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No Indications of Bias

Found in a Sample of 

Freedom of Information Act 

Fee Waiver Decisions

But the EPA Could Improve 

Its Process

Report No. 14-P-0319 July 16, 2014

U.S. ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF INSPECTOR GENERAL
Report Contributors: Patrick Gilbride

Erin Barnes-Weaver

Benjamin Beeson

Ganesa Curley

Derek Mulvihill

Luke Stolz

Abbreviations

CFR Code of Federal Regulations

DOJ U.S. Department of Justice

EPA U.S. Environmental Protection Agency

FOIA Freedom of Information Act

OEI Office of Environmental Information

OGC Office of General Counsel

OIG Office of Inspector General

OMB Office of Management and Budget

Hotline Suggestions for Audits or Evaluations

To report fraud, waste or abuse, contact us 

through one of the following methods:

To make suggestions for audits or evaluations, 

contact us through one of the following methods:

email:

phone:

fax:

online:

write:

OIG_Hotline@epa.gov

1-888-546-8740

1-202-566-2599

http://www.epa.gov/oig/hotline.htm

EPA Inspector General Hotline 

1200 Pennsylvania Avenue, NW

Mailcode 2431T

Washington, DC 20460

email:

phone:

fax:

online:

write:

OIG_WEBCOMMENTS@epa.gov

1-202-566-2391

1-202-566-2599

http://www.epa.gov/oig/contact.html#Full_Info

EPA Inspector General 

1200 Pennsylvania Avenue, NW

Mailcode 2410T

Washington, DC 20460
 

 14-P-0319

July 16, 2014

Why We Did This Review

The Deputy Administrator of 

the U.S. Environmental 

Protection Agency (EPA) 

requested a review to 

determine whether the EPA fee 

waiver determinations under 

the Freedom of Information Act 

(FOIA) were completed in a 

timely and unbiased manner. 

Specifically, we evaluated

whether the EPA implements 

the FOIA fee waiver provisions 

in accordance with regulations; 

adheres to timely and unbiased 

treatment of requests for fee 

waivers; and tracks the 

elements of fee waiver 

requests to demonstrate timely 

and unbiased treatment.

We reviewed 1,077 EPA FOIA 

fee waiver denials issued 

between October 1, 2009, and 

June 19, 2013. We also 

reviewed 475 fee waiver 

requests from 21 organizations 

to determine whether the EPA 

appropriately applied criteria

(i.e., six factors in the agency’s 

regulations to evaluate fee 

waiver requests).

This report addresses the 

following EPA goal or 

cross-agency strategy:

 Embracing EPA as a highperforming organization.

For further information, 

contact our public affairs office 

at (202) 566-2391.

The full report is at:

www.epa.gov/oig/reports/2014/ 

20140716-14-P-0319.pdf

 

No Indications of Bias Found in a Sample of 

Freedom of Information Act Fee Waiver Decisions

But the EPA Could Improve Its Process

 What We Found

We found that the EPA responded to fee waiver 

requests, on average, within 12 business days, 

although we noted wide variation in response 

times among the sample we reviewed. We found 

that 47 percent of the EPA’s responses to fee 

waiver requests we reviewed exceeded the 

agency’s 10-business-day goal. The time it takes 

the EPA to respond to fee waiver requests has 

remained fairly consistent over time. On fee 

waiver appeals, we found that over 71 percent of

decisions we reviewed exceeded the EPA’s processing goal of 20 business days.

The factor most frequently cited by the EPA when it denied fee waiver requests 

was the requester not adequately describing how disclosure of the requested 

information would contribute to public understanding. The EPA cited this factor in 

more than half of the denials we reviewed (585 out of 1,062).

We found no indications of bias in the fee waiver decisions we reviewed. We 

agreed with how the EPA applied the six factors when deciding 452 of the 475

fee waiver requests we reviewed from 21 different organizations. Of the 475, our 

decisions differed from the agency’s in 23 instances (approximately 5 percent).

Among these 23 disagreements, we would have denied 17 that were granted due 

to our opinion that request letters lacked discussion on one or more factors. We 

also would have granted six that were denied. The EPA should clarify what 

requesters must demonstrate under the six review factors and when to obtain

additional justification from requesters to lessen any perception of potential 

differential treatment when evaluating fee waiver requests.

 Recommendations and Planned Corrective Actions

We recommended that the Acting Assistant Administrator for Environmental 

Information and the General Counsel examine and address the reasons for 

variability in response times for FOIA fee waiver decisions and appeals. We also 

recommended that the Assistant Administrator for Environmental Information 

clarify what requesters must demonstrate under each factor to receive a fee 

waiver, clarify the EPA’s approach on when to request additional justification, and

inform the public of enhancements to the agency’s FOIA website and other 

efforts to explain what must be demonstrated under each factor. The EPA agreed 

with our recommendations and developed or completed acceptable corrective 

actions. All recommendations are resolved. Recommendations 1 through 3 are 

open and recommendation 4 is closed.

U.S. Environmental Protection Agency

Office of Inspector General

At a Glance

To improve customer 

service and lessen any 

perception of differential 

treatment, the EPA should 

address variability in time 

to respond to FOIA fee 

waiver requests and should 

clarify what requesters 

must demonstrate to 

receive a fee waiver.
July 16, 2014

MEMORANDUM

SUBJECT: No Indications of Bias Found in a Sample of Freedom of Information Act

Fee Waiver Decisions But the EPA Could Improve Its Process

Report No. 14-P-0319

FROM: Arthur A. Elkins Jr.

TO: Renee Wynn, Acting Assistant Administrator and Chief Information Officer

Office of Environmental Information

Avi Garbow, General Counsel

Office of General Counsel

This is our report on the subject evaluation conducted by the Office of Inspector General (OIG) of the 

U.S. Environmental Protection Agency (EPA). This report contains findings that describe the problems 

the OIG has identified and corrective actions the OIG recommends. This report represents the opinion of 

the OIG and does not necessarily represent the final EPA position. Final determinations on matters in 

this report will be made by EPA managers in accordance with established audit resolution procedures.

Action Required

You are not required to provide a written response to this final report because you provided agreed-to 

corrective actions and planned completion dates for the report recommendations. The OIG may make 

periodic inquiries on your progress in implementing these corrective actions. Please update the EPA’s 

Management Audit Tracking System as you complete planned corrective actions. Should you choose to 

provide a final response, we will post your response on the OIG’s public website, along with our 

memorandum commenting on your response. You should provide your response as an Adobe PDF file 

that complies with the accessibility requirements of Section 508 of the Rehabilitation Act of 1973, as 

amended. We have no objections to the further release of this report to the public. 

We will post this report to our website at http://www.epa.gov/oig.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

THE INSPECTOR GENERAL
No Indications of Bias Found in a Sample of 14-P-0319

Freedom of Information Act Fee Waiver Decisions 

But the EPA Could Improve Its Process

Table of Contents

Chapters

1 Introduction ...................................................................................................... 1

Purpose ..................................................................................................... 1

Background................................................................................................ 1

Scope and Methodology ............................................................................ 4

2 The EPA Should Address Variability in Response Times for

Fee Waiver Requests and Appeals.................................................................. 7

Timeliness of Responses to Fee Waiver Requests and Appeals................ 7

Factors Three and Four Most Often Cited for Denying Fee Waivers,

 and Factors Two, Three and Four in Appeal Decisions ....................... 11

Conclusion................................................................................................. 14

Recommendation....................................................................................... 15

Agency Comments and OIG Evaluation..................................................... 15

3 The EPA Applied the Regulatory Standard Without Bias 

But Should Clarify Its Review Process ........................................................... 16

The EPA Consistently Applied the Regulatory Standard 

 to a Sample of Fee Waiver Decisions.................................................. 16

Additional Clarity Would Be Helpful on Factors the EPA Uses to 

 Decide Fee Waiver Requests.............................................................. 17

The EPA Eliminated Its Practice of Requesting Additional Justification...... 18

Conclusion................................................................................................. 19

Recommendations..................................................................................... 19

Agency Comments and OIG Evaluation..................................................... 19

Status of Recommendations and Potential Monetary Benefits ............................. 21

Appendices

A Methodology for OIG Sample Selection.......................................................... 22

B Agency Response to the Official Draft Report and OIG Comments ............. 24

C Distribution ....................................................................................................... 33
14-P-0319 1

Chapter 1

Introduction

Purpose

We conducted this evaluation in response to a request from the U.S. Environmental 

Protection Agency (EPA) Deputy Administrator. We were asked to assess whether 

the agency evaluated Freedom of Information Act (FOIA) fee waiver requests in a 

timely and unbiased manner. Specifically, we sought to determine whether the EPA:

 Implements the FOIA fee waiver provisions in accordance with the EPA’s 

regulations in the Code of Federal Regulations (CFR) at 40 CFR § 2.107 

and policies and procedures.

 Adheres to timely and unbiased treatment of fee waiver requests.

 Tracks the elements of fee waiver requests to demonstrate timely and 

unbiased treatment.

Background

The Freedom of Information Act and Fee Categories

FOIA,1enacted in 1966, provides the public a right to obtain access to federal 

agency records, except to the extent that such records (or portions of them) are 

protected from public disclosure by one of nine exemptions or by one of three law 

enforcement record exclusions. FOIA states that agency records will be furnished 

without any charge or at a reduced charge if disclosure of the information: 

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

public understanding of government operations or activities; and 

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

The Act also states that, upon any request of records, each federal agency shall 

determine within 20 days (excepting weekends and legal public holidays) after the 

receipt of any request whether to comply with the request for records.

2 Under 

FOIA, federal agencies are required to promulgate regulations on processing 

requests for records and establishing procedures for determining when to waive or 

reduce fees to produce records. FOIA designated three categories of requesters 

and prescribes fees for processing requests, by requestor category:3

(1) Commercial use.

 

1 5 U.S.C. § 552.

2 The 20-working-day processing time can be extended by the agency under provisions of the FOIA to account for 

complex requests and unusual or exceptional circumstances. See 5 U.S.C. § 552(a)(6)(B) & (D).

3 For category definitions, see Office of Management and Budget (OMB) Uniform Freedom of Information Act Fee 

Schedule and Guidelines (March 27, 1987). Except for commercial use requests, an agency must provide without

charge the first 2 hours of search time and the first 100 pages of duplication.
14-P-0319 2

(2) Educational or non-commercial scientific institution, news media.

(3) Other.

FOIA does not include time frames for making decisions on fee waiver requests. 

FOIA states that an agency shall not assess certain fees if it fails to comply with 

the 20-day time limit (absent unusual or exceptional circumstances).

The EPA’s FOIA Regulations on Fees and Fee Waivers

The EPA’s FOIA regulations (40 CFR §§ 2.100-2.108) cover the different 

categories of requesters

4

and fee charges based on category, and states that no fees 

will be charged for a request where a fee waiver is granted or if the total fee under

any category is $14 or less. According to the EPA, the agency’s FOIA regulations 

are consistent with OMB Fee Guidance of 1987, the U.S. Department of Justice 

(DOJ) FOIA regulations, and the regulations of nearly all other federal agencies.

Requesting a Fee Waiver

Any FOIA requester may ask that the EPA waive all fees associated with a

request. The fee waiver request must be submitted with the FOIA request for 

records. Upon receiving a fee waiver request, the EPA FOIA office will determine 

whether a fee waiver request meets the six factors listed in table 1.

5

Table 1: Factors the EPA must consider in evaluating fee waiver requests

1 Whether the subject of the requested records concerns “the operations or 

activities of the government.”

2 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.

3 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 (presumption for news media).

4 Whether the disclosure is likely to contribute “significantly” to public understanding 

of government operations or activities.

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

requested disclosure.

6 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.” FOIA offices ordinarily will presume that 

when a news media requester has satisfied the public interest standard, the 

public interest will be the interest primarily served by disclosure to that requester.

Source: 40 CFR § 2.107.

 

4 The EPA’s FOIA regulations state that there are four categories of requests: (1) commercial use, (2) educational or 

non-commercial scientific requests, (3) news media and (4) all other requests.

5

In 1987, DOJ issued fee waiver policy guidance recommending that federal agencies use six analytical factors for 

determining when fees should be waived or reduced. The six factors considered by the EPA (listed above) are 

consistent with the factors identified in this guidance.
14-P-0319 3

When the EPA denies a fee waiver request, the requester will be notified of that 

determination in writing. A requester may appeal any fee waiver denial in writing 

no later than 30 calendar days from the date of the letter denying the request. The 

EPA’s decision on appeal will be made in writing, normally within 20 working 

days of receipt of the appeal request.

6 An appeal decision upholding the denial in 

whole or in part will contain the reason for the EPA’s decision.

The EPA’s FOIA website includes a reference guide with general information on 

fee waiver requests, contact information for agency FOIA staff, and links to the 

agency’s regulations and website to electronically submit both FOIA and fee 

waiver requests.

Responsible Offices 

The EPA has 11 FOIA offices—one in headquarters and one in each of its 

10 regions. The headquarters office is located in the Office of Information 

Collection in the Office of Environmental Information (OEI). The EPA’s Office 

of General Counsel (OGC), through its general law office, handles all appeals of 

fee waiver denials. The headquarters office also reviews fee waiver requests made 

to the OIG and any appeals of those determinations would be reviewed by OGC.

FOIA Operations, Procedures and Data Systems

On September 30, 2013, the agency issued Interim Procedures for Responding to 

Freedom of Information Act (FOIA) Requests.

7 According to these procedures, all 

fee waiver requests are processed by the headquarters FOIA office. The agency 

FOIA Officer makes the initial decision whether to grant or deny a fee waiver

based on recommendations from three FOIA Specialists who are also in 

headquarters. According to the agency FOIA Officer, in February 2011 the 

agency decided to centralize the fee waiver determination process in the

headquarters office to provide for more consistency in decision making. Prior to 

this, each region had its own procedures for processing FOIA requests and 

making fee waiver decisions. 

In 2005, the EPA deployed FOIAXpress as an enterprise FOIA management 

system. The agency FOIA Officer explained that FOIAXpress was a tracking 

system for the agency but was not an official record keeping system (hard copy 

files were still considered the official records). To improve FOIA management 

and process, the agency—along with several other federal agencies—deployed 

FOIAonline on October 1, 2012. The FOIAonline system is a multi-tenant, online 

FOIA repository and secure agency processing system used by partner agencies 

across the federal government. FOIAonline is the agency’s official record keeping 

system for FOIA requests.

 

6 The FOIA requires that each agency “shall make a determination with respect to any appeal within 20 days.”

7 The EPA issued earlier drafts of the interim procedures in March and July of 2013.
14-P-0319 4

Scope and Methodology

We conducted our review from June 2013 to March 2014. We conducted this 

performance audit in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our findings and 

conclusions based on our audit objectives. We believe that the evidence obtained 

provides a reasonable basis for our findings and conclusions based on our audit 

objectives. Appendix A provides additional details on our sample selection 

methodology, summarized below.

To determine whether the EPA implements the FOIA fee waiver provisions in 

accordance with regulations, policies and procedures, we reviewed relevant laws 

including the FOIA. We also reviewed the EPA’s regulations (40 CFR §§ 2.100-

2.108) as well as the agency’s September 30, 2013, Interim Procedures for 

Responding to Freedom of Information Act (FOIA) Requests and earlier iterations 

of these procedures. We consulted OMB and DOJ guidance and training, as well 

as training provided by the American Society of Access Professionals. We 

interviewed agency FOIA staff on the EPA’s process for determining and 

documenting fee waiver decisions. Interviewees included headquarters FOIA 

Specialists, the agency FOIA Officer, and a supervisor within OEI’s Office of 

Information Collection, Collection Strategies Division. We also interviewed the 

EPA’s lead FOIA attorney in OGC on the fee waiver determination appeals 

process.

To address our remaining objectives on timely and unbiased treatment of fee 

waiver requests, we obtained access to FOIAXpress and FOIAonline. We ran 

reports to generate a list of FOIA fee waiver requests from October 1, 2009, to 

June 19, 2013. After working to eliminate duplicates, we identified 1,077 denied 

fee waiver requests in this time period.

8 We reviewed all 1,077 denials to 

determine the:

 Individual and/or organization making each fee waiver request.

 Date of the fee waiver request.

 EPA’s decision date and outcome of the request (i.e., granted or denied).

 Factor(s) cited as the basis for each fee waiver denial.

 Dates of appeals of fee waiver denials, if appealed.

 OGC’s appeal decision date and outcome.

 Factor(s) cited in appeal decisions. 

We also reviewed a subset of 475 fee waiver requests from 21 separate 

organizations to determine whether the EPA appropriately applied its fee waiver 

 

8

In his request, the Deputy Administrator asked us to review at least the last five full fiscal years and to begin with 

fiscal year 2006. Due to resource and time constraints, we selected a smaller range, specifically fiscal years 2010 

through June 19, 2013—the date we announced this review to EPA.
14-P-0319 5

evaluation criteria and whether organizations asking for waivers appropriately 

justified their requests.9 For the subset of 475, we reviewed both the agency’s 

initial fee waiver determination and its decision on appeals of any denials, if 

applicable. After completing our review, we met with the agency FOIA Officer

and the OGC’s lead FOIA attorney to discuss questions we had on individual 

files. We also interviewed individuals from five of the 21 organizations for their 

perspectives on the EPA’s fee waiver process and whether they had any suggested 

areas for improvement.

We did not perform data quality testing on the reports we obtained from the 

EPA’s FOIAXpress and FOIAonline systems. We relied on data we obtained

from these reports and verified other data through additional documentation. For 

example, we obtained copies of letters for information that we could not locate in 

data system reports.

Prior Audit Coverage

Our office issued two prior reports on FOIA:

EPA Has Improved Its Response to Freedom of Information Act 

Requests But Further Improvement Is Needed (March 25, 2009), 

Report No. 09-P-0127

 At the time of this report, the agency processed fee waiver requests in 

either headquarters or the region that received the FOIA request. As a 

result, our office found that it was possible for a requester to submit 

multiple fee waiver requests to different regions simultaneously and 

receive different results. Our office recommended that the EPA 

standardize FOIA procedures at a national level, and it was shortly after 

this report that the agency decided to centralize all fee waiver 

determinations in the agency FOIA office in headquarters.

Congressionally Requested Inquiry Into EPA’s Handling of Freedom of 

Information Act Requests (January 10, 2011), Report No. 11-P-0063

 This report did not include any findings or recommendations related to fee 

waivers and, rather, responded to a congressional request on whether 

political appointees were made aware of information requests and had a 

role in reviews and decision making.

Additionally, the Government Accountability Office issued a report10 on the 

Office of Government Information Services, within the National Archives and 

Records Administration, and recommendations that office makes to assist 

agencies implementing FOIA. The report noted that the Office of Government 

Information Services planned to enhance its role in administering FOIA by 

 

9 See the “File Review” section of appendix A for a description of how we selected the 475 fee waiver decisions.

10 Office of Government Information Services Has Begun Implementing Its Responsibilities, but Further Actions Are 

Needed (September 10, 2013), GAO-13-650.
14-P-0319 6

working “with stakeholders from both inside and outside government to review 

the issues surrounding FOIA fees and fee waivers, which remains a persistent 

point of contention administratively and in litigation.” The report also noted that 

the office recommends as a communications best practice that agencies should 

post in plain language information about fees, fee categories and fee waivers.
14-P-0319 7

Chapter 2

The EPA Should Address Variability in Response 

Times for Fee Waiver Requests and Appeals

The EPA met its goal of responding to fee waiver requests within 10 business 

days in 567 out of 1,062 denials we reviewed, or 53 percent. On average it took 

the EPA 12 business days to deny fee waiver requests although there was 

considerable variability in the amount of time it took in the sample we reviewed. 

It took the EPA more than 10 business days to deny fee waiver requests in 495 

instances (one of which took 157 days and another took 542 days). Additionally, 

it took the EPA, on average, more than double the 20-day regulatory requirement

to decide appeals. Over 70 percent of appeal decisions took 20 or more business 

days, and there was variability in response time. For both the initial and the 

appeals process the standard deviation was about twice the goal, showing high 

variability in the process time to deny the fee waiver request or appeal. The EPA 

should assess both processes to identify appropriate improvements to help meet 

stated goals.

Timeliness of Responses to Fee Waiver Requests and Appeals

Timeliness of the EPA’s Responses to Fee Waiver Requests

FOIA states that an agency shall not assess certain fees if it fails to comply with 

the 20-day time limit to respond to a request for records (absent unusual or 

exceptional circumstances). However, neither the FOIA nor the EPA’s FOIA 

regulations specify a time limit for responding to fee waiver requests.

Nonetheless, the agency FOIA Officer said that the EPA has an internal goal to 

make fee waiver decisions within 10 business days of receipt of the request. In 

our review of 1,077 fee waiver denials, we obtained documentation on 1,062

entries.11 Table 2 summarizes timeliness data from our review of 1,062 fee waiver 

requests the EPA denied.

Table 2: Median and mean EPA response time to deny fee waiver requests

Data system Number reviewed

Median (mean) duration in 

business days

FOIAXpress 572 10 (12.42) days

FOIAonline 490 9 (11.24) days

Totals and overall duration 1,062 10 (11.88) days

Source: OIG data analysis for 1,062 fee waiver requests submitted from October 1, 2009, through 

June 19, 2013.

 

11 The EPA could not provide us copies of 15 denial letters the agency sent fee waiver requesters.
14-P-0319 8 

The data shows that the mean time to respond to a fee waiver request for our 

sample is about 12 business days. Figure 1 shows that the EPA was within its goal 

of 10 business days in 567 out of 1,062 instances, or 53 percent. 

Figure 1: Elapsed days to deny fee waiver requests

Source: OIG data analysis for 1,062 fee waiver requests.

Figure 1 illustrates variability in the amount of time it took the EPA to deny the 

fee waiver requests in the sample we reviewed. For example, we found that it took 

the EPA more than 10 business days to deny fee waiver requests in 495 instances, 

and two responses extended to more than 100 days (one took 157 days and 

another took 542 days). 

Timeliness of the EPA’s Decisions on Fee Waiver Appeals 

The EPA’s FOIA regulations at 40 CFR § 2.104(k) state that the agency will 

make decisions on appeals in writing normally within 20 working days of receipt 

by the headquarters FOIA staff. Of the 1,077 fee waiver denials we reviewed, 

there were 118 appeals. At the time of our review, four of the 118 appeals were 

still pending an EPA decision, and requesters withdrew an additional four prior to 

the EPA making its decision. Table 3 summarizes timeliness data from our review 

of 110 denied fee waiver requests for which requesters appealed and for which we 

had documentation of an EPA decision. Table 3 illustrates that it took the EPA, on 

average, more than double the agency’s 20-day goal to decide appeals. 

Table 3: Median and mean time for EPA to respond to fee waiver appeals 

Data system Number reviewed

Median (mean) duration in 

business days 

FOIAXpress 50 21 (20.38) days

FOIAonline 60 39.5 (61.43) days

Totals and overall duration 110 26 (42.77) days

Source: OIG data analysis for 110 fee waiver appeal decisions using the date listed on the 

requester’s appeal letter as the start date, and the date listed on the appeal determination letter 

sent by the EPA as the end date. 
14-P-0319 9

Figure 2 shows that over 71 percent of appeal decisions took more than

20 business days, and also illustrates variation in response time.

Figure 2: Elapsed days for the EPA to decide appeals

Source: OIG analysis of the 110 fee waiver denials where requesters appealed.

Information the EPA Needs to Track Timeliness and Assess Trends

To assess trends over time, we created table 4 to show the average business days 

to deny requests by quarter for our sample period (October 2009 to June 2013).

Table 4: Quarterly average business days to deny fee waiver requests

Quarter Average business days to deny request

Q4-2009 29.59

Q1-2010 13.16

Q2-2010 11.15

Q3-2010 13.12

Q4-2010 12.45

Q1-2011 11.75

Q2-2011 11.63

Q3-2011 11.11

Q4-2011 9.00

Q1-2012 11.46

Q2-2012 11.69

Q3-2012 11.42

Q4-2012 9.27

Q1-2013 10.11

Q2-2013 12.92

Source: OIG data analysis for 1,062 fee waiver denials.
14-P-0319 10

Aside from an initial drop during the first two quarters of our scope period, data 

shows that the EPA’s response time has remained constant over time (October 

2009 through June 2013) with no noteworthy trends (see figure 3).

Figure 3: Timeliness trends for EPA to deny fee waiver requests

Source: OIG data analysis (red line denotes the EPA’s 10-business day goal).

In contrast, data in table 5 and figure 4 illustrate greater variability in the time it 

takes the EPA to make appeals decisions, particularly given the agency’s 

20-business-day goal.

Table 5: Quarterly average business days to deny fee waiver appeals

Quarter Average business days to deny request

Q4-2009 33.00

Q1-2010 22.33

Q2-2010 55.33

Q3-2010 20.88

Q4-2010 24.71

Q1-2011 5.00

Q2-2011 36.89

Q3-2011 18.71

Q4-2011 27.20

Q1-2012 17.25

Q2-2012 36.17

Q3-2012 23.80

Q4-2012 110.71

Q1-2013 72.35

Q2-2013 43.94

Q3-2013 32.33

Source: OIG data analysis for 110 fee waiver denials where requesters appealed. 

Q3-2013 includes information on only three appeal decisions within our scope.
14-P-0319 11

Figure 4: Timeliness trends for responses to appeals of fee waiver denials

Source: OIG data analysis on appeal decisions (red line denotes the EPA’s 20-business day goal).

The EPA attributed the higher-than-average business days to deny requests for 

Q4-2012 and Q1-2013 to the deployment and implementation of the new 

FOIAonline system and the learning curve associated with any major new system 

deployment.

Our review found that the EPA has all of the information it needs to evaluate the 

agency’s response timeliness for fee waiver requests and appeals. Using 

information from the EPA’s FOIA data system, as we did, the agency can do 

trend analysis.

Factors Three and Four Most Often Cited for Denying Fee Waivers, 

and Factors Two, Three and Four in Appeal Decisions

The agency FOIA Officer makes determinations on all fee waiver requests,

relying on recommendations from three FOIA Specialists. The agency FOIA 

Officer and the FOIA Specialists said that each decision is made on a case-bycase basis based on the information submitted with the fee waiver request. The 

EPA uses the six factors listed in 40 CFR § 2.107 on:

1 Whether the subject of the requested records concerns the operations or 

activities of the government.

2 Whether the disclosure is likely to contribute to an understanding of 

government operations or activities.

3 Whether disclosure of the requested information will contribute to public 

understanding.

4 Whether the disclosure is likely to contribute significantly to public 

understanding of government operations or activities.
14-P-0319 12

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

the requested disclosure.

6 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.

When the EPA determines that a request does not meet one of the six factors, the 

EPA does not evaluate the request under the remaining factors. In addition to the 

six factors, we identified four other factors (unrelated to the six regulatory factors) 

that account for denials the EPA made:

7 The original request failed to meet one or more of the factors. However, the 

FOIA specialist provided an opportunity for the requester to submit 

additional information and, absent a response, denied the fee waiver.

8 Requester did not submit the fee waiver request with the original FOIA 

request as stated in regulations (40 CFR § 2.107(l)(5)).

9 Not a formal FOIA request because request was made by another agency in 

the executive branch of the federal government. A federal agency does not 

meet the FOIA’s definition of ‘person’ entitled to make a request.12

10 None of the other nine factors were cited in the denial letter.13

Figure 5 summarizes the regulatory and other factors cited by the EPA as the 

basis for denying fee waivers in the letters we reviewed.

Figure 5: Regulatory and other factors cited by the EPA in fee waiver denials

Source: OIG analysis of data for 1,062 fee waiver denials (note that columns total 1,063 because 

one denial letter cited two factors).

 

12 Per 5 USC § 551(2) "person" includes an individual, partnership, corporation, association, or public or private 

organization other than an agency.

13 As shown in Figure 5, we observed one letter that did not cite any of the factors as the basis for denial.
14-P-0319 13

On factor #3, the DOJ’s Guide to the Freedom of Information Act (2009) states

that “[r]equesters who make no showing of how the information would be 

disseminated, other than through passively making it available to anyone who 

might seek access to it, do not meet the burden of demonstrating with particularity 

that the information will be communicated to the public.” On factor #7, the EPA 

asked for more information to make its decision and, absent receiving additional 

information, denied the fee waiver request.

As explained in Chapter 1, the FOIA designated three categories of requesters and 

prescribes fees for processing requests, by category: (1) commercial use; 

(2) educational or non-commercial scientific institution, news media; and 

(3) other. Table 6 shows—by fee category—the regulatory and other factors cited 

by the EPA as the basis for denial:

Table 6: Regulatory or other denial factor by fee category

Combined

Row

subtotals

Factors

1 2 3 4 5 6 7 8 9 10

Commercial

use

255 0 1 120 25 5 43 56 4 0 1

News media

educational 

& scientific

79 0 1 32 7 0 1 33 5 0 0

Other 724 0 2 430 112 0 3 170 6 1 0

Null 

category 5 0 0 3 0 0 0 2 0 0 0

1,063

Source: OIG analysis of fee waiver denial data. When added, the table totals 1,063 because one 

letter cited two factors.

Where requesters appealed fee waiver denials, we found that OGC reversed the 

denial and granted the fee waiver in 12 of 110 instances (or more than 10 percent 

of the time). We also found that OGC determined that the fee waiver was “moot” 

in 34 of 110 instances (or approximately 31 percent of the time) because the 

majority (30 of the 34) had not reached the minimum billable amount of $14, 

making a fee waiver unnecessary.14 For the balance of appeal decisions, OGC 

cited the regulatory or other factors listed in figure 6 to uphold denials or partial 

denials.

 

14 The remaining four of the 34 were determined to not be proper requests under FOIA.
14-P-0319 14

Figure 6: Regulatory or other factors cited by OGC to uphold denials

Source: OIG analysis of data on 64 appeal denials. Column totals, when added together, 

exceed 64 as some appeal decision letters cited more than one factor.

Information the EPA Needs to Track Factors and Assess Trends

The EPA does not track the factor cited as the basis for denial in FOIAonline but 

can, as we did, pull the factors cited from denial letters to assess trends. Tracking 

denial factors would inform the agency of the frequency of factors cited and 

would, through the agency’s analysis, identify any difficult factors for requesters 

to address that the EPA could mitigate through process improvement.

Conclusion

Data we reviewed shows that neither the EPA’s FOIA fee waiver determination 

process nor the appeals determination process met the respective goals of 10 and 

20 business days. On average, it took the EPA approximately 12 business days to 

deny fee waiver requests and approximately 43 business days to decide appeals. 

The data we reviewed displays a large amount of variability in both processes,

with the standard deviations being around twice the stated goal in each process. 

While the quarterly process performance data for fee waiver decisions shows a 

generally flat trend with no significant change over the past 3 years, the data also

contain outliers and other markers that require management attention. The

quarterly averages for appeal decisions show trends for increasing time to decide 

appeals and increasing process variability. The EPA should assess both processes 

to identify appropriate improvements to help the agency meet its stated goals.
14-P-0319 15

Recommendation

We recommend that the Assistant Administrator for Environmental Information

and the General Counsel:

1. Examine and address the reasons for variability in response times for 

FOIA fee waiver decisions and appeals.

Agency Comments and OIG Evaluation

After reviewing our preliminary findings and recommendation, OEI and OGC 

requested that we provide the tracking numbers associated with the two 

100-plus-day outliers in figure 1 and for the appeal timeliness spike in figure 4 so 

they could begin to examine response-time variability. We provided the requested 

information in advance of issuing our official draft to the agency for comment.

The EPA responded to our official draft report that it had established an internal 

goal of 10 days but will now follow the 20-day time limit that applies to the FOIA 

request for records. The EPA agreed with our recommendation and noted that it 

will complete corrective actions during the second quarter of fiscal year 2015.
14-P-0319 16

Chapter 3

The EPA Applied the Regulatory Standard Without 

Bias But Should Clarify Its Review Process

The EPA consistently applied the six factors used for determining whether fee 

waiver requirements were met in a sample of 475 requests that we reviewed from 

21 different organizations. Of the 475, our decisions differed from the agency’s in 

23 instances (approximately 5 percent). Based on our sample review, the EPA 

reviewed each fee waiver request on a case-by-case basis and did not give 

automatic grants based on a requester’s past success. While we found no 

indications of bias in the sample we reviewed, the EPA could better clarify what 

requesters must demonstrate under each factor as requester interviewees 

expressed confusion on the distinctions among the six factors and what 

information they should provide for the EPA to evaluate each factor. 

Additionally, we found that the EPA took an extra step not required by FOIA or 

the EPA’s regulations to request additional justification from requesters. 

Clarifying both what requesters must demonstrate for the six review factors and

the EPA’s approach on when to request additional justification could strengthen 

the consistency of the EPA’s process and lessen any potential perception of 

differential treatment of FOIA requesters in the future.

The EPA Consistently Applied the Regulatory Standard to a Sample of 

Fee Waiver Decisions

Our review of a sample of 475 fee waiver requests showed that the EPA 

consistently evaluated requests on a case-by-case basis against the six factors. 

Using the six factors, we agreed with 452 out of 475 fee waiver decisions. This 

includes our agreement on the factor cited by the EPA as the basis for any denials.

Our decisions differed from the agency’s in 23 instances (approximately 

5 percent). These differences spanned nearly half of the 21 organizations we 

reviewed. Among these 23, we would have denied 17 that were granted due to our 

opinion that request letters lacked discussion on one or more factors. 

We also would have granted six that were denied. Among the six denials, 

requesters appealed the agency’s decision in five instances. In each appeal, the 

requester provided additional supporting information not included in the original 

request. OGC upheld two denials, issued two partial grants, and overturned one

denial (i.e., granted the request on appeal).

In most cases, our decisions differing from the agency’s could be attributed to the 

subjectivity of some of the six factors themselves. For example, factor #4 requires 

that the information requested “significantly” contribute to public understanding. 

Since what is considered by the agency to be “significant” is not described, this 
14-P-0319 17

could lead to differing opinions on whether a request meets this factor. For 

factor #3, DOJ guidance specifies that requesters must actively disseminate the 

information to the public. The EPA’s regulations consider intention of a requester 

to effectively convey the information to the public. However, the regulations do 

not direct a requester to specifically state how it will actively distribute the

requested information. As a result, some requests only implied how the FOIA 

information would be disseminated. 

We met with the agency FOIA Officer and the OGC’s lead FOIA attorney to 

discuss our differences and they noted nuances under each factor. The agency 

FOIA Officer also said that previous fee waiver grants have no bearing on future 

success, which means that new and “seasoned” requesters alike must address the 

six factors in each request. We describe below how the EPA could clarify what 

requesters must demonstrate under the factors.

Additional Clarity Would Be Helpful on Factors the EPA Uses to 

Decide Fee Waiver Requests

Of the 475 files we reviewed, the EPA made initial determinations to deny fee 

waiver requests in 110 instances (23 percent). We found varying degrees to which 

requesters addressed the six factors in their fee waiver requests. Individuals we 

interviewed from two organizations said “many of the factors are the same” and 

tend to merge or blend together. For example, we found that many requesters used 

similar language to address factors #2 and #4 which, respectively, ask (emphasis 

added):

2 Whether the disclosure is likely to contribute to an understanding of 

government operations or activities.

4 Whether the disclosure is likely to contribute significantly to public 

understanding of government operations or activities.

The following illustrate two requests that used similar language for factors #2 and 

#4 (emphasis added to show similarities):

Example 1 Factor #2

Second, the public does not currently possess any information

about the supplemental data submitted by registrants... the disclosure 

of these records would therefore be meaningfully informative....

Factor #4

The public does not have access to these data. Disclosure of the 

requested records will contribute significantly to the public’s 

understanding...

Example 2 Factor #2

This will contribute significantly to the public’s understanding of EPA’s 

oversight role in Texas air permitting and enforcement activities.

Factor #4

The requested documents will reveal EPA’s role in the Texas PSD and 

Title V permitting process, and therefore will allow the public to 

understand how EPA oversees state implementation of federal laws.
14-P-0319 18

Other requesters addressed factors #2 and #4 together, making distinctions on 

how the requester addressed each factor all the more difficult to parse:

Example 3 Factors #2 and #4

Disclosure of the requested documents, accordingly, will primarily 

benefit the general public and will contribute to public 

understanding of government operations.

Individuals from four organizations we interviewed described their confusion:

The part where you have to contribute to the greater understanding 

of government (i.e., factor #4), that one is a little difficult, mainly 

because I don’t know what I am going to get so it is hard to talk 

about it. 

We treat factor #4 as part of factor #2. All of these factors tend to 

blend together. 

[After querying others in my office] When they were denied, 

everybody had always been denied for the same reason, factor #4. 

... We read the denials but we don’t understand what we can do to 

fix it. It seems very subjective because there is a lot of wiggle 

room in the word "significantly.”

I’ve done this a lot of times and I’m fairly conversant with it. 

If I were not, I would find the distinction between some of the 

elements difficult to parse – #2, #3 and #4 all tend to merge 

together. The distinction between those three doesn’t make a whole 

lot of sense. They seem like terms of art instead of obvious 

distinctions. The factors are not self-explanatory. 

The EPA Eliminated Its Practice of Requesting Additional Justification

Although not required by the FOIA or the EPA’s regulations, the EPA in practice 

followed up with a requester for additional information to decide whether a fee 

waiver request met the six factors. Our review found that the EPA inconsistently 

requested additional justification from the 21 organizations in the 475 files we 

reviewed, even in instances where the agency requested additional justification 

from the same requester in the past. Out of the 475 files, we noted that the EPA 

requested additional justification in 103 instances (approximately 22 percent of 

the time). We found instances where the EPA did not seek additional justification 

from some organizations that frequently request fee waivers despite requesters

having submitted very little information on fee waivers. 

Neither the FOIA nor the EPA’s regulations require the agency to request 

additional justification; it was an extra step that the agency took. The EPA’s fee 

waiver workflow diagram stated that when a requester has not met the six factors 
14-P-0319 19

but “if FOIA Specialists ... feels that [a requester] could, they will send a 

‘substantiation letter’ to the fee waiver requester.” If a requester did not respond 

within 7 days to the agency’s request, the fee waiver was then automatically 

denied. The agency FOIA Officer stated that, at the time, this process involved

staff using their experience “to identify and deny those that will never meet the 

criteria (e.g., prisoners) based on what is presented.” The agency FOIA Officer

added that they tried to use information a requester provided and not go back and 

forth if they did not have to.

Initially, the agency FOIA Officer said that OEI would develop examples for 

when FOIA Specialists do not have to reach back to the requester for additional 

information. Upon further consideration, the agency decided to eliminate any 

possibility of inconsistency in this area by no longer requesting additional 

justification for any request. We agree that this action would address the risk of an 

appearance of differential treatment by the EPA asking for additional justification 

from some requesters and not others.

Conclusion

While we agree with how the EPA applied the six factors to 95 percent of the fee 

waiver requests from the variety of organizations within our sample, opportunities 

exist for the agency to enhance its process by better clarifying the factors it uses.

Recommendations

We recommend that the Assistant Administrator for Environmental Information:

2. Clarify what requesters must demonstrate under each factor to receive a 

fee waiver.

3. Inform the public of enhancements to the agency’s FOIA website and 

other efforts to clarify what must be demonstrated under each factor.

4. Clarify the EPA’s approach on when to request additional justification.

Agency Comments and OIG Evaluation

In its response to our draft report, the agency did not agree with 

recommendation 2. After meeting with the agency to discuss its comments, we 

modified the recommendation. Recommendation 2 initially stated that the EPA 

should revise its regulations to clearly state what requesters must demonstrate 

under each factor to receive a fee waiver. The agency said it did not need to wait 

for a regulatory action to more clearly inform requesters on how the agency 

considers the factors. The revised recommendation 2 leaves to the EPA the 

decision on how to inform the public as long as the clarification takes place. The 
14-P-0319 20

EPA agreed. Recommendation 2 is resolved and open with agreed-to actions due 

for completion in March 2015. 

For recommendation 3, the EPA agreed and provided acceptable corrective 

actions. Recommendation 3 is resolved and open with agreed-to actions due for 

completion in March 2015.

For recommendation 4, we initially recommended that the EPA develop criteria 

and policy for FOIA Specialists on when to request additional justification. 

Subsequently, on June 2, 2014, the EPA acted on this recommendation by 

discontinuing its practice to request additional justification. We agree with the 

EPA’s decision to stop requesting additional justification. Recommendation 4 will 

be closed upon issuing this final report.

Appendix B includes the agency’s full response to the official draft report, and the

OIG’s comments.
14-P-0319 21

Status of Recommendations and 

Potential Monetary Benefits

RECOMMENDATIONS

POTENTIAL MONETARY 

BENEFITS (in $000s)

Rec. 

No.

Page 

No. Subject Status1 Action Official

Planned 

Completion 

Date

Claimed 

Amount

Agreed-To 

Amount

1 15 Examine and address the reasons for variability in 

response times for FOIA fee waiver decisions and 

appeals.

O Assistant Administrator for 

Environmental Information 

and the General Counsel

03/31/15

2 19 Clarify what requesters must demonstrate under 

each factor to receive a fee waiver.

O Assistant Administrator for 

Environmental Information

03/31/15

3 19 Inform the public of enhancements to the agency’s 

FOIA website and other efforts to clarify what must 

be demonstrated under each factor.

O Assistant Administrator for 

Environmental Information

03/31/15

4 19 Clarify the EPA’s approach on when to request 

additional justification.

C Assistant Administrator for 

Environmental Information

06/02/14

1 O = recommendation is open with agreed-to corrective actions pending 

C = recommendation is closed with all agreed-to actions completed 

U = recommendation is unresolved with resolution efforts in progress
14-P-0319 22

Appendix A

Methodology for OIG Sample Selection

The EPA has FOIA information in two systems—FOIAXpress, which was deployed in 2005, 

and FOIAonline, a new record keeping system deployed in October 2012. To select the two 

samples used for our review, we first had to determine the universe of FOIA fee waiver requests. 

We ran reports out of both FOIAXpress and FOIAonline to obtain a listing of FOIA fee waiver 

requests dated October 1, 2009, to June 19, 2013. After working to eliminate duplicates, we 

combined the FOIAXpress and the FOIAonline datasets from this time period into one dataset of 

2,826 fee waiver requests. We relied on the data from these reports and did not do additional test 

work to check or verify the accuracy of the data in FOIAXpress and FOIAonline. Based on the 

universe of 2,826 fee waiver requests, we created two groups, described below:

1. Fee Waiver Denials

 Of the 2,826 fee waiver requests in the EPA’s data systems, we identified 1,117 

that were listed as being denied (40 percent). During the course of our review we 

noted additional duplicate entries. We also found that some of these entries were 

not actually denials but instead should have been characterized differently 

(i.e., granted, withdrawn, not billable). After accounting for these, the list of 

denials reviewed for our sample was 1,077.

 We reviewed all of the 1,077 denials for the factor cited for denial and the date 

when the EPA sent the denial letter. We also determined whether documentation 

indicated that the EPA requested additional justification for the waiver requests.

 We also determined whether there was documentation of requesters appealing 

denial decisions. If a denial was appealed, we documented the date of the appeal, 

the date on the EPA’s appeal decision letter, the EPA’s determination, and the 

factor(s) cited if the EPA upheld the denial on appeal.

 Our review and findings on these 1,077 denials addressed our objective to 

determine whether the EPA was timely in evaluating fee waiver requests and 

appeals in accordance with the EPA’s regulations and policies and procedures.

 In developing charts on elapsed days, for the initial determination start date, we 

used dates listed in the reports we ran from FOIAXpress and FOIAonline. For 

FOIAXpress requests, we used the dates labeled “Requested Date.” For 

FOIAonline requests, we used the dates labeled “Submitted.” For the end date for 

both data sets, we used the date listed on the fee waiver denial letter sent by the 

EPA, except for two instances where letters were undated. For these two, we used 

the date listed in FOIAonline. For appeals, we used the date listed on the 

requester’s appeal letter as the start date, and the date listed on the appeal 

determination letter sent by the EPA as the end date. Also, we did not review files 

for extensions and did not take extensions into account in our analysis.
14-P-0319 23

2. File Review

 From the list of 2,826 fee waiver requests, we eliminated those listed as news 

media, educational and non-commercial scientific organizations because these 

groups do not pay for search and review under FOIA. In addition, we determined 

to only review entries listed as granted or denied. This resulted in 1,730 fee 

waiver requests that had either been fully denied or fully granted and did not 

include requests made by news media, educational or non-commercial scientific 

organizations.

 From the list of 1,730 fee waiver requests, we identified requests from those 

organizations with 10 or more requests from October 2009 to June 2013. This 

resulted in 521 requests from 22 separate requester organizations. After 

eliminating duplicate requests, those with missing documentation, and one errant 

group (that the data system coded as requesting fee waivers when in fact it had 

not), we had a list of 475 fee waiver requests from 21 organizations. We reviewed 

the 475 requests to determine whether the EPA appropriately (i.e., in an 

‘unbiased’ manner) applied the criteria for making a fee waiver determination and 

whether entities asking for waivers appropriately justified their requests. We also 

reviewed any appealed denials of these 475 requests, including whether requesters 

provided more information in their appeal of a denial than they did in their initial 

requests.

 We interviewed individuals from requester organizations to get their perspectives 

on the EPA’s fee waiver process and whether they had any suggestions for 

improvement. In choosing an interview sample, we wanted to identify those that 

could share an experience with grants, denials and appeals to speak to the entirety 

of the process from a customer perspective. From the list of 21 organizations 

described above, we eliminated organizations whose fee waiver requests were 

either 100 percent granted or denied, which dropped the list to 16. We then 

identified requesters within the remaining organizations that had appealed fee 

waiver denials. This resulted in individual requesters within five organizations 

with experience in grants, denials and appeals:

o Center for Biological Diversity.

o Competitive Enterprise Institute.

o Natural Resources Defense Council.

o Northwest Environmental Advocates.

o Public Employees for Environmental Responsibility.
14-P-0319 24

Appendix B

Agency Response to the Official Draft Report

and OIG Comments
14-P-0319 25
14-P-0319 26

Attachment 

Response to OIG Findings and Recommendations

Title of Report and OIG At a Glance Page: Title of Report “The EPA Can Improve Its 

Timeliness and Consistency in Processing Freedom of Information Act Fee Waiver Requests”

General Comments: 

The EPA strongly recommends revising the title of the report to avoid confusion over the 

findings of the report. The current title does not specify what EPA activity OIG has found to be 

inconsistent in our processing of fee waiver requests. According to the report, the only 

inconsistency identified is in the time taken to process a request, and the title should reflect that. 

As written, the title strongly implies that the OIG found evidence of inconsistent substantive 

decisions or bias, as well as evidence of inconsistent processing times. To avoid public 

misunderstanding of the findings, the EPA suggests a revision to the title to state clearly that no 

evidence of substantive bias was found. If OIG would like to focus the title of the report on the 

findings regarding processing times, a possible revision that would avoid this confusion is “The 

EPA Can Improve the Speed and Consistency of Fee Waiver Request Processing Times.”

In addition to adjusting the title of the report to more accurately reflect OIG’s findings, the EPA 

believes that the report should point out that the Deputy Administrator specially asked OIG to 

determine whether fee waiver decisions were biased. This topic of inquiry is prominently 

featured in the Purpose section of the document, but largely absent from the At a Glance page 

and the Table of Contents. The finding that they were not biased should be made clear and 

featured in its own section of the report. Instead, this key finding is relegated to a clause that 

begins with the word “While...” on the “At a Glance” summary of the report findings. This 

passing mention of OIG’s conclusion might allow individuals to allege that the auditors are 

intentionally seeking to de-emphasize this key finding.

Finally, this summary page incorrectly states that OEI concurred with the recommendation to

revise the text of its regulations to more clearly state what requesters must demonstrate under 

each factor. OEI did agree to evaluate the feasibility of incorporating OIG recommendations 

during the process of revising the agency’s FOIA regulations. As discussed further below, OEI 

does not concur with the specific recommendation to modify the regulatory text in this area.

OIG Response 1: We revised the title and the At a Glance to clearly state that we found no 

indications of bias in the sample of fee waivers that we reviewed.

OIG Response 2: We modified our recommendation after discussing it with the agency. The 

agency said it did not need to wait for a regulatory action to more clearly inform requesters 

on how the agency considers the factors. The revised recommendation leaves to the EPA the 

decision on how to inform the public as long as the clarification takes place. The EPA agreed.
14-P-0319 27

Chapter 1 – Introduction

General Comments: 

The EPA suggests that OIG include a background sentence that also provides the 1987 DOJ/OIP 

guidance establishing the six statutory fee waiver factors, available here: 

http://www.justice.gov/oip/foia_updates/Vol_VIII_1/viii1page2.htm and more clearly states that 

all or nearly all federal agencies, including the EPA, adhere to these factors in their regulations. 

The EPA also suggests including a footnote describing the 20 working day processing time for 

FOIA request, to note that the 20 working day processing time can properly be extended by the 

agency under provisions of the FOIA accounting for complex requests and unusual or 

exceptional circumstances. See 5 U.S.C. 552(a) (6) (B) & (D).

Finally, the EPA suggests that the background section point out that our FOIA regulations are 

consistent with OMB Fee Guidance of 1987, the Department of Justice FOIA regulations, and 

the regulations of nearly all other federal agencies.

 

Chapter 2 – The EPA Should Address Variability in Response Times for Fee Waiver 

Requests and Appeals

General Comments:

The report correctly notes that the Freedom of Information Act is silent as to the statutory 

deadline for making fee waiver15 determinations. The EPA had established an internal goal of 10 

days, but as a result of the OIG review, the EPA will now follow the 20 day timeline that applies 

to the FOIA request itself. The report notes that EPA has a 12 day average response time to fee 

waiver requests, which is clearly within the statutory time limit for responding to FOIA requests. 

In light of this 12 day average for the EPA to respond to fee waiver requests, the two examples 

cited on page 6 are extreme outliers. The EPA suggests emphasizing that these two examples are 

outliers in the context of the 1062 decisions reviewed, and that they represent less than 0.2% of 

total decisions reviewed. It may be more helpful to discuss what other figures support the finding 

of “considerable variability” in response times, outside of these two extreme examples. 

 

15 The Freedom of Information Act provides the agency 10 days to make expedited processing determinations.

OIG Response 3: We added a footnote to chapter 1 on DOJ’s 1987 guidance.

OIG Response 4: We added a footnote to chapter 1 on extensions to the 20-working-day 

processing time.

OIG Response 5: We did not review whether the EPA’s FOIA regulations were consistent 

with those of other federal agencies. We added the EPA’s assertion to chapter 1.
14-P-0319 28

The EPA would also like to note that the higher than average business days to deny request for 

Q4-2012 and Q1-2013, as depicted in Table 5, can be attributed to the deployment and 

implementation of the new FOIA Online system and the learning curve associated with any 

major new system deployment.

Finally, in the discussion of the fee waiver factors and reasons on page 11, the EPA suggests 

replacing the word “factor” with “reason” when discussing factors #7-10 in order to distinguish 

between the regulatory factors and the OIG added reasons. Because EPA uses the same six 

factor test that all or nearly all other federal agencies use, and the word “factor” is used 

consistently by courts and the agencies when describing this test, it is likely to cause confusion to 

describe 4 additional “factors” in this context that are not included in the standard six factor test.

 

OIG Recommendation 1: Examine and address the reasons for variability in response times for 

FOIA fee waiver decisions and appeals.

Corrective Action 1:

The EPA agrees with the recommendation and will complete this task during the 2nd quarter of 

FY 2015. 

OIG Response 6: We agree that the EPA’s response time is within the statutory time limit 

for responding to FOIA requests. We did not make any changes to emphasize the two outliers 

as they, along with other data in figure 1, comprise the “considerable variability” we noted in 

chapter 2 (i.e., response times that exceeded the statutory time limit).

OIG Response 7: We added the EPA’s explanation to chapter 2.

OIG Response 8: We explained in chapter 2 that the EPA cited six regulatory and four 

“other factors” as the basis for fee waiver denials and appeals.

OIG Response 9: In our discussions, the agency agreed that we could note the last day of the 

second quarter of fiscal year 2015 (or March 31, 2015) as the planned completion date.
14-P-0319 29

Chapter 3 – The EPA Should Better Clarify Review Factors and When to Request 

Additional Justification

General Comments:

The EPA’s Deputy Administrator specifically requested OIG to evaluate whether any bias in our 

processing of fee waiver requests. The title for Chapter 3 needs to reflect the OIG finding that no 

bias exists. The current title fails to address the evaluation performed in Chapter 3. 

The EPA believes that references to a need to “lessen any perception of differential treatment” or 

“any perception of bias” are inappropriate and strongly recommends removing all references. 

Nowhere in the report does OIG indicate that it sought to determine whether there was, in fact, a 

perception of bias with regards to the EPA’s fee waiver decisions that extended beyond a report 

of a single organization whose allegations have been proven false by EPA data and this very 

evaluation. While individual members of Congress may have expressed concern over that 

organization’s allegations, to date, not a single other entity has, to our knowledge, expressed a 

perception of bias. In light of that, these references are inappropriate.

The section “The EPA Consistently Applied the Regulatory Standard to Fee Waiver Requests” 

should be clearly answered in the “At a Glance” opening section and be featured as its own 

chapter.

Additionally, in light of the statistical conclusions in the report, it is inappropriate to say that 

additional clarity is needed, as stated in the section title “Additional Clarity Needed on Factors 

the EPA Uses to Decide Fee Waiver Requests.” OIG auditors agreed with EPA fee waiver 

decisions 95% of the time. While not perfect, a 95% agreement rate is very high and does not 

OIG Response 10: We revised the chapter 3 title to state that we found no indications of 

bias.

OIG Response 11: The Deputy Administrator’s request asked that our review assess whether 

the EPA applied factors in a manner that adhered to the agency’s policy of timely and 

unbiased treatment of fee waiver requests. That, per se, meant that our review sought to 

establish or refute any bias, real or perceived. For example, we identified the perception of 

differential treatment in how the EPA requested additional justification from some requesters 

and not others. The EPA agreed below that this voluntary practice could introduce 

inconsistency in its process and decided to stop requesting additional justification. Thus, the 

EPA’s actions addressed this perceived bias/inconsistency.

OIG Response 12: We did not make this change because our addition of the words regarding 

no indication of bias to the report title and chapter 3 title makes this conclusion more 

prominent.
14-P-0319 30

justify a headline that additional clarity is “needed.” A more appropriate title would be that 

additional clarity would be helpful. 

In the same section, the EPA believes that the report needs to indicate that our factors are the 

same used by the DOJ and almost every other agency, and that they are explained in the DOJ’s 

FOIA guide. To fail to do so would allow the reader to draw an inappropriate conclusion that the 

EPA has adopted factors that are different from or less well understood than the rest of the 

government. Allowing such a conclusion while knowing that it is not accurate could call into 

question the objectivity of the report.

In the interviews with 4 organizations regarding Factors #2 and #4, the interviewees say that “we 

read the denials but we don’t understand what we can do to fix it.” To be fair, the report should 

note that each fee waiver denial and each appeal contains contact information for the EPA’s 

FOIA Liaison and OGIS. It does not appear that OIG evaluated whether any of these 

organizations took advantage of the resources the EPA offered them.

Finally, on page 11 the report states that OEI is in the process of developing examples for when 

FOIA specialists do not have to reach back to the requester for additional information. It is more 

accurate to state that OEI has determined that it can eliminate any possibility of inconsistency in 

this area by no longer requesting additional information for any request. It is not accurate to 

state that OEI will be continuing this voluntary practice. 

OIG Recommendation 2: Revise the EPA’s regulations to clearly state what requesters must 

demonstrate under each factor to receive a fee waiver.

Corrective Action 2: The EPA does not concur with OIG Recommendation 2. 

Discussion of OIG Finding 2:

The EPA is currently revising its regulations with a variety of goals in mind to assist the 

requesting public. However, the six factors set out in the EPA’s regulations are prescribed by 

OMB to all federal agencies. To modify the regulatory language would make the EPA’s fee 

OIG Response 13: We changed “needed” to “would be helpful” per the EPA’s suggestion.

OIG Response 14: We added this to our report per the EPA’s similar comment on chapter 1.

OIG Response 15: We noted in chapter 1 how the agency’s FOIA website contains contact 

information for FOIA staff. The organizations with whom we spoke described varying 

degrees to which they took advantage of the EPA’s contact information on FOIA questions.

OIG Response 16: We revised the report to note the EPA’s decision to stop its voluntary 

practice of requesting additional justification.
14-P-0319 31

waiver standard inconsistent with the standard applied by the rest of the federal government and 

actually increase public confusion by deviating from the developed body of case law that relates 

to this existing standard. The EPA believes it is more appropriate to supplement the public’s 

understanding of the six standard factors by reference to existing DOJ guidance and to judicial 

opinions interpreting the standard, rather than revising the language in the EPA’s regulations. If 

OIG is recommending that the EPA adopt regulations that differ, even if in being more specific, 

from DOJ regulations and guidance, it should acknowledge that they are making that significant 

recommendation.

OIG Recommendation 3: Inform the public of any regulatory changes, such as through 

enhancements to the agency’s FOIA website and/or other communication efforts.

Corrective Action 3:

The EPA agrees with this recommendation and is currently completing this task.

OIG Recommendation 4: Develop criteria and policy for FOIA Specialists on when to request 

additional justification.

Corrective Action 4: The EPA does not concur with OIG Recommendation 4. 

Discussion of OIG Finding 4:

The EPA does not agree with the recommendation to provide further instruction or guidance on 

when to seek additional information from requesters. Due to the possibility that this voluntary 

practice could introduce inconsistency into the process, EPA will now make our decisions based 

upon the FOIA requester’s submission and will no longer request additional justification. EPA 

will instead rely on the additional communications described in our response to 

Recommendation 3, as well as during the rulemaking process for revising EPA’s regulations, to 

help inform the public about existing standards and practices so that initial fee waiver 

submissions contain all the information necessary for EPA to evaluate the requests with enough 

information. 

OIG Response 17: After meeting with the agency to discuss their comments, we modified 

the recommendation. Recommendation 2 initially stated that the EPA revise its regulations to 

clearly state what requesters must demonstrate under each factor to receive a fee waiver. The 

agency said it did not need to wait for a regulatory action to more clearly inform requesters 

on how the agency considers the factors. The revised recommendation 2 leaves to the EPA 

the decision on how to inform the public as long as the clarification takes place. The EPA 

agreed.

OIG Response 18: In our discussions, the agency agreed that we could note the last day of 

the second quarter of fiscal year 2015 (or March 31, 2015) as the planned completion date.
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OIG Response 19: We initially recommended that the EPA develop criteria and policy for 

FOIA Specialists on when to request additional justification. Subsequently, on June 2, 2014, 

the EPA acted on this recommendation by discontinuing its practice to request additional 

justification. We agree with the EPA’s decision and modified our recommendation. We will 

close this recommendation upon issuing our final report.
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Appendix C

Distribution

Office of the Administrator

Assistant Administrator for Environmental Information and Chief Information Officer

Agency Follow-Up Official (the CFO)

Agency Follow-Up Coordinator

General Counsel

Associate Administrator for Congressional and Intergovernmental Relations

Associate Administrator for External Affairs and Environmental Education

Principal Deputy Assistant Administrator, Office of Environmental Information

Principal Deputy General Counsel

Regional Administrators, Regions 1–10 

EPA Freedom of Information Act Officer 

Audit Follow-Up Coordinator, Office of Environmental Information

Audit Follow-Up Coordinator, Office of General Counsel