Prohibition on Assessing Certain Fees When the FOIA’s Time Limits Are Not Met
On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538, which contains several substantive and procedural amendments to the Freedom of Information Act (FOIA). OIP has prepared a summary of the amendments as well as a redlined version of the statute which shows the changes made by the amendments. The new provisions apply to any request made after the date of enactment, which was June 30, 2016. OIP will continue to issue guidance on various aspects of the amendments on a rolling basis. Agencies are encouraged to contact OIP with any questions they may have on implementation of the new provisions.
Prohibition on Assessing Certain Fees
The FOIA Improvement Act of 2016 establishes a general prohibition on the assessment of certain fees when the FOIA’s time limits are not met, unless one of three discrete exceptions to that prohibition is satisfied. Prior to the amendments there was a similar prohibition on the charging of certain fees when the FOIA’s time limits were not met, but the exceptions to the prohibition swept more broadly and permitted the assessment of fees when “unusual” or “exceptional” circumstances, as defined by the FOIA, applied to the processing of the request. As a result of the FOIA Improvement Act of 2016, the exceptions to the prohibition have been narrowed and require agencies to take specific steps in order to fall within them.
The basic rule is that when the agency fails to comply with any of the FOIA’s time limits, no search fees may be charged to “all other” or “commercial use” requesters and no duplication fees may be charged to requesters in preferred fee categories, i.e., representatives of the news media, and educational or noncommercial scientific institutions. 5 U.S.C. § 552(a)(4)(A)(viii)(I). The FOIA Improvement Act of 2016 establishes three specific exceptions to this prohibition which, if met, allow the agency to still assess those fees even if it is unable to comply with the FOIA’s time limits.
First Exception: “Exceptional Circumstances”
One exception occurs when a court has determined that “exceptional circumstances,” as defined by the FOIA, exist. In those cases, the failure to respond within the FOIA’s time limits is “excused for the length of time provided by the court order.” 5 U.S. C. § 552(a)(4)(A)(viii)(II)(cc). By its terms this exception is only applicable to the small subset of FOIA requests that go to litigation and where there is an applicable court order regarding the time afforded the agency to respond to the request. Still, in those situations where “a court has determined that exceptional circumstances exist,” the prohibition on charging certain fees is excused for the period of time designated by the court.
The Second & Third Exceptions
The other two exceptions apply independently of any litigation. They both become applicable when the agency has determined that “unusual circumstances,” as defined by the FOIA, apply and the agency has provided timely written notice of those “unusual circumstances” to the requester. The FOIA defines “unusual circumstances” as:
I) “the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request,”
II) “the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or”
III) “the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.”
5 U.S.C. § 552(a)(6)(B)(iii).
For requests that do not present any of these “unusual circumstances” the second and third exceptions to the prohibition on charging certain fees do not apply. As a result, if the agency is unable to satisfy the FOIA’s 20 working-day time limit, it will not be able to assess search fees, or for a requester in a preferred fee category, it will not be able to assess duplication fees.
When “unusual circumstances” are present, timely notice of those “unusual circumstances” means written notice provided within 20-working days of receipt of the request. When timely written notice of unusual circumstances has been provided to the requester, the agency is eligible to invoke one of the two non-litigation-related exceptions to the prohibition on charging certain fees.
Second Exception: Ten Additional Days Needed to Respond
When an agency has determined that “unusual circumstances” exist and it has provided timely written notice of those unusual circumstances to the requester, if the agency can provide its determination on the request within ten additional days, then the second exception is met and the agency can assess search fees for “all other” and “commercial use” requesters, or for requesters in preferred fee categories, i.e., representatives of the news media, or educational or noncommercial scientific institutions, the agency can assess duplication fees. Id. § 552(a)(4)(A)(viii)(II)(aa). In other words, when the agency determines that unusual circumstances apply and that it needs ten additional days to process the request, it can assess fees as usual provided it timely notifies the requester of the unusual circumstances and processes the request within the ten additional days. If, however, the agency needs more than ten additional days to process the request, it is not permitted to charge search fees (or for requesters in preferred fee categories, it may not charge duplication fees), unless the request falls within the third exception.
Third Exception: More than 5,000 Pages Necessary to Respond
The third exception is based on the number of pages that need to be reviewed in order to respond to the request. When that number is more than 5,000 pages and all the required notifications have been made, the third exception to the prohibition on charging fees applies.
Specifically, the third exception becomes applicable when “more than 5,000 pages are necessary to respond to the request.” Id. § 552(a)(4)(A)(viii)(II)(bb). Like the second exception, the agency must first have determined that unusual circumstances apply and it must have provided timely written notice of those “unusual circumstances” to the requester. That notice must include the additional elements required by the FOIA when an agency extends the time limit beyond ten additional days (i.e., providing an opportunity for the requester to narrow the request or arrange for an alternative time for processing, and making available the FOIA Public Liaison and the Office of Government Information Services). Id. § 552(a)(6)(B)(ii). When that notice has been provided and the agency determines that more than 5,000 pages are necessary to respond to the request, the agency must discuss with the requester how the request could be narrowed in scope. That discussion can occur via telephone, written mail, or email. If the agency has difficulty connecting with the requester, the FOIA requires that it must make at least three good-faith attempts to do so. Once all these conditions are met, the agency will be able to charge all applicable fees for those requests where more than 5,000 pages need to be reviewed.
To FOIA Improvement Act of 2016 revised the existing limitations on the charging of certain fees when the FOIA’s time limits are not met. The exceptions to the prohibition are now more precisely defined and two are dependent on the agency providing specific notifications to the requester. To guide agencies through the decision making processing of ascertaining whether they are able to assess fees in light of the new limitations to doing so, OIP has prepared the attached Decision Tree for Assessing Fees.