Sunsine Week: End unnecessary FOIA fees

By Nate Jones
Director, Freedom of Information Act Project
National Security Archive

Last year, a FOIA requester filed a Freedom of Information Act request with the Drug Enforcement Administration asking for information about the DEA’s role in the search and capture of the Mexican Cartel boss Joaquin Guzman, more commonly known as “El Chapo.”

Last month – eight months after the FOIA’s statutory twenty-day deadline had expired — the agency informed the requester that it would cost a whopping $1.46 million to search, review, process, and print the documents, causing the stunned requester to abandon his effort. Using the specter of unrealistically high FOIA fees, the DEA successfully evaded a request for materials of high public interest.

This Sunshine Week, it’s important to recognize that FOIA fee barriers are not isolated incidents. The Federal FOIA Advisory Committee, made up of government and non-government members including myself, has identified fees as the most frequently contentious issue in the FOIA process for those both inside and outside government. Miriam Nisbet, the former director of the FOIA Ombuds office, confirmed this week. that some agencies use fees to dissuade people from filing FOIA requests.

The need for exorbitant fees to pay for FOIA requests is unnecessary from a fiscal perspective. According to the government’s own most recent figures (FY 2013), the 99 agencies covered by FOIA processed 678,391 requests at a cost of $446 million dollars – well worth it considering the value of a government accessible to its citizens. Total fees paid by FOIA requesters were just $4.3 million, less than one percent of the cost of implementing the Act. The use of fees to dissuade people from making requests becomes even more questionable when one understands that the money goes to the U.S. Treasury’s General Fund, not to defray actual agency FOIA costs.

Encouragingly, there are exemplary FOIA agencies that recognize this and waive most or all fees as a matter of policy.

Unfortunately, too many other agencies continue to use the specter of FOIA fees as a tool in a general attempt to avoid releasing information to the public. Many high fee estimates are probably also illegal. The FOIA makes it very clear that any time an agency misses its twenty-day statutory deadline to process a request, or if the requester is representing the media, a scientific organization, or educational institution, the agency is only allowed to charge copying fees. The DEA and other agencies have improperly skirted the intent of these provisions so often that both FOIA bills currently pending in Congress include ironclad language which will clearly prohibit these fee hijinks, once and for all.

Some FOIA processers counter that imposing FOIA fees is important not because it pays for the FOIA process, but because it’s a useful tool to convince requesters to narrow requests agencies find overly-broad. A much better solution than applying sticker shock would be to contact the requester, explain the agency’s constraints, get the requester to answer the all-important question, “What do you really want?” and explain that the more narrowly tailored the request, the quicker the response.

Another generally under-appreciated fact is that agency fee barriers hurt regular requesters most of all. The FOIA has built-in fee protections for the categories of users listed above but not for the average concerned citizen asking about potential water contamination at a military base or for GPS data about a nearby national park. Fees are all too often improperly used to turn these kinds of requesters away.

Taxpayers have already paid for FOIA. Instead of trying to use inflated fee numbers to scare away legitimate requesters, agencies should do their duty and focus on releasing important information to the public – like illuminating the US role in the hunt for El Chapo.

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