FEES AND FEE Waivers
The FOIA authorizes agencies to recover from requesters certain costs associated with processing requests made under the Act. 5 U.S.C. § 552 (a)(4)(A)(i) and (ii). The statute further provides for such fees to be waived in whole or in part where “disclosure of the information [requested] 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.”
5 U.S.C. § 552(a)(4)(A)(iii)(2000); 34 C.F.R. § 5.64.
To qualify for a fee waiver, requesters must meet two statutory requirements. First, the requester must support the request with evidence that establishes that disclosure of the information sought is in the public interest. In order to determine this, the Department must consider the following four factors in order:
- The subject matter of the requested records themselves must specifically concern identifiable “operations or activities of the government”;
- In order for the disclosure to “likely contribute” to an understanding of specific government operations or activities, the disclosable portions of the requested information must be meaningfully informative in relation to the subject matter of the request;
- The disclosure must contribute to the “understanding of the public at large,” as opposed to that of the individual requester or a narrow segment of interested persons. With regard to this element, requesters should address with particularity and in detail the requester’s subject matter expertise and intentions, ability, and methods of disseminating information to the public; and
- The disclosure must “contribute significantly” to public understanding of government operations or activities.
Requesters must meet all four elements of the public interest test outlined above to satisfy this first statutory requirement for a fee waiver. See Judicial Watch, Inc. v. Department of Justice, No. 03-5093, 2004 WL 980826 (D.C. Cir. May 7, 2004).
If the first statutory requirement is met, the Department will then also determine whether the “disclosure of the information…is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). To determine whether this second requirement has been satisfied, the Department must consider the following two factors in order:
- Does the request involve any “commercial interest of the requester” (if not, the requester satisfies the second prong of the statutory fee waiver test); and
- If so, the agency must balance the requester’s commercial interest against the identified public interest in disclosure for the purpose of ascertaining which is the “primary interest;” a fee waiver or reduction may granted only where the public interest in disclosure is greater in magnitude than the requester’s commercial interest.