Fees and Fee Categories

Introduction
Agencies can charge various types of fees when processing a FOIA request. Upon receiving a FOIA request, an agency will place the requester in one of three “fee categories” based on the or the nature of the requester, which will determine what kinds of fees can be assessed. Depending on the category, requesters may be charged search, duplication, and/or review fees. A requester will not be charged if they are granted a fee waiver.

News media, and educational or noncommercial scientific requesters
FOIA provides that “fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media;”

Additionally, requesters in this category receive the first 100 pages of duplication for free. .

Definition of "representative of the news media"
The definition of a "representative of the news media" is included within FOIA, although it has been given additional interpretations by courts. The statutory definition states that "the term “a representative of the news media” means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term “news” means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination."

The scope of the news media category was significantly interpreted by the D.C. Circuit in Cause of Action v. FTC.

Cause of Action v. FTC
Interpreting the 2007 Congressional amendments to the definition of a representative of the news media, the D.C. Circuit laid out the five elements of the criteria that a requester must satisfy in order to qualify as a representative of the news media. It must: (1) gather information of potential interest (2) to a segment of the public; (3) use its editorial skills to turn the raw materials into a distinct work; and (4) distribute that work (5) to an audience.

The court noted that these criteria apply only to the requester, not the nature of the materials that are requested. For example, the court said, a newspaper reporter “is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information.” The court’s reasoning suggests that once an individual or organization has established itself as a representative of the news media it should almost always be accorded such status. In other words, if a requester satisfies the five criteria listed above “as a general matter, it does not matter whether any of the individual FOIA requests does so.”

With regard to the third requirement — that the requester uses its editorial skills to turn the raw materials into a district work — the court noted that this can happen in several different ways that need not necessarily amount to a traditional news article. For example, the requester can issue a “substantive press release” on the records it obtained. They can also provide editorial comment “to other outlets about documents it obtains under FOIA.” In satisfying this requirement there is no need for the requester to use information from a range of sources. Indeed, the court noted that “nothing in principle prevents a journalist from producing ‘distinct work’ that is based exclusively on documents obtained through FOIA.”

On the fourth and fifth requirements, the court offered some of its most expansive views on what constitutes distributing work to an audience in the digital age. Recognizing the changes in technology and information distribution since its last consideration of these questions, the court held that “posting content to a public website can qualify as a means of distributing it — notwithstanding that readers have to affirmatively access the content, rather than have it delivered to their doorsteps or beamed into their homes unbidden.” In other words, the meaning of "distribute" does not mean that a representative of the news media has to affirmatively push stories to their audience. As long as they have a means for the public to access the information, including Internet-based access options, that should suffice.

In terms of how big the audience has to be that accesses the information, the court simply stated that there must be an audience, but “beyond requiring that a person or entity have readers (or listeners or viewers), the statute does not specify what size the audience must be.” Under the standard set out by the court, new organizations can qualify as a representative of the news media even if they don’t have an established track record of publication. Although a “bare statement of intent” to publish is not enough to get a media categorization, it is sufficient if the person or organization has “firm plans” to distribute the work to an audience.

Definition of educational or noncommercial scientific requesters
Students, as well as teachers in educational institutions, qualify for reduced fees under § 552 (a)(4)(A)(ii)(II). According to the D.C. Circuit Court of Appeals, "Students who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution."