by Megan M. Hunter,* Resident Attorney

*admitted to practice in Ohio, New York, and the U.S. District Court for the Northern District of Ohio

I’m a (relatively) new mother of two, and like many parents, I’ve learned to be a smart shopper. Here’s something I’ve discovered about bargains: if the sign says “buy one, get one free,” it’s not exactly free.

That point has been driven home repeatedly—but in my work as a lawyer, not as a shopper. For example, the Freedom of Information Act (FIOA) contains the word free, but often it’s not exactly free.

FOIA is intended to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”[1] Indeed, information held by government agencies often helps individuals and communities understand the very environment that surrounds them. However, federal agencies can request high fees for this information, often making these documents out of reach for many requesters. This can create an access-to-justice issue: yes, the information is available, but only to those who can afford it.

There are ways in which these fees can be appealed—but first, a short primer on FOIA requests.

Under FOIA, a person is able to make a request to a government agency and obtain certain public documents. However, FOIA also permits those agencies to tack on the direct cost of searching for and reviewing the requested information (to see if it is eligible for disclosure), plus the cost of duplicating and disseminating the information.[2] Agencies may not require advance payment of fees unless the fee will exceed $250 or the requester has failed to pay fees in a timely fashion in the past.[3]

Depending on the scope of the request and the identity of the requester—an agency can demand upfront fees that can top several thousand dollars. This can present a barrier for individuals and organizations seeking information that is important to environmental decision making or exercising one’s rights under environmental laws.

However, waivers to these fees are available, but you need to know how the system works.

Am I entitled to a FOIA fee waiver?

FOIA directs government agencies to provide documents for no charge or at a reduced rate if the request meets the two requirements discussed below. Note that FOIA creates a mandatory duty that “documents shall be furnished without any charge” if the information passes this two prong test set forth in the statute.[4] Both the Ninth and Tenth Circuits have held that “the FOIA fee waiver provision ‘is to be liberally construed in favor of waivers for noncommercial requesters.’”[5] Courts have also said the provision “should not be interpreted to allow federal agencies to set up roadblocks to prevent noncommercial entities from receiving a fee waiver.”[6]

Each agency has its own set of regulations governing FOIA requests. U.S. Environmental Protection Agency regulations detail the factors it considers in evaluating the two-prong statuary test,[7] discussed in detail below:

I. First Prong: Is the disclosure of the information in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government?

Using the first prong to decide whether to grant a fee waiver, U.S. EPA officials consider four factors:

• “Whether the subject of the request concerns the operations or activities of the government.”[8]

U.S. EPA regulations further require that “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.”[9]

• That the information be “likely to contribute to an understanding of government operations or activities,” and specifically requires that the records be “meaningfully informative about government operations or activities.”[10]

According to some courts, plans to analyze and synthesize the requested information and then distribute it through electronic discussion groups can be enough to meet this requirement.[11] Courts have also found this requirement to be met when the requester stated they would synthesize the information into a reader-friendly summary that they would use to educate the public.[12]

• “Whether disclosure of the requested information will contribute to public understanding,” and requires that 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.”[13] The regulations require the U.S. EPA to consider the requester’s “ability and intention to effectively convey the information to the public.”[14]

In Forest Guardians, the Court held that the requester’s intention “to broadly disseminate compiled information” that was currently “publicly available in piecemeal and hard-to-access form” through an educational website satisfied this factor.[15]

• Requiring that the disclosure of the requested information “enhance the public’s understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure…to a significant extent.”[16]

II. Second Prong: Is the disclosure of the information primarily in the commercial interest of the requester?

The second prong of the statutory test for whether a fee waiver must be granted requires that the disclosure of the information “is not primarily in the commercial interest of the requester.”[17] In this context, courts have held that “[i]nformation is commercial if it relates to commerce, trade or profit.”[18] Importantly, a person who intends to pursue a tort action to seek compensation or retribution for harm done to them does not have a “commercial interest” in the information.[19] Courts have said this is because “[i]nformation helpful to a tort claim furthers a requester’s interest in compensation or retribution… not an interest in commerce, trade, or profit.”[20]

Thus, if an individual chooses to pursue a private tort action for injuries stemming from an environmental harm, and information obtained as a result of the FOIA Request is beneficial to that action, the individual still does not have any commercial interest in the disclosure of the information and meets this criterion of the fee waiver test. Therefore, individuals who intend to pursue a private tort action should not let that dissuade them from pursuing a fee waiver.

Drafting a Fee Waiver Request

A requester who meets the above-stated criteria is best served to include their fee waiver request explicitly in their FOIA request. The fee waiver request should detail why and how the requester meets each of the relevant factors, as opposed to simply stating the criteria and claiming the requester meets it without further description.

Note, the explanations of the criteria provided above are only an introduction into the U.S. EPA’s criteria for assessing fee waivers and may not apply to. every circumstance. In order to best understand whether and how the fee waiver criteria apply to a particular requester or circumstance, an individual or organization may want to seek the advice of an attorney.

Appealing a FOIA Fee Waiver Denial

If you receive a denial of your fee waiver, it may be worthwhile to pursue an appeal of that denial.

Federal Regulations provide that a requester who is “dissatisfied with any adverse determination of [a] request by an office… may appeal that determination.”[21] Section two of The FOIA Improvement Act of 2016 gives a person the right to appeal an adverse determination to the head of the agency “within a period…that is not less than 90 days after the date of such adverse determination.”

Therefore, in the instance your fee waiver is denied, you have 90 days from the date of the denial to appeal that decision. Your appeal should outline each of the criteria for granting a fee waiver request and explain how the fee waiver request explained that the criteria were met. Again, it may be helpful to seek the advice of an attorney in the drafting of your FOIA appeal.

[1] NRDC v. United States EPA, 581 F.Supp. 2d 491, 496.

[2] 5 U.S.C. § 552(a)(4)(A)(iv).

[3] 5 U.S.C. § 552(a)(4)(A)(v).

[4] Fed. CURE v. Lappin, 602 F. Supp. 2d 197 (D.D.C. 2009) (emphasis in original).

[5] Forest Guardians v. DOI, 416 F.3d 1173, 1178 (10th Cir. 2005) (quoting McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987)).

[6] W. Watersheds Project v. Brown, c, 1039 (D. Id. 2004).

[7] 40 C.R.F. § 2.107(l)(2)-(3).

[8] 40 C.R.F. § 2.107(l)(2)(i).

[9] 40 C.R.F. § 2.107(l)(2)(i).

[10] 40 C.R.F. § 2.107(l)(2)(ii).

[11] See, Fed. CURE v. Lappin, 602 F. Supp. 2d at 202-03.

[12] See, W. Watersheds Project v. Brown, 318 F. Supp.2d at 1040-41.

[13] 40 C.R.F. § 2.107(l)(2)(iii).

[14] 40 C.R.F. § 2.107(l)(2)(iii).

[15] 416 F.3d at 1181-82.

[16] 40 C.R.F. § 2.107(l)(2)(iv).

[17] 5 U.S.C. § 552(a)(4)(A)(iii); see also 43 C.F.R. §2.19.