[Code of Federal Regulations]

[Title 28, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 28CFR16.11]



[Page 274-278]

 

                    TITLE 28--JUDICIAL ADMINISTRATION

 

                    CHAPTER I--DEPARTMENT OF JUSTICE

 

PART 16_PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION--Table of 

Contents

 

  Subpart A_Procedures for Disclosure of Records Under the Freedom of 

                             Information Act

 

Sec. 16.11  Fees.



    (a) In general. Components shall charge for processing requests 

under the FOIA in accordance with paragraph (c) of this section, except 

where fees are limited under paragraph (d) of this section or where a 

waiver or reduction of fees is granted under paragraph (k) of this 

section. A component ordinarily shall collect all applicable fees before 

sending copies of requested records to a requester. Requesters must pay 

fees by check or money order made payable to the Treasury of the United 

States.

    (b) Definitions. For purposes of this section:

    (1) Commercial use request means a request from or on behalf of a 

person who seeks information for a use or purpose that furthers his or 

her commercial, trade, or profit interests, which can include furthering 

those interests through litigation. Components shall determine, whenever 

reasonably possible, the use to which a requester will put the requested 

records. When it appears that the requester will put the records to a 

commercial use, either because of the nature of the request itself or 

because a component has reasonable cause to doubt a requester's stated 

use, the component shall provide the requester a reasonable opportunity 

to submit further clarification.

    (2) Direct costs means those expenses that an agency actually incurs 

in searching for and duplicating (and, in the case of commercial use 

requests, reviewing) records to respond to a FOIA request. Direct costs 

include, for example, the salary of the employee performing the work 

(the basic rate of pay for the employee, plus 16 percent of that rate to 

cover benefits) and the cost of operating duplication machinery. Not 

included in direct costs are overhead expenses such as the costs of 

space and heating or lighting of the facility in which the records are 

kept.

    (3) Duplication means the making of a copy of a record, or of the 

information contained in it, necessary to respond to a FOIA request. 

Copies can take the form of paper, microform, audiovisual materials, or 

electronic records (for example, magnetic tape or disk), among others. 

Components shall honor a requester's specified preference of form or 

format of disclosure if the record is readily reproducible with 

reasonable efforts in the requested form or format by the office 

responding to the request.

    (4) Educational institution means a preschool, a public or private 

elementary or secondary school, an institution of undergraduate higher 

education, an institution of graduate higher education, an institution 

of professional education, or an institution of vocational education, 

that operates a program of scholarly research. To be in



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this category, a requester must show that the request is authorized by 

and is made under the auspices of a qualifying institution and that the 

records are not sought for a commercial use but are sought to further 

scholarly research.

    (5) Noncommercial scientific institution means an institution that 

is not operated on a ``commercial'' basis, as that term is defined in 

paragraph (b)(1) of this section, and that is operated solely for the 

purpose of conducting scientific research the results of which are not 

intended to promote any particular product or industry. To be in this 

category, a requester must show that the request is authorized by and is 

made under the auspices of a qualifying institution and that the records 

are not sought for a commercial use but are sought to further scientific 

research.

    (6) Representative of the news media, or news media requester, means 

any person actively gathering news for an entity that is organized and 

operated to publish or broadcast news to the public. The term ``news'' 

means information that is about current events or that would be of 

current interest to the public. Examples of news media entities include 

television or radio stations broadcasting to the public at large and 

publishers of periodicals (but only in those instances where they can 

qualify as disseminators of ``news'') who make their products available 

for purchase or subscription by the general public. For ``freelance'' 

journalists to be regarded as working for a news organization, they must 

demonstrate a solid basis for expecting publication through that 

organization. A publication contract would be the clearest proof, but 

components shall also look to the past publication record of a requester 

in making this determination. To be in this category, a requester must 

not be seeking the requested records for a commercial use. However, a 

request for records supporting the news-dissemination function of the 

requester shall not be considered to be for a commercial use.

    (7) Review means the examination of a record located in response to 

a request in order to determine whether any portion of it is exempt from 

disclosure. It also includes processing any record for disclosure--for 

example, doing all that is necessary to redact it and prepare it for 

disclosure. Review costs are recoverable even if a record ultimately is 

not disclosed. Review time includes time spent considering any formal 

objection to disclosure made by a business submitter under Sec. 16.8, 

but does not include time spent resolving general legal or policy issues 

regarding the application of exemptions.

    (8) Search means the process of looking for and retrieving records 

or information responsive to a request. It includes page-by-page or 

line-by-line identification of information within records and also 

includes reasonable efforts to locate and retrieve information from 

records maintained in electronic form or format. Components shall ensure 

that searches are done in the most efficient and least expensive manner 

reasonably possible. For example, components shall not search line-by-

line where duplicating an entire document would be quicker and less 

expensive.

    (c) Fees. In responding to FOIA requests, components shall charge 

the following fees unless a waiver or reduction of fees has been granted 

under paragraph (k) of this section:

    (1) Search. (i) Search fees shall be charged for all requests--other 

than requests made by educational institutions, noncommercial scientific 

institutions, or representatives of the news media--subject to the 

limitations of paragraph (d) of this section. Components may charge for 

time spent searching even if they do not locate any responsive record or 

if they withhold the record(s) located as entirely exempt from 

disclosure.

    (ii) For each quarter hour spent by clerical personnel in searching 

for and retrieving a requested record, the fee will be $4.00. Where a 

search and retrieval cannot be performed entirely by clerical 

personnel--for example, where the identification of records within the 

scope of a request requires the use of professional personnel--the fee 

will be $7.00 for each quarter hour of search time spent by professional 

personnel. Where the time of managerial personnel is required, the fee 

will be $10.25 for each quarter hour of time spent by those personnel.

    (iii) For computer searches of records, requesters will be charged 

the



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direct costs of conducting the search, although certain requesters (as 

provided in paragraph (d)(1) of this section) will be charged no search 

fee and certain other requesters (as provided in paragraph (d)(3) of 

this section) will be entitled to the cost equivalent of two hours of 

manual search time without charge. These direct costs will include the 

cost of operating a central processing unit for that portion of 

operating time that is directly attributable to searching for responsive 

records, as well as the costs of operator/programmer salary 

apportionable to the search.

    (2) Duplication. Duplication fees will be charged to all requesters, 

subject to the limitations of paragraph (d) of this section. For a paper 

photocopy of a record (no more than one copy of which need be supplied), 

the fee will be ten cents per page. For copies produced by computer, 

such as tapes or printouts, components will charge the direct costs, 

including operator time, of producing the copy. For other forms of 

duplication, components will charge the direct costs of that 

duplication.

    (3) Review. Review fees will be charged to requesters who make a 

commercial use request. Review fees will be charged only for the initial 

record review--in other words, the review done when a component 

determines whether an exemption applies to a particular record or record 

portion at the initial request level. No charge will be made for review 

at the administrative appeal level for an exemption already applied. 

However, records or record portions withheld under an exemption that is 

subsequently determined not to apply may be reviewed again to determine 

whether any other exemption not previously considered applies; the costs 

of that review are chargeable where it is made necessary by such a 

change of circumstances. Review fees will be charged at the same rates 

as those charged for a search under paragraph (c)(1)(ii) of this 

section.

    (d) Limitations on charging fees. (1) No search fee will be charged 

for requests by educational institutions, noncommercial scientific 

institutions, or representatives of the news media.

    (2) No search fee or review fee will be charged for a quarter-hour 

period unless more than half of that period is required for search or 

review.

    (3) Except for requesters seeking records for a commercial use, 

components will provide without charge:

    (i) The first 100 pages of duplication (or the cost equivalent); and

    (ii) The first two hours of search (or the cost equivalent).

    (4) Whenever a total fee calculated under paragraph (c) of this 

section is $14.00 or less for any request, no fee will be charged.

    (5) The provisions of paragraphs (d) (3) and (4) of this section 

work together. This means that for requesters other than those seeking 

records for a commercial use, no fee will be charged unless the cost of 

search in excess of two hours plus the cost of duplication in excess of 

100 pages totals more than $14.00.

    (e) Notice of anticipated fees in excess of $25.00. When a component 

determines or estimates that the fees to be charged under this section 

will amount to more than $25.00, the component shall notify the 

requester of the actual or estimated amount of the fees, unless the 

requester has indicated a willingness to pay fees as high as those 

anticipated. If only a portion of the fee can be estimated readily, the 

component shall advise the requester that the estimated fee may be only 

a portion of the total fee. In cases in which a requester has been 

notified that actual or estimated fees amount to more than $25.00, the 

request shall not be considered received and further work shall not be 

done on it until the requester agrees to pay the anticipated total fee. 

Any such agreement should be memorialized in writing. A notice under 

this paragraph will offer the requester an opportunity to discuss the 

matter with Department personnel in order to reformulate the request to 

meet the requester's needs at a lower cost.

    (f) Charges for other services. Apart from the other provisions of 

this section, when a component chooses as a matter of administrative 

discretion to provide a special service--such as certifying that records 

are true copies or sending them by other than ordinary mail--the direct 

costs of providing the service ordinarily will be charged.



[[Page 277]]



    (g) Charging interest. Components may charge interest on any unpaid 

bill starting on the 31st day following the date of billing the 

requester. Interest charges will be assessed at the rate provided in 31 

U.S.C. 3717 and will accrue from the date of the billing until payment 

is received by the component. Components will follow the provisions of 

the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as 

amended, and its administrative procedures, including the use of 

consumer reporting agencies, collection agencies, and offset.

    (h) Aggregating requests. Where a component reasonably believes that 

a requester or a group of requesters acting together is attempting to 

divide a request into a series of requests for the purpose of avoiding 

fees, the component may aggregate those requests and charge accordingly. 

Components may presume that multiple requests of this type made within a 

30-day period have been made in order to avoid fees. Where requests are 

separated by a longer period, components will aggregate them only where 

there exists a solid basis for determining that aggregation is warranted 

under all the circumstances involved. Multiple requests involving 

unrelated matters will not be aggregated.

    (i) Advance payments. (1) For requests other than those described in 

paragraphs (i)(2) and (3) of this section, a component shall not require 

the requester to make an advance payment--in other words, a payment made 

before work is begun or continued on a request. Payment owed for work 

already completed (i.e., a prepayment before copies are sent to a 

requester) is not an advance payment.

    (2) Where a component determines or estimates that a total fee to be 

charged under this section will be more than $250.00, it may require the 

requester to make an advance payment of an amount up to the amount of 

the entire anticipated fee before beginning to process the request, 

except where it receives a satisfactory assurance of full payment from a 

requester that has a history of prompt payment.

    (3) Where a requester has previously failed to pay a properly 

charged FOIA fee to any component or agency within 30 days of the date 

of billing, a component may require the requester to pay the full amount 

due, plus any applicable interest, and to make an advance payment of the 

full amount of any anticipated fee, before the component begins to 

process a new request or continues to process a pending request from 

that requester.

    (4) In cases in which a component requires advance payment or 

payment due under paragraph (i)(2) or (3) of this section, the request 

shall not be considered received and further work will not be done on it 

until the required payment is received.

    (j) Other statutes specifically providing for fees. The fee schedule 

of this section does not apply to fees charged under any statute that 

specifically requires an agency to set and collect fees for particular 

types of records. Where records responsive to requests are maintained 

for distribution by agencies operating such statutorily based fee 

schedule programs, components will inform requesters of the steps for 

obtaining records from those sources so that they may do so most 

economically.

    (k) Requirements for waiver or reduction of fees. (1) Records 

responsive to a request will be furnished without charge or at a charge 

reduced below that established under paragraph (c) of this section where 

a component determines, based on all available information, that the 

requester has demonstrated that:

    (i) Disclosure of the requested information is in the public 

interest because it is likely to contribute significantly to public 

understanding of the operations or activities of the government, and

    (ii) Disclosure of the information is not primarily in the 

commercial interest of the requester.

    (2) To determine whether the first fee waiver requirement is met, 

components will consider the following factors:

    (i) The subject of the request: Whether the subject of the requested 

records concerns ``the operations or activities of the government.'' The 

subject of the requested records must concern identifiable operations or 

activities of the federal government, with a connection that is direct 

and clear, not remote or attenuated.



[[Page 278]]



    (ii) The informative value of the information to be disclosed: 

Whether the disclosure is ``likely to contribute'' to an understanding 

of government operations or activities. The disclosable portions of the 

requested records must be meaningfully informative about government 

operations or activities in order to be ``likely to contribute'' to an 

increased public understanding of those operations or activities. The 

disclosure of information that already is in the public domain, in 

either a duplicative or a substantially identical form, would not be as 

likely to contribute to such understanding where nothing new would be 

added to the public's understanding.

    (iii) The contribution to an understanding of the subject by the 

public likely to result from disclosure: Whether disclosure of the 

requested information will contribute to ``public understanding.'' The 

disclosure must contribute to the understanding of a reasonably broad 

audience of persons interested in the subject, as opposed to the 

individual understanding of the requester. A requester's expertise in 

the subject area and ability and intention to effectively convey 

information to the public shall be considered. It shall be presumed that 

a representative of the news media will satisfy this consideration.

    (iv) The significance of the contribution to public understanding: 

Whether the disclosure is likely to contribute ``significantly'' to 

public understanding of government operations or activities. The 

public's understanding of the subject in question, as compared to the 

level of public understanding existing prior to the disclosure, must be 

enhanced by the disclosure to a significant extent. Components shall not 

make value judgments about whether information that would contribute 

significantly to public understanding of the operations or activities of 

the government is ``important'' enough to be made public.

    (3) To determine whether the second fee waiver requirement is met, 

components will consider the following factors:

    (i) The existence and magnitude of a commercial interest: Whether 

the requester has a commercial interest that would be furthered by the 

requested disclosure. Components shall consider any commercial interest 

of the requester (with reference to the definition of ``commercial use'' 

in paragraph (b)(1) of this section), or of any person on whose behalf 

the requester may be acting, that would be furthered by the requested 

disclosure. Requesters shall be given an opportunity in the 

administrative process to provide explanatory information regarding this 

consideration.

    (ii) The primary interest in disclosure: Whether any identified 

commercial interest of the requester is sufficiently large, in 

comparison with the public interest in disclosure, that disclosure is 

``primarily in the commercial interest of the requester.'' A fee waiver 

or reduction is justified where the public interest standard is 

satisfied and that public interest is greater in magnitude than that of 

any identified commercial interest in disclosure. Components ordinarily 

shall presume that where a news media requester has satisfied the public 

interest standard, the public interest will be the interest primarily 

served by disclosure to that requester. Disclosure to data brokers or 

others who merely compile and market government information for direct 

economic return shall not be presumed to primarily serve the public 

interest.

    (4) Where only some of the records to be released satisfy the 

requirements for a waiver of fees, a waiver shall be granted for those 

records.

    (5) Requests for the waiver or reduction of fees should address the 

factors listed in paragraphs (k)(2) and (3) of this section, insofar as 

they apply to each request. Components will exercise their discretion to 

consider the cost-effectiveness of their investment of administrative 

resources in this decisionmaking process, however, in deciding to grant 

waivers or reductions of fees.



[Order No. 2156-98, 63 FR 29593, June 1, 1998; 63 FR 34965, June 26, 

1998; 63 FR 36295, July 2, 1998; 63 FR 51401, Sept. 25, 1998]