FOIA Update: Fee Waiver Policy Guidance

[The following is the full text of the Department of Justice fee waiver policy guidance memorandum issued to the heads of all federal departments and agencies on Jan. 7, 1983, by Jonathan C. Rose, Assistant Attorney General, Office of Legal Policy.]

Because of some confusion and inconsistency among different agencies in the administration of the fee waiver provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as amended, this Office is providing the following fee waiver policy guidance on behalf of the Attorney General, see 28 C.F.R. § 0.23(c) (1981), and in accordance with 5 U.S.C. § 552(d). This guidance supersedes the guidance issued by the Department of Justice on this subject in late 1980 and early 1981. Through this restatement of fee waiver policy, the Department of Justice expects that agencies will more consistently and successfully apply the statutory standard that a FOIA fee be waived or reduced "where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public." 5 U.S.C. § 552(a)(4)(A) (emphasis added).

The Department of Justice remains committed to encouraging agencies to waive FOIA search and duplication fees where the disclosure of requested information will primarily benefit the general public. In such cases, the granting of a waiver is in the public interest. However, it must also be noted that federal agencies are obligated to safeguard the public treasury by refusing to provide search and duplication services at reduced or no cost under circumstances in which waivers are not provided for by the statute. Thus, all agency personnel should be aware of the dual policy objectives embodied in the statutory fee waiver provisions: (1) the fostering of disclosure of nonexempt agency records where it will primarily benefit the general public, and (2) the preservation of public funds where there will be insufficient public benefit derived from disclosure. See Burriss v. Central Intelligence Agency, 524 F. Supp. 448, 449 (M.D. Tenn. 1981). Fee waivers must not be granted simply because it is the course of least resistance but, rather, only where the statutory standard is met.

Decisions on fee waiver requests are matters committed to the exercise of sound agency discretion. See Lybarger v. Cardwell, 577 F.2d 764, 766 (1st Cir. 1978). Judicial application of this principle has resulted in the upholding of such agency determinations unless they are found to be "arbitrary and capricious." See, e.g., Diamond v. Federal Bureau of Investigation, 548 F. Supp. 1158, 1160 (S.D.N.Y. 1982); Sellers v. Webster, 2 GDS ¶ 81,243 (S.D. Ill. 1981). While this standard appropriately accommodates the expertise of each individual agency, there are five general factors which should be considered by any agency determining whether there is sufficient public benefit to be derived from disclosure to warrant the granting of a fee waiver. An analysis undertaken according to these five criteria will provide a sound and proper basis for all such determinations.

First, an agency must determine whether there is a genuine public interest in the subject matter of the documents for which a fee waiver is sought; absent such a public interest, there is no basis for granting a waiver. See Newsome v. Federal Bureau of Investigation, 1 GDS ¶ 79,142 (M.D.N.C. 1979). There is no universal formula by which the existence and extent of legitimate public interest in the subject matter of FOIA requests can be evaluated, so each agency must draw on its unique expertise in making these judgments about the subject matter of its own records. The "public" to be benefited need not be so broad as to encompass all citizens, but it must be distinct from the requester alone. An interest which is personal to the requester is insufficient, see, e.g., Heimerle v. Department of Justice, 3 GDS ¶ 82,261 (D.D.C. 1982), nor is it in the public interest to grant a waiver solely on the basis of a requester's indigency, see, e.g., Rizzo v. Tyler, 438 F. Supp. 895, 900-01 (S.D.N.Y. 1977).

The second factor which agencies must examine is the value to the public of the records themselves. A fee waiver is appropriate only if the disclosable contents of the records are in fact informative on the issue found to be of public interest. See, e.g., Common Cause v. Internal Revenue Service, 1 GDS ¶ 79,188 (D.D.C. 1979), aff'd, 646 F.2d 656 (D.C. Cir. 1981). No matter how interesting or vital the subject matter of a request, the public is benefited only if the information released meaningfully contributes to the public development or understanding of the subject. See, e.g., Shaw v. Central Intelligence Agency, 3 GDS ¶ 83,009 (D.D.C. 1982). Where the information that can be disclosed in response to a FOIA request is of only marginal value in informing the public, the public benefit derived from disclosure is diminished accordingly.

A third factor to be considered is whether the requested information is already available in the public domain. This factor is one that occasionally is overlooked. Agency personnel should ascertain whether material being considered for a fee waiver has been published or is otherwise available on the public record. Where requested information is already in the public domain, particularly in an agency's public reading room, the denial of a fee waiver is appropriate. See, e.g., Blakey v. Department of Justice, 549 F. Supp. 362, 364-65 (D.D.C. 1982).

Fourth, while the identity of a FOIA requester is usually not a proper factor for agencies to consider in granting or denying access, it should be considered in acting on a request for a fee waiver. See Mahler v. United States Bureau of Prisons, 2 GDS ¶ 82,031 (D.D.C. 1980). A requester's identltv and qualifications -- e.g., expertise in the subject area and ability and intention to disseminate the information to the public -- should be evaluated. See, e.g., Lykins v. Rose, 3 GDS ¶ 82,486 (D.D.C. 1982).Specialized knowledge is often required to extract and effectively convey information to the public and requesters vary in their ability to do so. Therefore, requesters should specifically describe their qualifications, the nature of their research, and the purposes for which they intend to use the requested materials. See, e.g., Blakey v. Department of Justice, 549 F. Supp. at 364. Bare assertions by requesters that they are "researchers" or have "plans to author a book" are insufficient. Burriss v. Central Intelligence Agency, 524 F. Supp. at 449.

The final criterion requires an assessment, based upon information provided by the requester as well as information independently available to the agency, of any personal interest of the requester reasonably expected to be benefited by disclosure. Such interests of course include any commercial interest, as well as the interests of first-party requesters in records pertaining to themselves and the interests of parties seeking records for use in litigation. See, e.g., Dorta v. Federal Bureau of Investigation, 3 GDS ¶ 82,349 (D.D.C. 1982). It is necessary to assess the magnitude of any such personal interest, and then to compare it with that of any discernible public benefit, because a fee waiver or reduction is appropriate under the statute only where the benefit to the general public is primary. See Eudey v. Central Intelligence Agency, 478 F. Supp. 1175, 1177 (D.D.C. 1979), Rizzo v. Tyler, 438 F. Supp. at 900.

In conclusion, we again urge agencies to conduct thorough reviews of all fee waiver requests, on a case-by-case basis, and to grant waivers or reductions only in those cases in which the requester establishes that the disclosure of the information will primarily benefit the general public. Only then can the public be assured that government agencies are honoring the Congressional mandate to disclose records at reduced or no charge where their release primarily benefits the general public, while in other cases preventing "a drain upon agency appropriations that Congress never intended." Blakey v. Department of Justice, 549 F. Supp. at 365.

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