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FOIA Update: Justice Issues Fee Waiver Guidance

FOIA Update
Vol. IV, No. 1

Justice Issues Fee Waiver Guidance

The Department of Justice has issued new governmentwide policy guidance on the determination of requests for fee waivers under the Freedom of Information Act.

The new guidance memorandum, issued by Assistant Attorney General Jonathan C. Rose on January 7, 1983, supersedes the guidance previously issued by the Department of Justice on the subject of fee waivers in late 1980 and early 1981.

The new guidance concisely sets forth five criteria by which agencies should determine whether a fee waiver is warranted in that disclosure would "primarily benefit the general public." It requires an analysis of: (1) the public interest in the subject matter of the request; (2) the nature of the disclosable contents of the records; (3) whether the requested information is already in the public domain; (4) the intention and ability of the requester to disseminate the information; and (5) whether any disclosure benefit to the requester is outweighed by benefit to the general public.

Emphasizing that the Department of Justice "remains committed to encouraging agencies to waive FOIA search and duplication fees" in all appropriate cases, the new policy statement also cautions 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."

The full text of this new guidance memorandum appears on pages 3-4 of this issue of FOIA Update. Additionally, a discussion of related procedural considerations follows on page 4.

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Updated August 13, 2014