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Freedom of Information Act Guide, May 2004

Fees and Fee Waivers

Prior to the passage of the Freedom of Information Reform Act of 1986, (1) the FOIA authorized agencies to assess reasonable charges only for document search and duplication, and any assessable fees were to be waived or reduced if disclosure of the requested information was found to be generally in the "public interest." (2) The FOIA Reform Act brought significant changes to the way in which fees are now assessed under the FOIA. A new fee structure was established, including a new provision authorizing agencies to assess "review" charges when processing records in response to a commercial-use request. (3) Specific fee limitations and restrictions were set on the assessment of certain fees both in general as well as for certain categories of requesters. (4) Additionally, the 1986 FOIA amendments replaced the statutory fee waiver provision with a revised standard. (5) These revised fee and fee waiver provisions were made effective as of mid-1987, but required implementing agency regulations to become fully effective. (6)

Under the FOIA Reform Act, the Office of Management and Budget was charged with the responsibility of promulgating, pursuant to notice and receipt of public comment, a "uniform schedule of fees" (7) for individual agencies to follow when promulgating their FOIA fee regulations. (8) On March 27, 1987, OMB issued its Uniform Freedom of Information Act Fee Schedule and Guidelines [hereinafter OMB Fee Guidelines]. (9) As mandated by the 1986 FOIA amendments, agencies are obligated to conform their fee schedules to these guidelines. (10)

The FOIA Reform Act also required agencies to promulgate specific "procedures and guidelines for determining when such fees should be waived or reduced." (11) The Department of Justice, in accordance with its statutory responsibility to encourage agency compliance with the FOIA, (12) developed new governmentwide policy guidance on the waiver of FOIA fees, to replace its previously issued guidance implementing the predecessor statutory fee waiver standard. (13) In April 1987, to assist federal agencies in addressing fee waivers in their revised FOIA fee regulations, the Department of Justice issued its New FOIA Fee Waiver Policy Guidance to the heads of all federal departments and agencies, which remains in effect. (14) While the Electronic Freedom of Information Act Amendments of 1996 (15) made no direct changes to either the fee or fee waiver provisions of the FOIA, (16) several of those amendments can have an effect on fee matters. (17) More recently, the limited but significant amendment to the FOIA made in 2002 by the Intelligence Authorization Act of 2003 (18) was confined in scope to agencies within the intelligence community and has no direct effect on either the fee or fee waiver provisions. (19) (For discussions of this amendment, see Introduction, above, and Procedural Requirements, FOIA Requesters, above.)

Fees

As amended by the Freedom of Information Reform Act of 1986, the FOIA provides for three levels of fees that may be assessed in response to FOIA requests according to categories of FOIA requesters. (20) Within each fee level, the statute provides for limitations on the types of fees that an agency may assess. (21) An agency's determination of the appropriate fee level for an individual requester is dependent upon the identity of the requester and the intended use of the information sought. (22) The limitations placed on the types of fees that may be assessed are not the statutory equivalent of fee "waivers"; (23) rather, they are best characterized as statutory fee "limitations" in accordance with the structure of the statute. (24) (For a discussion of fee waivers under the FOIA, see Fee Waivers, below.)

The following discussion summarizes the FOIA's fee provisions. The Uniform Freedom of Information Act Fee Schedule and Guidelines [hereinafter OMB Fee Guidelines], (25) which provide general principles for how agencies should set fee schedules and make fee determinations, and include definitions of statutory fee terms, discuss these provisions in greater, authoritative detail. Anyone with a FOIA fee (as opposed to fee waiver) question should consult these guidelines in conjunction with the appropriate agency's FOIA regulations for the records at issue. Agency personnel should attempt to resolve such fee questions by consulting first with their FOIA officers. Whenever fee questions cannot be resolved in that way, agency FOIA officers should direct them to OMB's Office of Information and Regulatory Affairs, Information Policy and Technology Branch, at (202) 395-3785.

The first level of fees provided for by the FOIA encompasses charges for document search, review, and duplication, which are applicable "when records are requested for commercial use." (26) The OMB Fee Guidelines define the term "commercial use" as "a use or purpose that furthers the commercial, trade or profit interests of the requester or the person on whose behalf the request is being made," (27) which can include furthering those interests through litigation. (28) Designation of a requester as a "commercial-use requester," therefore, will turn on the use to which the requested information would be put, rather than on the identity of the requester. (29) Agencies are encouraged to seek additional information or clarification from the requester when the intended use is not clear from the request itself. (30)

Charges for document "search" include all the time spent looking for responsive material, including page-by-page or line-by-line identification of material within documents. (31) Additionally, agencies may charge for search time even if they fail to locate any records responsive to the request or even if the records located are subsequently determined to be exempt from disclosure. (32) Searches for responsive records should be done in the "most efficient and least expensive manner." (33) As defined by the Electronic Freedom of Information Act Amendments of 1996, (34) the term "search" means locating records or information either "manually or by automated means" (35) and requires agencies to expend "reasonable efforts" in electronic searches, if requested to do so by requesters willing to pay for that search activity. (36)

The "review" costs which may be charged to commercial-use requesters consist of the "direct costs incurred during the initial examination of a document for the purposes of determining whether [it] must be disclosed [under the FOIA]." (37) Review time thus includes processing the documents for disclosure, i.e., doing all that is necessary to prepare them for release, (38) but it does not include time spent resolving general legal or policy issues regarding the applicability of particular exemptions or reviewing on appeal exemptions that already are applied. (39)

Under the 1986 FOIA amendments, "duplication" charges represent the reasonable "direct costs" of making copies of documents. (40) Copies can take various forms, including paper copies, microforms, or machine-readable documentation. (41) As further required by the Electronic FOIA amendments, (42) which were enacted a decade later, agencies must honor a requester's choice of form or format if the record is "readily reproducible" in that form or format with "reasonable efforts" by the agency. (43) For copies prepared by computer, such as printouts, agencies should charge the actual costs of production of the printout. (44) Agencies should consult with their technical support staff for assistance in determining their actual costs associated with producing copies of various types of media. (45) In this regard, it is standard practice that duplication charges are assessed only for those copies that are released, not for any responsive record withheld in its entirety. (46) (For further discussions of agency responsibilities when searching for or producing responsive records under the Electronic FOIA amendments, see Procedural Requirements, Searching for Records, above, and Procedural Requirements, Responding to FOIA Requests, above.)

The second level of fees limits charges to document duplication costs only, "when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media." (47) FOIA requesters falling into one or more of these three subcategories of requesters under the 1986 FOIA amendments enjoy a complete "exemption" from the assessment of search and review fees. (48) Their requests, like those made by any FOIA requester, still must "reasonably describe" the records sought in order to not impose upon an agency "'an unreasonably burdensome search.'" (49) (For a further discussion of this requirement, see Procedural Requirements, Proper FOIA Requests, above.)

The OMB Fee Guidelines define "educational institution" to include various categories of schools, as well as institutions of higher learning and vocational education. (50) This definition is limited, however, by the requirement that the educational institution be one "which operates a program or programs of scholarly research." (51) To qualify for inclusion in this fee category, the request must serve a scholarly research goal of the institution, not an individual goal. (52) The definition of a "noncommercial scientific institution" refers to a "noncommercial" institution that is "operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry." (53)

The definition of a "representative of the news media" refers to any person actively gathering information of current interest to the public for an organization that is organized and operated to publish or broadcast news to the general public. (54) The Court of Appeals for the District of Columbia Circuit has elaborated upon this definition, holding that "a representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." (55) In reaching its decision, the D.C. Circuit relied in large part on the legislative history of the 1986 FOIA amendments, (56) not finding the term "representative of the news media . . . self-evident [in] what [it] covers." (57) During the next decade, this category of FOIA requesters received scant additional attention by the courts. (58)

In more recent years, however, perhaps partly due to the passage of the Electronic FOIA amendments, (59) in conjunction with the ushering in of the "Information Age," (60) there has been renewed interest in the question of what constitutes a "representative of the news media" both in the FOIA context (61) and with regard to non-FOIA matters as well. (62) Indeed, since 2000, there have been no fewer than nine district court FOIA decisions on this issue that have arisen within the D.C. Circuit, with eight involving the same plaintiff organization. In almost all of these decisions, the court found that the organization before it was not such an entity. (63) In addition to their reliance on the framework established by D.C. Circuit in National Security Archive, these numerous decisions also relied on the implementing regulations for the fee limitations/fee category portion of the statute. (64) Despite the direction taken (and given) by the District Court for the District of Columbia on this issue though, it is likely to remain a somewhat unsettled area of law until it can be addressed by the D.C. Circuit, and other circuit courts as the issue develops, as well. (65)

The D.C. Circuit did make clear at the time of its decision in National Security Archive, however, that the term "representative of the news media" excludes "'private librar[ies]' or 'private repositories'" of government records, or middlemen such as "'information vendors [or] data brokers,'" who request records for use by others. (66) This fee category, though, includes freelance journalists, when they can demonstrate a solid basis for expecting the information disclosed to be published by a news organization. (67)

It is well settled that a request from a representative of the news media that supports a news-dissemination function "shall not be considered to be a request that is for a commercial use." (68) A request from a representative of the news media that does not support its news-dissemination function, however, should not be accorded the favored fee treatment of this subcategory. (69)

Further, a request that is made to support an endeavor that merely makes the information received available to the public (or others) is not sufficient to qualify it for placement in this fee category. (70) Under the FOIA, once a requester has gathered information of interest to the public it must, in some manner, "use its editorial skills to turn the raw materials into a distinct work" in order to qualify as a representative of the news media. (71) In the first case to construe this subcategory of requesters, the requester's status was not in dispute but rather where the news organization performed its media function. There the court held that even a foreign news service may qualify as a representative of the news media. (72)

The third level of fees, which applies to all requesters who do not fall within either of the preceding two fee levels, consists of reasonable charges for document search and duplication, (73) as was provided for in the statutory FOIA fee provision that was in place before the 1986 FOIA amendments.

When any FOIA request is submitted by someone on behalf of another person -- for example, by an attorney on behalf of a client -- it is nevertheless the underlying requester's identity and intended use that determines the level of fees. (74) When such information is not readily apparent from the request itself, agencies should seek clarification from the requester before assigning a requester to a specific requester category. (75) Agencies also should be alert to the fact that a requester's category can change over time. (76)

Additionally, the OMB Fee Guidelines authorize the recovery of the full costs of providing all categories of requesters with "special services" that are not required by the FOIA, such as when an agency complies with a request for certifying records as true copies or mailing records by express mail. (77) In this regard, agencies should strive to use the most efficient and least costly means of complying with a request. (78) This may include the use of contractor services, as long as an agency does not relinquish responsibilities it alone must perform, such as making fee waiver determinations. (79)

The fee structure also includes restrictions both on the assessment of certain fees (80) and on the authority of agencies to ask for an advance payment of a fee. (81) No FOIA fee may be charged by an agency if the government's cost of collecting and processing the fee is likely to equal or exceed the amount of the fee itself. (82) In addition, except with respect to commercial-use requesters, agencies must provide the first one hundred pages of duplication, as well as the first two hours of search time, without cost to the requester. (83) These two provisions work together so that, except with respect to commercial-use requesters, agencies should not begin to assess fees until after they provide this amount of free search and duplication; the assessable fee for any requester then must be greater than the agency's cost to collect and process it in order for the fee actually to be charged. (84)

Agencies also may not require a requester to make an advance payment, i.e., payment before work is begun or continued on a request, unless the agency first estimates that the assessable fee is likely to exceed $250, or unless the requester has previously failed to pay a properly assessed fee in a timely manner (i.e., within thirty days of the billing date). (85) This statutory restriction does not prevent agencies from requiring payment before records which have been processed are released. (86) Additionally, when an agency reasonably believes that a requester is attempting to break a request into a series of requests for the purpose of avoiding the assessment of fees, the agency may aggregate those requests and charge accordingly. (87) The OMB Fee Guidelines should be consulted for additional guidance on aggregating requests. (88)

The FOIA also provides that FOIA fees are superseded by "fees chargeable under a statute specifically providing for setting the level of fees for particular types of records." (89) Thus, when documents responsive to a FOIA request are maintained for distribution by an agency according to a statutorily based fee schedule, requesters should obtain the documents from that source and pay the applicable fees in accordance with the fee schedule of that other statute. (90) This may at times result in the assessment of fees that are higher than those that would otherwise be chargeable under the FOIA, (91) but it ensures that such fees are properly borne by the requester and not by the general public. (92) Given the increasing availability of low-cost and free government information through the Internet and other electronic sources, it remains to be seen whether those agencies with such statutorily based fee schedules -- and which do not receive appropriated funds to support their record-distribution services, but are required by law to be self-sustaining -- will continue to be viable sources of government information. (93) The superseding of FOIA fees by the fee provisions of another statute raises a related question as to whether an agency with a statutorily based fee schedule for particular types of records is subject to the FOIA's fee waiver provision; although this question has been raised, it has not yet been reached by an appellate court. (94)

The FOIA requires that requesters follow the agency's published rules for making FOIA requests, including those pertaining to the payment of authorized fees. (95) Requesters have been found not to have exhausted their ad-ministrative remedies when fee requirements have not been met. (96) A requester's obligation to comply with the agency's fee requirements does not cease after litigation has been initiated under the FOIA. (97) (For a further discussion of the exhaustion requirement, including "fee" exhaustion, see Litigation Considerations, Exhaustion of Administrative Remedies, below.)

Further, the Act contains no provision for reimbursement of fees if the requester is dissatisfied with the agency's response. (98) Nor does the FOIA provide for penalties to be assessed against an agency or its administrators for delays in refunding a requester's overpayment. (99)

Because the FOIA Reform Act was silent with respect to the standard and scope of judicial review of FOIA fee issues, including a requester's fee category, (100) the standard and scope of review should remain the same as that under the predecessor statutory fee provision -- i.e., agency action should be upheld unless it is found to be "arbitrary or capricious," in accordance with the Administrative Procedure Act. (101) Perhaps due to this lack of statutory clarity, the appropriate standard of review has yet to be clearly established in the decisions that have considered this issue. (102) Despite statutory language that seems to specify to the contrary, (103) the majority of courts that have reviewed fee issues under the FOIA have applied a single review standard (i.e., de novo review) to both fee and fee waiver matters, and they have done so with little or no discussion. (104) As for the scope of the court's review, it should be limited to the administrative record before the agency at the time of its decision, not some new record made before the reviewing court. (105)

In 1989, in an important case brought in the D.C. Circuit, (106) the government argued that the defendant agency's interpretation of the 1986 fee amendments to the FOIA, reflected by the agency's implementing regulations, was owed great deference under the rule established by the Supreme Court in Chevron USA, Inc. v. Natural Resources Defense Council. (107) The D.C. Circuit avoided addressing the judicial review issue, however, by finding that with reference to the underlying fee issue, "the statute, read in light of the legislative history  . . . was] clear." (108) Thus, some fifteen years later, the extent of judicial deference given to agency fee regulations that are based upon the OMB Fee Guidelines remains unclear. (109)

Fee Waivers

The FOIA, as strengthened by the 1974 FOIA amendments, (110) authorized waiver of fees when it was determined that such action was "in the public interest because furnishing the information can be considered as primarily benefitting the general public." (111) As the Court of Appeals for the District of Columbia Circuit had emphasized, this provision "was enacted to ensure that the public would benefit from any expenditure of public funds for the disclosure of public records." (112) In January 1983, the Department of Justice issued fee waiver guidelines that set forth specific criteria, developed in numerous court decisions, for federal agencies to apply in determining whether the public interest warranted a waiver or reduction of fees. (113)

The current fee waiver standard, which was established by the Freedom of Information Reform Act of 1986, (114) more specifically defines the term "public interest" by providing that fees should be waived or reduced "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." (115) In accordance with this provision, the Department of Justice issued revised fee waiver policy guidance on April 2, 1987 -- which superseded its 1983 substantive fee waiver guidance, as well as that issued in 1986 (concerning institutions and record repositories) (116) -- and it advised agencies of six analytical factors to be considered in applying this statutory fee waiver standard. (117) These six factors were applied and implicitly approved by the Court of Appeals for the Ninth Circuit in McClellan Ecological Seepage Situation v. Carlucci. (118)

The statutory fee waiver standard as amended in 1986 contains two basic requirements -- the public interest requirement and the requirement that the requester's commercial interest in the disclosure, if any, must be less than the public interest in it. (119) Both of these statutory requirements must be satisfied by the requester before properly assessable fees are waived or reduced under the statutory standard. (120) In this regard, of course, it is the requester, not the requester's representative or counsel, who must demonstrate his entitlement to a fee waiver. (121) Requests for a waiver or reduction of fees must be considered on a case-by-case basis (122) and should address both of the statutory requirements in sufficient detail for the agency to make an informed decision as to whether it can appropriately waive or reduce the fees in question. (123) Further, when a requester fails to provide sufficient information for the agency to make that decision, the agency may of course defer consideration of a fee waiver request in order to ask the requester for all necessary supplemental or clarifying information. (124) As an additional threshold matter, and just as with disclosures made under the FOIA, (125) agencies analyzing fee waiver requests are not strictly bound by previous administrative decisions. (126)

In order to determine whether the first fee waiver requirement has been met -- i.e., that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of government operations or activities (127) -- agencies should consider the following four factors, in sequence: (128)

1. First, the subject matter of the requested records, in the context of the request, must specifically concern identifiable "operations or activities of the government." (129) As the D.C. Circuit specifically indicated in applying the predecessor fee waiver standard, "the links between furnishing the requested information and benefitting the general public" should not be "tenuous." (130) Although in most cases records possessed by a federal agency will meet this threshold, the records must be sought for their informative value with respect to specifically identified government operations or activities; (131) a request for access to records for their intrinsic informational content alone would not satisfy this threshold consideration. (132)

2. Second, in order for the disclosure to be "likely to contribute" to an understanding of specific government operations or activities, the disclosable portions of the requested information must be meaningfully informative in relation to the subject matter of the request. (133) Requests for information that is already in the public domain, either in a duplicative or a substantially identical form, may not warrant a fee waiver because the disclosure would not be likely to contribute to an understanding of government operations or activities when nothing new would be added to the public's understanding. (134) Under existing case law, however, there is no clear consensus yet as to what "is and what is not" considered information in the public domain. (135)

3. Third, the disclosure must 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. (136) In the past, courts have generally not defined the "public-at-large" to include the prison population. (137) More recently, courts have considered prisoners as the "public" within the meaning of the FOIA, (138) though the issue has not yet been conclusively decided. Further, whether the "public-at-large" encompasses only the population of the United States has not been clearly resolved by the courts either. Only one case has directly raised this issue, one in which it was held that disclosure to a foreign news syndicate that publishes only in Canada satisfies the requirement that it contribute to "public understanding." (139)

As the proper focus must be on the benefit to be derived by the public, any personal benefit to be derived by the requester, or the requester's particular financial situation, are not factors entitling him or her to a fee waiver. (140) Indeed, it is well settled that indigence alone, without a showing of a public benefit, is insufficient to warrant a fee waiver. (141)

Additionally, agencies should evaluate the identity and qualifications of the requester -- e.g., expertise in the subject area of the request and ability and intention to disseminate the information to the public -- in order to determine whether the public would benefit from disclosure to that requester. (142) Specialized knowledge may be required to extract, synthesize, and effectively convey the information to the public, and requesters certainly vary in their ability to do so. (143) Although established representatives of the news media, as defined in the Uniform Freedom of Information Act Fee Schedule and Guidelines [hereinafter OMB Fee Guidelines], (144) should be readily able to meet this aspect of the statutory requirement by showing their connection to a ready means of effective dissemination, (145) other requesters should be required to describe with greater substantiation their expertise in the subject area and their ability and intention to disseminate the information. (146)

Some decisions under the former fee waiver standard suggested that journalists should presumptively be granted fee waivers. (147) The Department of Justice encourages agencies to give special weight to journalistic credentials under this factor, (148) though the statute provides no specific presumption that journalistic status alone is to be dispositive under the fee waiver standard overall and such a presumption would run counter to the 1986 amendments that set forth a special fee category for representatives of the news media. (149) (For a discussion of news media requesters in the context of attorney fee awards under the FOIA, see Tax Analysts v. United States Department of Justice (150) and Litigation Considerations, Attorney Fees and Litigation Costs: Entitlement, below.)

Additionally, in this regard, while nonprofit organizations and public interest groups often are capable of disseminating information, they do not by virtue of their status presumptively qualify for fee waivers; rather they must, like any requester, meet the statutory requirements for a full waiver of all fees. (151)

Further, the requirement that a requester demonstrate a contribution to the understanding of the public at large is not satisfied simply because a fee waiver request is made by a library or other record repository, or by a requester who intends merely to disseminate the information to such an institution. (152) Requests that make no showing of how the information would be disseminated, other than through passively making it available to anyone who might seek access to it, do not meet the burden of demonstrating with particularity that the information will be communicated to the public. (153) These requests, like those of other requesters, should be analyzed to identify a particular person or persons who actually will use the requested information in scholarly or other analytic work and then disseminate it to the general public. (154)

4. Fourth, the disclosure must contribute "significantly" to public understanding of government operations or activities. (155) To warrant a waiver or reduction of fees, the public's understanding of the subject matter in question, as compared to the level of public understanding existing prior to the disclosure, must be likely to be enhanced by the disclosure to a significant extent. (156) Such a determination must be an objective one; agencies are not permitted to make separate value judgments as to whether any information that would in fact contribute significantly to public understanding of government operations or activities is "important" enough to be made public. (157)

Once an agency determines that the "public interest" requirement for a fee waiver has been met -- through its consideration of fee waiver factors one through four -- the statutory standard's second requirement calls for the agency to determine whether "disclosure of the information . . . is not primarily in the commercial interest of the requester." (158) In order to decide whether this requirement has been satisfied, agencies should consider the final two of the six fee waiver factors -- factors five and six -- in sequence:

5. Accordingly, to apply the fifth factor an agency must next determine as a threshold matter whether the request involves any commercial interest of the requester which would be furthered by the disclosure. (159) A "commercial interest" is one that furthers a commercial, trade, or profit interest as those terms are commonly understood. (160) Information sought in furtherance of a tort claim for compensation or retribution for the requester is not considered to involve a "commercial interest." (161) However, not only profit-making corporations but also individuals or other organizations may have a commercial interest to be furthered by the disclosure, depending upon the circumstances involved. (162) Agencies may properly consider the requester's identity and the circumstances surrounding the request and draw reasonable inferences regarding the existence of a commercial interest. (163)

When a commercial interest is found to exist and that interest would be furthered by the requested disclosure, an agency must assess the magnitude of such interest in order subsequently to compare it to the "public interest" in disclosure. (164) In assessing the magnitude of the commercial interest, the agency should reasonably consider the extent to which the FOIA disclosure will serve the requester's identified commercial interest. (165)

6. Lastly the agency must balance the requester's commercial interest against the identified public interest in disclosure and determine which interest is "primary." A fee waiver or reduction must be granted when the public interest in disclosure is greater in magnitude than the requester's commercial interest. (166) Or as one court phrased it when considering the balance to be struck under the predecessor fee waiver standard: "[I]n simple terms, the public should not foot the bill unless it will be the primary beneficiary of the [disclosure]." (167)

Although news gathering organizations ordinarily have a commercial interest in obtaining information, agencies may generally presume that when a news media requester has satisfied the "public interest" standard, that will be the primary interest served. (168) On the other hand, disclosure to private repositories of government records or data brokers may not be presumed to primarily serve the public interest; rather, requests on behalf of such entities can more readily be considered as primarily in their commercial interest, depending upon the nature of the records and their relation to the exact circumstances of the enterprise. (169)

When agencies analyze fee waiver requests by considering these six factors, they can rest assured that they have carried out their statutory obligation to determine whether a waiver is in the public interest. (170) When an agency has relied on factors unrelated to the public benefit standard to deny a fee waiver request, however, courts have found an abuse of discretion. (171) Additionally, when only some of the requested records satisfy the statutory test, a waiver should be granted for those records. (172)

An analysis of the foregoing factors routinely requires an agency to first assess the nature of the information likely to be released in response to an access request, because the statutory standard speaks to whether "disclosure" of the responsive information will significantly contribute to public understanding. (173) This assessment necessarily focuses on the information that would be disclosed, (174) which in turn logically requires an estimation of the applicability of any relevant FOIA exemption(s).

In an atypical decision, the extent to which an agency should be required to establish at the fee waiver determination stage the precise contours of its anticipated withholdings was raised in Project on Military Procurement v. Department of the Navy. (175) There the district court seemed to suggest that an agency must defend an anticipated application of FOIA exemptions in the fee waiver context with an index pursuant to the requirements of Vaughn v. Rosen. (176) Such a requirement not only was unprecedented, it is also unworkable -- as it would compel an agency to actually process responsive records at the threshold fee waiver determination stage in order to compile the Vaughn Index; it would turn the normal, longstanding procedure for responding to FOIA/fee waiver requests on its head. (177) Until a fee waiver determination has been made and (if a full fee waiver is not granted) the requester has agreed to pay all the assessable fees, the request is not yet ripe for processing because there has been no compliance with the fee requirements of the FOIA. (178) Because the decision on this issue in Project on Military Procurement would yield impracticable results, (179) it should not be followed. (180) Agencies should retain the general discretion, though, to consider the cost-effectiveness of their investment of administrative resources in their fee waiver determinations. (181)

The FOIA does not explicitly reference any time period within which an agency must resolve a fee waiver issue. (182) The extension of the statutory twenty-working day compliance requirement to include the resolution of fee waiver (and fee) issues, however, is a logical application of the statutory twenty-day provision; indeed, several courts, including the D.C. Circuit, have implicitly approved such application. (183) (For a discussion of when the need to resolve a procedural issue, including a fee-related matter, may extend the time period within which an agency must determine whether to comply with a request, see Procedural Requirements, Time Limits, above.)

Nor does the FOIA explicitly provide for administrative appeals of denials of requests for fee waivers. Nevertheless, many agencies, either by regulation or by practice, have appropriately considered appeals of such actions. (184) The Courts of Appeals for the D.C. and Fifth Circuits have made it clear, moreover, that appellate administrative exhaustion is required for any adverse determination, including fee waiver denials. (185)

Prior to the 1986 FOIA amendments, the discretionary nature of the FOIA's fee waiver provision led the majority of courts to conclude that the proper standard for judicial review of an agency denial of a fee waiver is whether that decision was arbitrary and capricious, (186) in accordance with the Administrative Procedure Act. (187) This meant that a court could not "replace its own judgment for that of [an agency] without first concluding that the [agency's] decision was completely unreasonable and unfair." (188)

This standard was changed, however, when a specific judicial review provision was included in the FOIA, (189) which provides for the review of agency fee waiver denials according to a de novo standard. (190) Yet this provision also explicitly provides that the scope of judicial review remains limited to the administrative record established before the agency, (191) and thus it is crucial that the agency's fee waiver denial letter create a comprehensive administrative record of all of the reasons for the denial. (192)

A requester wishing to challenge an agency's denial of a fee waiver may seek judicial review of the agency's decision. (193) In this regard, agencies should also be aware that a challenge to an agency's fee waiver policy is not automatically rendered moot when the agency reverses itself and grants the specific fee waiver request; courts may still entertain challenges when they concern the legality of the standards used and not the belated grant of a fee waiver. (194) For additional guidance on any particular fee waiver issue, agency FOIA officers may contact OIP's FOIA Counselor service, at (202) 514-3642.

    1. Pub. L. No. 99-570, 1801-04, 100 Stat. 3207.

    2. Pub. L. No. 93-502, 1-3, 88 Stat. 1561-64 (1974).

    3.  1803, 100 Stat. at 3207-49.

    4. See id. at 3207-50.

    5. Id.

    6. Id.  1804(b), 100 Stat. at 3207-50; see also FOIA Update, Vol. VIII, No. 1, at 2 (advising agencies that until implementing regulations were in place, they "should give FOIA requesters the full benefits of both . . . old and new" statutory provisions).

    7. 5 U.S.C.  552(a)(4)(A)(i) (2000); cf. Media Access Project v. FCC, 883 F.2d 1063, 1069 (D.C. Cir. 1989) (rejecting plaintiff's claim that OMB's authority is limited to establishing "'price list'").

    8. Pub. L. No. 99-570,  1803, 100 Stat. at 3207-49; see Media Access Project, 883 F.2d at 1069 (finding that the FOIA expressly mandates that OMB establish a fee schedule and guidelines for statutory fee categories).

    9. 52 Fed. Reg. 10,012 (Mar. 27, 1987).

    10. 5 U.S.C.  552(a)(4)(A)(i).

    11. Pub. L. No. 99-570,  1803, 100 Stat. at 3207-49.

    12. See 5 U.S.C.  552(e); see also FOIA Update, Vol. XIX, No. 3, at 6; FOIA Update, Vol. XIV, No. 3, at 8.

    13. See FOIA Update, Vol. VIII, No. 1, at 1-2; FOIA Update, Vol. VII, No. 3, at 3; FOIA Update, Vol. IV, No. 1, at 3-4.

    14. See FOIA Update, Vol. VIII, No. 1, at 3-10; Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act 41-50 (Dec. 1987); see also, e.g., Department of Justice FOIA Regulations, 28 C.F.R.  16.11 (2004) (example of fee regulation).

    15. Pub. L. No. 104-231, 110 Stat. 3048 (codified as amended at 5 U.S.C.  552 (2000)).

    16. 5 U.S.C. 552(a)(4)(A).

    17. See, e.g., 5 U.S.C. 552(a)(3)(B) (providing for information to be disclosed in requester's choice of form or format if "readily reproducible" by agency).

    18. Pub. L. No. 107-306, 116 Stat. 2383 (2002).

    19. See also FOIA Post, "FOIA Amended by Intelligence Authorization Act" (posted 12/23/02) (describing breadth and impact of 2002 FOIA amendment).

    20. 5 U.S.C. 552(a)(4)(A)(ii)(I), (II), (III) (2000).

    21. See id.; see also Eagle v. United States Dep't of Commerce, No. C-01-20591, 2003 WL 21402534, at *4 (N.D. Cal. Apr. 28, 2003) (observing that the statutory limitations on the types of fees that may be charged do not per se disqualify a requester from obtaining a fee waiver under 5 U.S.C.  552(a)(4)(A)(iii)).

    22. See 5 U.S.C.  552(a)(4)(A)(ii); see also FOIA Update, Vol. VIII, No. 1, at 4.

    23. See 5 U.S.C. 552(a)(4)(A)(iii).

    24. See 5 U.S.C. 552(a)(4)(A)(ii) (specifying in each fee level that "fees shall be limited to" search, review, and duplication (level one), duplication (level two), or search and duplication (level three) (emphasis added); see also Judicial Watch v. United States Dep't of Energy, No. 01-0981, 2004 WL 635180, at *7 (D.D.C. Mar. 31, 2004) (motion for reconsideration pending) (recognizing proper statutory distinction between "fee limitations" and "fee waivers"); Eagle, 2003 WL 21402534, at *2 (same).

    25. 52 Fed. Reg. 10,012 (Mar. 27, 1987).

    26. 5 U.S.C.  552(a)(4)(A)(ii)(I); see Avondale Indus. v. NLRB, No. 96-1227, slip op. at 14 n.4 (E.D. La. Mar. 20, 1998) (noting that case law is "sparse" as to what constitutes "commercial use"). See generally L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32 (1999) (upholding state statute that denied commercial publishers access to arrest records but permitted journalists access to same records; tangentially raising questions as to how to define "commercial user" and "journalist" in electronic age) (non-FOIA case).

    27. OMB Fee Guidelines, 52 Fed. Reg. at 10,017-18; see Avondale, No. 96-1227, slip op. at 14 (E.D. La. Mar. 20, 1998) (embracing OMB's definition of "commercial use"); cf. OSHA Data/C.I.H., Inc. v. United States Dep't of Labor, 220 F.3d 153, 160 (3d Cir. 2000) (observing that under the 1986 FOIA amendments "commercial users shoulder more of the costs of FOIA requests"); Crain v. United States Customs Serv., No. 02-0341, slip op. at 7 (D.D.C. Mar. 25, 2003) (finding requester's status as commercial-use requester to be supported by administrative record before agency at time of its decision).

    28. See Rozet v. HUD, 59 F. Supp. 2d 55, 57 (D.D.C. 1999) (finding commercial interest where requester sought documents to defend his corporations in civil fraud action). But see McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987) (finding no commercial interest in records sought in furtherance of requesters' tort claim); Muffoletto v. Sessions, 760 F. Supp. 268, 277-78 (E.D.N.Y. 1991) (finding no commercial interest when records were sought to defend against state court action to recover debts).

    29. See OMB Fee Guidelines, 52 Fed. Reg. at 10,018; see also Comer v. IRS, No. 97-CV-76329, 1999 U.S. Dist. LEXIS 16268, at *12 (E.D. Mich. Sept. 30, 1999) (reiterating that requester's motives in seeking records relevant to "commercial user" determination); Hosp. & Physician Publ'g v. DOD, No. 98-CV-4117, slip op. at 8 (S.D. Ill. June 22, 1999) (stating that requester's past commercial use of such records is not relevant to present case) (appeal pending); S.A. Ludsin & Co. v. SBA, No. 96 CV 5972, 1998 WL 355394, at *2 (E.D.N.Y. Apr. 2, 1998) (finding requester who sought documents to enhance prospect of securing government contract to be commercial requester); Avondale, No. 96-1227, slip op. at 14 (E.D. La. Mar. 20, 1998) (finding company's intent to use requested documents to contest union election results to be commercial use); cf. Rozet, 59 F. Supp. 2d at 57 (discounting plaintiff's assertion that information was not of commercial interest where timing and content of requests in connection with other non-FOIA litigation conclusively demonstrated otherwise).

    30. See OMB Fee Guidelines, 52 Fed. Reg. at 10,018 (specifying that where the "use is not clear from the request . . . agencies should seek additional clarification before assigning the request to a specific category"); see also McClellan, 835 F.2d at 1287 ("Legislative history and agency regulations imply that an agency may seek additional information when establishing a requester's category for fee assessment.").

    31. See OMB Fee Guidelines, 52 Fed. Reg. at 10,017.

    32. See id. at 10,019; see also TPS, Inc. v. Dep't of the Air Force, No. C 01-4284, 2003 U.S. Dist. LEXIS 10925, at **8-9 (N.D. Cal. Mar. 28, 2003) ("'The fact that you did not receive any records from [the agency] . . . does not negate your responsibility to pay for programming services provided to you in good faith, at your request with your agreement to pay applicable fees.'" (quoting with approval exhibit to defendants' declaration)); Guzzino v. FBI, No. 95-1780, 1997 WL 22886, at *4 (D.D.C. Jan. 10, 1997) (upholding agency's assessment of search fees to conduct search for potentially responsive records within files of individuals "with names similar to" requester's when no files identifiable to requester were located), appeal dismissed for lack of prosecution, No. 97-5083 (D.C. Cir. Dec. 8, 1997); Linn v. United States Dep't of Justice, No. 92-1406, 1995 WL 417810, at *13 (D.D.C. June 6, 1995) (holding that there is no entitlement to refund of search fees when search unproductive); cf. Stabasefski v. United States, 919 F. Supp. 1570, 1573 (M.D. Ga. 1996) (holding that requester has no entitlement to reimbursement of copying fees when agency redacts portions of requested records).

    33. OMB Fee Guidelines, 52 Fed. Reg. at 10,017; accord Presidential Memorandum for Heads of Departments and Agencies Regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993), reprinted in FOIA Update, Vol. XIV, No. 3, at 3 ("Federal departments and agencies should handle requests for information in a customer-friendly manner."); see also Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum], reprinted in FOIA Post (posted 10/15/01) (emphasizing that the citizenry has "a strong interest" in "efficient" government functioning).

    34. Pub. L. No. 104-231, 110 Stat. 3048 (codified as amended at 5 U.S.C. 552 (2000)).

    35. 5 U.S.C.  552(a)(3)(D).

    36. Id. at 552(a)(3)(C); see also FOIA Update, Vol. XVIII, No. 1, at 6 (analyzing 1996 FOIA amendment that requires agencies to "make reasonable efforts" to search for records electronically); Department of Justice FOIA Regulations, 28 C.F.R.  16.11(b)(8) (2004) (stating that process of searching includes using "reasonable efforts to locate and retrieve information from records maintained in electronic form or format"); OMB Fee Guidelines, 52 Fed. Reg. at 10,018, 10,019 (providing that agencies should charge "the actual direct cost of providing [computer searches]," but that for certain requester categories, the cost equivalent of two hours of manual search is provided without charge).

    37. 5 U.S.C.  552(a)(4)(A)(iv); see also Carney v. United States Dep't of Justice, 19 F.3d 807, 814 n.2 (2d Cir. 1994) (noting that fee for document review is properly chargeable to commercial requesters); OMB Fee Guidelines, 52 Fed. Reg. at 10,018 (clarifying that records "withheld under an exemption which is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered" and, further, that the "costs for such a subsequent review would be properly assessable"). But see AutoAlliance Int'l v. United States Customs Serv., No. 02-72369, slip op. at 7-8 (E.D. Mich. July 31, 2003) (finding, in fact-specific case, that where agency did not review all responsive documents during initial review -- and charged no fee -- it effectively waived agency's ability to charge commercial requester review fees for agency's "thorough review" conducted at administrative appeal level inasmuch as statute limits such fees to "initial examination" only).

    38. See OSHA Data, 220 F.3d at 168 (concluding in case of first impression that review fees include, in context of business-submitter information, costs of mandatory predisclosure notification to companies and evaluation of their responses by agency for purpose of determining applicability of exemption to companies' submitted business information).

    39. See OMB Fee Guidelines, 52 Fed. Reg. at 10,017, 10,018.

    40. 5 U.S.C.  552(a)(4)(A)(iv); see OMB Fee Guidelines, 52 Fed. Reg. at 10,018.

    41. See OMB Fee Guidelines, 52 Fed. Reg. at 10,017.

    42. Pub. L. No. 104-231, 110 Stat. 3048.

    43. 5 U.S.C.  552(a)(3)(B); see FOIA Update, Vol. XVIII, No. 1, at 5-6 (advising agencies on new format disclosure obligations); FOIA Update, Vol. XVII, No. 4, at 2 (same); see also FOIA Update, Vol. XIX, No. 1, at 6 (encouraging agencies to consider providing records in multiple forms as matter of administrative discretion if requested to do so).

    44. See OMB Fee Guidelines, 52 Fed. Reg. at 10,018; see also 28 C.F.R.  16.11(c)(2); FOIA Update, Vol. XI, No. 3, at 4 & n.25.

    45. See OMB Fee Guidelines at 10,017-18 (advising agencies to "charge the actual cost, including computer operator time, of production of [a computer] tape or printout").

    46. See generally OMB Fee Guidelines, 52 Fed. Reg. at 10,017-19.

    47. 5 U.S.C.  552(a)(4)(A)(ii)(II).

    48. See 132 Cong. Rec. S14,298 (daily ed. Sept. 30, 1986) (statement of Sen. Leahy) (referring to requesters within the second level of fees as receiving the benefits of "the most favorable fee provision").

    49. AFGE v. United States Dep't of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978)).

    50. See OMB Fee Guidelines, 52 Fed. Reg. at 10,018.

    51. Id.; see Nat'l Sec. Archive v. DOD, 880 F.2d 1381, 1383-85 (D.C. Cir. 1989) (approving implementation of this standard in DOD regulation).

    52. See OMB Fee Guidelines, 52 Fed. Reg. at 10,014.

    53. Id. at 10,018.

    54. Id.

    55. Nat'l Sec. Archive, 880 F.2d at 1387; see also Elec. Privacy Info. Ctr. v. DOD, 241 F. Supp. 2d 5, 14 (D.D.C. 2003) (explaining that the fact that an entity distributes its publication "via Internet to subscribers' email addresses does not change the [news media] analysis").

    56. See Nat'l Sec. Archive, 880 F.2d at 1385-87.

    57. See id. at 1385; see also 132 Cong. Rec. H9464 (daily ed. Oct. 8, 1986) (statement of Rep. English) (referring to "written explanatory materials that would have been included in a committee report" and that acknowledge that "no definition of 'news media' has been included in the [1986 FOIA amendments]").

    58. See Hosp. & Physician Publ'g, No. 98-CV-4117, slip op. at 6 (S.D. Ill. June 22, 1999) (finding that the requester qualified under the test of National Security Archive as a "representative of the news media"); cf. Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1095 (D.C. Cir. 1992) (noting that in the context of attorney fees, plaintiff "is certainly a news organization").

    59. Pub. L. No. 104-231, 110 Stat. 3048.

    60. D.C. Technical Assistance Org. v. HUD, 85 F. Supp. 2d 46, 49 (D.D.C. 2000) (commenting on changes wrought by "Information Age").

    61. Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 14 n.7 (explaining that while plaintiff qualified as a news media entity, "the Court is not convinced that a website is, by itself, sufficient to qualify a FOIA requester as a 'representative of the news media,'" and reasoning that virtually all organizations and many individuals in the metropolitan area have Web sites, "but certainly all are not entitled to news media status for fee determinations").

    62. Cf. In re Grand Jury Subpoenas, No. 01-20745, slip op. at 2, 5-6 (5th Cir. Aug. 17, 2001) (upholding contempt-of-court charge against "aspiring freelance writer" for failure to obey federal grand jury subpoenas, and finding that she was not in any event entitled to claim "journalist's privilege" in the case) (non-FOIA case), cert. denied sub nom. Leggett v. United States, 535 U.S. 1011 (2002); Tripp v. Dep't of Defense, 284 F. Supp. 2d 50, 55-58 (D.D.C. 2003) (according newspaper status to military publication for purposes of First Amendment analysis, and finding that author of article was engaged in "newsgathering" activities entitling her to invoke "reporters privilege") (separate non-FOIA opinion in case brought under FOIA).

    63. See Judicial Watch, Inc. v. Rossotti, No. 01-1612, 2002 WL 535803, at *5 (D.D.C. Mar. 18, 2002) (finding persuasive a prior district court decision on the same issue, adopting "the reasoning and conclusions set forth" therein, and holding that the plaintiff organization before it is not a representative of the news media), rev'd on other grounds, 326 F.3d. 1309 (D.C. Cir. 2003); Judicial Watch, Inc. v. United States Dep't of Justice, 185 F. Supp. 2d 54, 59 (D.D.C. 2002) (concluding that the plaintiff organization did not qualify for media status as it was not organized to broadcast or publish news and was "at best a type of middleman or vendor of information that representatives of the news media can utilize when appropriate"); Judicial Watch, Inc. v. United States Dep't of Justice, No. 00-0745, slip op. at 15 (D.D.C. Feb. 12, 2001) (finding that the plaintiff organization is not "an entity organized to publish or broadcast news," and stating that the organization's "vague intention" to use the requested information is not specific enough "to establish the necessary firm intent to publish that is required [in order] to qualify as a representative of the news media"), partial summary judgment granted, slip op. at 22 (D.D.C. Apr. 20, 2001) (repeating that plaintiff's "vague intentions" to use requested information are insufficient to establish media status); Judicial Watch, Inc. v. United States Dep't of Justice, 122 F. Supp. 2d 13, 21 (D.D.C. 2000) (same); Judicial Watch, Inc. v. United States Dep't of Justice, 122 F. Supp. 2d 5, 12 (D.D.C. 2000) (commenting that by its own admission the requester is not "'an entity that is organized and operated to publish or broadcast news'" (quoting from definition found at 28 C.F.R. 16.11(b)(6))); Judicial Watch, Inc. v. United States Dep't of Justice, No. 99-2315, 2000 WL 33724693, at **3-4 (D.D.C. Aug. 17, 2000) (stating that letting reporters view documents collected from government, faxing them to newspapers, and appearing on television or radio does not qualify the requester for news media status; concluding that if the requester's "vague intentions" to publish future reports "satisfied FOIA's requirements, any entity could transform itself into a 'representative of the news media' by including a single strategic sentence in its request"). But see Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 9 (concluding that the publication activities of a public interest research center -- which included both print and other media -- satisfied the definition of "representative of the news media" under the agency's FOIA regulation); Judicial Watch, Inc. v. United States Dep't of Justice, 133 F. Supp. 2d 52, 53-54 (D.D.C. 2000) (finding that the requester qualified as a representative of the news media, but observing that the test for same that is set forth in National Security Archive did not "apparently anticipate[] the evolution of the Internet or the morphing of the 'news media' into its present indistinct form," thereby suggesting that under National Security Archive "arguably anyone with [a] website" could qualify for media status, and concluding that "if such a result is intolerable . . . the remedy lies with Congress"), appeal dismissed per curiam, No. 01-5019, 2001 WL 800022, at * 1 (D.C. Cir. June 13, 2001) (ruling that the "district court's order holding that appellee is a representative of the news media for purposes of [the FOIA] is not final in the traditional sense and does not meet the requirements of the collateral order doctrine" for purposes of appeal).

    64. See 28 C.F.R. 16.11; see also, e.g., Judicial Watch, 185 F. Supp. 2d at 58-59 (noting that agency, in accordance with congressional directive, promulgated regulations that define "representative of the news media"); Judicial Watch, 122 F. Supp. 2d at 20 (considering agency's regulatory definition of "representative of the news media" in its analysis, and finding to be "perhaps of utmost importance" the fact that the plaintiff organization "does not define itself as an 'entity that is organized and operated to publish or broadcast news'" (quoting from definition found at 28 C.F.R.  16.11(b)(6))); Judicial Watch, 122 F. Supp. 2d at 12 (same); Judicial Watch, 2000 WL 33724693, at *3 (referring to and quoting from agency's promulgated definition of "representative of the news media").

    65. See, e.g., Hosp. & Physician Publ'g, No. 98-CV-4117, slip op. at 6 (S.D. Ill. June 22, 1999) (ordering defendant to apply news media status to plaintiff even though it has not gathered news in past nor does so now, but has expressed its intention to "begin gathering news for dissemination . . . to news media via free news releases").

    66. Nat'l Sec. Archive, 880 F.2d at 1387.

    67. See OMB Fee Guidelines, 52 Fed. Reg. at 10,018. But see Hosp. & Physician Publ'g, No. 98-CV-4117, slip op. at 6 (S.D. Ill. June 22, 1999) (in fact-specific case, ordering defendant to apply news media status to plaintiff even though plaintiff had not gathered news in past but expressed intention to do so in future).

    68. OMB Fee Guidelines, 52 Fed. Reg. at 10,019; accord FOIA Update, Vol. VIII, No. 1, at 10; see also Nat'l Sec. Archive, 880 F.2d at 1387-88; 28 C.F.R.  16.11(b)(6) (Department of Justice fee regulation defining "representative of the news media"); cf. Tax Analysts, 965 F.2d at 1096 (remarking that in the context of attorney fees, "[i]f newspapers and television news shows had to show the absence of commercial interests before they could win attorney[] fees in FOIA cases, very few, if any, would ever prevail").

    69. See Nat'l Sec. Archive, 880 F.2d at 1387 (stating that "there is no reason to treat an entity with news media activities in its portfolio . . . as a 'representative of the news media' when it requests documents . . . in aid of its nonjournalistic activities"); cf. Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 14 n.6 (stating affirmatively that "not every organization with its own newsletter will necessarily qualify for news media status" and that, to qualify, a newsletter "must disseminate actual 'news' to the public, rather than solely self-promoting articles about that organization").

    70. See Nat'l Sec. Archive, 880 F.2d at 1386 (finding that "making information available to the public . . . is insufficient to establish an entitlement to preferred [fee] status").

    71. Id. at 1387; cf. Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 12 ("Labels and titles alone . . . do not govern" the qualification for media status; rather, "the organization's substantive activities control.").

    72. Southam News v. INS, 674 F. Supp. 881, 892 (D.D.C. 1987).

    73. See 5 U.S.C.  552(a)(4)(A)(ii)(III).

    74. See OMB Fee Guidelines, 52 Fed. Reg at 10,017-18.

    75. See id. at 10,013, 10,018; cf. Judicial Watch, 2004 WL 635180, at **7, 10 n.3 (finding it "unnecessary to determine" requester's proper fee category where full fee waiver was granted); Long v. ATF, 964 F. Supp. 494, 498, 499 (D.D.C. 1997) (upholding agency's determination that "it did not 'find it necessary'" to make requester category determination when full fee waiver was granted; rejecting plaintiff's request for declaratory judgment as to requester category when no fee was at issue, and finding that question was not ripe as to future requests).

    76. See Nat'l Sec. Archive, 880 F.2d at 1388 (stating that court's determination of requester's news media status is "not chiselled in granite"); Long, 964 F. Supp. at 498 (indicating that "an entity's status can change").

    77. OMB Fee Guidelines, 52 Fed. Reg. at 10,018; see, e.g., 28 C.F.R.  16.11(f) (Department of Justice fee regulation); cf. OMB Fee Guidelines, 52 Fed Reg. at 10,016 (specifying that charges for ordinary packaging and mailing are to be borne by government); FOIA Update, Vol. XII, No. 2, at 4 ("[T]he effective administration of the FOIA relies quite heavily upon agency transmittal of disclosable record copies to FOIA requesters by mail.").

    78. See OMB Fee Guidelines, 52 Fed. Reg. at 10,018; see also FOIA Update, Vol. XVI, No. 1, at 1-2 (stressing importance of cost-efficiency to overall process of FOIA administration); cf. Attorney General Ashcroft's FOIA Memorandum, reprinted in FOIA Post (posted 10/15/01) (stressing importance of "efficien[cy]" in government); Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1027 (D.C. Cir. 2003) (referencing cost comparison required by 10 U.S.C.  2462 (2000) to determine whether government could produce documents at lower costs than private sector) (non-FOIA case).

    79. See OMB Fee Guidelines, 52 Fed. Reg. at 10,018; see also FOIA Update, Vol. IV, No. 1, at 2 (citing applicable Comptroller General decisions).

    80. Compare 132 Cong. Rec. H9464 (daily ed. Oct. 8, 1986) (statement of Rep. English) (remarking that the restrictive statutory provisions were designed "to prevent agencies from using procedural ploys over fees to discourage requesters or delay the disclosure of information"), with Dep't of Justice v. Tax Analysts, 492 U.S. 136, 146 (1989) (going so far, in the context of requested materials "that are readily available elsewhere," as to pragmatically observe that "the fact that the FOIA allows agencies to [properly] recoup the costs of processing requests from the requester may discourage recourse to the FOIA," but nonetheless viewing that as a preferable result in such instances).

    81. See 5 U.S.C.  552(a)(4)(A)(iv)-(v).

    82. Id.  552(a)(4)(A)(iv)(I); see also OMB Fee Guidelines, 52 Fed. Reg. at 10,018.

    83. See 5 U.S.C.  552(a)(4)(A)(iv)(II); see also OMB Fee Guidelines, 52 Fed. Reg. at 10,018-19.

    84. See 5 U.S.C. 552(a)(4)(A)(iv)(I); see also OMB Fee Guidelines, 52 Fed. Reg. at 10,018; see, e.g., 28 C.F.R.  16.11(d)(4) (Department of Justice fee regulation establishing fee threshold below which no fee will be charged).

    85. See 5 U.S.C.  552(a)(4)(A)(v); see also OMB Fee Guidelines, 52 Fed. Reg. at 10,020; O'Meara v. IRS, No. 97-3383, 1998 WL 123984, at **1-2 (7th Cir. Mar. 17, 1998) (upholding agency's demand for advance payment when fees exceeded $800); TPS, Inc., 2003 U.S. Dist. LEXIS 10925, at **8-9 (upholding agency's refusal to process further requests until all outstanding FOIA debts were paid) (appeal pending); Voinche v. FBI, No. 99-1931, slip op. at 6-7 (D.D.C. Nov. 17, 2000) (upholding agency's request for advance payment on basis of both statute and agency regulation where fees exceeded $250); Comer, 1999 U.S. Dist. LEXIS 16268, at *13 (authorizing agency "to not respond to any further FOIA requests by plaintiff" until current debt is paid and "to require plaintiff to pay in advance any fees likely to be incurred as a result of processing" further requests); Bauer v. United States, No. 96-1165, 1998 U.S Dist. LEXIS 3813, at *6 (D.D.C. Mar. 20, 1998) (recognizing that when requester fails to remit prior FOIA fee, agency may require requester to pay amount owed, interest on that amount, and advance payment of fees for new request); Rothman v. Daschle, No. 96-5898, 1997 U.S. Dist. LEXIS 13009, at *2 (E.D. Pa. Aug. 20, 1997) (upholding agency's request for advance payment when fees exceeded $250); Mason v. Bell, No. 78-719-A, slip op. at 1 (E.D. Va. May 16, 1979) (finding dismissal of FOIA case proper when plaintiffs failed to pay fees to other federal agencies for prior requests). But cf. Ruotolo v. Dep't of Justice, 53 F.3d 4, 9-10 (2d Cir. 1995) (suggesting that agency should have processed request up to amount offered by requesters rather than state that estimated cost "would greatly exceed" $250 without providing an amount to be paid or offering assistance in reformulating request).

    86. See Strout v. United States Parole Comm'n, 40 F.3d 136, 139 (6th Cir. 1994) (finding that agency regulation requiring payment before release of processed records does not conflict with statutory prohibition against advance payment); Williams v. United States Dep't of Justice, No. 01-1009, slip op. at 3 (D.D.C. Jan. 22, 2003) (noting that agency may properly require payment before processed records are released); Boers v. Mueller, No. 01-2497, slip op. at 7 n.3 (D.D.C. May 14, 2002) (explaining that requiring payment before release of records is permissible under FOIA), reconsideration denied (D.D.C. July 9, 2002); Voinche v. CIA, No. 98-1883, 2000 U.S. Dist. LEXIS 14291, at **13-14 (D.D.C. Sept. 27, 2000); Taylor v. United States Dep't of the Treasury, No. A-96-CA-933, 1996 U.S. Dist. LEXIS 19909, at *5 (W.D. Tex. Dec. 17, 1996) (same); Trueblood v. United States Dep't of the Treasury, 943 F. Supp. 64, 68 (D.D.C. 1996) (stating that agency may require payment before sending processed records); Putnam v. United States Dep't of Justice, 880 F. Supp. 40, 42 (D.D.C. 1995) (allowing agency to require payment of current and outstanding fees before releasing records); Crooker v. ATF, 882 F. Supp. 1158, 1162 (D. Mass. 1995) (finding no obligation to provide records until current and past due fees paid); see also, e.g., 28 C.F.R.  16.11(i)(1) ("Payment owed for work already completed (i.e., a prepayment before copies are sent to the requester) is not an advance payment.").

    87. See OMB Fee Guidelines, 52 Fed. Reg. at 10,019; see also Atkin v. EEOC, No. 91-2508, slip op. at 20-21 (D.N.J. Dec. 4, 1992) (finding agency's decision to aggregate requests proper; reasonable for agency to believe that thirteen requests relating to same subject matter submitted within three-month period were made by requester to evade payment of fees), appeal dismissed for failure to timely prosecute sub nom. Atkin v. Kemp, No. 93-5548 (3d Cir. Dec. 6, 1993).

    88. OMB Fee Guidelines, 52 Fed. Reg. at 10,019-20.

    89. 5 U.S.C.  552(a)(4)(A)(vi); see, e.g., Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1177 (D.C. Cir. 1996) (stating that NARA's enabling statute, 44 U.S.C. 2216 (2000), qualifies "as the genre of fee-setting provision not to be 'supersede[d]' under the FOIA's subsection (vi)" with regard to "the costs of making . . . reproductions of materials transferred to [requester's] custody"); see also FOIA Post, "NTIS: An Available Means of Record Disclosure" (posted 8/30/02; supplemented 9/23/02) (describing how the National Technical Information Service (NTIS) "occupies a special status" with respect to making records available to the public, pursuant to 1986 FOIA amendments, 5 U.S.C.  552(a)(4)(A)(vi)); National Technical Information Act, 15 U.S.C.  1151-57 (2000) (providing for dissemination of technological, scientific, and engineering information to business and industry); OMB Fee Guidelines, 52 Fed. Reg. at 10,017, 10,018.

    90. See OMB Fee Guidelines, 52 Fed. Reg. at 10,012-13, 10,017-18 (implementing 5 U.S.C.  552(a)(4)(A)(vi)); id. at 10,017 (contemplating "statutor[il]y-based fee schedule programs . . . such as the NTIS [National Technical Information Service]"); Wade v. Dep't of Commerce, No. 96-0717, slip op. at 5-6 (D.D.C. Mar. 26, 1998) (concluding that fee was "properly charged by NTIS" under its fee schedule); cf. SDC Dev. Corp. v. Mathews, 542 F.2d 1116, 1120 (9th Cir. 1976) (in decision predating 1986 FOIA amendments and turning on issue of "agency records," holding that records for which charges were specifically authorized by another statute were not required to be made available under FOIA).

    91. See, e.g., Wade, No. 96-0717, slip op. at 2, 6 (D.D.C. Mar. 26, 1998) (approving assessment of $1300 fee pursuant to NTIS's superseding fee statute and noting agency's return of requester's $210 check for anticipated FOIA fees).

    92. See OMB Fee Guidelines, 52 Fed. Reg. at 10,017.

    93. See, e.g., id. at 10,018 (recognizing NTIS as "statutorily-based" government record distribution program). See generally White House Memorandum for Heads of Executive Departments and Agencies Concerning Safeguarding Information Related to Homeland Security (Mar. 19, 2002), reprinted in FOIA Post (posted 3/21/02) (recognizing sensitivity of records distributed through Defense Technical Information Center (commonly known as "DTIC"), Department of Defense counterpart to NTIS).

    94. Compare Oglesby, 79 F.3d at 1178 (refusing to rule on district court's finding that NARA's fee provision is exempt from FOIA's fee waiver requirement, because appellant failed to raise argument in timely manner), and Oglesby v. United States Dep't of the Army, 920 F.2d 57, 70 n.17 (D.C. Cir. 1990) (declining to reach fee waiver issue because plaintiff failed to exhaust administrative remedies), with St. Hilaire v. Dep't of Justice, No. 91-0078, slip op. at 4-5 (D.D.C. Sept. 10, 1991) (avoiding fee waiver issue because requested records were made publicly available), summary judgment granted (D.D.C. Mar. 18, 1992), aff'd per curiam, No. 92-5153 (D.C. Cir. Apr. 28, 1994).

    95. 5 U.S.C.  552(a)(3)(B); 28 C.F.R.  16.11(e); see also Judicial Watch v. United States Dep't of Justice, No. 99-1883, slip op. at 16 (D.D.C. Sept. 11, 2003) (finding agency's closure of request proper where requester neither committed to pay processing fees nor made advance payment of fees as required by agency's fee regulations); Krese v. Executive Office of the President, No. 99-2415, 2000 U.S. Dist. LEXIS 14024, at **3-4 (D.D.C. Sept. 25, 2000) (dismissing case where agency's fee regulations were not followed); Bartolotta v. FBI, No. 99-1145, slip op. at 3 (D.D.C. July 13, 2000) (citing portion of FOIA that conditions "agency's responsibility to respond to requests on requester's compliance with published rules regarding fees"); Irons v. FBI, 571 F. Supp. 1241, 1243 (D. Mass. 1983); cf. Oglesby, 920 F.2d at 66; Casad v. HHS, No. 01-1911, 2003 U.S. Dist. LEXIS 13007, at **16-17 (D.D.C. June 20, 2003) (approving necessity of further response by requester in order to inform agency whether to proceed with request once agency advised requester of costs); DeCato v. Executive Office for United States Attorneys, No. 00-3053, slip op. at 4-5 & n.4 (D.D.C. Jan. 2, 2003) (emphasizing that plaintiff's offer to pay fees under his "alternate" payment plan "is not construed as his written agreement to pay the fees" as required by the agency's regulation), summary affirmance granted, No. 03-5044, 2003 WL 22433759, at *1 (D.C. Cir. Oct. 24, 2003); Dale v. IRS, 238 F. Supp. 2d 99, 107 (D.D.C. 2002) (dismissing case because plaintiff failed to make "firm commitment" to pay fees); Blackman v. United States Dep't of Justice, No. 01-3004, slip op. at 6-7 (D.D.C. July 12, 2001) (noting that in order for agency to conduct search of its records, requester must be responsible for necessary fees), summary judgment granted (D.D.C. Oct. 9, 2001), appeal dismissed for failure to prosecute, No. 01-5431 (D.C. Cir. Jan. 2, 2003); O'Meara, 1998 WL 123984, at *1 ("Congress intended people making FOIA requests to bear the costs of processing such requests" unless they qualify for fee waiver). But cf. Keen v. FBI, No. 98-2658, slip op. at 4-5 (D.D.C. July 9, 2002) (magistrate's recommendation) (finding request "wrongfully terminated" where agency failed to advise requester that request would be closed if he did not respond to agency's letter that notified him of fees and suggested that he narrow scope of request), adopted (D.D.C. Aug. 26, 2002).

    96. See, e.g., Trenerry v. IRS, No. 95-5150, 1996 WL 88459, at *2 (10th Cir. Mar. 1, 1996) (explaining exhaustion includes payment of FOIA fees); Oglesby, 920 F.2d at 66 & n.11, 71 ("Exhaustion does not occur until the required fees are paid or an appeal is taken from the refusal to waive fees."); Boers, 01-2497, slip op. at 7 (D.D.C. May 14, 2002) (same), Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29, 33 (D.D.C. Mar. 21, 2002) (same); Rivera v. United States, No. 00-2962, slip op. at 6 (D.D.C. Feb. 20, 2002) (same); Woodfolk v. DEA, No. 97-0634, slip op. at 2 (D.D.C. Jan. 29, 2002) (finding that agency had no obligation to produce records where requester had neither paid fee nor applied for fee waiver); Mells v. IRS, No. 99-2030, 2001 U.S. Dist. LEXIS 1262, at *5 (D.D.C. Jan. 23, 2001) (finding that although request was not completed until after suit was filed, plaintiff must pay fee or seek waiver from agency before challenging agency's response); Schwarz v. United States Dep't of Treasury, 131 F. Supp. 2d 142, 148 (D.D.C. Nov. 30, 2000) ("Exhaustion of administrative remedies . . . includes payment of required fees or an appeal within the agency from a decision refusing to waive fees."); Smith v. IRS, No. 2:94-CV-989, slip op. at 2 (D. Utah Mar. 24, 1999) (concluding that no exhaustion existed where requester failed to pay fees); Tinsley v. Comm'r, No. 3:96-1769-P, 1998 WL 59481, at *4 (N.D. Tex. Feb. 9, 1998) (finding that because plaintiff failed to appeal fee waiver denial, exhaustion was not achieved); see also Krese, 2000 U.S. Dist. LEXIS 14024, at *4 (holding that agency's delay in responding does not excuse plaintiff's obligation of exhaustion); Loomis v. United States Dep't of Energy, No. 96-CV-149, slip op. at 9-10 (N.D.N.Y. Mar. 9, 1999) (stating that exhaustion occurred where plaintiff agreed to pay initial estimate for identified records which agency subsequently found covered only portion of fees), summary affirmance granted, 21 Fed. Appx. 80 (2d Cir. 2000); Stanley v. DOD, No. 93-CV-4247 (S.D. Ill. July 28, 1998) (stating that agency's failure to inform plaintiff of right to administratively appeal its fee estimate amounted to constructive exhaustion where agency's regulations allowed appeal of such estimates); cf. OSHA Data, 220 F.3d at 168 (affirming district court's dismissal where requester was unable to pay $1.7 million estimated fee); Judicial Watch, 190 F. Supp. 2d at 33 n.7 (declining to consider plaintiff's belated willingness to pay fees where court concluded that it lacked jurisdiction due to plaintiff's failure to exhaust); City of Chicago v. United States Dep't of the Treasury, No. 01 C 3835, 2001 WL 1173331, at *2 (N.D. Ill. Oct. 4, 2001) (agreeing that nonpayment of fees should be analyzed in context of failure to exhaust, but excusing plaintiff's failure where exhaustion would be futile), summary judgment denied on other grounds, No. 01 C 3835, 2002 WL 370216 (N.D. Ill. Mar. 8, 2002) (appeal suspended); Judicial Watch, Inc. v. FBI, No. 00-0745, slip op. at 24 (D.D.C. Apr. 20, 2001) (impliedly approving agency's regulation that provides that request is not received until commitment is made by requester to pay assessed fee by upholding agency's treatment of late-received payment as new request where agency put requester on notice that its request would be administratively closed if it failed to timely pay requisite fees). But cf. Payne v. Minihan, No. 97-0266, slip op. at 34 n.17 (D.N.M. Apr. 30, 1998) (holding, in fact-specific case, plaintiff not required to exhaust by appealing fee waiver denial when requester's right to sue already perfected on different issue), summary judgment granted (D.N.M. Oct. 27, 1999), aff'd, 232 F.3d 902 (10th Cir. 2000) (unpublished table decision).

    97. See Pollack v. Dep't of Justice, 49 F.3d 115, 119-20 (4th Cir. 1995) (providing that commencement of FOIA action does not relieve requester of obligation to pay for documents); Maydak v. United States Dep't of Justice, 254 F. Supp. 2d 23, 50 (D.D.C. 2003) (noting that plaintiff is still obligated to pay fee or seek waiver even if agency's fee assessment is made after plaintiff files suit); Williams, No. 01-1009, slip op. at 4 (D.D.C. Jan. 22, 2003) ("Commencement of a civil action pursuant to FOIA does not relieve a requester of his obligation to pay any required fees."); Goulding v. IRS, No. 97 C 5628, 1998 WL 325202, at *9 (N.D. Ill. June 8, 1998) (finding plaintiff's constructive exhaustion did not relieve his obligation to pay authorized fees), summary judgment granted, No. 97 C 5628 (N.D. Ill. July 30, 1998) (restating that plaintiff's failure to comply with fee requirements is fatal to claim against government); Trueblood, 943 F. Supp. at 68 (stating even if request for payment not made until after litigation commences, that fact does not relieve requester of obligation to pay reasonably assessed fees); cf. Pub. Citizen, Inc. v. Dep't of Educ., 292 F. Supp. 2d 1, 5 (D.D.C. 2003) (disallowing assessment of fees after litigation ensued where agency failed to inform requester that fees were in excess of amount to which it agreed, failed to give notice that fees would exceed $250 as required by regulation, and failed to address request for fee waiver); Judicial Watch of Fla., Inc. v. United States Dep't of Justice, No. 01-0212, slip op. at 3 (D.D.C. Oct. 19, 2001) (finding that plaintiff, through its actions, including its ambiguous response to court's order to notify agency of its intent with regard to payment of fees, "constructively abandoned its FOIA request").

    98. See Stabasefski, 919 F. Supp. at 1573 (stating that FOIA does not provide for reimbursement of fees when agency redacts portions of records that are released).

    99. See Johnson v. Executive Office for United States Attorneys, No. 98-0729, 2000 U.S. Dist. LEXIS 6095, at *8 (D.D.C. May 2, 2000) (observing that despite delay in refunding overpayment, FOIA does not provide for award of damages to requester, nor does delay rise to level of constitutional violation by agency or its employees), aff'd, 310 F.3d 771 (D.C. Cir. 2002); cf. FOIA Update, Vol. IV, No. 1, at 4 (providing for reimbursement of fees previously paid where requester ultimately prevails on fee waiver or fee reduction issue).

    100. See 5 U.S.C.  552(a)(4)(A)(vii) (establishing revised de novo/administrative record standard and scope of review for fee waiver issues).

    101. 5 U.S.C.  701-06 (2000); see Judicial Watch, 122 F. Supp. 2d at 20 (applying arbitrary and capricious standard of review "based on [court's] prior analysis" in Judicial Watch, Inc. v. United States Dep't of Justice, 122 F. Supp. at 11); Judicial Watch, 122 F. Supp. 2d at 11 (acknowledging that standard of review for fee issue is not "as well settled" as other areas of FOIA but that issue is "not difficult" under well-established principle of statutory construction; reasoning that because the FOIA Reform Act "only changed the standard of review for fee-waiver decisions, this court presumes that Congress retained the arbitrary and capricious standard of review for fee-category decisions"); Trenerry v. IRS, No. 90-C-444-B, 1993 WL 56534, at *6 (N.D. Okla. Oct. 28, 1993) (finding assessed fees reasonable, in accordance with agency regulations, and not arbitrary and capricious); see also Rozet, 59 F. Supp. 2d at 56 n.2 (D.D.C. 1999) (noting that before 1986, courts reviewed all FOIA fee issues under arbitrary and capricious standard); cf. Long, 964 F. Supp. at 497 (finding plaintiff's allegation that assessment of fees was arbitrary and capricious was mooted by subsequent grant of fee waiver). But see Judicial Watch, 133 F. Supp. 2d at 53 (stating that agency's argument that arbitrary and capricious standard applies to requester's fee category "is unsupported").

    102. Compare Crain, No. 02-0341, slip op. at 5 & n.5 (D.D.C. Mar. 25, 2003) (stating that there is uncertainty within D.C. Circuit as to standard of review regarding fee category status), Judicial Watch, 185 F. Supp. 2d at 59 (conceding that there is "some disagreement as to the correct standard" for review of agency's denial of media status), Judicial Watch, 2002 WL 535803, at *5 & nn. 6-7 (same), and Rozet, 59 F. Supp. 2d at 56 (emphasizing that although denial of fee waiver requests are reviewed de novo, "the appropriate standard of review for an agency determination of fee status under FOIA . . . has not been decided in this Circuit"), with Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 9 (concluding that "the statutory language, judicial authority, and [FOIA Reform Act's] legislative history . . . support the view that determinations regarding preferred fee status are reviewed de novo" while acknowledging that at least one recent court has applied the "arbitrary and capricious" standard), and Hosp. & Physician Publ'g, No. 98-CV-4117, slip op. at 5 (S.D. Ill. June 22, 1999) (stating in single sentence that court review of fee category is de novo, yet citing to statutory provision for de novo review of fee waivers).

    103. See 5 U.S.C. 552(a)(4)(A)(vii) ("[I]n any action by a requester regarding the waiver of fees . . . the court shall determine the matter de novo.") (emphasis added).

    104. See, e.g., Judicial Watch, No. 00-0745, slip op. at 14-15 (D.D.C. Feb. 12, 2001) (applying de novo standard to both fee category and fee waiver issues) (same); Judicial Watch, 133 F. Supp. 2d at 53 (rejecting government's argument that arbitrary and capricious standard applied to matter of fee category; undertaking de novo review on both fee and fee waiver issues); Judicial Watch, 2000 WL 33724693, at **3-4 (applying de novo standard to fee category and fee waiver issues); cf. Hosp. & Physician Publ'g, No. 98-CV-4117, slip op. at 5 (S.D. Ill. June 22, 1999) (using de novo standard for media issue, without discussion).

    105. See Crain, No. 02-0341, slip op. at 7 (D.D.C. Mar. 25, 2003) (saying that "this Court's review of fee categorization is limited to the record that was before the agency at the time it made its decision"); Judicial Watch, 122 F. Supp. 2d at 12 (stating that scope of court's review is limited to administrative record); Judicial Watch, 122 F. Supp. 2d at 20 (same); see also NTEU v. Griffin, 811 F.2d 644, 648 (D.C. Cir. 1987) (stating that the reasonableness of the agency's position "depends on the information before it at the time of its decision") (fee waiver case); cf. Camp v. Pitts, 411 U.S. 138, 142 (1973) ("In applying [the arbitrary and capricious] standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.") (non-FOIA case); IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) ("It is a widely accepted principle of administrative law that the courts base their review of an agency's actions on the materials that were before the agency at the time its decision was made.") (non-FOIA case).

    106. See Nat'l Sec. Archive, 880 F.2d at 1383.

    107. 467 U.S. 837, 844 (1984) (emphasizing that where the agency's statutory interpretation "fills a gap or defines a term in a way that is reasonable in light of the legislature's revealed design, [the court] give[s that] judgment 'controlling weight'") (non-FOIA case).

    108. Nat'l Sec. Archive, 880 F.2d at 1383.

    109. Compare Media Access Project v. FCC, 883 F.2d 1063, 1071 (D.C. Cir. 1989) (agency's interpretation of its own fee regulations "must be given at least some deference"), with Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1313 (D.C. Cir. 2003) (emphasizing that the court owes "no particular deference to the [agency's] interpretation of FOIA") (fee waiver case), Inst. for Wildlife Prot. v. United States Fish & Wildlife Serv., 290 F. Supp. 2d 1226, 1230 (D. Or. 2003) (stating that Court owes no particular deference to agency's interpretation of FOIA (citing Judicial Watch, 326 F.3d at 1313)), and Nat'l Sec. Archive, 880 F.2d at 1383 (question of deference owed to agency's fee regulations not resolved).

    110. Pub. L. No. 93-502,  1-3, 88 Stat. 1561-64 (1974) (subsequently amended).

    111. Id.

    112. Ely v. USPS, 753 F.2d 163, 165 (D.C. Cir. 1985).

    113. See FOIA Update, Vol. IV, No. 1, at 3-4.

    114. Pub. L. No. 99-570,  1803, 100 Stat. 3207, 3207-50 (codified as amended at 5 U.S.C.  552(a)(4)(A)(iii) (2000)).

    115. Id.; cf. Piper v. United States Dep't of Justice, 294 F. Supp. 2d 16, 24 (D.D.C. 2003) (explaining, in the context of Exemption 7(C), that disclosure "turn[s] on the nature of the requested document and its relationship to 'the basic purpose of [FOIA] to open agency action to the light of public scrutiny'" (quoting United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772 (1989)), reconsideration denied, No. 98-1161, 2004 WL 764587 (D.D.C. Mar. 26, 2004)).

    116. See FOIA Update, Vol. VII, No. 3, at 4.

    117. See FOIA Update, Vol. VIII, No. 1, at 3-10; see also id. at 10 (specifying that previous "procedural" guidance on fee waiver issues remains in effect); FOIA Update, Vol. IV, No. 1, at 4.

    118. 835 F.2d 1282, 1286 (9th Cir. 1987); see also, e.g., Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1313-15 (D.C. Cir. 2003); VoteHemp, Inc. v. DEA, 237 F. Supp. 2d 55, 59-66 (D.D.C. 2002); Judicial Watch, Inc. v. United States Dep't of Justice, 122 F. Supp. 2d 5, 16-17 (D.D.C. 2000); Pederson v. RTC, 847 F. Supp. 851, 855 (D. Colo. 1994); Sloman v. United States Dep't of Justice, 832 F. Supp. 63, 68 (S.D.N.Y. 1993).

    119. 5 U.S.C.  552(a)(4)(A)(iii) (2000); see also Inst. for Wildlife Prot. v. United States Fish & Wildlife Serv., 290 F. Supp. 2d 1226, 1228 (D. Or. 2003) (recognizing that statute establishes two-part test for fee waiver); VoteHemp, 237 F. Supp. 2d at 58 (reiterating "two-prong analysis" required for fee waiver requests); Department of Justice FOIA Regulations, 28 C.F.R.  16.11(k) (2004).

    120. See FOIA Update, Vol. VIII, No. 1, at 4; see also Casad v. HHS, No. 01-1911, 2003 U.S. Dist. LEXIS 13007, at *20 (D.D.C. June 20, 2003) (emphasizing that requester bears burden of justifying entitlement to waiver of all or part of assessed fee); McQueen v. United States, 264 F. Supp. 2d 502, 524 (S.D. Tex. 2003) (reiterating that burden is on requester to prove entitlement to fee waiver) (appeal pending); Citizens Progressive Alliance v. United States Bureau of Indian Affairs, 241 F. Supp. 2d 1342, 1366 (D.N.M. 2002) (same); Slater v. Executive Office for United States Attorneys, No. 98-1663, 1999 U.S. Dist. LEXIS 8399, at *13 (D.D.C. May 2, 1999) (reiterating that it is plaintiff's burden to establish that statutory standard is met); Klamath Water Users Protective Ass'n v. United States Dep't of the Interior, No. 96-3077, slip op. at 47 (D. Or. June 19, 1997) (magistrate's recommendation) (observing that burden is on requester to show eligibility for fee waiver), adopted (D. Or. Oct. 16, 1997), rev'd on other grounds, 189 F.3d 1034 (9th Cir. 1999), aff'd on other grounds sub nom. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001); S.A. Ludsin & Co. v. SBA, No. 96 Civ. 2146, 1997 U.S. Dist. LEXIS 8617, at **10-11 (S.D.N.Y. June 19, 1997) (noting that fee waiver provision contains two requirements and that requester carries burden of proof on both), summary affirmance granted, 162 F.3d 1148 (2d Cir. 1998) (unpublished table decision); Anderson v. DEA, No. 93-253, slip op. at 4 (W.D. Pa. May 11, 1995) (magistrate's recommendation) (stating that burden is on requester to establish fee waiver standard met), adopted (W.D. Pa. June 21, 1995); Sloman, 832 F. Supp. at 67 (acknowledging two-pronged statutory test used to determine when fees should be waived); cf. Tripp v. DOD, 193 F. Supp. 2d 229, 242 (D.D.C. 2002) (remanding request to agency for further consideration because agency applied incorrect fee waiver standard).

    121. See Dale v. IRS, 238 F. Supp. 2d 99, 107 (D.D.C. 2002) ("A party's counsel is not the 'requester' for purposes of a fee waiver request."); cf. Trulock v. United States Dep't of Justice, 257 F. Supp. 2d 48, 52 (D.D.C. 2003) (finding that plaintiff has not exhausted administrative remedies where "blanket" fee waiver request was submitted to agency in plaintiff's counsel's name, not his own); OMB Fee Guidelines, 52 Fed. Reg. 10,012, 10,017-18 (Mar. 27, 1987) (addressing same matter in fee-category context).

    122. See FOIA Update, Vol. VIII, No. 1, at 6; Media Access Project v. FCC, 883 F.2d 1063, 1065 (D.C. Cir. 1989) (remarking that any requester may seek waiver of assessed fees on "case-by-case" basis); Nat'l Sec. Archive v. DOD, 880 F.2d 1381, 1383 (D.C. Cir. 1989) (dictum) (noting that fee waiver decisions are made on "case-by-case" basis); Nat'l Wildlife Fed'n v. Hamilton, No. 95-017-BU, slip op. at 2 (D. Mont. July 15, 1996) (same); see also Judicial Watch, Inc. v. GSA, No. 98-2223, slip op. at 14 (D.D.C. Sept. 25, 2000) (reiterating that prior judicial recognition of requester's "ability to disseminate FOIA-disclosed information is not binding in this case," but that agency should consider requester's "track record" and reputation for disseminating information); Judicial Watch, Inc. v. United States Dep't of Justice, No. 99-2315, 2000 WL 33724693, at *5 (D.D.C. Aug. 17, 2000) (noting that requester's "past record in uncovering information is simply irrelevant").

    123. See, e.g., Judicial Watch, 326 F.3d at 1312 (reiterating that requests for fee waivers "must be made with reasonable specificity  . . . and based on more than conclusory allegations" (internal quotation marks and citations omitted)); Judicial Watch v. United States Dep't of Energy, No. 01-0981, 2004 WL 635180, at *8 (D.D.C. Mar. 31, 2004) (motion for reconsideration pending) (same); McQueen, 264 F. Supp. at 525 (emphasizing that "[c]onclusory statements on their face are insufficient" to prove entitlement to fee waiver); Judicial Watch v. FBI, No. 00-0745, slip op. at 22 (D.D.C. Apr. 20, 2001) (denying for second time plaintiff's request for fee waiver and noting that despite its earlier instruction to plaintiff that it could refile its fee waiver request "if it develops additional, more concrete evidence" of its qualification for waiver, plaintiff presented no such evidence in response to government's filing); Judicial Watch, Inc. v. United States Dep't of Justice, No. 00-0745, slip op. at 14-15 (D.D.C. Feb. 12, 2001) (finding that plaintiff failed to provide any specific information in support of its general statement that its organization's purpose was to "expose government activities that are contrary to the law"), partial summary judgment granted (D.D.C. Apr. 20, 2001); see also McClellan, 835 F.2d at 1285 (stating that conclusory statements will not support fee waiver request); Judicial Watch, Inc. v. United States Dep't of Justice, 133 F. Supp. 2d 52, 54 (D.D.C. 2000) (finding a requester's statements in support of his fee waiver request to be "perfunctory assertions [that] were too 'ephemeral' to satisfy the 'reasonable specificity' standard").

    124. See McClellan, 835 F.2d at 1287 (noting that "[t]he fee waiver statute nowhere suggests that an agency may not ask for more information if the requester fails to provide enough"); Citizens, 241 F. Supp. 2d at 1366 (recognizing that the agency "is entitled to ask for more information with regards to a fee waiver request, where the information provided is not sufficient"); cf. Judicial Watch, 326 F.3d at 1315 (concluding that initial request demonstrated eligibility for fee waiver, thus effectively rejecting propriety of agency's request for additional information).

    125. See, e.g., Mobil Oil Corp. v. EPA, 879 F.2d 698, 700-01 (9th Cir. 1989) (discretionary release of document does not require similar release of similar documents).

    126. See, e.g., Judicial Watch, Inc. v. United States Dep't of Justice, No. 97-2089, slip op. at 14 (D.D.C. July 14, 1998) (finding, in case at hand, that it was "wholly irrelevant" that requester received fee waivers in other cases); Dollinger v. USPS, No. 95-CV-6174T, slip op. at 7-8 (W.D.N.Y. Aug. 24, 1995) (concluding that agency is not bound by previous decision on fee waiver for similar request from same requester).

    127. See, e.g., S.A. Ludsin & Co. v. SBA, No. 97-7884, 1998 WL 642416, at *1 (2d Cir. Mar. 26, 1998) (reiterating that first requirement not met when requester "merely paraphrased" fee waiver provision); Oglesby v. United States Dep't of the Army, 920 F.2d 57, 66 n.11 (D.C. Cir. 1990) (conclusory statements insufficient to make public interest showing); Ortloff v. United States Dep't of Justice, No. 98-2819, slip op. at 17 (D.D.C. Mar. 22, 2002) (concluding that agency was justified in denying request for fee waiver due to requester's failure to demonstrate that release was in public interest), summary affirmance granted, No. 02-5170 (D.C. Cir. Dec. 11, 2002); Judicial Watch, 122 F. Supp. 2d at 9 (finding that nonprofit group's "general description of [its] organizational mission" failed to identify public interest to be served by release of specific information requested); S.A. Ludsin & Co. v. SBA, No. 96-5972, 1998 WL 355394, at *2 (E.D.N.Y. Apr. 2, 1998) (observing that mere recitation of statute does not satisfy requester's burden); Trueblood v. United States Dep't of the Treasury, 943 F. Supp. 64, 69 (D.D.C. Oct. 30, 1996) (rejecting contention that public interest requirement met by identifying personal benefit to requester); Sloman, 832 F. Supp. at 68 (finding that public interest requirement is not met merely by quoting statutory standard); cf. S.A. Ludsin, 1998 WL 642416, at *1 (noting that requester's claim that disclosure to it would "create[] revenue for the federal government" does not demonstrate that disclosure "is in the public interest" for fee waiver purposes); Sierra Club Legal Def. Fund v. Bibles, No. 93-35383, slip op. at 3-4 (9th Cir. Aug. 29, 1994) (reasoning that disclosure to a group that is "in the public interest" is not the same as saying that disclosure without fees is likely to contribute to public understanding, and that the requester's status as a public interest law firm does not automatically entitle it to a fee waiver at taxpayer expense); NTEU v. Griffin, 811 F.2d 644, 647 (D.C. Cir. 1987) (observing under previous standard that requester seeking fee waiver bears burden of identifying "public interest" involved); Judicial Watch, Inc. v. United States Dep't of Justice, No. 01-0639, slip op. at 7 (D.D.C. Mar. 31, 2003) (admitting that given the evidence on the record at the time of the court's earlier decision -- including plaintiff's failure to provide evidence "that further, free release of documents" was in the public interest -- "the Court's previous decision improperly shifted the burden of establishing eligibility for a FOIA fee waiver from Plaintiff to Defendant"). But cf. Judicial Watch of Fla., Inc. v. United States Dep't of Justice, No. 97-2869, slip op. at 4-5 (D.D.C. Aug. 25, 1998) (despite fact that disclosed information was "not necessarily all new," finding public interest served "by exposing government actions through litigation").

    128. Judicial Watch, Inc. v. Dep't of Justice, No. 03-5093, 2004 WL 980826, at *18 (D.C. Cir. May 7, 2004) (invoking agency's four-factor fee waiver test, and stating that "[the] four criteria must be satisfied" in order "for a request to be in the "public interest"); Judicial Watch, 326 F.3d at 1312 (applying agency's four-factor analysis of fee waivers, but referring to factors as "non-exclusive list"); Judicial Watch, 2004 WL 635180, at *8 & n.2 (applying four-factor public interest test, and observing that test "is binding precedent" (citing Judicial Watch, 326 F.3d at 1312)); Inst. for Wildlife Prot., 290 F. Supp. 2d at 1229 (recognizing that "agency is to consider [four fee waiver] factors in sequence"); VoteHemp, 237 F. Supp. 2d at 59 (same).

    129. 5 U.S.C. 552(a)(4)(A)(iii); see Dollinger, No. 95-CV-6174T, slip op. at 4 (W.D.N.Y. Aug. 24, 1995) (concluding that "government" as used in fee waiver standard refers to federal government); see also Oglesby v. Dep't of Justice, No. 02-0603, slip op. at 4 (D.D.C. Sept. 3, 2002) (finding that a requester's statement that records pertaining to him would show "which [of his] activities were of interest to the Government and what actions it took with respect to them" was conclusory and did not identify "the link between identifiable government operations and the information requested").

    130. NTEU, 811 F.2d at 648.

    131. See, e.g., DeCato v. Executive Office for United States Attorneys, No. 00-3053, slip op. at 7 (D.D.C. Jan. 2, 2003) (emphasizing that "important[ly], plaintiff does not explain the connection between the requested records about himself" and a governmental activity), summary affirmance granted, No. 03-5044, 2003 WL 22433759, at *1 (D.C. Cir. Oct. 24, 2003); Judicial Watch, Inc. v. Reno, No. 00-0723, 2001 WL 1902811, at *10 (D.D.C. Mar. 30, 2001) (upholding agency's assessment of fees, reasoning that while agency's response to citizen letters regarding Cuban emigre Elian Gonzales would likely contribute to understanding of agency actions, citizen letters to agency on that topic do not), summary judgment granted on other grounds (D.D.C. Sept. 25, 2001); Van Fripp v. Parks, No. 97-0159, slip op. at 10 (D.D.C. Mar. 16, 2000) (characterizing request as a "fishing expedition that does not relate to defined operations or activities of the [agency]"); S.A. Ludsin, 1997 U.S. Dist. LEXIS 8617, at *14 (holding that disclosure of appraisals of government property do not "in any readily apparent way" contribute to public's understanding of operations or activities of government); Atkin v. EEOC, No. 91-2508, slip op. at 27-28 (D.N.J. Dec. 4, 1992) (finding requested list of agency attorneys and their bar affiliations "clearly does not concern identifiable government activities or operations"), appeal dismissed for failure to timely prosecute sub nom. Atkin v. Kemp, No. 93-5548 (3d Cir. 1993); Nance v. USPS, No. 91-1183, 1992 WL 23655, at *2 (D.D.C. Jan. 24, 1992) (reiterating that disclosure of illegally cashed money orders will not contribute significantly to public understanding of operations of government); cf. Judicial Watch, 122 F. Supp. 2d at 9 (indicating that "a requester must do more to be eligible for a fee waiver than simply assert that its request somehow relates to government operations"). But see Inst. for Wildlife Prot., 290 F. Supp. 2d at 1231 (ordering fee waiver where requested documents consisted of petitions submitted to agency by outside parties seeking to list particular species as endangered and where requester "theorized" that such petitions were "likely to contain marginal notes" by agency employees whose "opinions are often ignored or overturned" by agency personnel of higher authority); Landmark Legal Found. v. IRS, No. 97-1474, slip op. at 8 (D.D.C. Sept. 22, 2000) (finding that "[although [the] disclosure . . . standing alone may reveal very little about the [agency], this information, coupled with information already in the public domain, may contribute to an understanding of the" agency's operations or activities), partial summary judgment granted on other grounds, 87 F. Supp. 2d 21 (D.D.C. 2000), aff'd, 267 F.3d 1132 (D.C. Cir. 2001).

    132. See FOIA Update, Vol. VIII, No. 1, at 6.

    133. See id.; Carney v. United States Dep't of Justice, 19 F.3d 807, 814 (2d Cir. 1994) (stating that it is relevant to consider subject matter of fee waiver request); Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988) (noting that character of information is proper factor to consider); VoteHemp, 237 F. Supp. 2d at 61 (rejecting as "rank speculation" plaintiff's allegations that agency had "ulterior motive" when it published interpretive rule); Citizens, 241 F. Supp. 2d at 1366 (reiterating that when applying fee waiver standard, it is relevant to consider subject matter of request); Conklin v. United States, 654 F. Supp. 1104, 1106 (D. Colo. 1987) (finding that mere allegations of agency "oppression" did not justify fee waiver under predecessor fee waiver standard); AFGE v. United States Dep't of Commerce, 632 F. Supp. 1272, 1278 (D.D.C. 1986) (finding union's allegations of malfeasance to be too ephemeral to warrant waiver of search fees without further evidence that informative material will be found), aff'd on other grounds, 907 F.2d 203 (D.C. Cir. 1990); cf. NARA v. Favish, 124 S. Ct. 1570, 1581 (2004) (holding, in the context of Exemption 7(C)'s closely related public interest balancing test, that where the "public interest" asserted is to show negligent or improper performance of agency officials' duties, "the requester must establish more than a bare suspicion in order to obtain disclosure"); Judicial Watch v. Rossotti, No. 01-2672, 2002 U.S. Dist. LEXIS 25213, at *21 (D. Md. Dec. 16, 2002) (finding, in the context of Exemption 7(C)'s balancing test, that plaintiff's request for the names of persons who submitted concerns to the IRS about plaintiff, made to further plaintiff's investigation into the alleged 'connection between volunteer tipsters and the retaliatory, political motivation for the unconstitutional audit and investigation,'" did not rise to a FOIA "public interest"), aff'd sub nom. Judicial Watch v. United States, 84 Fed. Appx. 335 (4th Cir. Jan. 6, 2004), petition for cert. filed, 72 U.S.L.W. 3644 (U.S. Apr. 5, 2004) (No. 03-1389).

    134. See Judicial Watch, Inc., 2004 WL 980826, at *18 (emphasizing that plaintiff received "thousands of pages of requested documents" but "has made no showing" to counter the government's representations that the requested information "was already in the public domain and thus not likely to contribute significantly to the public's understanding" of a governmental activity; further finding "no basis to conclude that [plaintiff] is entitled to a blanket fee waiver" where plaintiff did not take issue with the reasonableness of the district court's finding of the public availability of the documents already released; upholding the government's refusal to process additional documents without payment of fees); Sierra Club Legal Def. Fund, No. 93-35383, slip op. at 4 (9th Cir. Aug. 29, 1994) (determining that plaintiff failed to explain "how its work would add anything to 'public understanding'" where requested material already widely disseminated and publicized); Carney, 19 F.3d at 815 (observing that "where records are readily available from other sources . . . further disclosure by the agency will not significantly contribute to public understanding"); McClellan, 835 F.2d at 1286 (recognizing new information has more potential to contribute to public understanding); Judicial Watch, No. 01-0639, slip op. at 7-8 (D.D.C. Mar. 31, 2003) (finding that plaintiff failed to prove that disclosable documents were "likely to contribute significantly" to the public interest where "a vast majority of the responsive documents . . . were . . . publicly available"); VoteHemp, 237 F. Supp. 2d at 60 (concluding that plaintiff has not shown how requested documents would give public greater understanding of agency policy concerning controlled substance than was already available); Oglesby, No. 02-0603, slip op. at 4 (D.D.C. Sept. 3, 2002) (noting that many of requested records -- news articles, speeches, interviews, and transcripts -- are already in public domain, and thus are "not 'likely to contribute' to public understanding"); Ortloff, No. 98-2819, slip op. at 20 (D.D.C. Mar. 22, 2002) (stating that fee waiver may be denied when information was previously released and is in public domain); Judicial Watch, 2001 WL 1902811, at *10 (sustaining agency's assessment of fees for duplication of court documents, press clippings, and citizen letters where the material was "'easily accessible and available to everyone else for a fee'" (quoting Durham v. United States Dep't of Justice, 829 F. Supp. 428, 434-35 (D.D.C. 1993))); Durham, 829 F. Supp. at 434-35 (denying fee waiver for 2340 pages of public court records), appeal dismissed for failure to timely file, No. 93-5354 (D.C. Cir. Nov. 29, 1994); Sloman, 832 F. Supp. at 68 (stating that public's understanding would not be enhanced to a significant extent where material was previously released to other writers and "more important[ly]" was available in agency's public reading room "where the public has access and has used the information extensively"); cf. Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1094-96 (D.C. Cir. 1992) (finding that news organization was not entitled to attorney fees because, inter alia, requested information was already in public domain). But see Campbell v. United States Dep't of Justice, 164 F.3d 20, 35 (D.C. Cir. 1998) ("declin[ing] to hold that the FBI cannot charge . . . any copying fees," but finding agency's fee waiver analysis "flawed" with regard to summaries of public domain information, information that was repetitious but not asserted to be duplicative, and nonsubstantive administrative information); Judicial Watch, No. 97-2869, slip op. at 4 (D.D.C. Aug. 25, 1998) (while accepting that information sought by requester was "not necessarily all new," nevertheless concluding that it had "high potential" for contributing to public understanding).

    135. Schrecker v. Dep't of Justice, 970 F. Supp. 49, 50 (D.D.C. 1997). Compare Conner v. CIA, No. 84-3625, slip op. at 2 (D.D.C. Jan. 31, 1986) (upholding denial of fee waiver for records available in agency's public reading room), appeal dismissed for lack of prosecution, No. 86-5221 (D.C. Cir. Jan. 23, 1987), and Blakey v. Dep't of Justice, 549 F. Supp. 362, 364-65 (D.D.C. 1982) (applying same principle under previous statutory fee waiver standard), aff'd, 720 F.2d 215 (D.C. Cir. 1983) (unpublished table decision), with Friends of the Coast Fork v. United States Dep't of the Interior, 110 F.3d 53, 55 (9th Cir. 1997) (holding that availability in agency's public reading room alone does not justify denial of fee waiver), Carney, 19 F.3d at 815 (finding that mere fact records released to others does not mean same information is readily available to public), VoteHemp, 237 F. Supp. 2d at 61 (observing that fee waiver is not necessarily precluded solely on basis that information already is in public domain), Judicial Watch, No. 97-2869, slip op. at 4 (D.D.C. Aug 25, 1998) (same), and Fitzgibbon v. Agency for Int'l Dev., 724 F. Supp. 1048, 1051 & n.10 (D.D.C. 1989) (stating that agencies failed to demonstrate "public's understanding" of information publicly available in public reading rooms and reports to Congress).

    136. See Carney, 19 F.3d at 814 (observing that the relevant inquiry is "whether requester will disseminate the disclosed records to a reasonably broad audience of persons interested in the subject"); Wagner v. United States Dep't of Justice, No. 86-5477, slip op. at 2 (D.C. Cir. Mar. 24, 1987) (reiterating that general public must benefit from release); Judicial Watch, 185 F. Supp. 2d at 62 (stating that requester must show that disclosure will contribute to understanding of "reasonably broad audience of persons"); Judicial Watch, 122 F. Supp. 2d at 10 (same); Judicial Watch, 2000 WL 33724693, at *5 (same); Crooker v. Dep't 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); see also NTEU, 811 F.2d at 648 (rejecting "union's suggestion that its size insures that any benefit to it amounts to a public benefit"); Citizens, 241 F. Supp. 2d at 1367 (holding that a requester's intent to release the information obtained "to the media is not sufficient to demonstrate that disclosure would contribute significantly to public understanding"); Fazzini v. United States Dep't of Justice, No. 90-C-3303, 1991 WL 74649, at *5 (N.D. Ill. May 2, 1991) (finding that requester cannot establish public benefit merely by alleging he has "corresponded" with members of media and intends to share requested information with them), summary affirmance granted, No. 91-2219 (7th Cir. July 26, 1991).

    137. See, e.g., Wagner, No. 86-5477, slip op. at 2 (D.C. Cir. Mar. 24, 1987) (stating that general public must benefit from release); Cox v. O'Brien, No. 86-1639, slip op. at 2 (D.D.C. Dec. 16, 1986) (upholding denial of fee waiver where prisoners, not general public, would be beneficiaries of release).

    138. See Ortloff, No. 98-2819, slip op. at 21 (D.D.C. Mar. 22, 2002) (stressing that to qualify him for a fee waiver, the requester's ability to disseminate information "to the general public, or even to a limited segment of the public such as prisoners" must be demonstrated); Van Fripp, No. 97-0159, slip op. at 8 (D.D.C. Mar. 16, 2000) (construing term "public" to include those who are incarcerated); Linn v. United States Dep't of Justice, No. 92-1406, 1995 WL 631847, at *14 (D.D.C. Aug. 22, 1995) (rejecting agency's position that dissemination to prison population is not to public at large; statute makes no distinction between incarcerated and nonincarcerated public).

    139. Southam News v. INS, 674 F. Supp. 881, 892-93 (D.D.C. 1987). But cf. Reporters Comm., 489 U.S. at 773 (establishing that the core purpose of the FOIA is the people's right "to know what their government is up to") (emphasis added); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (observing that the basic purpose of the FOIA is "to hold the governors accountable to the governed").

    140. See, e.g., McClain v. United States Dep't of Justice, 13 F.3d 220, 220-21 (7th Cir. 1993) (stating that a fee waiver was inappropriate when the requester sought to serve a private interest rather than "public understanding of operations or activities of the government"); McQueen, 264 F. Supp. 2d at 525 (acknowledging that plaintiff asserted more than one basis in support of fee waiver, but concluding that his "primary purposes" served private interests and thus disqualified him on that basis alone); DeCato, No. 00-3053, slip op. at 8 (D.D.C. Jan. 2, 2003) (denying fee waiver where requester's stated purpose was to pursue collateral attack on his conviction and sentence); Mells v. IRS, No. 99-2030, 2002 U.S. Dist. LEXIS 24275, at **5-7 (D.D.C. Nov. 21, 2002) (noting that requester's reasons for fee waiver were "overwhelmingly personal in nature" where he claimed that disclosure "would yield exculpatory evidence pertaining to his criminal conviction"); Allnutt v. United States Dep't of Justice, No. Y98-1722, 2000 U.S. Dist. LEXIS 4060, at **18-19 & n.9 (D. Md. Mar. 6, 2000) (magistrate's recommendation) (observing that notwithstanding plaintiff's passionate statement, plaintiff failed to establish that public would benefit from release of records pertaining to his own bankruptcy case), adopted with minor modifications, 99 F. Supp. 2d 673 (D. Md. 2000), renewed motion for summary judgment granted, 2000 WL 852455 (D. Md. Oct. 23, 2000), aff'd sub nom. Allnutt v. Handler, 8 Fed. Appx. 225 (4th Cir. 2001); Crooker, 577 F. Supp. at 1223-24 (finding that prison inmate's intent to write book about brother's connection with dangerous toxin not considered benefit to public); see also Ortloff, No. 98-2819, slip op. at 21 (D.D.C. Mar. 22, 2002) (stating questionably that cases are in conflict as to whether public interest is served where requester seeks records to challenge conviction); cf. Appleton v. FDA, 254 F. Supp. 2d 6, 10 n.5 (D.D.C. 2003) (explaining that FOIA does not provide for expedited processing on basis of age of requester). But see Johnson v. United States Dep't of Justice, No. 89-2842, slip op. at 3 (D.D.C. May 2, 1990) (stressing that death-row prisoner seeking previously unreleased and possibly exculpatory information was entitled to a partial fee waiver on the rationale that a potential "miscarriage of justice . . . is a matter of great public interest"), summary judgment granted, 758 F. Supp. 2, 5 (D.D.C. 1991) (holding that, ultimately, FBI is not required to review records or else forego FOIA exemption for possibly exculpatory information); see also Pederson, 847 F. Supp. at 856 (concluding that requester's personal interest in disclosure of requested information did not undercut fee waiver request when requester established existence of concurrent public interest); cf. Harper v. DOD, No. 93-35876, 1995 WL 392032, at *2 (9th Cir. July 3, 1995) (explaining that prisoner presented no evidence that requested technical reports might contain exculpatory material which would entitle him to consideration for fee waiver).

    141. See, e.g., DeCato v. Executive Office for the United States Attorneys, No. 03-5044, 2003 WL 22433759, at *1 (D.C. Cir. Oct. 24, 2003) (reiterating that "this court has held that indigence is not a justification for waiving fees" (citing Ely, 753 F.2d at 165)); Wagner, No. 86-5477, slip op. at 2 (D.C. Cir. Mar. 24, 1987) (observing that "indigency does not ipso facto require a fee waiver"); Ely, 753 F.2d at 165 ("Congress rejected a fee waiver provision for indigents."); Durham, 829 F. Supp. at 435 n.10 (finding indigence alone does not constitute adequate grounds for fee waiver); Rodriguez-Estrada v. United States, No. 92-2360, slip op. at 2 (D.D.C. Apr. 16, 1993) (explaining no entitlement to fee waiver on basis of in forma pauperis status under 28 U.S.C.  1915 (2000); Crooker, 577 F. Supp. at 1224 (holding indigence alone does not automatically entitle requester to fee waiver); see also S. Conf. Rep. No. 93-1200, at 8 (1974), reprinted in 1974 U.S.C.C.A.N. 6285, 6287 (specific fee waiver provision for indigents eliminated; "such matters are properly the subject for individual agency determination in regulations").

    142. Compare McClain, 13 F.3d at 221 (stating that fee waiver must be assessed in light of identity and objectives of requester), Larson, 843 F.2d at 1483 & n.5 (holding that inability to disseminate information alone is sufficient basis for denying fee waiver request; requester cannot rely on tenuous link to newspaper to establish dissemination where administrative record failed to identify the recipient news media outlet to which he intended to release information, his purpose for seeking requested material, or his . . . contacts with any major newspaper companies"), Citizens, 241 F. Supp. 2d at 1366 (stating that when applying fee waiver standard, it is relevant to consider ability of requester to disseminate information), Ortloff, No. 98-2819, slip op. at 21 (D.D.C. Mar. 22, 2002) (reiterating that inability to disseminate is fatal to fee waiver request; expressing skepticism about viability of plaintiff's claim of maintaining future Web site on which requested documents could be posted), Van Fripp, No. 97-0159, slip op. at 11-12 (D.D.C. Mar. 16, 2000) (finding that "it is plaintiff's burden to disseminate the requested information to the public and not, merely, to make it available"), Anderson, No. 93-253, slip op. at 4 (W.D. Pa. May 11, 1995) (finding requester's inability to disseminate fatal to fee waiver), and Larson v. CIA, 644 F. Supp. 15, 19 n.3 (D.D.C. 1987) (stating that "even if" it was appropriately before the court, the court would reject a letter from a newspaper to the requester indicating an interest in "anything you get" on the subject of the request "as evidence of [the requester's] ability to disseminate" because "such a rule would enable requesters to avoid fees simply by asserting an intention to give the released documents to a newspaper"), aff'd, 843 F.2d 1481 (D.C. Cir. 1988), with Judicial Watch, 326 F.3d at 1314 (granting fee waiver where requester did not specifically state its intent to disseminate requested information but had presented multiple ways in which it could convey information to public), Judicial Watch, 2004 WL 635180, at *9 (finding that requester's "litany of means by which it [could] publicize[] information" without any specific representation that it intended to do so in instant case satisfied dissemination requirement), Eagle v. United States Dep't of Commerce, No. C-01-20591, 2003 WL 21402534, at **3, 5 (N.D. Cal. Apr. 28, 2003) (finding that educator-requester made adequate showing of his ability to disseminate through his proposed distribution of newsletter to Congress, through publication in academic journals, and through publication on Web site), VoteHemp, 237 F. Supp. 2d at 62 (finding requester's tri-part dissemination plan -- using its Web site, issuing press releases, and communicating with federal and state legislators -- sufficient to show that information would reach public), and Judicial Watch, No. 98-2223, slip op. at 14-15 (D.D.C. Sept. 25, 2000) (allowing a fee waiver and finding it reasonable to accept "plaintiff's assurances that it will disseminate the disclosed . . . information . . . to a substantial portion of the public"; stating that requester's failure to identify recipient media outlets for information it receives is not fatal to its claim that dissemination would be made "in venues widely available to the public," including requester's proposal to place information on its Web site).

    143. See McClellan, 835 F.2d at 1286 (observing that fee waiver request gave no indication of requesters' ability to understand and process information nor whether they intended to actually disseminate it); Eagle, 2003 WL 21402534, at *5 (granting a fee waiver and emphasizing that the agency ignored the educational institution requester's intent to review, evaluate, synthesize, and present "the otherwise raw information into a more usable form"); Klamath Water Users Protective Ass'n, No. 96-3077, slip op. at 47 (D. Or. June 19, 1997) (stating that requester provided insufficient information to establish its ability to understand, make use of, and disseminate requested information); S.A. Ludsin, 1997 U.S. Dist. LEXIS 8617, at *16 (finding requester's intention to make raw appraisal data available on computer network, without analysis, to be insufficient to meet public interest requirement); see also FOIA Update, Vol. VIII, No. 1, at 7.

    144. 52 Fed. Reg. at 10,018; cf. Nat'l Sec. Archive, 880 F.2d at 1387 (elaborating on OMB definition of news media representative to include requester organization).

    145. See FOIA Update, Vol. VIII, No. 1, at 8 & n.5; see also Oglesby, No. 02-0603, slip op. at 5 (D.D.C. Sept. 3, 2002) (reiterating that member of news media presumptively meets dissemination factor).

    146. See FOIA Update, Vol. VIII, No. 1, at 8 & n.5; see also, e.g., Oglesby, 920 F.2d at 66 n.11 (explaining that requester's assertion that he was writer and had disseminated in past, coupled with bare statement of public interest, was insufficient to meet statutory standard); McClellan, 835 F.2d at 1286-87 (stating agency may request additional information; finding twenty-three questions not burdensome); Burriss v. CIA, 524 F. Supp. 448, 449 (M.D. Tenn. 1981) (holding that denial of plaintiff's fee waiver request "based upon mere representation that he is a researcher who plans to write a book" was not abuse of discretion). But see Carney, 19 F.3d at 815 (noting that while requester had only tentative book publication plans, "fact that he is working on a related dissertation is sufficient evidence . . . that his book will be completed"); cf. D.C. Technical Assistance Org. v. HUD, 85 F. Supp. 2d 46, 49 (D.D.C. 2000) (suggesting that in "this Information Age, technology has made it possible for almost anyone to fulfill [the fee waiver dissemination] requirement").

    147. See NTEU, 811 F.2d at 649; Goldberg v. United States Dep't of State, No. 85-1496, slip op. at 3-4 (D.D.C. Apr. 29, 1986), modified (D.D.C. July 25, 1986); Badhwar v. United States Dep't of the Air Force, 615 F. Supp. 698, 708 (D.D.C. 1985); Rosenfeld v. United States Dep't of Justice, No. C-85-2247, slip op. at 4-5 (N.D. Cal. Oct. 29, 1985), reconsideration denied (N.D. Cal. Mar. 25, 1986).

    148. See FOIA Update, Vol. VIII, No. 1, at 8; accord FOIA Update, Vol. IV, No. 4, at 14.

    149. 5 U.S.C.  552(a)(4)(A)(ii)(II); OMB Fee Guidelines, 52 Fed. Reg. at 10,019; see also McClain, 13 F.3d at 221 (dictum) (concluding that status as newspaper or nonprofit institution does not lead to automatic waiver of fee); cf. Media Access Project v. FCC, 883 F.2d 1063, 1065 (D.C. Cir. 1989) (remarking that any requester may seek waiver of assessed fees on "case-by-case" basis); Nat'l Sec. Archive, 880 F.2d at 1383 (dictum) (observing that fee waiver decisions are to be made on "case-by-case" basis).

    150. 965 F.2d at 1095-96 (holding that litigant's status as news organization does not render award of attorney fees automatic).

    151. 5 U.S.C. 552(a)(4)(A)(iii); see Sierra Club Legal Def. Fund, No. 93-35383, slip op. at 4 (9th Cir. Aug. 29, 1994) (explaining that status as public interest law firm does not entitle requester to fee waiver); McClain, 13 F.3d at 221 (stating that status as newspaper or nonprofit institution does not lead to "automatic" waiver of fee); McClellan, 835 F.2d at 1284 (stating that legislative history makes plain that "public interest" groups must satisfy statutory test); VoteHemp, 237 F. Supp. 2d at 59 (explaining that nonprofit status "does not relieve [the requester] of its obligation to satisfy the statutory requirements for a fee waiver"); Judicial Watch v. United States Dep't of Justice, No. 97-2089, slip op. at 13 (D.D.C. July 14, 1998) (emphasizing that requester's status as public interest group does not entitle it to fee waiver); Nat'l Wildlife Fed'n, No. 95-017-BU, slip op. at 3-4 (D. Mont. July 15, 1996) (finding that public interest groups must satisfy the statutory test and that a requester does not qualify for a fee waiver by "basically" relying on its status "as one of the nation's largest" conservation organizations).

    152. See FOIA Update, Vol. VIII, No. 1, at 8.

    153. See, e.g., Van Fripp, No. 97-0159, slip op. at 12 (D.D.C. Mar. 16, 2000) (emphasizing that placement in library amounts to, "at best, a passive method of distribution" that does not establish entitlement to fee waiver); Klamath Water Users Protective Ass'n, No. 96-3077, slip op. at 47 (D. Or. June 19, 1997) (finding placement in library insufficient in itself to establish entitlement to fee waiver); cf. S.A. Ludsin, 1997 U.S. Dist. LEXIS 8617, at *16 (indicating that requester, who intended merely to make raw appraisal data available in electronic form, failed to explain how disclosure would provide explanation to public about government activities); see also FOIA Update, Vol. VIII, No. 1, at 8.

    154. See FOIA Update, Vol. VIII, No. 1, at 8.

    155. Cf. Favish, 124 S. Ct. at 1580-81 (emphasizing, in the Exemption 7(C) context, that the requester "must establish a sufficient reason for the disclosure" by showing "that the public interest sought to be advanced is a significant one" and that the information sought is "likely to advance that interest"); FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (advising further on nexus requirement).

    156. See FOIA Update, Vol. VIII, No. 1, at 8; Sierra Club Legal Def. Fund, No. 93-35383, slip op. at 4 (9th Cir. Aug. 29, 1994) (concluding that requester failed to explain how disclosure to it "would add anything to 'public understanding' in light of vast amount of material already disseminated and publicized"); Carney, 19 F.3d at 815 (observing when requested records readily available from other sources, further disclosure will not significantly contribute to public understanding); Oglesby, No. 02-0603, slip op. at 5 (D.D.C. Sept. 3, 2002) (observing that plaintiff failed to show how disclosure of records of his own activities would demonstrate how public's understanding of government operations would be significantly enhanced); Judicial Watch, 185 F. Supp. 2d at 62 (finding that plaintiff failed to describe with specificity how disclosure of "these particular documents will 'enhance' public understanding 'to a significant extent'"); Judicial Watch, 122 F. Supp. 2d at 10 (explaining that plaintiff's failure to provide information relevant to other fee waiver factors "makes it impossible to determine that disclosing the requested information will significantly contribute to public understanding of that operation or activity"); Judicial Watch, 2000 WL 33724693, at *5 (stating that plaintiff's conclusory statements in support of a fee waiver "do not discuss . . . if the disclosure would significantly enhance public understanding"); D.C. Technical Assistance Org., 85 F. Supp. 2d at 49 (noting that while plaintiff demonstrated ability to disseminate information, it failed to establish that disclosure would contribute significantly to public's understanding of government activities or operations); Dollinger, No. 95-CV-6174T, slip op. at 5-6 (W.D.N.Y. Aug. 24, 1995) (finding that routine, generic information "lacks substantial informative value" and would not significantly contribute to public understanding); Sloman, 832 F. Supp. at 68 (stating information previously released to other writers and "more important[ly]" available in agency's reading room will not contribute significantly to public understanding of operations of government); see also Judicial Watch v. United States Dep't of Justice, No. 99-1883, slip op. at 12 n.4 (D.D.C. Sept. 11, 2003) (finding no need to examine fee waiver issue where plaintiff failed to exhaust administrative remedies on that issue, yet nonetheless observing that "other courts in this district have upheld denial of Plaintiff's similarly non-specific fee waiver" requests). But see Landmark, No. 97-1474, slip op. at 10 (D.D.C. Sept. 22, 1998) (finding "untenable" agency's position that possible prospective release" of same material by congressional committee diminishes significance of current release); Pederson, 847 F. Supp. at 855 (finding that despite requesters' failure to specifically assert such significance, widespread media attention referenced in appeal letter sufficient to demonstrate information's significant contribution to public understanding).

    157. Cf. 132 Cong. Rec. S14,298 (daily ed. Sept. 30, 1986) (statement of Sen. Leahy) (emphasizing that agencies should administer the fee waiver provision in "an objective manner and should not rely on their own, subjective view as to the value of the information"); see also Ettlinger v. FBI, 596 F. Supp. 867, 875 (D. Mass. 1984); FOIA Update, Vol. VIII, No. 1, at 8.

    158. 5 U.S.C.  552(a)(4)(A)(iii).

    159. See FOIA Update, Vol. VIII, No. 1, at 9 (discussing analysis required to determine whether requester has commercial interest); see also VoteHemp, 237 F. Supp. 2d at 64 (citing to agency's regulation and noting that "agencies are instructed to consider 'the existence and magnitude' of a commercial interest").

    160. See id.; OMB Fee Guidelines, 52 Fed. Reg. at 10,017-18; cf. Am. Airlines, Inc. v. Nat'l Mediation Bd., 588 F.2d 863, 870 (2d Cir. 1978) (defining term "commercial" in Exemption 4 as meaning anything "pertaining or relating to or dealing with commerce").

    161. See McClellan, 835 F.2d at 1285; cf. Detroit Free Press, Inc. v. Dep't of Justice, 73 F.3d 93, 98 (6th Cir. 1996) (stating, in context of attorney fees, that "'news interests should not be considered commercial interests'" when examining commercial benefit to requester (quoting Fenster v. Brown, 617 F.2d 740, 742 n.4 (D.C. Cir. 1979))).

    162. See OMB Fee Guidelines, 52 Fed. Reg. at 10,013; FOIA Update, Vol. VIII, No. 1, at 9; see also VoteHemp, 237 F. Supp. 2d at 65 (concluding that nonprofit organization, as advocate for free market in controlled substance, had commercial interest in requested records); Judicial Watch, No. 97-2869, slip op. at 5 (D.D.C. Aug. 25, 1998) (stating that nonprofit status "does not determine the character of the information"); cf. Critical Mass Energy Project v. NRC, 830 F.2d 278, 281 (D.C. Cir. 1987) (recognizing that entity's "non-profit status is not determinative" of commercial status) (Exemption 4 case).

    163. See FOIA Update, Vol. VIII, No. 1, at 9; see also VoteHemp, 237 F. Supp. 2d at 65 ("A review of plaintiff's website pages demonstrates that indeed it has a commercial interest in the information it is seeking to obtain."); cf. Tax Analysts, 965 F.2d at 1096 (clarifying that in the context of attorney fees, the status of a requester as a news organization does not "render[] irrelevant the news organization's other interests in the information").

    164. See FOIA Update, Vol. VIII, No. 1, at 9.

    165. See id.

    166. See id.

    167. Burriss, 524 F. Supp. at 449.

    168. See FOIA Update, Vol. VIII, No. 1, at 10; see also Nat'l Sec. Archive 880 F.2d at 1388 (requests from news media entities, in furtherance of their newsgathering function, are not for "commercial use").

    169. See FOIA Update, Vol. VIII, No. 1, at 10; see also Nat'l Sec. Archive, 880 F.2d at 1387-88.

    170. See FOIA Update, Vol. VIII, No. 1, at 10; cf. Friends of the Coast Fork, 110 F.3d at 55 (emphasizing that where agency's regulations provide for multifactor test, it is inappropriate to rely on single factor); Or. Natural Desert Ass'n v. United States Dep't of the Interior, 24 F. Supp. 2d 1088, 1095 (D. Or. 1998) (finding that fee waiver denial must fail when agency did not fully follow its multifactor regulation).

    171. See, e.g., Goldberg, No. 85-1496, slip op. at 3-5 (D.D.C. Apr. 29, 1986) (holding that an agency policy of granting a waiver of search fees but not of duplication fees is "both irrational and in violation of the statute"); Idaho Wildlife Fed'n v. United States Forest Serv., 3 Gov't Disclosure Serv. (P-H)  83,271, at 84,056 (D.D.C. July 21, 1983) (emphasizing that reliance on regulation that proscribes granting of fee waiver when records are sought for litigation is abuse of discretion because regulation is overbroad in that it ignores "public interest" in certain litigation); Diamond v. FBI, 548 F. Supp. 1158, 1160 (S.D.N.Y. 1982) (maintaining that agency may not decline to waive fees based merely upon perceived obligation to collect them); Eudey v. CIA, 478 F. Supp. 1175, 1177 (D.D.C. 1979) (stating that agency may not consider quantity of documents to be released).

    172. See 28 C.F.R.  16.11(k)(4) ("Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records."); cf. Samuel Gruber Educ. Project v. United States Dep't of Justice, 24 F. Supp. 2d 1, 2 (D.D.C. 1998) (upholding, without discussion, seventy-percent fee waiver granted by agency). But see Schrecker, 970 F. Supp. at 50-51 (granting full fee waiver despite agency's determination that portion of requested information already was in public domain); cf. Campbell, 164 F.3d at 35 (finding fault with analysis used by agency to award partial fee waiver; remanding case for reconsideration but declining to hold that agency may not charge any fee).

    173. 5 U.S.C.  552(a)(4)(A)(iii); see also, e.g., 28 C.F.R. 16.11(k)(2).

    174. Judicial Watch, 2000 WL 33724693, at *5 (explaining that "under the FOIA, the [fee waiver] analysis focuses on the subject and impact of the particular disclosure"); Van Fripp, No. 97-159, slip op. at 10 (D.D.C. Mar. 16, 2000) (stating that "reviewing agencies and courts should consider . . . whether the disclosable portions of requested information are meaningfully informative in relation to the subject matter requested" (citing agency's fee waiver regulation)).

    175. 710 F. Supp. 362, 366-68 (D.D.C. 1989).

    176. 484 F.2d 820, 826-28 (D.C. Cir. 1973).

    177. Cf. LaCedra v. Executive Office for United States Attorneys, No. 99-0273, slip op. at 1 (D.D.C. Nov. 5, 2003) ("Unless the agency waives fees, the payment of assessed fees or the administrative appeal from the denial of a fee waiver request is a jurisdictional prerequisite to maintaining a FOIA lawsuit.").

    178. See 5 U.S.C. 552(a)(3); see also, e.g., Pollack v. Dep't of Justice, 49 F.3d 115, 120 (4th Cir. 1995) (finding when requester refused to commit to pay fees, agency "had the authority to cease processing [his] request"); Vennes v. IRS, No. 89-5136, slip op. at 2-3 (8th Cir. Oct. 13, 1989) (explaining agency under no obligation to produce material until either requester agrees to pay fee or fee waiver is approved); Casad, 2003 U.S. Dist. LEXIS 13007, at *18 (recognizing that where fee waiver is denied, no action by agency is required until requester agrees to pay fee associated with request); Woodfolk v. DEA, No. 97-0634, slip op. at 2 (D.D.C. Jan. 29, 2002) (finding that agency had no obligation to produce records where requester had neither paid fee nor applied for fee waiver); Daniel v. United States Dep't of Justice, No. 99-2423, slip op. at 2 (D.D.C. Mar. 30, 2001) (dismissing complaint for production of records where plaintiff had failed to pay fee after fee waiver was denied), summary affirmance granted, No. 01-5119, 2001 WL 1029156, at *1 (D.C. Cir. Aug 28, 2001); Krese v. Executive Office of the President, No. 99-2415, 2000 U.S. Dist. LEXIS 14024, at *4 (D.D.C. Sept. 25, 2000) (reiterating that agency has no obligation to produce records where requester has not paid fee); Irons v. FBI, 571 F. Supp. 1241, 1243 (D. Mass. 1983) (upholding regulation requiring payment of fees or waiver of fees before FOIA request is deemed to have been received); cf. Judicial Watch, No. 01-0639, slip op. at 7-8 (D.D.C. Mar. 31, 2003) (recognizing that court's prior opinion "essentially requiring [agency] to process Plaintiff's entire FOIA request for free without requiring Plaintiff to meet its burden of proof" of entitlement to fee waiver was improper); Johnston v. United States, No. 93-CV-5605, 1997 U.S. Dist. LEXIS 597, at *4 (E.D. Pa. Jan. 27, 1997) (upholding agency's decision to make availability of records contingent upon agreement to pay estimated fees); FOIA Update, Vol. XIX, No. 3, at 2 (advising agencies how to count requests closed for nonpayment of fees, for purposes of annual FOIA reports). But see Judicial Watch, 2004 WL 635180, at *12 (ruling, where the agency granted a fee waiver for all documents other than those to be withheld, that it "'invert[s] the burden of proof'" to require plaintiff to show that agency's "contemplated withholdings" are not proper (quoting Project on Military Procurement, 710 F. Supp. at 367)); see also Carney, 19 F.3d at 815 (finding it not proper to deny fee waiver request on basis that records may have been exempt; fee waiver "should be evaluated on face of request"); Wilson v. CIA, No. 89-3356, slip op. at 3-4 (D.D.C. Mar. 25, 1991) (stating that agency may not deny fee waiver request based upon "likelihood" that information will be withheld); cf. Landmark, No. 97-1474, slip op. at 7 (D.D.C. Sept. 22, 1998) (finding it proper to deny fee waiver based on agency's preliminary determination of exempt status of the records "'only if the request was for patently exempt documents'" (quoting Carney, 19 F.3d at 814)).

    179. See Judicial Watch, Inc., 2004 WL 980826, at *18 (implicitly rejecting plaintiff's "catch-22" argument -- i.e., that it was being asked to identify documents qualifying for fee waiver before getting access to them -- and thus both exposing and logically undermining flawed rationale of Project on Military Procurement); cf., e.g., Favish, 124 S. Ct. at 1580 (evincing Supreme Court's emphasis on "giv[ing] practical meaning" to FOIA provisions).

    180. Accord Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum], reprinted in FOIA Post (posted 10/15/01) (emphasizing importance of "fully functional and efficient government"); cf. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 146 (1989) (pragmatically observing in a case involving requested materials "that are readily available elsewhere" that "the fact that the FOIA allows agencies to [properly] recoup the costs of processing requests from the requester may [preferably] discourage recourse to the FOIA" in such instances, effectively serving as a necessary disincentive).

    181. See Rodriguez v. USPS, No. 90-1886, slip op. at 3 n.1 (D.D.C. Oct. 2, 1991) (suggesting agency "consider" waiving de minimis fee despite requester's failure to comply with exhaustion requirement); see also OMB Fee Guidelines, 52 Fed. Reg. at 10,018 (encouraging agencies, with regard to fee matters, to use "most efficient and least costly methods" to comply with FOIA requests).

    182. See 5 U.S.C.  552(a)(4)(A).

    183. See Judicial Watch, 326 F.3d at 1311 ("A requester is considered to have constructively exhausted administrative remedies and may seek judicial review immediately if . . . the agency fails to answer the [fee waiver] request within twenty days.") (internal citations omitted); Judicial Watch, 2004 WL 635180, at *10 (commenting that where agency fails to respond to fee waiver request within twenty working days, requester has constructively exhausted administrative remedies and may seek judicial review); Pub. Citizen, Inc. v. Dep't of Educ., 292 F. Supp. 2d 1, 4 (D.D.C. 2003) (stating that "if the agency fails to respond to a waiver request within twenty days, the requester is deemed to have constructively exhausted" administrative remedies).

    184. See, e.g., 28 C.F.R.  16.9(a) ("If you are dissatisfied with [the agency's] response to your request, you may appeal an adverse determination denying your request."); see also, e.g., id. at  16.6(c) (including in its listing of adverse determinations "a denial of a request for a fee waiver").

    185. See Pruitt v. Executive Office for the United States Attorneys, No. 01-5453, 2002 WL 1364365, at *1 (D.C. Cir. Apr. 19, 2002) (reiterating that judicial review is not appropriate until requester either appeals fee waiver denial or pays assessed fee); Voinche v. United States Dep't of the Air Force, 983 F.2d 667, 669 (5th Cir. 1993) (emphasizing that requester seeking fee waiver under FOIA must exhaust administrative remedies before seeking judicial review); Oglesby, 920 F.2d at 66 & n.11, 71 ("Exhaustion does not occur until fees are paid or an appeal is taken from the refusal to waive fees."); Pub. Citizen, 292 F. Supp. 2d at 4 ("A requester who disagrees with the denial of a waiver must pursue administrative remedies."); Judicial Watch, No. 99-1883, slip op. at 10-12 (D.D.C. Sept. 11, 2003) (concluding that although plaintiff "may have" exhausted its administrative remedies as to other issues, it had failed to administratively exhaust as to agency's denial of fee waiver, so its claims related to fee waiver were not properly before court; rejecting plaintiff's argument that its failure was irrelevant because of claimed entitlement to full waiver of fees); Trulock v. United States Dep't of Justice, 257 F. Supp. 2d 48, 52-53 (D.D.C. 2003) (reiterating that where plaintiff has neither appealed fee waiver denial nor paid estimated fee, court cannot address entitlement to fee waiver until plaintiff exhausts administrative remedies with respect to fee issue); see also AFGE, 907 F.2d at 209 (declining consideration of fee waiver request when not pursued during agency administrative proceeding); LaCedra, No. 99-0273, slip op. at 1 (D.D.C. Nov. 5, 2003) (reiterating that payment of fees or appeal from denial of a fee waiver is jurisdictional prerequisite to maintaining lawsuit); Maydak v. United States Dep't of Justice, 254 F. Supp. 2d 23, 50 (D.D.C. 2003) (stating that payment or waiver of fees is jurisdictional prerequisite to filing suit); 28 C.F.R.  16.9(c) (Department of Justice regulation providing for administrative appeal exhaustion before court review); cf. Campbell v. Unknown Power Superintendent of Flathead Irrigation & Power Project, No. 91-35104, slip op. at 3 (9th Cir. Apr. 22, 1992) (explaining exhaustion requirement not imposed when agency ignored fee waiver request). But see Pub. Citizen, 292 F. Supp. 2d at 4 (finding that requester constructively exhausted administrative remedies where agency failed to respond to fee waiver request within twenty working days); Mells, 2002 U.S. Dist. LEXIS 24275, at **5-7 (concluding, in fact-specific case, that requester had constructively exhausted where agency acknowledged receipt of appeal, did not substantively respond to it, but rather contacted requester in order "to confirm his intentions to appeal" given nature of correspondence exchanged with agency after receiving fee waiver denial).

    186. See, e.g., NTEU, 811 F.2d at 647 (stating that agency's denial of fee waiver will be upheld unless finding is arbitrary or capricious); Burke v. United States Dep't of Justice, 559 F.2d 1182, 1182 (10th Cir. 1977) (same); Allen v. FBI, 551 F. Supp. 694, 696 (D.D.C. 1982) (same); Diamond, 548 F. Supp. at 1160 (same); Sellers v. Webster, 2 Gov't Disclosure Serv. (P-H)  81,243, at 81,699 (S.D. Ill. Feb. 6, 1981) (same); Eudey, 478 F. Supp. at 1176 (same); Fellner v. United States Dep't of Justice, No. 75-C-430, slip op. at 7 (W.D. Wisc. Apr. 28, 1976) (same); see also McClellan, 835 F.2d at 1248 (noting that for judicial review of fee waivers after the 1986 FOIA amendments "a court no longer applies the 'arbitrary and capricious' standard to an agency's action"); Ely, 753 F.2d at 165; Ettlinger, 596 F. Supp. at 871; cf. Walker v. IRS, No. 86-0073, 1986 WL 12049, at *2 (M.D. Pa. June 16, 1986) (noting that FOIA gives agency broad discretion to waive fees).

    187. 5 U.S.C.  701-06 (2000).

    188. Crooker, 577 F. Supp. at 1224.

    189. 5 U.S.C.  552(a)(4)(A)(vii).

    190. See Judicial Watch, 326 F.3d at 1311 (recognizing that review of agency's fee waiver denial is de novo); Campbell, 164 F.3d at 35 (stating that judicial review for action regarding wavier of fees is de novo); Judicial Watch, 2004 WL 635180, at *7 (same); Inst. for Wildlife Prot., 290 F. Supp. 2d at 1228 (same); Eagle, 2003 WL 21402534, at *2 (same); McQueen, 264 F. Supp. 2d at 424 (same); Crain v. United States Customs Serv., No. 02-0341, slip op. at 5 n.5 (D.D.C. Mar. 25, 2003) (noting that "uncertainty present in review of fee status determinations is in contrast to review of denials of fee waiver requests, which must be done [de novo]"); Judicial Watch, 122 F. Supp. 2d at 11 (acknowledging that 1986 FOIA amendments changed standard of review for fee waivers to de novo review); Judicial Watch, No. 98-2223, slip op. at 7 (D.D.C. Sept. 25, 2000) (same); Schrecker, 970 F. Supp. at 50 (same).

    191. 5 U.S.C.  552(a)(4)(A)(vii); see also, e.g., Judicial Watch, 326 F.3d at 1311 (stating that review is "limited to the record before the agency"); Campbell, 164 F.3d at 35 (same); Friends of the Coast Fork, 110 F.3d at 55 (stating that court's consideration of fee waiver must be limited to administrative record before agency); Carney, 19 F.3d at 814 (same); AFGE, 907 F.2d at 209 (same); Judicial Watch, 2004 WL 635180, at *7 (same); Eagle, 2003 WL 21402534, at *4 (acknowledging that the agency ordinarily is not permitted "to rely on justifications for its decision that were not articulated during the administrative proceedings," but finding that here the agency was "simply clarifying and explaining" its earlier position); DeCato, No. 00-3053, slip op. at 7 (D.D.C. Jan. 2, 2003) (limiting review of agency's denial of fee waiver request to record before agency); Judicial Watch, 133 F. Supp. 2d at 53 & n.1 (disallowing consideration of information not provided by plaintiff in administrative record); Judicial Watch, 2000 WL 33724693, at *3 & n.1 (same); Anderson, No. 93-253, slip op. at 2 (W.D. Pa. May 11, 1995) (same; stating that new material not reviewed by agency cannot be given any weight); Pederson, 847 F. Supp. at 854 (same).

    192. See, e.g., Friends of the Coast Fork, 110 F.3d at 55 (reiterating that agency's letter "must be reasonably calculated to put the requester on notice" as to reasons for the fee waiver denial); Larson, 843 F.2d at 1483 (information not part of administrative record may not be considered by district court when reviewing agency fee waiver denial); NTEU, 811 F.2d at 648 (holding that court can consider only information before agency at time of decision); Pub. Citizen, 292 F. Supp. 2d at 5 (criticizing agency for its failure to adjudicate fee waiver by emphasizing that "this Court has no record upon which to evaluate plaintiff's claims that it is entitled to a waiver"); S.A. Ludsin, 1997 U.S. Dist. LEXIS 8617, at *16 (stating that court cannot consider reasons not provided by agency); Fitzgibbon, 724 F. Supp. at 1051 n.10 (finding government's "post hoc rationales" offered in response to lawsuit untimely); see also FOIA Update, Vol. VIII, No. 1, at 10; FOIA Update, Vol. VI, No. 1, at 6.

    193. See 5 U.S.C.  552(a)(4)(B); see also, e.g., 28 C.F.R.  16.9(b) (requiring agency to inform requester of right to judicial review of agency's adverse determination); id. at  16.6(c) (providing that adverse determinations include "a denial of a fee waiver request"); cf. Klein v. United States Patent & Trademark Office, No. 97-5285, 1998 U.S. App. LEXIS 4720, at *2 (D.C. Cir. Feb. 9, 1998) (holding that review of fee waiver denial may not be sought in appellate court in first instance); Kansi v. United States Dep't of Justice, 11 F. Supp. 2d 42, 43 (D.D.C. 1998) (refusing to consider fee waiver request when it was not raised in Complaint or adequately justified before agency).

    194. See Better Gov't Ass'n v. Dep't of State, 780 F.2d 86, 91-92 (D.C. Cir. 1986) (concluding that arguments concerning facial validity of fee waiver guidelines not moot when agency intends to apply same standards to future requests); Pub. Citizen v. OSHA, No. 86-705, slip op. at 2-3 (D.D.C. Aug. 5, 1987) (same); cf. Judicial Watch, 2004 WL 635180, at **7, 10 n.3 (explaining that because requester was entitled to full fee waiver "it was unnecessary to determine" its fee category); Long v. ATF, 964 F. Supp. 464, 497-98 (D.D.C. 1997) (holding that there is no "independent right" to fee category determination once fee waiver is granted); Project on Military Procurement, 710 F. Supp. at 368 (finding no need to determine requester category where requester was going to receive full fee waiver anyway).

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