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Time to Reform Fees?

Issues involving fees comprise a small percentage of OGIS’s caseload – about 5 percent in the two years that ended September 30, 2011. While small in number, the issues are big, consuming agency resources and causing delays. Through our casework, we’ve seen agencies place requesters in the wrong fee category; misapply search, review and duplication fees; and estimate exorbitantly high fees with seemingly little data to back up the estimate. We’ve also seen requesters confused about public interest fee waiver requirements and charges allowed under the statute for search, review and duplication.

Treasury Department official counting currency

A Treasury Department official counts and wraps dollar bills, from NARA's Collection, 1939-1949

For Jim Hogan, fees are “the most problematic aspect” of his job formulating and implementing FOIA policy guidance for the Department of Defense. That’s why he’s started a conversation with agencies, requesters and OGIS about reforming FOIA’s fee structure. (That job, of course, ultimately belongs to Congress.) Representatives from both the agency and requester communities batted around a few ideas for fee reform at a symposium sponsored Dec. 7-8 by the American Society of Access Professionals (ASAP) in partnership with the National Archives.

What would happen, for example, if fees were scrapped for all but commercial requesters? Or everything – search, review and duplication – was free for all requesters up to a certain amount?

While the idea of completely doing away with fees might sound appealing, Department of Transportation FOIA Officer Kathy Ray says that the ability to charge fees helps keep some requesters focused and can be used to as a tool for narrowing the scope of broad requests. Some requesters who don’t have to pay under the current fee structure make “huge unreasonable requests,” she said. All requesters should, Ray said, bear some of the cost, perhaps paying after a certain amount of fees are tallied. “Requesters who must pay have incentive to work with the agency,” she said.

Kevin Goldberg, special counsel at Fletcher, Heald & Hildreth and a FOIA expert, recommends that agencies focus on making more proactive disclosures as a way to reduce requests and, in turn, reduce fees. He also noted that when Congress wrote the OPEN Government Act of 2007, bill drafters thought long and hard about the definition of a news media requester for the purpose of fees. The definition, at 5 U.S.C. § 552(a)(4)(A)(ii), is based on function and not on employer. Though not perfect, Goldberg said, “I think it’s working pretty well.”

Nate Jones, FOIA coordinator for the National Security Archive, a non-governmental research institute, noted that FOIA fees are not as lucrative as they might appear. The amount of FOIA fees collected government wide in the year ending September 30, 2010, was nearly $6 million, about 1 percent of the total cost of FOIA-related activities. The money goes into the U.S. Treasury and not back to the agencies to pay for FOIA.

We at OGIS are pleased that this discussion has started. Please let us know what you think – comment on this post or contact us directly. We’d like to hear from you.