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Shedding Light on a Tricky Issue: FOIA Fees and Waivers

Of the many issues that confuse FOIA requesters and agency staff, we have observed that fees may be the most confusing. Determining what fees a requester must pay requires a high level of disclosure from the requester (who are you and what do you plan to do with these records?) and a judgment call from agency FOIA staff. There are many potential pitfalls along the way. OGIS offers this chart illustrating the difference between FOIA requester categories and FOIA fee categories.

On Tuesday, May 17, the Department of Justice Office for Information Policy (OIP) hosted a summit to discuss FOIA fees, an issue that is, in the words of OIP Director Melanie Ann Pustay, “tricky.”

While the panel spent some time discussing the existing guidance on fees and fee waivers and the division of authority between the Office of Management and Budget (OMB), OIP and agency FOIA regulations, the panelists spent the bulk of the two-hour session discussing the trickiest fee issues for agencies. This included:

  • The changes in the OPEN Government Act of 2007: These FOIA amendments limited an agency’s ability to charge fees in the absence of a defined set of “unusual circumstances” that may delay the processing of a request. OIP advised agencies to communicate clearly with requesters when unusual circumstances exist.
  • Defining a “representative of the news media”: Requesters who fall within this category receive favored status when fees are assessed. However, this category can be difficult to define, particularly with the rise of blogs and other new forms of media. OIP encouraged agencies to focus on the intent of the request rather than the identity of the requester, and to think broadly about the concept of news media.
  • Fee waiver requests causing processing delays: Decisions on requests for fee waivers can cause significant delays in processing FOIA requests. Though this may not always be possible, OIP recommended getting a commitment from the requester to pay regardless of the outcome of the fee waiver request. This allows the agency to move forward with processing while the fee waiver decision is pending.

While it is helpful to receive advice from OIP, the FOIA policy office, we know that FOIA offices across the executive branch have developed best practices to deal with various fee issues. If you have agency best practices related to fees that you would like to share, we would love to hear them.