Vol. II, No. 1
Guidance on Fee Waivers
This discussion of agencies' administration of the fee waiver provisions of the Freedom of Information Act is an abstract of a memorandum for federal agencies prepared by the U.S. Department of Justice, Office of Information Law and Policy.
Comments are invited from agencies and members of the public on whether there is a need for different or further guidance on this subject.
The Freedom of Information Act provides general guidance on fee waivers. The statute states:
Documents shall be furnished without charge or at a reduced charge 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).
This provision, added in the 1974 amendments, originated in the Senate version of those amendments. The Senate Report on the provision as originally framed explained:
Finally, S. 2543 allows documents to be furnished without charge or at a reduced charge where the public interest is best served thereby. This public-interest standard should be liberally construed by the agencies . . . (S. Rep. No. 93-854 of May 1974 at 12.)CONFERENCE COMMITTEE CHANGES
The Conference Committee made changes and eliminated specific categories of waiver situations, which resulted in the provision as it was enacted. The Conference Committee stated:
By eliminating the list of specific categories, the conferees do not intend to imply that agencies should actually charge fees in those categories. Rather, they felt, such matters are properly the subject for individual agency determination in regulations implementing the Freedom of Information law. The conferees intend that fees should not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information. (S. Rep. No. 93-1200, 93rd Cong., 2nd Sess., October 1, 1974 at 8.)
The courts have done little in the way of judicial review of agency decisions not to waive or reduce fees. But the court decisions indicate that, to avoid being viewed by a court as arbitrary and capricious, an agency should carefully consider a reasonably supported request for a fee waiver and the administrative record should reflect this consideration.
Recently, the court in Eudey v. Central Intelligence Agency, 478 F. Supp. 1175 (D.D.C. 1979) reaffirmed an earlier decision that "the proper standard for judicial review of an agency denial of a fee waiver is whether that decision was arbitrary and capricious." Id. at 1176. It went on to give the most detailed statement to date of what this review entails:
The statute indicates that the issue to be considered by the agency is whether furnishing the information will primarily benefit the public at large or whether any benefit will inure primarily to the specific individual requesting the documents. The agency's decision not to waive fees will be rational, and therefore not arbitrary and capricious, if it is based upon some factor shedding light on that central issue. The identity of the requester and the nature of the information sought under the Act are proper factors for the agency to consider when faced with a fee waiver request. . . . If, after considering such factors, the agency concludes that furnishing particular information will not primarily benefit the general public but rather will primarily benefit the individual requester and the agency then denies a request for a fee waiver on that basis, its denial of a waiver will not be arbitrary and capricious. (Emphasis added) (Id. at 1177)
The court found the CIA's refusal arbitrary and capricious because it was based on an "assessment that few documents will be released in response to Plaintiff's request." This factor was outside of those which the statute permits the agency to consider because it does not relate to the issue of whether the release will primarily benefit the general public. In other words, if the case for a waiver is sufficiently strong it may be mandatory that the agency grant at least a substantial reduction of fees.
Where no records covered by a request are made available either because the agency does not have them or because they are exempt and are withheld, special factors falling outside the language of the fee waiver provision should be taken into account. Ordinarily fees are not charged if no records are furnished. Requesters may understandably be surprised and upset if they are charged substantial fees but get no records. Yet very costly and time consuming agency searches may be legally required for requests which result in no records being made available. If the search time is substantial and if the requester has been sufficiently strong, it may be mandatory that the agency cannot determine in advance whether any records will be made available, fees may be charged. See, for an example of a regulation providing for such notice, 28 C.F.R. § 16.9(a).FACTORS IN ESTIMATING BENEFIT TO THE GENERAL PUBLIC
1. Identity of the Requester
While the identity of a FOIA requester is usually not a proper factor for agencies to consider in granting or denying requests for access to records, the requester's identity and background may sometimes be proper or even important to consider in acting on a request for a fee waiver.
A requester's expertise on the subject of the records may sometimes help an agency estimate whether the records contain information of potential benefit to the general public.
Where specialized expertise is not necessary, requesters may vary in their ability to have information effectively disseminated. Journalists and popular writers are more likely than a random requester to improve the prospects that beneficial information will reach the general public.
An agency need not solicit or collect facts about the requester, nor ordinarily give much weight to an unsupported assertion by a requester that he or she is a scholar or expert, journalist or writer.
The weights to be accorded to a requester's attributes should be based upon underlying facts, to the extent known to the agency. These underlying facts might include, e.g., the requester's affiliations; the length and nature of his or her education and experience in pertinent areas; publications, distinctions or reputation among peers; and whether currently or recently active in pertinent areas.
2. Effective Dissemination of Beneficial Information to the "General Public"
The process of estimating whether and to what extent the general public may benefit from furnishing the requester with the requested records may be divided into two principal inquiries, namely, (a) whether such information contains a significant potential for benefiting the general public, and (b) whether releasing such information to the requester is likely to result in potential benefits actually being received by the general public.
3. The Types of Information Which Are, or May Be, Contained in the Records Sought
The substance of the information is generally a key factor in considering fee waiver requests because under the statutory standard the benefits to the public are those which can be realized from the information in the records sought. The benefits in question are chiefly those which reflect the general policy objectives of FOIA--enhancement of informed civic activity and of the quality of national life, especially as regards to public health, safety, economic well-being, and integrity and efficiency of government.
1. The Extent, if any, by which the Cost of Computing and Handling the Fee May Exceed the Amount of the Fee
The legislative history of the 1974 Amendments mentioned $3 as an amount below which fees should not ordinarily be collected. This figure may be adjusted for inflation.
If an agency can determine a fee level as a "floor" below which it will not ordinarily charge fees, it is desirable to make the level known, particularly if this type of waiver occurs frequently. However, agencies should exercise care in wording any such announcement or regulation to take account of a situation where a costly FOIA request may be divided into several smaller requests sent separately by the requester, or by several requesters acting in concert, to avoid fees. See, e.g., 28 C.F.R. § 16.9(a).
Where determining the fee is time consuming, the cost of computing and collecting a particular fee may be substantially higher than the general "floor" level. In such a case, agency discretion to waive could properly be exercised.
2. Consideration of the Needs of Indigent Persons
Indigency is a factor which an agency may properly consider in making fee waiver determinations, and in some agencies it may usually be a sufficient basis for waiver. However, indigency does not automatically entitle the requester to a waiver.
The usual justifications for a fee waiver for an indigent are (a) personal need for records and (b) the ability of the agency to comply with his or her request without undue detriment to other agency work, such as other FOIA requests.
Since indigency is not a completely rigid and clear-cut concept, the justification for giving weight to indigency on fee waiver requests may apply to some degree to persons of very limited means.
Agencies need not accept uncritically a requester's bare assertion that he or she is indigent. At a minimum, the requester claiming indigency or very limited means should provide some information about himself or herself to corroborate the claim.
3. Indications that the Requester is Willing to Formulate or Reformulate a Costly Request to Meet His or Her Needs at less Cost to the Government
This factor is important chiefly as an auxiliary consideration in cases where there is not a wholly convincing justification for a waiver and where the request would be costly to process.
4. The Absence of Indications that the Information is Likely to Benefit Primarily Commercial Interests
In general, FOIA requests by business corporations or their agents, and requests for records pertaining to the requester, are likely primarily to benefit the requester rather than the general public. Such requests rarely justify a waiver.
In rare instances, however, a waiver or reduction of fees for a business firm may be justified under the primary benefit to the general public standard. For example, if a small business firm obtained records that demonstrated major waste in a large procurement, the fact that the requester's motive was to obtain business should not be disqualifying for a fee waiver if the benefit to the general public was more important than that to the requester.
In cases involving journalists and authors, confusion arises when a substantial financial gain is likely to flow from furnishing the information although the request might otherwise qualify for a waiver or reduction of fees under the statutory standard of primary benefit to the general public. Typically, this involves a requester who may publish a book based on the information in question, or a requester working for a newspaper whose circulation can be expected to benefit.
In such situations, two considerations should be borne in mind. First, the prospect of financial gain to the requester or the employer usually does not seriously undercut the justification for a waiver or reduction of fees if such waiver or reduction is clearly called for on all the other known facts. Second, where the public benefit justification for a waiver or reduction of fees is quite doubtful, a strong set of facts that financial gain is a major object of the request may properly be given some weight under the statutory standard. In close cases, an agency should consider a reduction in fees rather than a total waiver.
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