[Code of Federal Regulations]
[Title 5, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR294.109]
[Page 103-106]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT
PART 294_AVAILABILITY OF OFFICIAL INFORMATION--Table of Contents
Subpart A_Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec. 294.109 Fees.
(a) Applicability of fees. (1) OPM will furnish, without charge,
reasonable quantities of material that it has available for free
distribution to the public.
(2) OPM may furnish other materials, subject to payment of fees
intended to recoup the full allowable direct costs of providing
services. Fees for these materials may be waived if the request meets
the requirements specified in paragraph (f) of this section.
(3) If a request does not include an acceptable agreement to pay
fees and does not otherwise convey a willingness to pay fees, OPM will
promptly provide notification of the estimated fees. This notice will
offer an opportunity to confer with OPM staff to reformulate the request
to meet the requester's needs at a lower cost. Upon agreement to pay the
required fees, OPM will further process the request.
(4) As described in Sec. 294.107, OPM ordinarily responds to FOIA
requests in a decentralized manner. Because of this, OPM may at times
refer a single request to two or more OPM entities to make separate
direct responses. In such cases, each responding entity may assess fees
as provided by this section, but only for direct costs associated with
any response it has prepared.
(5) If fees for document search are authorized as provided in
paragraph (c) of this section, OPM may assess charges for employee time
spent searching for documents and other direct costs of a search, even
if a search fails to locate records or if records located are determined
to be exempt from disclosure. Searches should be conducted in the
[[Page 104]]
most efficient and least expensive manner so as to minimize the cost for
both the agency and the requester, e.g., personnel should not engage in
line-by-line search when photocopying an entire document would be a less
expensive and quicker way to comply with a request.
(6) Services requested and performed but not required under the
FOIA, such as formal certification of records as true copies, will be
subject to charges under the Federal User Charge Statute (31 U.S.C.
483a) or other applicable statutes.
(b) Rates used to compute fees. The following rates form the basis
for assessing reasonable, standard charges for document search,
duplication, and review as required by 5 U.S.C. 552(a)(4). The listing
of rates below should be used in conjunction with the fee components
listed in paragraph (c) of this section:
------------------------------------------------------------------------
Service Rate
------------------------------------------------------------------------
Employee time............................. Salary rate plus 16% to
cover benefits.
Photocopies (up to 8\1/2\x14).
Printed materials, per 25 pages or $.025.
fraction thereof.
Computer time............................. Actual direct cost.
Supplies and other materials.............. Actual direct cost.
Other costs not identified above.......... Actual direct cost.
------------------------------------------------------------------------
(c) Assessing fees based on requester's category. Rates are assessed
differently for the different categories of requesters as defined in
Sec. 294.103. Requests have three cost components for the purpose of
assessing fees: the cost of document search, the cost of duplication,
and the cost of review. OPM will apply the rates in paragraph (b) of
this section to the cost components that apply to the requester's
category as follows:
----------------------------------------------------------------------------------------------------------------
Requester's category Search Review Duplication
----------------------------------------------------------------------------------------------------------------
Commercial........................... Actual direct costs.... Actual direct costs.... Actual direct costs.
Non-commercial (educational or No charge.............. No charge.............. Actual direct costs.\1\
scientific institution) or news
media.
All others........................... Actual direct costs \2\ No charge.............. Actual direct costs.\1\
----------------------------------------------------------------------------------------------------------------
\1\ First 100 pages of paper copies or reasonable equivalent, such as a microfiche containing the equivalent of
100 pages, are copied free.
\2\ First 2 hours of manual search time are free. If requested records are maintained in a computerized data
base, OPM will use the following formula, suggested by OMB, to provide the equivalent of 2 hours manual search
time free before charging for computer search time: The operator's hourly salary plus 16% will be added to the
hourly cost of operating the central processing unit that contains the record information.
(d) Payment of fees. Fees are payable by check or money order to the
Office of Personnel Management.
(1) If the total charge for fulfilling the request will be less than
$25, no fee will be assessed (except as provided in paragraph (d)(3) of
this section).
(2) If a request may reasonably result in a fee assessment of more
than $25, OPM will not release the records unless the requester agrees
in advance to pay the anticipated charges.
(3) OPM may aggregate requests and charge fees accordingly, when
there is a reasonable belief that a requester, or a group of requesters
acting in concert, is attempting to break down a request into a series
of requests to evade the assessment of fees.
(i) If multiple requests of this type occur within a 30-day period,
OPM may provide notice that it is aggregating the requests and that it
will apply the fee provisions of this section, including any required
agreement to pay fees and any advance payment.
(ii) Before aggregating requests of this type made over a period
longer than 30 days, OPM will assure that it has a solid basis on which
to conclude that the requesters are acting in concert and are acting
specifically to avoid payment of fees.
(iii) OPM will not aggregate multiple requests on unrelated subjects
from one person.
(e) Payment of fees in advance. If OPM estimates or determines that
fees are likely to exceed $250, OPM may require the payment of
applicable fees in advance.
(1) If an OPM official, who is authorized to make a decision on a
particular request, determines that the requester
[[Page 105]]
has a history of prompt payment of FOIA fees, OPM will provide notice of
the likely cost and obtain satisfactory assurance of full payment.
(2) When a person, or an organization that a person represents, has
previously failed to pay assessed fees in a timely manner (i.e., payment
was not made within 30 days of the billing date), OPM will require full
payment of all fees in advance.
(3) If a person, or an organization that a person represents, has
not paid fees previously assessed, OPM will not begin to process any new
request for records until the requester has paid the full amount owed
plus any applicable interest, and made a full advance payment for the
new request.
(f) Waiver or reduction of fees. OPM will furnish documents without
any charge, or at a reduced charge, if disclosure of the 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 release of the material is not primarily in the
commercial interest of the requester.
(1) In determining whether disclosure is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the Government, OPM shall 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'';
(ii) The information value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of Government operations or activities;
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ``public understanding'';
and
(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.
(2) In determining whether disclosure of the information is or is
not primarily in the commercial interest of the requester, OPM shall
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; and, if so--
(ii) The primary interest in disclosure. Whether the magnitude of
the 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.''
(3) In all cases the burden of proof shall be on the requester to
present evidence or information in support of a request for a waiver or
reduction of fees.
(g) Denial of waiver request. (1) An OPM official may deny a request
for a full or partial waiver of fees without further consideration if
the request does not include:
(i) A clear statement of the requester's interest in the requested
information;
(ii) A clear statement of the use proposed for the information and
whether the requester will derive income or other benefit from such use;
(iii) A clear statement of how the public will benefit from OPM's
release of the requested information; and
(iv) If specialized use of the documents is contemplated, a clear
statement of the requester's qualifications that are relevant to the
specialized use.
(2) A requester may appeal the denial of a waiver request as
provided by Sec. 294.110 of this part.
(h) Fees not paid; penalties; debt collection. (1) If a request,
which requires the advance payment of fees under the criteria specified
in this section, is not accompanied by the required payment, OPM will
promptly notify the requester that the required fee must be paid within
30 days, and that OPM will not further process the request until it
receives payment.
(2) OPM may begin assessing interest charges on an unpaid bill
starting on the 31st day following the date on which the bill was sent.
Interest will be charged at the rate prescribed in 31 U.S.C. 3717, and
will accrue from the date of the billing.
[[Page 106]]
(3) To encourage the repayment of debts incurred under this subpart,
OPM may use the procedures authorized by Public Law 97-365, the Debt
Collection Act of 1982. This may include disclosure to consumer
reporting agencies and the use of collection agencies.
[58 FR 32044, June 8, 1993]