FOIA Facts: The Crazy World of FOIA Fees

By Scott A. Hodes, Published on July 21, 2013

The issue of FOIA fees may be the most complex area of an already confusing subject. There are multiple agencies involved in overseeing the issue and in general the money collected doesn’t help agency FOIA operations in the least.

First, the issue of FOIA fees – what agencies collect – is under the purview of the Office of Management and Budget (OMB). OMB hasn’t issued guidance in this area since Ronald Reagan was President, despite the fact that media fee status was a topic amended in the last FOIA amendments passed in 2006. Further, the issue of FOIA fee waivers – when agencies don’t have to collect fees (in part or full) is under the jurisdiction of the Department of Justice. When there is overlap of the two issues, it seems to be anybody’s (or in reality nobody’s) game.

And then there is the constant confusion between fee waivers and fee status. Requesters are provided a fee status – i.e commercial, education, media when a request is made. Based on the fee status, certain things can and can’t be charged for. Requesters can also ask for a fee waiver (mainly requesters ask when they believe the request is in the public interest). The two items are completely separate; however both requesters and FOIA professionals often get them mixed up and provide a rationale for a certain status in a waiver request and vice-versa. All involved in seeking fee waivers or a specific fee status level should make sure they are invoking the proper criteria and language for their requests.

Of course, with all those fees coming in for FOIA processing, agencies should be living high of the hog. Not at all – most agencies only collect a fraction of what it costs for them to process FOIA requests. Further, even if they broke even on their FOIA processing, the money does not go to them. In most cases, requesters write out checks to the U.S. Department of the Treasury, not the individual agencies processing the requests. The money goes to the general treasury fund, the same fund payments for n income taxes go to. Agencies do not get this money back, so charging exorbitant FOIA processing fees does not help their bottom line.

The discussion of allowing agencies to keep the fees has been made. Critics of the plan argue that agency appropriations would then be less based on this fact. However, in the days of sequestration, I am not sure how appropriations to FOIA Operations could possibly be less. Especially since FOIA Operations are not a direct line item in the budget anyway (but that it a debate for another day).

I have the following suggestions concerning FOIA fees:

  1. One office in the government, be it OMB, DOJ or OGIS should be in charge of all Fee issues;
  2. Fees and Fee waivers should be more specifically reported on in the myriad number of reports that FOIA offices are required to provide;
  3. Agencies that do a good job on fee issues should get some type of benefit. Note that a good job on fee issues doesn’t necessarily mean more fees coming in because the agency may do an excellent job in granting fee waivers and may result in less money coming in.

The fee issue is one that many in the FOIA community are examining. Look for the hot FOIA topic in FY2014 to be FOIA fees and fee waivers.