FOIA Update: New FOIA Fee Provisions Take Effect

January 1, 1987

FOIA Update
Vol. VIII, No. 1
1987


New FOIA Fee Provisions Take Effect

The first half of 1987 saw a great deal of FOIA activity as federal agencies, under the guidance of the Office of Management and Budget and the Department of Justice, moved to implement the new fee and fee waiver provisions contained in last year's FOIA reform legislation (see FOIA Update, Fall 1986, at 2-4).

The Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, §§ 1801-1804, 100 Stat. 3207, 3207-48 (1986), established a new fee structure under the FOIA, one which includes new limitations on the assessment of fees both generally as well as for certain categories of requesters in particular. At the same time, it authorized agencies to impose new record "review" charges designed to recover the actual cost of complying with requests made by commercial requesters. Additionally, the new law replaced the statutory provision governing the general waiver or reduction of FOIA fees with a somewhat revised fee waiver standard.

Under the FOIA Reform Act, which was signed into law last October, the new fee and fee waiver provisions were to become effective only after the expiration of a 180-day period, during which all federal agencies were expected to revise their respective FOIA regulations in order to implement these new provisions. However, what might have seemed to be a viable time period for that activity at the outset soon proved to be widely insufficient, primarily due to the multiple-step process that was required.

OMB Fee Guidelines

The necessary first step in this regulation-revision process, under the explicit requirements of the legislation, involved the development of "a uniform schedule of fees" by the Office of Management and Budget. OMB was accorded governmentwide policy responsibility for FOIA fee (but not fee waiver) matters under the amended law. Although OMB diligently took up this responsibility, publishing a proposed uniform fee schedule at the beginning of the year, this threshold enterprise was complicated by the requirements of the public-notice-and-comment process, as well as by the fact that considerable controversy surrounded the content and precise formulation of OMB's fee guidelines.

Finally, after much public debate and internal deliberation, the Uniform Freedom of Information Act Fee Schedule and Guidelines were issued at the end of March, exactly five months into the six-month statutory period allowed for the completion of the entire regulation-revision process. See 52 Fed. Reg. 10011 (Mar. 27, 1987). These guidelines provided a workable outline for individual agency regulations implementing the new fee provisions and also defined several crucial terms -- most notably "commercial use request," "non-commercial scientific institution," "educational institution," and "representative of the news media" -- that are pertinent to the implementation of the amended law's fee limitation provisions, particularly its new categorical limitations on search fees.

Justice Fee Waiver Guidance

At the same time, the Department of Justice worked to develop new governmentwide policy guidance on the waiver of FOIA fees, to replace the Justice Department guidance issued in January 1983 in accordance with the previous statutory fee waiver standard. Under the reform legislation, agencies were required for the first time to include in their regulations both "procedures and guidelines for determining when [FOIA] fees should be waived or reduced," so the Department followed OMB's fee schedule with the issuance of its fee waiver policy guidance in order to facilitate the process of individual agency regulation revision.

On April 2, in a memorandum to the heads of all federal agencies from the Assistant Attorney General for Legal Policy, Stephen J. Markman, the Department issued its New FOIA Fee Waiver Policy Guidance (see center pages of this FOIA Update issue), in which it set forth six factors logically to be taken into consideration in applying the FOIA's revised fee waiver standard. As in the past, this detailed policy guidance became the subject of no small amount of controversy itself.

Thereafter, during the month of April and beyond, federal agencies moved to revise their respective FOIA regulations in accordance with the provisions of the new law and the governmentwide guidance on fee and fee waiver matters provided to them. With an April 25 statutory deadline, however, it was impossible for any agency to conform its revised regulation to the final governmentwide guidance, publish it for public notice and formal comment, conclude the comment process, and then publish a final regulation and have it be effective in time. Although some agencies attempted to meet the deadline through shortened comment periods or the use of "interim" regulations, even those efforts were thwarted by OMB's determination that a new FOIA fee regulation, once issued in final form, could not be deemed effective until after the expiration of a further 30-day waiting period.

Unprecedented "Interim Period"

This placed virtually all federal agencies, as of Monday, April 27, in an unprecedented "interim period" in which the fee and fee waiver provisions of the amended FOIA were intended to be fully effective, but in which agencies did not have the benefit of viable regulations by which to implement them. Although it seemed certain from the language of the statute that agencies could not assess new review fees against commercial requesters until after the issuance of their final regulations (section 1804(b)(2) of the amendments expressly addressed that), many agencies were uncertain about how to handle this "interim period" overall.

OMB advised all agencies who inquired that during this period they should give FOIA requesters the full benefits of both sets of fee provisions (old and new), applying in each instance the fee provisions which most benefit that requester. This meant that agencies continued to charge fees according to their existing regulations, except where a new statutory provision -- such as the minimum charge provisions that are now located at 5 U.S.C. § 552(a)(4)(A)(iv)(I)-(II) or the search fee limitations of 5 U.S.C. § 552(a)(4)(A)(ii)(II) -- would provide any greater benefit to a particular requester. Regarding fee waiver determinations, the Justice Department similarly advised that agencies could of course continue to grant waivers under either standard, but that any fee waiver denial during an "interim period" should address the terms of the new fee waiver standard, as well as those of the old standard where a request was made under it. As for the date upon which a fee is "fixed," OMB determined, in consultation with the Justice Department, that FOIA fees should be deemed fixed as of the date upon which they are assessed, i.e., a fee assessed prior to the effective date of the new fee provisions should not be affected by them.

Thus, as spring drew to a close, federal agencies continued to move toward full implementation of the new FOIA fee and fee waiver provisions in place of the old ones. In preparing their proposed (and, in some cases, final) implementing regulations, they relied quite heavily on the fee guidelines issued by OMB. So, too, did they in all but a few instances follow closely the fee waiver guidance issued by the Justice Department, despite the repeated urgings of Rep. Glenn English (D-Okla.), Chairman of the House Subcommittee on Government Information, Justice and Agriculture, that they not do so. It remains to be seen whether the controversy that has surrounded both OMB's fee guidelines and the Justice Department's fee waiver guidance will lead to further, more specific challenges.

New Law Enforcement Provisions

Meanwhile, the significant law enforcement provisions of the FOIA Reform Act, which took effect immediately upon enactment last year, have been applied by federal agencies without controversy and have begun to be given effect in court decisions. In order to coordinate the implementation of these new provisions (see FOIA Update, Fall 1986, at 1-2, 5-6), the Office of Information and Privacy gathered representatives of all interested agencies for a special review of all law enforcement-related aspects of the FOIA in February. Entitled the "Special FOIA Seminar for Law Enforcement Agencies," this full-day program was held at the FBI's main auditorium and was attended by more than 300 persons. Additionally, beyond working with law enforcement agencies and components individually on issues arising under these new provisions, the Justice Department is preparing a comprehensive memorandum on the 1986 amendments, similar to those issued by the Attorney General upon the FOIA's enactment and again after the passage of the first major FOIA amendments in 1974, for wide distribution in the near future.

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NEW UPDATE FORMAT

With this issue, FOIA Update returns after a brief absence during which a new printing format for it was developed. Henceforth, FOIA Update will continue to be published four times per year, but it will appear in this more economical format now employed in accordance with recent Department of Justice publication requirements.

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