Guiding Principles re Fees for Open Records Requests
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Guiding Principle: |
Costs via fees and other monetary penalties should not be a barrier to accessing information and should be narrowly tailored to capture the resources necessary to produce the information. |
The people have a right to access government information. Such information plays a vital role in ensuring an informed citizenry. Transparency empowers citizens to hold the government accountable, and it provides the necessary tools to expose fraud, waste, and abuse. It is a catalyst and mechanism for social change.
Although government should be obliged to provide access to records reflecting its dealings, it should also be permitted to charge reasonable fees to recover, if only partially, the costs associated with processing disclosure requests. “Reasonable” fees are those directly related to the processing of a request, and which are not so exorbitant as to discourage requesters from exercising their right of access.
Freedom of Information (“FOI”) statutes should provide clear guidance on (1) the kinds of fees that agencies may charge, (2) the categories of requesters that should be given preferential fee treatment, and (3) the grounds for waiving fees when disclosure is expected to serve the public interest. At the same time, in jurisdictions where the government already bears the full cost of disclosure—that is, where requesters do not pay fees—this arrangement should be preserved.
General Fee Issues
State and local governments must provide clear guidelines, set out in statute or regulation, that include a schedule of fees applicable to the processing of FOI requests. These guidelines should be readily available to the requesting community (e.g., available online), and the public should be given an opportunity to contribute to their design. As technology evolves, or as a FOI statute is amended by the legislature or reinterpreted by the courts, governments should update fee guidelines accordingly.
Fee guidelines or fee schedules should clearly specify the kinds of fees that a government entity may charge a requester, including fees for search, review, and duplication of responsive records. Ideally, fees should be standardized as per page rates. To the extent a government entity charges a requester for costs associated with production (e.g., provision of CD-ROMs or film), those costs should closely track market rates. Requesters should not, however, be held responsible for the costs of normal packaging and postage. Government entities should not charge for electronic production (i.e., transmittance of records by email or online file transfer). And if a request raises novel legal or policy questions, the cost of resolving those issues within the government should not be passed on to the requester. Again, requesters should be responsible only for the direct costs of search, review, and duplication.
Some FOI statutes establish a fee “threshold.” This approach typically affords a requester several hours of “free” search or review time, or it may only restrict an agency’s ability to assess fees until after a certain minimum number of pages have been processed or duplicated. Some FOI statutes also prohibit fees altogether if the total fee amount falls below the estimated cost of routine fee collection from the requester. Governments should incorporate such “thresholds” into their FOI laws.
The notion of a fee “threshold” should also be used to limit the advanced payment of fees. Governments should avoid unreasonable advance fee requirements, which tend to “chill” requesters from exercising their right to access government information. Advanced fee agreements are usually appropriate only when dealing with vexatious requesters or requesters who have previously failed to pay fees in a timely manner. In any case, before requiring any sort of fee commitment, a government entity should at least invite a requester to narrow or clarify its request in an effort to avoid unnecessary search and review costs.
Finally, FOI laws should include fee “limitations,” which disallow the assessment of fees—entirely or in part—whenever a government entity fails to comply with other statutory obligations, especially any deadlines for providing a final determination on a request or production of records.
Fee Categories
In addition to specifying the kinds of fees that may be assessed, FOI statutes may distinguish between categories of requesters and afford certain categories preferential fee treatment vis-à-vis fee reductions. For example, a privileged fee category may only be responsible for duplication costs. Such an approach, at its heart, tries to account for the potentially abusive use of FOI laws by commercial requesters, who seek records for business purposes rather than to advance the common good of government accountability.
A “commercial requester” seeks records for a use or purpose that furthers its own commercial, trade, or profit interests. Commercial interests can be imputed to a requester, insofar as the requester seeks disclosure of records on behalf a third party. For example, an attorney seeking records on behalf of his client for the purposes of legal representation could qualify as a commercial requester. Status as a commercial requester should depend on the purported use of records, rather than the identity of the requester as such. In this respect, when a government entity is unsure whether a commercial use is implicated, it should obtain clarification from the requester.
Although there is no limit to the categories of requesters that a FOI statute can provide with privileged fee treatment, at least three categories are recognized at the federal level and provide a useful framework for state and local FOI regimes:1
- Educational Institutions
- Noncommercial Scientific Institutions
- Representatives of the News Media
As a threshold requirement, to qualify for a privileged fee category, a requester must not seek records for a commercial purpose.
An educational institution should be broadly defined to include secondary schools (i.e., high schools), universities, vocational schools, and other institutions of higher learning, including independent libraries, which operate a program of study or scholarly research. Students, teachers, and administrators alike should qualify for this fee category, so long as their request in made in connection with their role at an educational institution. Governments may wish to extend this category to include “think tank” organizations or other groups that provide some form of educational program as part of their regular operation.
A noncommercial scientific institution should be understood as any noncommercial institution operated for the sake of scientific research that is not intended to promote a particular product or industry. “Scientific” should be broadly defined to encompass the social and natural sciences, as well as medical research.
A representative of the news media should include any person or entity that gathers information of potential interest to the public, uses its editorial skill to turn raw materials (such as government records) into distinct work product, and distributes that work to an audience. Classic examples of news media requesters include television or radio stations, newspapers and magazines, and journalists. Yet the category should also encompass alternative and novel media, such as online news sources, bloggers, and public advocacy organizations (e.g., government “watchdogs”) that provide pertinent commentary to a public audience. In this sense, the fee category should attend to evolving technology.
If a requester does not seek records for a commercial purpose, yet does not qualify for a privileged fee category, it may be classified as an “other use” requester. It may be useful for FOI statutes to still extend some form of fee reduction to an “other use” requester, if only to create an incentive for the public to engage in citizen-led oversight and to distinguish such requesters for those seeking records for a commercial use.
Public Interest Fee Waivers
In addition to reduced fees for certain categories of requesters, FOI statutes should provide for the full or partial waiver of fees whenever disclosure is expected to serve the public interest. Public interest fee waivers should be available whenever a requester can demonstrate that disclosure is (1) likely to contribute significantly to public understanding of the operations or activities of the government, and (2) any commercial interest in disclosure is less than the public interest.
Although the “public interest” in disclosure should be connected in some way to public understanding of the operations or activities of the government, this requirement should be construed liberally. Not only would disclosure of records reflecting actual deliberative decision-making qualify for a waiver, but also disclosure of records that facilitates political participation (i.e., “informs” voters) or aids in revealing government wrongdoing. And although governmental entities should be permitted to consider the informative value of the information to be disclosed, as well as the expected significance of any contribution to public understanding, these aspects of the fee waiver inquiry should be considered in light of the presumption of openness. A government entity should therefore accept a requester’s non-conclusory basis for requesting a waiver so long as it is reasonable. That is, government entities should base their fee waiver determinations on objective, rather than subjective, consideration of the likely contribution to public understanding. They should not make “value judgements” about whether records are “important” enough.
Unlike privileged fee categories, the existence of a commercial interest in disclosure should not disqualify a requester from obtaining a full or partial fee waiver. So long as the likely public interest will be furthered to a greater extent than any commercial interest of the requester, the fee waiver should be available.
1Although the Working Group adopts the general framework of the federal Freedom of Information Act as it pertains to fee categories, it suggests broadening the scope of each category from currently recognized limits, as set forth below.
Guiding Principles re Fees for Open Records Requests
Guiding Principle:
Costs via fees and other monetary penalties should not be a barrier to accessing information and should be narrowly tailored to capture the resources necessary to produce the information.
The people have a right to access government information. Such information plays a vital role in ensuring an informed citizenry. Transparency empowers citizens to hold the government accountable, and it provides the necessary tools to expose fraud, waste, and abuse. It is a catalyst and mechanism for social change.
Although government should be obliged to provide access to records reflecting its dealings, it should also be permitted to charge reasonable fees to recover, if only partially, the costs associated with processing disclosure requests. “Reasonable” fees are those directly related to the processing of a request, and which are not so exorbitant as to discourage requesters from exercising their right of access.
Freedom of Information (“FOI”) statutes should provide clear guidance on (1) the kinds of fees that agencies may charge, (2) the categories of requesters that should be given preferential fee treatment, and (3) the grounds for waiving fees when disclosure is expected to serve the public interest. At the same time, in jurisdictions where the government already bears the full cost of disclosure—that is, where requesters do not pay fees—this arrangement should be preserved.
General Fee Issues
State and local governments must provide clear guidelines, set out in statute or regulation, that include a schedule of fees applicable to the processing of FOI requests. These guidelines should be readily available to the requesting community (e.g., available online), and the public should be given an opportunity to contribute to their design. As technology evolves, or as a FOI statute is amended by the legislature or reinterpreted by the courts, governments should update fee guidelines accordingly.
Fee guidelines or fee schedules should clearly specify the kinds of fees that a government entity may charge a requester, including fees for search, review, and duplication of responsive records. Ideally, fees should be standardized as per page rates. To the extent a government entity charges a requester for costs associated with production (e.g., provision of CD-ROMs or film), those costs should closely track market rates. Requesters should not, however, be held responsible for the costs of normal packaging and postage. Government entities should not charge for electronic production (i.e., transmittance of records by email or online file transfer). And if a request raises novel legal or policy questions, the cost of resolving those issues within the government should not be passed on to the requester. Again, requesters should be responsible only for the direct costs of search, review, and duplication.
Some FOI statutes establish a fee “threshold.” This approach typically affords a requester several hours of “free” search or review time, or it may only restrict an agency’s ability to assess fees until after a certain minimum number of pages have been processed or duplicated. Some FOI statutes also prohibit fees altogether if the total fee amount falls below the estimated cost of routine fee collection from the requester. Governments should incorporate such “thresholds” into their FOI laws.
The notion of a fee “threshold” should also be used to limit the advanced payment of fees. Governments should avoid unreasonable advance fee requirements, which tend to “chill” requesters from exercising their right to access government information. Advanced fee agreements are usually appropriate only when dealing with vexatious requesters or requesters who have previously failed to pay fees in a timely manner. In any case, before requiring any sort of fee commitment, a government entity should at least invite a requester to narrow or clarify its request in an effort to avoid unnecessary search and review costs.
Finally, FOI laws should include fee “limitations,” which disallow the assessment of fees—entirely or in part—whenever a government entity fails to comply with other statutory obligations, especially any deadlines for providing a final determination on a request or production of records.
Fee Categories
In addition to specifying the kinds of fees that may be assessed, FOI statutes may distinguish between categories of requesters and afford certain categories preferential fee treatment vis-à-vis fee reductions. For example, a privileged fee category may only be responsible for duplication costs. Such an approach, at its heart, tries to account for the potentially abusive use of FOI laws by commercial requesters, who seek records for business purposes rather than to advance the common good of government accountability.
A “commercial requester” seeks records for a use or purpose that furthers its own commercial, trade, or profit interests. Commercial interests can be imputed to a requester, insofar as the requester seeks disclosure of records on behalf a third party. For example, an attorney seeking records on behalf of his client for the purposes of legal representation could qualify as a commercial requester. Status as a commercial requester should depend on the purported use of records, rather than the identity of the requester as such. In this respect, when a government entity is unsure whether a commercial use is implicated, it should obtain clarification from the requester.
Although there is no limit to the categories of requesters that a FOI statute can provide with privileged fee treatment, at least three categories are recognized at the federal level and provide a useful framework for state and local FOI regimes:1
- Educational Institutions
- Noncommercial Scientific Institutions
- Representatives of the News Media
As a threshold requirement, to qualify for a privileged fee category, a requester must not seek records for a commercial purpose.
An educational institution should be broadly defined to include secondary schools (i.e., high schools), universities, vocational schools, and other institutions of higher learning, including independent libraries, which operate a program of study or scholarly research. Students, teachers, and administrators alike should qualify for this fee category, so long as their request in made in connection with their role at an educational institution. Governments may wish to extend this category to include “think tank” organizations or other groups that provide some form of educational program as part of their regular operation.
A noncommercial scientific institution should be understood as any noncommercial institution operated for the sake of scientific research that is not intended to promote a particular product or industry. “Scientific” should be broadly defined to encompass the social and natural sciences, as well as medical research.
A representative of the news media should include any person or entity that gathers information of potential interest to the public, uses its editorial skill to turn raw materials (such as government records) into distinct work product, and distributes that work to an audience. Classic examples of news media requesters include television or radio stations, newspapers and magazines, and journalists. Yet the category should also encompass alternative and novel media, such as online news sources, bloggers, and public advocacy organizations (e.g., government “watchdogs”) that provide pertinent commentary to a public audience. In this sense, the fee category should attend to evolving technology.
If a requester does not seek records for a commercial purpose, yet does not qualify for a privileged fee category, it may be classified as an “other use” requester. It may be useful for FOI statutes to still extend some form of fee reduction to an “other use” requester, if only to create an incentive for the public to engage in citizen-led oversight and to distinguish such requesters for those seeking records for a commercial use.
Public Interest Fee Waivers
In addition to reduced fees for certain categories of requesters, FOI statutes should provide for the full or partial waiver of fees whenever disclosure is expected to serve the public interest. Public interest fee waivers should be available whenever a requester can demonstrate that disclosure is (1) likely to contribute significantly to public understanding of the operations or activities of the government, and (2) any commercial interest in disclosure is less than the public interest.
Although the “public interest” in disclosure should be connected in some way to public understanding of the operations or activities of the government, this requirement should be construed liberally. Not only would disclosure of records reflecting actual deliberative decision-making qualify for a waiver, but also disclosure of records that facilitates political participation (i.e., “informs” voters) or aids in revealing government wrongdoing. And although governmental entities should be permitted to consider the informative value of the information to be disclosed, as well as the expected significance of any contribution to public understanding, these aspects of the fee waiver inquiry should be considered in light of the presumption of openness. A government entity should therefore accept a requester’s non-conclusory basis for requesting a waiver so long as it is reasonable. That is, government entities should base their fee waiver determinations on objective, rather than subjective, consideration of the likely contribution to public understanding. They should not make “value judgements” about whether records are “important” enough.
Unlike privileged fee categories, the existence of a commercial interest in disclosure should not disqualify a requester from obtaining a full or partial fee waiver. So long as the likely public interest will be furthered to a greater extent than any commercial interest of the requester, the fee waiver should be available.
1Although the Working Group adopts the general framework of the federal Freedom of Information Act as it pertains to fee categories, it suggests broadening the scope of each category from currently recognized limits, as set forth below.