FOIA Guide, 2004 Edition: Fees and Fee Waivers

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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. Â§ 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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