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


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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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