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8 FOIA Update 1 (1987)

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U.S. Department of Justice
Office of Legal Policy
Office of Information and Privacy

    Vol. VIII, No.1
Winter/Spring 1987


New FOIA Fee Provisions Take Effect

     The first half of 1987 saw a great deal of
FOIA activity as federal agencies, under the guid-
ance of the Office of Management and Budget and
the Department of Justice, moved to inplement the
new fee and fee waiver provisions contained in
last year's FOIA reform   legislation (see FOIA
      , Fall 1986, at 2-4).
      The Freedom of Information Reform Act of
1986, Pub. L. No. 99-570, §§1801-1804, 100 Stat.
3207. 3207-48 (1986), established a new fee struc-
ture urder the FOIA, one which includes new limi-
tations on the assessment of fees both generally
as well as for certain categories of requesters in
particular. At the sane time, it authorized agen-
cies to impose new record review charges design-
ed to recover the actual cost of complying with
requests made by commercial requesters. Addition-
ally, the new law replaced the statutory provision
governing the general waiver or reduction of FOIA
fees with a somewhat revised fee waiver standard.
      Under the FOIA Reform Act, which was signed
 into law last October, the new fee and fee waiver
 provisions were to become effective only after the
 expiration of a 180-day period, during which all
 federal agencies were expected to revise their
 respective FOIA regulations in order to implement
 these new provisions.  However, what might have
 seemed to be a viable time period for that activi-
 ty at the outset soon proved to be widely insuffi-
 cient, primarily due to the multiple-step process
 that was required.
               CHB Fee Guidelines
      The necessary first step in this regulation-
 revision process, under the explicit requirements
 of the legislation, involved the development of a
 uniform schedule of fees by the Office of Manage-
 ment and Budget. OMB was accorded governmentwide
 policy responsibility for R)IA fee (but not fee
 waiver) matters under the amended law. Although
 GMB diligently took up this responsibility, pub-
 lishing a proposed uniform fee schedule at the
 beginning of the year, this threshold enterprise
 was coplicated by the requirements of the public-
 notice-and-comment process, as well as by the fact

that considerable controversy surrounded the con-
tent and precise formulation of OMB's fee guide-
     Finally, after much public debate and in-
ternal deliberation, the Uniform Freedcm of In-
formation Act Fee Schedule and Guidelines were
issued at the end of March, exactly five months
into the six-month statutory period allowed for
the completion of the entire regulation-revision
process. See 52 Fed. Reg. 10011 (Mar. 27, 1987).
These guidelines provided a workable outline for
individual agency regulations implementing the
new fee provisions and also defined several cru-
cial terms -- most notably commercial use re-
quest, non-coamercial scientific institution,
educational institution, and representative of
the news media -- that are pertinent to the im-
plementation of the amended law's fee limitation
provisions, particularly its new categorical lim-
itations on search fees.
          Justice Fee Waiver Guidance
   At the sae time, the Department of Justice
worked to develop new governmentwide policy guid-
ance on the waiver of FOIA fees, to replace the
Justice Department guidance issued in January
1983 in accordance with the previous statutory
fee waiver standard.  Under the reform legisla-
tion, agencies were required for the first timwe
to include in their regulations both procedures
and guidelines for determining when [FOIA] fees
should be waived or reduced, so the Department
followed (MB's fee schedule with the issuance of
                             Cont' d on next page

        New Update Format
                           afT eJ   rz after a

                hi  ~ir  aformt
 brief abstnde di       c/   H.   rtngfmt
 for it was developed.   Henceforth, FOIA Updat
 will continue t   ]j 1 f b9pd ed four times per
 year, but it will appear in this more economical
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