the general public, it ordinarily can be presumed that, if a significant public interest has been identified, that will be the interest "primarily" served by disclosure to such organizations. On the other hand, the disclosure of agency records to data brokers or others who compile and market government information for direct economic return can more readily be considered as primarily in the commercial interests of the requester, depending on the nature of the records and the exact circumstances of the enterprise.

In the final analysis, each agency is best situated to make comparative assessments of the likely effects of disclosure of its own records; the statutory standard certainly affords agencies sufficient discretion with which to do so.

In making the subtle and sometimes difficult determinations required under the revised fee waiver standard, agencies should nevertheless strive to be as efficient as reasonably possible in expending agency resources on them. All fee waiver requesters, however, are entitled to full and careful consideration of the merits of their requests. (6) Where agencies undertake a fee waiver analysis according to the logical sequence of factors outlined in this guidance memorandum, they can confidently discharge their statutory obligations.

In addition to the foregoing guidance on the substantive factors to be considered in making fee waiver decisions, agencies should continue to refer to the procedural guidance with respect to fee waiver questions published in the January 1983 issue of FOIA Update, which remains effective. That guidance advises, for example, that agencies may grant a fee waiver in a percentage commensurate to the proportion of disclosable records that satisfy the statutory fee waiver standard. See FOIA Update, Jan. 1983, at 4.

Should any executive agency's administrative or legal personnel have any question regarding the implementation or interpretation of the new statutory fee waiver standard, they may contact the Department of Justice's Office of Information and Privacy, at (FTS) 633-3642 (633-FOIA).

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1. This guidance supersedes the previous fee waiver guidance issued by the Department of Justice in January 1983 and November 1986, and is effective with respect to fee waiver determinations made as of April 25, 1987. It interrelates in part with the OMB Fee Guidelines. Additionally, agencies considering fee waiver issues should note particularly the new specific fee limitation provisions to be found at 5 U.S.C. § 552(a)(4)(A)(ii), (iv), as amended, which are addressed in the OMB Fee Guidelines.

2. United States v. Weber Aircraft Corp., 465 U.S. 792, 798 (1984) (FOIA decision applying statutory language on its face); see also CIA v. Sims, 471 U.S. 159, 167 (1985) (the "plain meaning" of such statutory terms should be applied). Decisions applying the language of the previous FOIA fee waiver standard are cited in this memorandum only where their holdings are consistent with the plain language of the revised standard.

Because of the accelerated procedures by which Congress enacted the Anti-Drug Abuse Act of 1986, of which the Freedom of Information Reform Act was a part, at the close of the 99th Congress, there exists no committee report or actual floor debate on the revised fee provisions of the FOIA, although several prepared statements were inserted into the Congressional Record by Senators Hatch and Leahy and Congressmen English and Kindness. As regards the new statutory fee waiver standard, its plain meaning may readily be determined from its language.

3. The 1986 amendments to the FOIA added a new clause (vi) providing that "Nothing in this subparagraph [containing the FOIA's fee provisions] shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records." 5 U.S.C. § 552(a)(4)(A)(vi). Accordingly, this guidance does not apply to fee waivers sought in connection with requests for Defense Department technical data that are subject to the separate statutory fee and fee waiver scheme to be codified at 10 U.S.C. § 2328. It also does not apply to fees assessed or fee waivers sought in connection with requests for information provided by the National Technical Information Service, see 15 U.S.C. § 1153 (1982), or in connection with a request for records under any other statute providing for the separate charging of fees within the meaning of this provision. See OMB Fee Guidelines, sec. 6b. Fees and, if applicable, fee waivers for such records should be determined according to the standards provided in those statutes, not according to the FOIA.

4. By its terms, the revised fee waiver standard provides that the two statutory requirements it contains must be met before the requester is entitled to a waiver or reduction of fees. It does not, however, automatically require a complete waiver of all fees whenever those requirements are met; § 552(a)(4)(A)(iii) instead provides that "[d]ocuments shall be furnished without any charge or at a charge reduced below the [otherwise applicable] fees" if both requirements of the fee waiver standard are met.

As a matter of course, the Department of Justice encourages agencies to provide a waiver of fees when both requirements of the statutory standard are met, just as they must deny a waiver of fees whenever one or both of those requirements are not met.

However, Congress in amending the FOIA specifically revised and retained the reduction language in the fee waiver standard, and that language should be read to have some effect. Accord United States v. Menasche, 348 U.S. 528, 538-39 (1955) (court has duty to give effect, if possible, to every clause and word of statute); see also Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961). Therefore, in rare cases, perhaps involving exceptional burden or expenditure of public resources in the context of a request that minimally satisfies the "public interest" requirement, it may be possible to give effect to the language of the statute providing for "a charge reduced below the [otherwise applicable] fees" by granting a reduction rather than a complete waiver of fees.

5. The term "representative of the news media" appears in 5 U.S.C. § 552(a)(4)(A)(ii), which precludes the charging of search fees to certain categories of requesters. Though that term does not appear in the fee waiver standard of the Act, § 552(a)(4)(A)(iii), the fact that a request is from a "representative of the news media" for purposes of clause (ii) is clearly a relevant factor in evaluating a waiver or reduction of duplication charges under the fee waiver standard of clause (iii).

6. Decisions on fee waiver requests are matters committed to the exercise of sound agency discretion in the first instance. Once a fee waiver issue proceeds to court, however, a new judicial review provision included in the amended FOIA, 5 U.S.C. § 552(a)(4)(A)(vii), provides for review of agency fee waiver denials according to a de novo standard, as opposed to the more deferential "arbitrary or capricious" standard previously employed.

The scope of judicial review of fee waiver determinations, however, remains limited to the administrative record established before the agency. Id. As a general rule of administrative law, this record ordinarily cannot be supplemented in litigation either by the agency or by the requester. See, e.g., National Treasury Employees Union v. Griffin, 811 F.2d at 648. It therefore is imperative that an agency create a comprehensive administrative record of each fee waiver denial, specifying in as much detail as reasonably possible each of the grounds upon which it is based. See FOIA Update, Winter 1985, at 6.

It should be noted, however, that the de novo review standard of § 552(a)(4)(A)(vii) applies by its terms only to the "waiver of fees," i.e., to determinations made under clause (iii). Thus, agency determinations of fee assessments made under any other provision of § 552(a)(4)(A) should continue to be subject to judicial review according to the traditional "arbitrary or capricious" standard.

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