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FOIA Update: Supplemental Fee Waiver Guidance

FOIA Update
Vol. VII, No. 3

Supplemental Fee Waiver Guidance

[Below is the full text of the supplemental fee waiver guidance memorandum recently issued to the heads of all federal departments and agencies by Stephen J. Markman, Assistant Attorney General, Office of Legal Policy]

ln January 1983, Jonathan C. Rose, former Assistant Attorney General for the Office of Legal Policy, issued general guidance to all federal agencies on the waiving of fees otherwise assessable under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. That guidance outlined the criteria which should logically govern the determination of requests for the waiver or reduction of FOIA fees, in accordance with the statutory requirement that such requests be granted "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).

That guidance, however, did not address the possible filing of large-scale FOIA requests by libraries or other record repository institutions which seek fee waivers simply on the basis of their status as such institutions. Recently, many agencies have become concerned about such fee waiver requests and have sought specific guidance from the Department of Justice on their proper resolution.(*)

Therefore, on behalf of the Attorney General, see 28 C.F.R § 0.23(c) (1985), and in accordance with 5 U.S.C. § 552(d), I hereby provide the following additional guidance which is intended to assist agencies in the determination of fee waiver requests made by such institutions:

An agency is not required to grant a fee waiver to a library or other record repository (or to a requester who intends to disseminate information to such an institution) based solely upon its status as an institution at which records are generally available. Rather, fee waiver requests from such institutions, like those of any other requester, should be considered on a case-by-case basis in light of all relevant information. In particular, where a fee waiver request from an institution or individual is based upon intended dissemination to other such institutions, or upon scholarly or other analytic work to be done by another person to whom the requested records (or any information based thereon) ultimately will be made available, an agency may reasonably require the requester to identify specifically a person who will actually use such information in scholarly or other analytic work and to make the same showing that that person would have to make to obtain a fee waiver for the records directly, including a representation by that person of intent to perform the work involved.

I urge all federal agencies to apply this guidance -- in addition to the fee waiver guidance previously issued by the Department, see FOIA Update, Jan. 1983, at 3-4; see also FOIA Update, Fall 1983, at 14 -- to any fee waiver request received from a library or other record repository institution. Through the careful application of these principles, agencies can fulfill the statutory mandate of "ensur[ing] that the public would benefit from the expenditure of public funds for the disclosure of public records." Ely v. United States Postal Service, 753 F.2d 163, 165 (D.C. Cir.), cert. denied, 105 S. Ct. 2338 (1985).

* Although Congress has recently enacted certain revisions to the fee provisions of the FOIA, as part of the Anti-Drug Abuse Act of 1986, Public Law No 99-570, those revisions will not take effect until April 25, 1987. This memorandum is intended to provide interim guidance to agencies for the determination of fee waiver requests under current law.

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Updated August 13, 2014