FOIA Tip 11: Can they charge me for my request, Part 2, The Public Interest Fee Waiver
The snow has slowed us down, but has not stopped our quest for government transparency. In case you are interested, however, the closure of the federal government probably does permit the agencies to stop the 20 day clock for processing your FOIA requests.
Last time we talked about the three main categories of FOIA requesters — commercial, news media/scientific/educational, and all other — and discussed what kind of fees may be charged for processing your FOIA requests. When Congress passed the fee provisions in the FOIA, one of the controversial issues was what to do about public interest groups and non-profit groups that were not seeking commercial enrichment, but did not fit into one of the fee-limited categories. Congress solved the problem by creating a special waiver or reduction of fees when the information 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. This is often called a public interest fee waiver. If you believe your request fits these criteria, you should make your complete case for a fee waiver in your request letter.
Remember, your fee category and entitlement to a public interest fee waiver are separate decisions. You might fall into a preferred fee category and also get a public interest fee waiver for remaining charges. But, there is no entitlement for a fee waiver merely because you are in a preferred category or because you are a non-profit organization. Moreover, each FOIA request requires its own justification for a waiver — don’t assume that getting a waiver in the past means you will get one in the future. The burden rests on you to make your case.
Here are a few tips on what you should say in your initial letter:
- State clearly that you are seeking a public interest fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii).
- Be sure to describe the scholarly, historical, or current public interest in the material requested. Explain why you are a person or organization that can comprehend, analyze or interpret the records in a way that is meaningful. For instance, you might reference prior examples of your work to demonstrate your expertise on an issue.
- Identify specific operations or activities of government to which the request relates and why the information will contribute to an understanding of those activities and operations. Sometimes, if information about the matter already is public, the agency will take the position that more information will not make a significant contribution to public understanding. You should explain why the additional information adds something significant to what already is known.
- State why the public in general would be interested in the information you are requesting and how the information will contribute significantly to public understanding of government operations or activities. This can be for advocacy, educational, or other purposes that will benefit the public.
- Explain how you will use or disseminate the information in order to serve the purpose of contributing significantly to the public understanding of the operations or activities of government. In other words, how will you convey the information to the public? Will you publish a report, conduct a publicity campaign, or litigate a case that serves the public interest? Your explanation should demonstrate you will reach the public with your activity.
You should make your case for a fee waiver in your initial request letter, but the agency will ask for more information if they want it. The agency has a right to stop the clock on the processing of your request while they wait for you to respond to their first request for more information about your fee status.
Once you have made your request, the agency then has the burden of explaining why it is denying the request, if that is the determination. The agency must explain this rationale in its denial and then is limited to that rationale if you decide to litigate the matter. Similarly, it is important for you to include your entire argument for a fee waiver or category up front so that you also may rely on your arguments if you appeal or litigate a denial of a fee waiver. If you do not include relevant facts for the agency to consider, then you will not be able to add them in at a later stage.
Bottom line: be direct and clear about why you should get the fee waiver, as the agencies generally are not too eager to grant these requests.
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What do you do when a request for a fee waiver is ignored? The FBI and a few other agencies have assessed fees for FOIA requests while ignoring a few waiver request. So far, I have paid up, but some of my requests will probably be expensive. In particularly, the FBI uses standard forms which have no information regarding how to a denial of a fee waiver or why they denied a fee waiver.
Sometimes agencies will not decide a fee waiver until they finish searching for and processing records. Their rationale is that they base the waiver on the records that will be released and whether those records are likely to contribute significantly to public understanding of the operations and activities of government. As we noted in FOIA tip 10, we think agencies sometimes do this to discourage requesters — for example, by giving a large fee estimate and refusing to decide the fee waiver upfront. I encourage you to call the agency and discuss it with them and, if they deny the waiver, you can appeal that just like you can appeal any adverse determination by the agency. They should give you appeal information when you are denied the waiver, but if not, contact the agency and ask for the information or look on their web site. If they still deny you, then you can try dealing with it through a new mediation service called the Office of Government Information Services (OGIS) — we hope to do a future FOIA tip about that — or you can litigate. If you have a persistent problem, maybe try contacting OGIS to see if you and the agency can come to an agreement.