Decision Tree for Assessing Fees

Background 

• In light of FOIA Improvement Act of 2016 there are further limitations on agencies’ ability to charge certain fees if the FOIA’s time limits are not met. 
• The basic rule is that when the agency fails to comply with any of the FOIA’s time limits, no search fees may be charged to “all other” or “commercial use” requesters and no duplication fees may be charged to requesters in preferred fee categories, i.e., representatives of the news media, and educational or noncommercial scientific institutions.
• There are three exceptions to this prohibition which, if met, allow the agency to still assess those fees even if it is unable to comply with the FOIA’s time limits.
• One exception applies to requests in litigation, where a court has determined that exceptional circumstances apply.
• The remaining two exceptions apply when the agency has determined that “unusual circumstances,” as defined by the FOIA, exist, and additional notifications to the requester are made. The second exception applies when the agency needs just an additional ten days to process the request. The third exception applies when the agency needs more than ten additional days and the request involves more than 5,000 pages.
• The following analysis should be undertaken to determine whether either of those two exceptions apply.

Determine the time needed to respond to the request  

Upon receipt of each request, assess whether the request can be processed within 20 days, within 30 days, or will need more than 30 days.

• If agency can process request within 20 working days, it may assess fees as usual. 
• When request presents “unusual circumstances” as defined by the FOIA (i.e., need to search other offices, review voluminous records, or conduct consults), and agency needs ten additional days to process, if agency:
  • provides timely written notice (i.e., within 20 days) of those unusual circumstances, extending the time limit by 10 additional days, and
  • processes the request within that time,
  • the second exception to the prohibition is met and agency may assess fees as usual.
• When request presents “unusual circumstances” as defined by the FOIA, and agency needs more than ten additional days to process, and more than 5,000 pages need to be reviewed in order to respond to the request, if agency:
  • provides timely written notice (i.e., within 20 days) of those unusual circumstances, extending the time by more than ten additional days, and
  • provides the requester with an opportunity to limit the scope of the request or arrange an alternative time for processing, and
  • offers the assistance of the FOIA Public Liaison and OGIS, and
  • discusses with the requester via phone, email, or letter, how to narrow the request, or makes no less than three good faith attempts to do so,
  • the third exception to the prohibition is met and agency may charge fees as usual.

Determining whether the request may involve the review of more than 5,000 pages

The third exception to the prohibition on charging certain fees when the FOIA’s time limits are not met, applies to those requests where the review of more than 5,000 pages is necessary in order to respond. For some requests, agencies will be able to determine from the request itself that the number of pages to be reviewed will be more than 5,000. In those cases, if they have determined that unusual circumstances apply and they provide timely notice to the requester, including all the required elements listed above, they may charge all applicable fees.

For other requests, the converse may be true, and the agency will be able to determine from the request itself, or from its own experience and knowledge of its records, that 5,000 pages or less will need to be reviewed. In those instances, the third exception will not apply and if the agency will need more than 30 days to respond to the request, it will not be able to assess search fees for commercial use, or “all other” requesters, or will not be able to charge duplication fees for representatives of the news media, or for noncommercial scientific or educational institutions. The search time needed to locate documents does not trigger the exception, so even if many hours will be needed to locate responsive records, if the volume of pages that need to be reviewed is 5,000 pages or less, the exception will not be available and the prohibition on charging certain fees will apply. 

That still leaves the category of requests where the agency simply does not know, and cannot reasonably estimate, the volume of records until after it conducts a search. In those situations, it will be necessary for the agency to inform the requester that search fees (or duplication fees) may be applicable to the request. Agencies can use the chart below to guide them through the process, which will depend on the requester’s fee category.

Provide Fee Estimate & Obtain Commitment to Pay Fees

Complete Search

Fee Assessment Checklist When Response Cannot be Made Within 30 days

• When a request cannot be processed within 30 working days, there is a prohibition on the agency’s ability to charge search fees, (or for requesters in preferred fee categories, duplication fees), unless more than 5,000 pages need to be reviewed in order to respond to the request.
• Before assessing search fees for commercial use, and “all other” requesters, and before assessing duplication fees for representatives of the news media, or noncommercial scientific or educational institutions, agencies must confirm that they meet all the following requirements:
  • there are more than 5000 pages that need to be reviewed in order to respond to the request,
  • timely written notice of unusual circumstances, including all the necessary notifications, was provided to the requester, and
  • discussions were had with the requester to narrow the scope of the request, or at least 3 good-faith attempts to do so were made.