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FOIA Update: FOIA Counselor: Fee Waiver Procedural Considerations

FOIA Update
Vol. IV, No. 1

FOIA Counselor

Fee Waiver Procedural Considerations

The above fee waiver policy statement by Assistant Attorney General Rose sets forth the substantive criteria according to which agencies should make fee waiver decisions under the Freedom of Information Act. The development and application of a comprehensive fee waiver policy requires that attention be given to a number of related procedural considerations as well.

Fee Reductions -- First and foremost, agencies must remember that the statutory fee waiver language speaks of the "waiver or reduction" of fees. 5 U.S.C. § 552(a)(4)(A). Accordingly, an agency may in some instances determine that a complete fee waiver is not appropriate and may grant a reduction of fees instead. For example, a requested file may contain information which is only partly of interest and value to the general public. In such a case, rather than deny a fee waiver, the agency may grant a fee reduction in an amount commensurate to the valuable portion of the file. Agencies have broad discretion to grant percentage fee reductions where there is substantial, but not total, satisfaction of the first four substantive criteria. It should be remembered, however, that the fifth criterion is absolute: neither a waiver nor a reduction is appropriate unless the primary benefit from disclosure is to the general public (i.e. the public benefit must outweigh any personal benefit).

Multiple Requests -- Because of the broad discretionary authority vested in agencies in this area, as well as the differences among records and requesters, a decision to waive or reduce fees for records pertaining to a particular subject area should not necessarily establish a precedent for future fee waiver requests. For example, an agency may grant a fee waiver for certain records, but if this waiver is followed by a request for other documents which the requester claims will be used for the same research, the initial determination that the research subject was of legitimate public interest does not mandate an automatic fee waiver for the follow-up request. Rather, the documents sought in subsequent requests must be subjected to the same scrutiny as the records for which a waiver was granted. A similar approach is appropriate when a requester seeks related records from several different agencies; although one agency may grant a fee waiver, the records of another agency may not necessarily be of sufficient character to warrant a waiver.

On occasion, requesters seek fee waivers for records which were disclosed in response to a prior request. However, the public benefit to be gained through release to a second requester may be significantly diminished by the fact that the records are already in the public domain as a result of the previous disclosure. Should the records pertain to a subject of significant and continuing interest, an agency may elect to make such records available in its public reading room. Similarly, where there are simultaneous requests for records of public interest, agencies have the option of making the records available to all requesters for inspection and copying rather than giving any one requester his own copy of the records at no cost.

Search Fees -- When a waiver of search fees is sought, an agency should consider the request according to the five criteria outlined above. In many cases, however, an agency will be unable to determine the extent to which responsive records exist, or their substantive value, until a search is completed. Therefore, in evaluating applications for waivers of search fees, the likelihood that no disclosable records of value will be found--resulting in no benefit to the general public--should be factored into the determination.

Administrative Appeal -- While the FOIA does not specifically provide for administrative appeals of denials of requests for fee waivers, many agencies, either by regulation or by practice, appropriately consider appeals of such actions. The standard of review on administrative appeal should be that of de novo review: the request should be re-examined in the light of criteria described above. When an agency at the initial level has denied a request for the waiver of fees, it usually does not commence the search for or processing of documents until it receives payment or a promise to pay. In such instances, however, a requester may make the required payment while still preserving his right to administratively appeal the fee waiver denial. If a requester ultimately prevails in his administrative appeal, fees previously paid will be reimbursed.

Administrative Record -- When a fee waiver issue is brought to court, it is reviewed on the administrative record according to whether the agency's denial was "arbitrary and capricious." It is therefore imperative that agencies maintain complete administrative records of all full and partial fee waiver denials, which should include all relevant memoranda and correspondence. The primary focus of any judicial review will of course be the agency's final denial letter, which should state with specificity the reasons for the denial.

In sum, an agency which applies the substantive criteria of the Department of Justice's fee waiver policy statement, together with the procedural guidance highlighted here, can be confident that its overall fee waiver policy is in conformity both with the statute and with sound administrative practice.

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Updated August 13, 2014