The FOIA generally requires that requesters pay fees for processing their requests. If costs associated with the processing of a FOIA request are $15.00 or less, no fees are charged. Each FOIA request is reviewed for the purpose of placing a requester in one of four fee categories described below.
- Commercial use requesters: Responsible for all direct costs; i.e. search for responsive documents, review of documents located for responsiveness; 16% administrative costs; reproduction cost of $.05 per page; and the time it took the FOIA Specialist to process the request.
- Educational and non-commercial scientific institution requestors: Responsible for reproduction costs after the first 100 pages.
- Requestors who are representatives of the news media: Responsible for reproduction costs after the first 100 pages.
- All other requesters: Responsible for search costs after the first 2 hours and reproduction costs after the first 100 pages.
Your FOIA request should address your willingness to pay fees, offering a limit, or request a waiver of fees (using the outline below). All issues concerning fees associated with the processing of your request need to be resolved before the processing of your request can begin.
The Act provides that "documents shall be furnished without any charge or a reduced charge below the fees established under clause (ii) if disclosure of the information 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. See 5 USC(a)(4)(a)(iii).
The DOE/NNSA has implemented this statutory standard for fee waivers or reduced fees in its FOIA regulation at 10 CFR, Part 1004.9(a). The regulation set forth the following factors that are considered by the agency in applying the criteria:
- The subject of the request: Whether the subject of the requested records concerns "the operations or activities of the government."
- The informative value of the information to be disclosed: Whether the disclosure is "likely to contribute" to an understanding of government operations or activities.
- The contribution of an understanding by the general public of the subject likely to result from disclosure (i.e., the requester must have the ability and intention to disseminate this information to the public).
- The significance of the contribution to public understanding: Whether the disclosure is likely to contribute "significantly" to public understanding of government operations or activities.
Per 10 CFR, Part 1004.9a(a)(8)(i), a requester who satisfies the four factors of the public interest prong must then address the second prong by showing that disclosure of the information is not primarily in his or her commercial interest.
- The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure; and if so
- The primary interest in disclosure: Whether the magnitude of the identified commercial interest to the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is "primarily in the commercial interest of the requester."
In order to explain these requirements in greater detail, the Department of Justice issued a fee waiver policy guidance on April 2, 1987. These guidelines were referenced in the court case McClellan Ecological Supage Situation v. Carlucci, 835 F. 2d, 1282, 1286 (9th Cir. 1987). We also use these guidelines in making fee waiver determinations.