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4 FOIA Update 1 (1983)

handle is hein.journals/foiaupd4 and id is 1 raw text is: J.S. Department of Justice 'ffice of Information and Privacy Vol. IV, No. 1 January 1983 ific o nomto n rvc F01A t }FL UPDATE Justice Issues Fee Waiver Guidance The Department of Justice has ssued new governmentwide policy guidance on the determination of -equests for fee waivers under the Freedom of Information Act. The new guidance memorandum, ssued by Assistant Attorney General Jonathan C. Rose on January 7, 1983, ;upersedes the guidance previously .ssued by the Department of Justice on he subject of fee waivers in late 1980 and early 1981. The new guidance concisely sets forth five criteria by which agencies should determine whether a fee waiver is warranted in that disclosure would primarily benefit the general public. It requires an analysis of: (1) the public interest in the subject matter of the request; (2) the nature of the disclosa- ble contents of the records; (3) whether the requested information is already in the public domain; (4) the intention and ability of the requester to dissemi- nate the information; and (5) whether any disclosure benefit to the requester is outweighed by benefit to the general public. Emphasizing that the Department of Justice remains committed to encouraging agencies to waive FOIA search and duplication fees in all appropriate cases, the new policy statement also cautions that federal agencies are obligated to safeguard the public treasury by refusing to provide search and duplication services at reduced or no cost under circumstan- ces in which waivers are not provided for by the statute. The full text of this new guidance memorandum appears on pages 3-4 of this issue of FOIA Update. Addition- ally, a discussion of related procedural considerations follows on page 4. Federal agencies are authorized under the FOIA to set fees for search and duplication which are limited to reasonable standard charges for document search and duplication and provide for re- covery of only the direct costs of such search and duplication. 5 U.S.C. §552(a)(4)(A). While FOIA personnel readily acknowledge that fee schedules in many agencies are in need of revi- sion because they do not reflect cur- rent copying costs and salary scales, they also observe that fee schedules are generally regarded as of small concern because agencies never re- cover their costs, no matter how current their fee schedules. This is in part because under existing law the cost of FOIA administration and of review and redaction of doc- uments cannot be charged to the requester. Agency personnel well know that document review and excision is a particularly costly pro- cess which involves many layers of personnel and which accounts for most of the expense of FOIA adminis- tration. A different problem, but one which also bears on fee schedules, stems from the fact that moneys On Agency Practice: Fees paid by requesters do not go to agencies, but instead are funneled into the Treasury. Hence, an agency spends its own appropriated funds and uses its own resources for search and duplication, but reaps no direct reimbursement. There's little incentive to expend additional resources to charge fees and process the checks, says one government worker who deals with the FOIA every day. Legislation before the 97th Con- gress addressed several of these con- cerns. The Administration-endorsed bill, S. 1730, provided that agencies would be allowed to keep a portion of their FOIA fees; authorized agencies to charge for all costs rea- sonably and directly attributable to a request, including search, dupli- cation, and processing; and directed the Office of Management and Budget to issue guidelines to assist agencies in promulgating uniform fee regulations. Such legislation will be reintroduced in the 98th Con- gress. Agencies Surveyed The Office of Information and Privacy recently surveyed 80 fed- eral agencies, including all cabinet- level departments, in an effort to compile an overall sketch of agency practices in the area of fees and fee schedules. Findings were: * Many agencies still charge 10 cents per page for photocopies, but published schedules show copying charges as high as 25 to 45 cents at some agencies. * Existing search charge practices reveal a widespread failure to update regulations to reflect present federal salaries, which have in- creased yearly by several percentage points. * Several agencies contract out photocopying or other duplication Cont'd on next page

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