As many FOIA requesters know, agencies collect fees on many requests. These fees can be for duplication, searches, processing or any combination of the three. Duplication fees average between a dime to twenty cents per page. Search and duplication costs, depending on the grade level of the federal employee doing the work are $28-50 per hour. Only the very rare agency collects enough fees to even make a dent into the cost of running the agency’s FOIA program. The fee schedules of all agencies are published in the Federal Register, and the amount of money collected from FOIA requests are listed in the agencies annual FOIA report to Congress.
Even more important to the
agencies than collecting fees, however, are how they use estimated fees to
their advantage. Agencies, always looking for ways to trim FOIA backlogs
and workloads, use estimated fees to shock requesters into dropping or
narrowing their FOIA requests. For instance, assume a request involves
5,000 pages of documents, and the duplication fees are fifteen cents per
page. The estimated duplication fees will be $750. The agency will send
out a letter explaining this to the requester, and ask them to make a
promise to pay the fees. Many small business and/or individual requester’s
will get a case of sticker shock and in many cases will either cancel or
significantly narrow the request.
If agencies are able to charge search and processing fees, they will add that to the estimated fees. I’ve recently heard about an agency telling a requester that the estimated fees for his request were $1,000,000! For agencies, the beauty of estimated search and processing fees are that they are not required to actually show the math behind their estimates. So agencies will always provide the requester with the highest estimated fees they can conceive of in the hopes that the requester will either narrow his or her request, or just go away.
When receiving a fee estimate, FOIA requesters may do a number of things to verify that it is accurate. Initially, I ask that it be put into writing. Agencies like to call and notify requesters of the fee. However, it isn’t always clear who the agency personnel making the call is, and if they have the authority to make this fee estimate decision.
I also ask how the fee was determined. On many occasions, after being provided with the rationale behind the fee estimate, I’ve determined that the fee estimate is the upper end of the spectrum and the actual fee my client will be obligated to pay will be much less than the agency’s estimate.
I also ask many questions about how to go about narrowing the request. It is very rare occasion that my client will want every document in a file. Many agencies easily break down the documents into separate categories. When I know the categories and my client’s interests, it is fairly easy to reduce the scope of the request, making everyone happy in return.
Thus, while agencies use estimated fees to their advantage, a FOIA requester need not accept the agencies estimate without question. The FOIA process involves the requester as much as the agency, and the requester should not be afraid to question the agencies estimates of the fees that it will take to process the FOIA request.