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FOIA Update: Fees

FOIA Update
Vol. IV, No. 1


Federal agencies are authorized under the FOIA to set fees for search and duplication which are "limited to reasonable standard charges for document search and duplication and provide for recovery of only the direct costs of such search and duplication." 5 U.S.C. § 552(a)(4)(A).

While FOIA personnel readily acknowledge that fee schedules in many agencies are in need of revision because they do not reflect current copying costs and salary scales, they also observe that fee schedules are generally regarded as of small concern because agencies never recover their costs, no matter how current their fee schedules. This is in part because under existing law the cost of FOIA administration and of review and redaction of documents cannot be charged to the requester. Agency personnel well know that document review and excision is a particularly costly process which involves many layers of personnel and which accounts for most of the expense of FOIA administration.

A different problem, but one which also bears on fee schedules, stems from the fact that moneys paid by requesters do not go to agencies, but instead are funneled into the Treasury. Hence, an agency spends its own appropriated funds and uses its own resources for search and duplication, but reaps no direct reimbursement.

"There's little incentive to expend additional resources to charge fees and process the checks," says one government worker who deals with the FOIA every day.

Legislation before the 97th Congress addressed several of these concerns. The Administration-endorsed bill, S. 1730, provided that agencies would be allowed to keep a portion of their FOIA fees; authorized agencies to charge "for all costs reasonably and directly attributable" to a request, including search, duplication, and processing; and directed the Office of Management and Budget to issue guidelines to assist agencies in promulgating uniform fee regulations. Such legislation will be reintroduced in the 98th Congress.

Agencies Surveyed

The Office of Information and Privacy recently surveyed 80 federal agencies, including all cabinet-level departments, in an effort to compile an overall sketch of agency practices in the area of fees and fee schedules. Findings were:

• Many agencies still charge 10 cents per page for photocopies, but published schedules show copying charges as high as 25 to 45 cents at some agencies.

• Existing search charge practices reveal a widespread failure to update regulations to reflect present federal salaries, which have increased yearly by several percentage points.

• Several agencies contract out photocopying or other duplication work done in connection with FOIA requests. Decisions of the Comptroller General support this practice.

The OIP survey revealed that 49 agencies use 10 cents per page as a standard photocopying rate, although several charge more per page for the first few pages and then drop to the lower rate. Some, on the other hand, waive charges under a few dollars, which in effect makes small copying jobs free to requesters.

Agencies which recently revised or are currently in the process of revising their fee schedules include the National Credit Union Administration and the Department of Transportation. At NCUA, an analysis of cost factors there has led to a determination that 25 cents a page is a reasonable charge. At Transportation, FOI Officer Rebecca H. Lima polled personnel in relevant units such as graphics and publishing and sampled other agencies before proposing a change to 20 cents a page.

At the Library of Congress, costs range from 45 cents a page for the first 24 pages to 35 cents a page for larger requests. There is a minimum fee of $4 on every request. Charges were set "at what is necessary to cover expenses," according to Richard A. Glasgow in the general counsel's office. In the case of the Library of Congress, as well as at some other government units, costs reflect the actual current salaries of personnel involved in handling the document. Other libraries in the Washington area are charging as much as 20 cents for self-service use of copying machines.

By contrast, many agencies maintain a 10-cents-a-page charge. An example is the General Services Administration where Roger H. Kidd, chief of printing and distribution, considers 10 cents a reasonable price, given all of the factors which must be considered in pricing out a charge at that agency. "You've got to look at the rental or purchase price of your equipment, plus the maintenance . . . for example, on one of our machines we pay $130 a month rental and for that $130 we get 4,000 copies." He also takes a number of other cost factors into consideration, including the total volume of copies purchased.

Search Fees

Search fees among the 80 agencies surveyed reflect both salaries for clerical and professional staff personnel, but with a wide divergence at both levels. Charges for clerical time range from $4 to $8 an hour; professional time charges range from $5 to $26 an hour.

Personnel in several agencies admit that their search fees have not been increased to keep pace with government pay. In fact, one agency currently in the process of updating its FOIA regulations was found to have maintained the same search fee schedule for more than seven years.

The Department of Defense has a three-tiered fee schedule, reflecting the recognition that high-level personnel sometimes must be involved in FOIA search work.

Defense's fee schedule calls for an $8 an hour fee for clerical and for personnel from the enlisted ranks; $16 an hour for GS levels 9-1 5 and for second lieutenants through colonels; and $26 an hour for GS-16 and above, Senior Executive Service, and for admirals and generals.

The schedule under consideration at Transportation ranges from $7 an hour for clerical to $20 an hour for senior level personnel.

Contracting Out

At several agencies, photocopying is handled by a private contractor which bills and collects directly from the FOIA requester. Use of this procedure dates back to the 1960's at the Securities and Exchange Commission where FOI Officer Edward A. Wilson says the practice has "never been challenged and never caused a problem."

SEC employs Disclosure Inc., a private contractor, to handle microfilming and other copying of its material. Disclosure Inc. then sells copies of material in the public domain directly to the public. Rates vary from 10 cents a page for regular copy service to 45 cents a page for an expedited service.

SEC personnel use the same contractor for copy work for FOIA requests. Requests are first reviewed and prepared for copying by the SEC staff and then turned over to Disclosure Inc. for copying. Disclosure Inc. bills the FOIA requester at the rate of 10 cents a page. These fees go to the contractor, not the Treasury.

The Federal Election Commission has extended the concept of contracting out to the sale of microfilm copies of candidate and committee reports and has received a favorable ruling from the Comptroller General of the United States for applying the procedure to the voluminous filings made in connection with election financing.

The Comptroller General has held that contracting for this kind of FOIA processing is proper "so long as the proposed procedures were not used to delay or deny access to information or otherwise circumvent the intent or specific provisions of the Freedom of Information Act, 5 U.S.C. § 552(a)(4), or the User Charge Statute, 31 U.S.C. § 483a. . . ."See Comptroller General Decisions No. B-205151, Mar. 1, 1982; No. B-166506, Oct. 20, 1975. See also Comptroller General Decisions, No. B-193157.2, Aug. 21, 1979; No. B-193157, Apr. 12, 1979. B-179038, Feb. 13, 1974.

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Updated August 13, 2014