§ 1662.13 Fees associated with processing FOIA requests. ( a ) *Charging fees.* In responding to FOIA requests, the Chief FOIA Officer shall charge the following fees unless a waiver or reduction of fees has been granted under paragraph (i) of this section. Because the fee amounts provided below already account for the direct costs associated with a given fee type, the Chief FOIA Officer should not add any additional costs to charges calculated under this section. ( 1 ) *Search.* ( i ) Requests made by educational institutions, non-commercial scientific institutions, or representatives of the news media are not subject to search fees. Search fees shall be charged for all other requesters, subject to the restrictions of paragraph (b) of this section. The Chief FOIA Officer may properly charge for time spent searching even if the Agency does not locate any responsive records or if the Chief FOIA Officer determines that the records are entirely exempt from disclosure.
( ii ) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees shall be as follows: professional—$10.00; and clerical/administrative—$4.75.
( iii ) Requesters shall be charged the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. Requesters shall be notified by the Chief FOIA Officer of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred.
( iv ) For requests that require the retrieval of records stored by the Agency at a Federal records center operated by NARA, additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA.
( 2 ) *Duplication.* Duplication fees shall be charged to all requesters, subject to the restrictions of paragraph (b) of this section. The Chief FOIA Officer shall honor a requester's preference for receiving a record in a particular form or format where it is readily reproducible in the form or format requested. Where photocopies are supplied, the Chief FOIA Officer shall provide one copy per request at a cost of five cents per page. For copies of records produced on tapes, disks, or other media, components shall charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned to comply with a requester's preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials. For other forms of duplication, the Chief FOIA Officer shall charge the direct costs.
( 3 ) *Review.* Review fees shall be charged to requesters who make commercial use requests. Review fees shall be assessed in connection with the initial review of the record, *i.e.,* the review conducted by the Chief FOIA Officer to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with the Agency's re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees shall be charged at the same rates as those charged for a search under paragraph (a)(1)(ii) of this section.
( b ) *Restrictions on charging fees.* ( 1 ) No search fees will be charged for requests by educational institutions (unless the records are sought for commercial use), non-commercial scientific institutions, or representatives of the news media.
( 2 ) If the Agency fails to comply with the FOIA's time limits in which to respond to a request, the Chief FOIA Officer may not charge search fees, or, in the instances of requests from requesters described in paragraph (b)(1) of this section, may not charge duplication fees, except as described in paragraphs (b)(2)(i) through (iii) of this section. ( i ) If the Chief FOIA Officer has determined that unusual circumstances as defined by the FOIA apply and they provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days.
( ii ) If the Chief FOIA Officer has determined that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the Chief FOIA Officer may charge search fees, or, in the case of requesters described in paragraph (b)(1) of this section, may charge duplication fees if the following steps are taken. The Chief FOIA Officer must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the Chief FOIA Officer must have discussed with the requester via written mail, email, or telephone (or made not less than three good faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the Chief FOIA Officer may charge all applicable fees incurred in the processing of the request.
( iii ) If a court has determined that exceptional circumstances exist as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
( 3 ) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
( 4 ) Except for requesters seeking records for a commercial use, the Chief FOIA Officer shall provide without charge: ( i ) The first 100 pages of duplication (or the cost equivalent for other media); and
( ii ) The first two hours of search.
( 5 ) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (a) of this section is $25.00 or less for any request, no fee will be charged.
( c ) *Notice of anticipated fees in excess of $25.00.* ( 1 ) When the Chief FOIA Officer determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the Chief FOIA Officer shall notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review, or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the Chief FOIA Officer shall advise the requester accordingly. If the requester is a non-commercial use requester, the notice shall specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and shall advise the requester whether those entitlements have been provided.
( 2 ) In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a non-commercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing to the Chief FOIA Officer, and must, when applicable, designate an exact dollar amount the requester is willing to pay. The Agency is not required to accept payments in installments.
( 3 ) If the requester has indicated a willingness to pay some designated amount of fees, but the Chief FOIA Officer estimates that the total fee will exceed that amount, they shall toll the processing of the request when they notify the requester of the estimated fees more than the amount the requester has indicated a willingness to pay. The Chief FOIA Officer shall inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
( 4 ) The Agency shall make available the FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester's needs at a lower cost.
( d ) *Charges for other services.* Although not required to provide special services, if the Chief FOIA Officer chooses to do so as a matter of administrative discretion, the direct costs of providing the service shall be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.
( e ) *Charging interest.* The Chief FOIA Officer may charge interest on any unpaid bill starting on the 31st day following the date of billing the requester. Interest charges shall be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by the Chief FOIA Officer. The Chief FOIA Officer shall follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.
( f ) *Aggregating requests.* When the Chief FOIA Officer reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, the Chief FOIA Officer may aggregate those requests and charge accordingly. The Chief FOIA Officer may presume that multiple requests of this type made within a 30-day period have been made to avoid fees. For requests separated by a longer period, the Chief FOIA Officer will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters shall not be aggregated.
( g ) *Advance payments.* ( 1 ) For requests other than those described in paragraph (g)(2) or (g)(3) of this section, the Chief FOIA Officer shall not require the requester to make an advance payment before work on a request is commenced or continued. Payment owed for work already completed (*i.e.,* payment before copies are sent to a requester) is not an advance payment.
( 2 ) When the Chief FOIA Officer determines or estimates that a total fee to be charged under this section will exceed $250.00, they may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. The Chief FOIA Officer may elect to process the request prior to collecting fees when they receive a satisfactory assurance of full payment from a requester with a history of prompt payment.
( 3 ) Where a requester has previously failed to pay a properly charged FOIA fee to the Agency within 30 calendar days of the billing date, the Chief FOIA Officer may require that the requester pay the full amount due, plus any applicable interest on that prior request, and the Chief FOIA Officer may require that the requester make an advance payment of the full amount of any anticipated fee before the FOIA Officer begins to process a new request or continues to process a pending request or any pending appeal. Where the Chief FOIA Officer has a reasonable basis to believe that a requester has misrepresented the requester's identity to avoid paying outstanding fees, it may require that the requester provide proof of identity.
( 4 ) In cases in which the Chief FOIA Officer requires advance payment, the request shall not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the Chief FOIA Officer's fee determination, the request will be closed.
( h ) *Other statutes specifically providing for fees.* The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily based fee schedule program, the Chief FOIA Officer shall inform the requester of the contact information for that program.
( i ) *Requirements for waiver or reduction of fees.* ( 1 ) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
( 2 ) The Chief FOIA Officer must furnish records responsive to a request without charge or at a reduced rate when they determine, based on all available information, that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. In deciding whether this standard is satisfied the component must consider the factors described in paragraphs (i)(2)(i) through (iii) of this section: ( i ) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal government with a connection that is direct and clear, not remote or attenuated.
( ii ) Disclosure of the requested information would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met: ( A ) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.
( B ) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public must be considered. The Chief FOIA Officer will presume that a representative of the news media will satisfy this consideration.
( iii ) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the Chief FOIA Officer will consider the following criteria: ( A ) FOIA requires an Agency requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration.
( B ) If there is an identified commercial interest, the Chief FOIA Officer must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (i)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. The Chief FOIA Officer ordinarily will presume that when a news media requester has satisfied the requirements of paragraphs (i)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.
( 3 ) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
( 4 ) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Chief FOIA Officer and should address the criteria referenced above. A requester may submit a fee waiver request later so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester shall be required to pay any costs incurred up to the date the fee waiver request was received.