FOIA Tip 10: Can they charge me for my request? Part I (Fee Category)

Because the Freedom of Information Act helps people learn about their government and brings government records created with taxpayer money to the public, Congress did not want FOIA fees to discourage people from asking for information.  Although agencies may charge reasonable fees for the cost of searching for records, reviewing them for release, and reproducing them, Congress worked out a scheme that makes FOIA an affordable research tool for many, especially ordinary FOIA requesters who seek only a few records and those who use FOIA to advance journalistic, scientific or scholarly aims.   

We recommended in FOIA Tip 9 that you say something in your request letter about your willingness to pay fees to the agency for processing your request.  Search and review fees can range from $8 to $45 per hour, and duplication fees are usually $0.10 to $0.35 per page.  Most agencies’ regulations say that by filing a request, the requester is agreeing to pay some threshold for fees, usually $25.

For the most part, agencies cannot require a requester to pre-pay for a request.  If the fee estimate exceeds $250, however, or if you previously failed to pay fees, then the agency can require you to pay in advance.  More typically, if the agency estimates that the cost will be greater than $25 or the amount you specify you are willing to pay in your letter, then the agency will ask you to agree to pay the fees after the agency completes the processing of your request.

In some circumstances, however, you should not pay any fees. Although the FOIA does not distinguish between types of requesters when it comes to a requester’s entitlement to information, it does differentiate among requesters as far as fees.  Your reason for requesting records determines what fees the agency is legally permitted to charge.  In addition, some requesters who are making requests for records that serve the public interest are entitled to a reduction or waiver of fees, which we will cover in our next FOIA tip.

The categories of requesters are:

• Commercial: Companies or individuals requesting information for a commercial, trade, or profit-seeking purpose, including for use in litigation. Commercial requesters pay fees for search, review, and duplication.
• Educational Institution: Public or private preschools, elementary, or secondary schools, and institutions of higher education, professional education, or vocational education that operate a program of scholarly research. Educational requesters are only required to pay duplication costs, and are entitled to the first 100 pages without charge.
• Noncommercial Scientific Institution: Noncommercial institutions that conduct scientific research not intended to promote a particular product or industry. Scientific requesters are only required to pay duplication costs, and are entitled to the first 100 pages without charge.
• Representative of the News Media: Defined as “[a]ny 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.” News media include traditional print and broadcast media as well as Internet and other new media when the requester fits this definition.  Freelance journalists and book authors also can qualify for this fee category if they meet the definition.  News media requesters are only required to pay for duplication costs, and are entitled to the first 100 pages without charge.
• All Other: Requesters who do not fit into any of the above categories. These requesters are persons who are not commercial, educational, scientific, or news media requesters. They are entitled to two hours of search time and 100 pages of duplication without charge, but are required to pay any additional search and duplication costs.

If you are seeking a specific fee category that limits fees, then you should say so in your initial request and explain why you fall into that category.  For instance, you can provide information about the intended professional scholarly or journalistic uses of the information you are requesting. If possible, put the request on the letterhead of the institution you represent. List any relevant publications, including books, articles, dissertations, publication contracts or letters of intent or interest, or similar evidence of your intent and ability to use the information consistent with the fee category or to disseminate the information the agency releases.  You should also clearly state that the materials are not requested solely for a private, profit-making, or commercial purpose.

Even of you do not qualify for a preferred fee category, it is possible to have all fees (including duplication) waived or reduced by the agency if the material requested (1) “is likely to contribute significantly to public understanding of the operations or activities of government” and (2) “is not primarily in the commercial interest of the requester.”  This is often called a public interest fee waiver.   We will talk about public interest fee waivers in our next FOIA tip.

You also should know that some agencies will deny your fee category or fee waiver request and refuse to accept an administrative appeal until after all processing is complete.  This may be a problem depending on the size and cost of the processing.  Another practice at some agencies is to defer their decision on a fee category or fee waiver until after they have completed processing. Some agencies even threaten to charge a fee for search or review if they do not release records.  As you can imagine, some agencies use these policies to discourage requesters by leaving open the possibility of a large fee after processing is complete.  You should use it as an opportunity to negotiate with the agency and see if you can focus the request on the records you are most interested in.