[Code of Federal Regulations]

[Title 45, Volume 1]

[Revised as of October 1, 2006]

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

[CITE: 45CFR5.45]



[Page 25-26]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 5_FREEDOM OF INFORMATION REGULATIONS--Table of Contents

 

                             Subpart D_Fees

 

Sec.  5.45  Waiver or reduction of fees.



    (a) Standard. We will waive or reduce the fees we would otherwise 

charge if disclosure of the information meets both of the following 

tests:

    (1) It is in the public interest because it is likely to contribute 

significantly to public understanding of the operations or activities of 

the government, and

    (2) It is not primarily in the commercial interest of the requester.

    These two tests are explained in paragraphs (b) and (c) of this 

section.



[[Page 26]]



    (b) Public interest. The disclosure passes the first test only if it 

furthers the specific public interest of being likely to contribute 

significantly to public understanding of government operations or 

activities, regardless of any other public interest it may further. In 

analyzing this question, we will consider the following factors.

    (1) How, if at all, do the records to be disclosed pertain to the 

operations or activities of the Federal Government?

    (2) Would disclosure of the records reveal any meaningful 

information about government operations or activities? Can one learn 

from these records anything about such operations that is not already 

public knowledge?

    (3) Will the disclosure advance the understanding of the general 

public as distinguished from a narrow segment of interested persons? 

Under this factor we may consider whether the requester is in a position 

to contribute to public understanding. For example, we may consider 

whether the requester has such knowledge or expertise as may be 

necessary to understand the information, and whether the requester's 

intended use of the information would be likely to disseminate the 

information among the public. An unsupported claim to be doing research 

for a book or article does not demonstrate that likelihood, while such a 

claim by a representative of the news media is better evidence.

    (4) Will the contribution to public understanding be a significant 

one? Will the public's understanding of the government's operations be 

substantially greater as a result of the disclosure?

    (c) Not primarily in the requester's commercial interest. If the 

disclosure passes the test of furthering the specific public interest 

described in paragraph (b) of this section, we will determine whether it 

also furthers the requester's commercial interest and, if so, whether 

this effect outweighs the advancement of that public interest. In 

applying this second test, we will consider the following factors:

    (1) Would the disclosure further a commercial interest of the 

requester, or of someone on whose behalf the requester is acting? 

``Commercial interests'' include interests relating to business, trade, 

and profit. Not only profit-making corporations have commercial 

interests--so do nonprofit corporations, individuals, unions, and other 

associations. The interest of a representative of the news media in 

using the information for news dissemination purposes will not be 

considered a commercial interest.

    (2) If disclosure would further a commercial interest of the 

requester, would that effect outweigh the advancement of the public 

interest defined in paragraph (b) of this section? Which effect is 

primary?

    (d) Deciding between waiver and reduction. If the disclosure passes 

both tests, we will normally waive fees. However, in some cases we may 

decide only to reduce the fees. For example, we may do this when 

disclosure of some but not all of the requested records passes the 

tests.

    (e) Procedure for requesting a waiver or reduction. You must make 

your request for a waiver or reduction at the same time you make your 

request for records. You should explain why you believe a waiver or 

reduction is proper under the analysis in paragraphs (a) through (d) of 

this section. Only FOI Officers may make the decision whether to waive, 

or reduce, the fees. If we do not completely grant your request for a 

waiver or reduction, the denial letter will designate a review official. 

You may appeal the denial to that official. In your appeal letter, you 

should discuss whatever reasons are given in our denial letter. The 

process prescribed in Sec.  5.34(c) of this part will also apply to 

these appeals.