The federal government is revising its FOIA Fee Guidelines, which dictate how and when federal agencies can charge FOIA fees. In response to a lawsuit by the non-profit Cause of Action Institute over the guidelines, which date back to 1987, the Office of Management and Budget (OMB), which administers the guidelines, is currently accepting feedback on the revisions.
The non-profit National Security Archive is pushing for several changes to the fee guidelines, including broadening the “preferred” FOIA requester fee category and addressing “fee bullying.” The 1987 FOIA fee guidelines created a “preferred” category of FOIA requester that includes educational institutions and the news media. Organizations that qualify as “preferred” are entitled to significantly reduced fees, sometimes resulting in all fees being waived. While federal courts have ruled that the definition of “news media” should include freelance journalists, bloggers, and digital compilers of public records, OMB has never expanded the fee guidelines to include this expanded definition of media. The National Security Archive is also calling on OMB to expand the definition of “educational institution” to include non-profit institutions, such as think tanks, high schools and other scholarly organizations that do not grant degrees (the prior threshold to qualify as an educational institution).
In addition, the National Security Archive is pushing for the OMB to address “fee bullying” by federal agencies, which is an issue that many researchers have confronted when dealing with uncooperative federal agencies. Fee bullying occurs when an agency attempts to intimidate FOIA requesters to unduly narrow or drop their FOIA requests by threatening to charge excessive FOIA fees, which are seldomly calculated appropriately. There have been prior attempts to address this practice, such as the FOIA Improvement Act of 2016 that prohibited agencies from charging most fees if they miss their statutorily-mandated response time. Nonetheless, the National Security Archive has documented several recent instances of fee bullying, demonstrating that the practice is a continued issue for researchers.
Researchers who have had their FOIA efforts stymied by federal agencies in the past might consider submitting comments to OMB pushing for changes to make the federal FOIA process more responsive. You can submit comments by following this link.