Fee Waivers

Introduction
Under FOIA, an agency must waive or reduce fees in cases where “disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”

Note that if the agency claims that some of the records requested do not qualify for a fee waiver then it is possible to seek a partial fee waiver for those records that do qualify.

The fee waiver provisions are specifically designed to apply to journalists, in addition to a few other categories of requesters.

The requester's particular financial situation is not a consideration entitling him or her to a fee waiver. Indigence alone, without a showing of a public benefit, is insufficient to warrant a fee waiver.

Several district court opinions have concluded that fee waiver requests should not take into consideration the fact that records may ultimately be found to be exempt from disclosure.

Meeting the Statutory Requirement
The statutory fee waiver standard contains two basic requirements:
 * 1) The public interest requirement
 * 2) The commercial interest requirement - i.e. the requirement that the requester's commercial interest in disclosure be less than the public interest in disclosure

Both of these statutory requirements (and, therefore, all six of the DOJ's analytical factors) must be satisfied before properly assessable fees are waived or reduced. The requester bears the burden of showing the statutory standard is met.

Note that Court of Appeals for the District of Columbia Circuit has held that requesters should address both of the statutory requirements in sufficient detail for the agency to make an informed decision as to whether it can appropriately waive or reduce the fees in question. Conclusory allegations will not suffice.

The Department of Justice issued fee waiver policy guidance advising agencies of six analytical factors to be considered when assessing whether these two requirements are met.

1. The Public Interest Requirement
As per the aforementioned DOJ policy, demonstrating disclosure is in the public interest demands consideration of the following factors:
 * The subject of the request (i.e. whether the subject of the requested records concerns "the operations or activities of the government")
 * The informative value of the information to be disclosed (i.e. whether the disclosure is "likely to contribute" to an understanding of government operations or activities)
 * The contribution to an understanding of the subject by the general public likely to result from disclosure (i.e. whether disclosure of the requested information will contribute to "public understanding")
 * The significance of the contribution to public understanding (i.e. whether the disclosure is likely to contribute "significantly" to public understanding of government operations or activities)

Concerns "the operations or activities of the government
DOJ policy guidance states that “in most cases records possessed by a federal agency will likely meet this threshold.”

Note that when a federal agency has in some manner used records that came into its possession that ordinarily would not in and of themselves be reflective of the operations of the government, some courts have found them to concern the operations or activities of the government. For example:
 * Lienholder agreements that derived from private transactions were held to have a connection to activities of government where the government maintained copies of those records and notified submitters of agency actions that "might affect" their value
 * Records that originated outside government were not "categorically ineligible" for fee waiver when they were "targeted and collected" by agency
 * Where certain documents sought were "submitted by private parties seeking to do business with the federal government" but "were reviewed by the agency" as part of its considerations and thus concerned activities of government
 * Where requested documents consisted of petitions submitted to agency by outside parties seeking to list particular species as endangered and where requester "theorized" that such petitions were "likely to contain marginal notes" by agency employees whose "opinions are often ignored or overturned" by agency personnel of higher authority

"Likely to contribute to understanding"
In order for the disclosure to be "likely to contribute" to an understanding of specific government operations or activities, disclosure of the requested information must be meaningfully informative in relation to the subject matter of the request.

It is very important to explain how the records you seek will enhance public understanding of a particular government operation and/or activity. DOJ guidance states that records will not generally meet this standard if they are “records in an agency’s possession that were generated by a non-government entity. . . which often are sought for their intrinsic informational content alone,” rather than for “their informative value with respect to specific government operations or activities.” The Department of Defense explains that “[a]n example of such records might be press clippings, magazine articles, or records forwarding a particular opinion or concern from a member of the public regarding a DoD activity.”

Note that if the information was submitted to the agency by a third party, this does not necessary preclude success, but you should explain how its release will inform the public of the agency’s activities with respect to such information.

Requests for information that is already in the public domain, either in a duplicative or a substantially identical form, or responsive files that consist largely of routine administrative information in comparison with a limited amount of substantive information, may not warrant a full fee waiver because the disclosure would not be likely to contribute to an understanding of government operations or activities when nothing new or substantive about the agency's activities would be added to the public's understanding.

"Public" understanding
The release of the information at issue “must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester.

Requesters should provide details of how they plan to disseminate the requested information (i.e. such that it will reach "the public"). For example, this may be via a newspaper article, television broadcast, or blog or other online platform. Where audience or readership can be estimated with reasonably specificity, this information should also be included.

Agencies should evaluate the identity and qualifications of the requester -- e.g., his or her expertise in the subject area of the request and ability and intention to disseminate the information to the public -- in order to determine whether the public would benefit from disclosure to that requester. On some occasions, specialist knowledge may be required to extract, synthesize, and effectively convey the information to the public, and courts have taken that into account in making fee waiver determinations. Inability to disseminate is sufficient grounds on which to deny a fee waiver request. However, the fact that a requester publishes "infrequently" will not, of itself, prove that the requester cannot disseminate information to a reasonably broad section of the public.

Note that "public understanding" does not necessarily have to entail understanding within the U.S. For example, For example, disclosure to a foreign news syndicate that published only in Canada satisfied the requirement that it contribute to "public understanding."

A few courts have found prisoners to be the "public" within the meaning of the FOIA.

"Significance" of contribution
A requester must explain how “[t]he public’s understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, [will] be enhanced by the disclosure to a significant extent.” Specifically, he/she should explain how disclosure would be “likely to contribute ‘significantly’ to public understanding of government operations or activities.”

If there is little information publicly available on the subject, you should highlight that point, because “[e]xisting public availability of the information is... weighed when determining the degree of significance that will be derived from the disclosure.”

Even where information is publicly available, a scarcity of easily accessible information should also be pointed out. For instance, where a requester sought information from an agency that was otherwise publicly available in courthouses, newspaper articles, and affidavits to compile on a web site, the court found that “[t]his type of accessibility is qualitatively different from and exponentially greater than the existing availability of the information” and did not weigh against a fee waiver.

Note that agencies must make an "objective rather than a subjective determination" of the contribution's significance. That is to say, agencies “shall not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is ‘important’ enough to be made public.” From a requester's perspective, it is therefore helpful to provide as much information as possible about the objective significance of the information. For instance, in one case, a court explained that a requester could support her claim that a subject had “historical or other academic value” by providing “evidence of interest in that subject by other parties,” such as “the public at large or some more specialized segment of the public such as members of a particular academic discipline.”

2. The Commercial Interest Requirement
As per the aforementioned DOJ policy, demonstrating that the requester's commercial interest is less than the public interest in disclosure demands consideration of the following factors:
 * The existence and magnitude of a commercial interest - i.e. whether the requester has a commercial interest that would be furthered by the requested disclosure and, if so
 * The primary interest in disclosure - i.e. whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is "primarily in the commercial interest of the requester."

The "existence and magnitude" of a commercial interest
The DOJ considers “[w]hether the requester has a commercial interest that would be furthered by the requested disclosure,” and its regulations provide that “[r]equesters shall be given an opportunity in the administrative process to provide explanatory information regarding this consideration.” In particular, requesters should explain how and where they intend to disseminate the information contained in the records.

A “[c]ommercial use request” is defined as “a request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade, or profit interests.” However, note that guidelines from the Office of Management and Budget provide that with respect to a requester who is a member of the “representative of the news media” fee category, “a request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use.” Journalists should quote this authority in their appeal letter, as well as any similar language within the specific agency’s regulations. Such statements are generally found under the agency’s definition of “representative of the news media.”

When a commercial interest is found to exist and that interest would be furthered by the requested disclosure, an agency must assess the magnitude of such interest in order subsequently to compare it to the "public interest" in disclosure. In assessing the magnitude of the commercial interest, the agency should reasonably consider the extent to which the FOIA disclosure will serve the requester's identified commercial interest.

The "primary interest in disclosure"
This element examines “[w]hether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is ‘primarily in the commercial interest of the requester." However, the DOJ regulations clarify that “[c]omponents ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester.”

Time Scale
The FOIA does not explicitly reference any time period within which an agency must resolve a fee waiver issue although agencies are required to include in their Annual FOIA Reports each year the number of fee waiver requests that were granted and denied and the average and median number of days for adjudicating fee waiver determinations.

The statutory twenty-working day time period to respond to a request has been applied to resolution of fee waiver (and fee) issues by several courts. For example, the D.C. Circuit held that a requester could sue an agency without filing an appeal if the agency did not "answer the [fee waiver] request within twenty days." Similarly, a district court found an agency could not charge fees when it failed to meet the twenty-day deadline on a fee waiver request.

Appeals
The FOIA also does not explicitly provide for administrative appeals of denials of requests for fee waivers. Nevertheless, many agencies, either by regulation or by practice, have considered appeals of such actions.

It has been held by courts that exhaustion of administrative remedies in connection with fee waiver claims includes filing an administrative appeal.

Review of an agency fee waiver denial will be based on a "de novo" standard, but the scope of judicial review will be limited to the administrative record established before the agency. Thus, neither party may supplement the record or offer new argument or rationale for seeking a fee waiver or for denying such a request.