Freedom of Information Act Fees for Government Information

Freedom of Information Act Fees for Government Information

Updated June 29, 2022
Freedom of Information Act Fees for Government Information
The Freedom of Information Act (FOIA) establishes a
1. Commercial Use Requesters—where a request
presumption that information in the possession of executive
is made for information to further the
branch agencies and departments of the U.S. federal
commercial, trade or profit interests of the
government is accessible to the public. Under FOIA, the
requester or person on whose behalf the
burden of proof to access government information shifted
request is made;
from a requester’s “need to know” to a “right to know”
2. Educational Institutions and Non-Commercial
doctrine, where the federal government has to show a need
Scientific Institution Requesters—where a
to keep the information secret (H.Rept. 109-226). However,
request is made on behalf of an institution for
federal agencies may recoup the government’s costs of
the purposes of scholarly or scientific research
providing information to the public by assessing FOIA fees
not intended to promote any particular product
(hereinafter, fees).
or industry;
3. Requesters Who Are Representatives of the
This piece discusses what fees are used for, how fees are
News Media—where a request is received
assessed, fee waivers, and payment of fees.
from any person actively gathering
What Are the Fees Used For?
information about current events or
information that would be of current public
Created by the White House Office of Management and
interest and has a reasonable expectation of
Budget (OMB) pursuant to FOIA, the Uniform Freedom of
being published; and
Information Act Fee Schedule and Guidelines provides
information on the use and assessment of fees. Fees
4. All Other Requesters.
assessed for the duplication and receipt of government
Requesters who are members of the general public (who do
information reimburse the government for costs incurred in
not typically meet the (1) commercial use, (2) educational
providing these services. Typically, fees collected by an
and scientific institution, or (3) news media requester
agency are deposited into general revenues of the United
definitions) are furnished the first 100 pages of
States and not into agency accounts. Direct costs related to
reproduction of the information and the first two hours of
providing these services include
search time without charge. Commercial use requesters are
charged for the full direct costs, including reproduction
 the salary cost of the employee searching for relevant
costs, while educational and non-commercial scientific
materials;
institution requesters are only charged for reproduction

costs over 100 pages.
the searching costs of locating the material (for example,
costs for staff time or computer search time);
Uniform Freedom of Information Act Fee
 the reproduction of the information on a reasonably
Schedule and Guidelines
usable media; and
52 Federal Register 10019, March 27, 1987
 the review of information to determine whether it is

Commercial Use Requesters: Charged for the full direct
exempt from mandatory disclosure.
costs and reproduction costs;
Direct costs do not include overhead expenses of the

Educational Institutions, Non-commercial Scientific
agency for storing and maintaining the records.
Institutions, and News Media Requesters: Charged for
only reproduction costs in excess of the first 100 pages;
How Are the Fees Assessed?

All Other Requesters: Charged for the direct costs
Fees for government information are assessed on two
excluding review of information; first 100 pages and 2 hours of
criteria: first, the type of requester asking for the
search time are free of charge.
information; and second, the type of information being
sought. An information request fee is determined first by
the requester category, and then by selecting the particular
Selected Fees by Type of Information
fees for the types of information sought.
Common types of information that fall under this category
include information on an individual, information in the
Fees by Category of Requester
pursuit of government benefits, and information on an
OMB provides information on the four categories of FOIA
individual’s military service.
requesters. The category in which a requester is placed
determines the requester’s fee responsibility.
Information on an Individual. The Privacy Act of 1974
governs the disclosure of information on an individual, and
The four categories of requesters are
only pertains to U.S. citizens and permanent residents. The
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Freedom of Information Act Fees for Government Information
act allows individuals to request an agency perform a
report, where an agency must report the number of fee
search for information in a system of records based on
waiver requests that were granted and denied.
identifiers such as their name or Social Security Number.
Generally, unless a request meets an exemption under 5
Further, DOJ guidance notes, “FOIA contains no provision
U.S.C. §552a(b), information may not be disclosed without
for reimbursement of fees if the requester is dissatisfied
the individual’s consent. An agency may only assess fees
with the agency’s response.”
for reproduction of such information (5 U.S.C.
§552a(f)(5)).
Updated Guidelines for Media Requester Waivers
In 2007, Congress clarified the definition of requesters who
Military Records Fees. Military records fees depend on
are representatives of the news media through P.L. 110-
where the information is currently located, be it at the
175. Prior to the enactment of the 2007 law, DOJ noted that
Department of Defense (DOD), or the National Archives
the categorization of representatives of the news media was
and Records Administration (NARA). For more
the subject of a number of court FOIA opinions, often
information on the transfer of records, see CRS In Focus
deciding that plaintiffs were not news media requesters.
IF11119, Federal Records: Types and Treatments, by
Congress clarified and expanded the definition to include
Meghan M. Stuessy. Records of an individual who
freelance journalists and new forms of news delivery
separated from the military less than 62 years ago are under
through the Internet.
the purview of DOD, while those exceeding 62 years are
managed by NARA. The U.S. Code (10 U.S.C. §§1041-
The incentive for being classified as a news media requester
1042) prohibits DOD fees for providing certificates of
means that the requester may only be billed for the
service or discharge under certain conditions. NARA
reproduction of information in excess of the first 100 pages.
assesses reproduction fees as it would for any other types of
A narrow definition of a news media requester may mean
archival records under 44 U.S.C. §2116 and 44 U.S.C.
requesters could be assessed higher fees for information
§2307.
they intend to disseminate in the public interest.
Information for Pursuit of Government Benefits. In
Accompanying the 2007 legislation, H.Rept. 110-45
cases where NARA receives an agency’s records for
explained that the modifications were to clarify that
archiving, NARA guidance allows for the free furnishing of
“agencies may not deny fee waivers for legitimate
one copy of the required document free of charge (36
journalists solely on the basis of an absence of institutional
C.F.R. §1258.12). This provision does not automatically
associations of the requester” and that instead “agencies
apply to other agencies, though similar provisions may
must consider the prior publication history” and “stated
exist.
intent to distribute information to a reasonably broad
audience” when determining the requester’s eligibility.
Fee Waivers and Reductions
Furthermore, the statutory definition at 5 U.S.C.
FOIA provides for a waiver or reduction of fees for
§552(a)(4)(A)(ii) notes a requester may be considered a
information “if disclosure of the information is in the public
freelance journalist “whether or not the journalist is actually
interest because it is likely to contribute significantly to
employed by the [news] entity.”
public understanding of the operations or activities of the
government and is not primarily in the commercial interest
Payment of Fees
of the requester” (5 U.S.C. §552(a)(4)(A)(iii)).
In the event the responding agency anticipates the fees for
furnishing the information to be more than $25, the agency
The Department of Justice (DOJ) released policy guidance
will notify the requester in advance before proceeding with
for implementing this provision of FOIA (Department of
the request. At that time, the requester has the opportunity
Justice Guide to the Freedom of Information Act: Fees and
to accept the outlines of the search, or to work with the
Fee Waivers, 2014). To qualify for a fee waiver, a request
agency to narrow the scope of the request and thus reduce
must (1) be in the public interest, and (2) not be primarily in
costs. Under statute (5 U.S.C. §552(4)(v)), agencies are not
the commercial interest of the requester.
allowed to require pre-payment of the fees unless the fees
will exceed $250, or if the requester has previously failed to
In determining whether a request is in the public interest,
pay a fee in a timely fashion.
DOJ applies several factors, such as whether the request
discusses and contributes to an understanding of
Limitation on Agency Collection of Fees
identifiable government activities, and whether the request
OMB’s Uniform Freedom of Information Act Fee Schedule
would provide meaningfully informative material not
and Guidelines further limits an agency’s collection of fees
already in the public domain. In determining whether a
from any type of requester if the cost of collecting the fee
request is not primarily in the requester’s commercial
would be equal or greater than the fee itself. In assessing
interest, the value of the information to the public must
whether the cost of collection would exceed the fee,
outweigh possible commercial interests.
agencies are to consider the agency’s administrative costs in
receiving and recording receipt of the fee, and the cost for
Waiver Appeals Processes
processing the fee for deposit in the Treasury Department.
FOIA does not provide for a waiver appeals process in
statute; however, many agencies have processes either
Meghan M. Stuessy, Analyst in Government Organization
through agency regulation or practice. Information on fee
and Management
waiver requests may be found in an agency’s annual FOIA
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Freedom of Information Act Fees for Government Information

IF11272

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https://crsreports.congress.gov | IF11272 · VERSION 4 · UPDATED