a

GAO

United States General Accounting Office

Report to Congressional Committees

October 2001 USER FEES

DOD Fees for 

Providing Information 

Not Current and 

Consistent

GAO-02-34

Page 1 GAO-02-34 DOD User Fees

October 12, 2001

The Honorable Carl Levin

Chairman

The Honorable John Warner

Ranking Minority Member

Committee on Armed Services

United States Senate

The Honorable Bob Stump

Chairman

The Honorable Ike Skelton

Ranking Minority Member

Committee on Armed Services

House of Representatives

Section 1085 of the National Defense Authorization Act for Fiscal Year

2001 authorized the military department secretaries to (1) charge fees to

persons requesting information from the primary military archives and

(2) retain collected fees to help defray costs associated with providing the

information. The military archives also have authority under the User

Charge Statute (31 U.S.C. § 9701) and the Freedom of Information Act

(FOIA) (5 U.S.C. § 552) to charge for general information provided to the

public. A major distinction, however, is that the fees collected under these

two provisions are to be deposited with the Department of the Treasury.

The Conference Report on the National Defense Authorization Act for

Fiscal Year 2001 directs the Comptroller General to provide a report 1 year

after implementation of Section 1085 of the act on the fees collected and

the associated costs of providing historical information. In preliminary

work directed to that reporting requirement, we identified Section 1085

implementation issues and other issues related to Department of Defense

(DOD) fees under the User Charge Statute and FOIA. As requested, this

report (1) presents the status of Section 1085 implementation by the

primary military archives, (2) identifies the fees charged by the archives

under existing authorities, and (3) discusses other issues relating to DOD

fees for providing information to the public. As agreed with your offices,

we plan to follow up on these matters about 1 year after the first archive

implements Section 1085.

In meeting our objectives, we obtained information on the status of

implementation of Section 1085 and on the fees being charged by the

United States General Accounting Office

Washington, DC 20548
Page 2 GAO-02-34 DOD User Fees

archives under the User Charge Statute and FOIA. We compared the

provisions of the Section 1085, User Charge Statute, and FOIA in such

areas as basis for fees and retention of collected funds. We obtained

information on when fee schedules for the User Charge Statute and FOIA

were established and revised, and compared the User Charge Statute fee

schedule with a fee schedule being developed by the Army Military History

Institute to be used under Section 1085. We did not independently review

the basis for any of the established or proposed fees. We obtained

information by interviewing DOD officials in the Office of the Under

Secretary of Defense (Comptroller); Directorate for Freedom of

Information and Security Review; Legislative Reference Service, Office of

General Counsel; four primary military archives; and other offices

providing historical information. Also, we reviewed (1) laws, regulations,

and documents related to DOD providing information to public requesters

and (2) documentation from the military archives and their Web sites. We

visited two of the four designated military archives.

Our work was performed from April through July 2001 in accordance with

U.S. generally accepted government auditing standards. We requested

comments on a draft of this report from the Secretary of Defense or his

designated representative. Written comments from the Deputy Chief

Financial Officer, Office of the Under Secretary of Defense (Comptroller),

are discussed in the Agency Comments and Our Evaluation section of this

report and are reprinted in the appendix. Technical suggestions have been

incorporated in the report as appropriate.

With Section 1085 authorizing, but not requiring, action by the four

primary military archives, the archives have responded differently.

Although none of the primary military archives has yet implemented a fee

system pursuant to Section 1085, the Army Military History Institute plans

to implement the Section by October 2001. The Air Force Historical

Research Agency is studying possible fee structures, and officials of the

Naval Historical Center and the Marine Corps Historical Center told us

that they have not taken any implementation actions and are undecided

about implementing Section 1085.

DOD’s archives and other offices are also authorized under both the User

Charge Statute and FOIA to charge for information provided to the public.

However, neither of these statutes authorizes an agency to retain the fees

collected for providing general information to the public. The authority to

retain such collected fees to defray costs is a significant distinction

between Section 1085 and the other two statutes.

Results in Brief
Page 3 GAO-02-34 DOD User Fees

The four designated archives are charging fees to public requesters but are

not using the fee schedule mandated by the DOD regulation implementing

the User Charge Statute. The fees vary significantly among the archives

and rarely are research fees and minimum charges, which are key

elements of the fees under DOD’s regulation, imposed. Even if the archives

were using the mandated fee schedule, they would not be recovering full

cost (both direct and indirect costs) required under the User Charge

Statute and regulations because DOD has not updated the fees to reflect

current costs since the fee schedule was established in 1986.

The $81,000 that the four primary archives reported collecting in fiscal

year 2000 is likely much less than would be collected if an updated fee

schedule were to be effectively implemented. For example, based on an

early draft of the Army Military History Institute’s fee schedule planned to

be used under Section 1085, recovery of full costs could require fees, in

some cases, that are three to four times those in the DOD schedule. DOD

Comptroller officials said that they had no basis to estimate the increased

collections that could result from the use of an updated fee schedule by

the numerous DOD offices and organizations responding to public

requests to search for and copy records.

Similarly, DOD’s fee schedules for charges under FOIA are outdated. The

FOIA fee schedule for general information, which is to be based on direct

costs, and the FOIA fee schedule for technical information, which is to be

based on full cost (both direct and indirect costs), have not been updated

since 1986. DOD’s reported $670,000 of FOIA collections in fiscal year 2000

is likely much less than could be collected under updated schedules.

DOD’s inconsistent use of the authority to charge fees and the use of

outdated DOD fee schedules could have resulted in uncollected fees of a

million dollars or more annually and inconsistent handling of public

requests for historical information. As the four primary military archives

consider implementing Section 1085, DOD needs to ensure that fees

charged to public requesters for information throughout DOD are current

and consistently applied. Accordingly, we are recommending actions to

update fee schedules and ensure that such schedules are consistently

implemented throughout DOD.

DOD concurred with the recommendations in this report and commented

on actions that have been or are to be taken. These actions substantially

address our recommendations; however, we believe that additional efforts

are necessary to ensure that involved DOD organizations are aware of and

properly use updated fee schedules.
Page 4 GAO-02-34 DOD User Fees

In the mid-1990s, the Army Military History Institute began developing

proposed legislation for charging and retaining fees to defray costs of

providing historical information to the public. The Institute, whose

mission is to preserve the Army’s history and ensure access to historical

research material, was experiencing a significant increase in requests from

the public while resources available to respond were decreasing. For

example, the Institute reported that the annual number of requests

increased from about 13,000 in 1987 to 20,600 in 1995 and to 35,800 in 2000.

During the same period, the number of staff members decreased from over

40 to 33. As a result, backlogs and waiting times increased. The Institute

developed and submitted legislative proposals that authorized it to charge

and retain fees.

In response, Congress enacted Section 1085 of the National Defense

Authorization Act for Fiscal Year 2001, which authorizes the charging and

retaining of fees by one designated primary archive in each of the four

military departments. The four designated archives are the

• Air Force Historical Research Agency1 at Maxwell AFB, Alabama;

• Army Military History Institute at Carlisle Barracks, Pennsylvania;

• Marine Corps Historical Center at Washington Navy Yard, D.C.; and

• Naval Historical Center at Washington Navy Yard, D.C.

Section 1085 does not specify a fee structure or the fees that are to be

charged, but states that fees are not to exceed the costs of providing the

information. The Section also states that fees are not to be charged for

information that is requested (1) to carry out a duty as a member of the

armed forces or employee of the United States or (2) under FOIA, which

has a separate fee structure.

Prior to the authority granted under Section 1085, DOD, including the

military archives, was authorized to charge fees for responding to requests

for information under the User Charge Statute and FOIA. Because Section

1085 does not apply to the DOD offices, organizations, museums, and

archives other than the four designated archives, the User Charge Statute

and FOIA will continue to be the basic authority for these activities to

charge fees for providing information.

 1

Section 1085 refers to this as the Air Force Military History Institute.

Background
Page 5 GAO-02-34 DOD User Fees

The User Charge Statute is implemented by Office of Management and

Budget (OMB) Circular No. A-25, and DOD Financial Management

Regulation (FMR), Volume 11A, Chapter 4. DOD’s policy, as stated in

Chapter 4, is that when a service is provided that conveys special benefits

to recipients, above and beyond those accruing to the public at large, a

reasonable charge shall be made to each identifiable recipient. The policy

provides that a charge shall be imposed to recover the full cost to the

federal government of rendering a service or the fair market value of such

service, whichever is higher. Appendix 1 of Chapter 4 lists benefits for

which no charge is to be made such as services requested by members of

the U.S. Armed Forces in their capacity as service members. Appendix 2,

“Schedule of Fees and Rates for Copying, Certifying, and Searching

Records Rendered to the Public,” is mandated for use throughout DOD.

The Under Secretary of Defense (Comptroller) is responsible for additions

or revisions to Chapter 4.

FOIA, which specifies processes and procedures for making information

available to the public, is implemented in DOD by DOD Regulation

5400.7-R. In accordance with FOIA, DOD Regulation 5400.7-R contains a

fee schedule for responding to FOIA requests. For general information, the

fees for search, review, and duplication of documents are to be based on

direct costs. For technical information,2

 the fees are to be based on all

reasonable costs, which is defined as the full costs to the federal

government of rendering the service, or fair market value of the service,

whichever is higher. The regulation also provides that

• the first 2 hours of search time and the first 100 pages of duplication shall

be provided without charge unless requesters are seeking documents for

commercial use,

• fees will be waived or reduced when the information is likely to contribute

significantly to public understanding of DOD, and

• fees shall be automatically waived when assessable fees total $15 or less.

The Directorate for Freedom of Information and Security Review is

responsible for the FOIA regulation.

 2

Provisions for technical information were added in response to 10 U.S.C. § 2328, which

requires requesters to pay the costs of search, review, and duplication. FOIA officials said

that the term “technical information” has only been generally defined and that technical

information fees are rarely used.
Page 6 GAO-02-34 DOD User Fees

FOIA requests are specifically excluded under Section 1085 and the DOD

regulations implementing the User Charge Statute. Accordingly, the

provisions of Regulation 5400.7-R would determine fees for any FOIA

request. However, if a request is not identified as a FOIA request, the fees

should be determined under the User Charge Statute as specified in FMR,

Volume 11A, Chapter 4.

None of the four designated archives has changed its fee structure

pursuant to Section 1085. At the time of our work, two of the four archives

were taking actions to implement the Section. Officials at the Army

Military History Institute were developing fee schedules and planning to

implement the Section by October 2001. Officials at the Air Force

Historical Research Agency had tasked key stakeholders with determining

a fee structure. However, they have not established a target date for

implementing the Section. Section 1085 permits each of the four archives

to develop its own fee schedule provided that the fees charged do not

exceed the costs of providing the information.

Officials at the Naval Historical Center and the Marine Corps Historical

Center have not decided whether to implement a fee system based on

Section 1085 provisions. They have taken no specific actions toward

implementation and have received no implementation guidance from their

headquarters.

One of the factors affecting Section 1085 implementation decisions by the

four archives is that they were already authorized under both the User

Charge Statute and FOIA to charge for information provided to the public.

Based on the statute and regulations, the archives should charge for

information provided to public requesters under the User Charge Statute

unless the request is identified as a FOIA request. If identified as a FOIA

request, any charges should be based on FOIA implementing regulations.

However, neither of these statutes authorizes the military archives to

retain fees collected in providing general information to the public to

defray costs. Fees collected under both the User Charge Statute and FOIA

for general information must be deposited in the Treasury as

Miscellaneous Receipts. Accordingly, the authority to retain collected fees

to defray incurred costs is one significant distinction between Section

1085 and the other two statutes. The Army Military History Institute

identified the ability to use collected fees to improve service to the public

as the primary reason it developed the legislative proposals that led to

Section 1085.

Status of Section 1085

Implementation
Page 7 GAO-02-34 DOD User Fees

Increasing numbers of public requests at a time when budgetary resources

were decreasing resulted in the archives developing arrangements to

minimize the cost impact of public requests on the archives’ budgets. For

example, the Army Military History Institute arranged for a contract,

through a nonappropriated fund account, to reproduce requested

photographs with fees collected for the photographs reimbursing the fund.

The Naval Historical Center refers those requesting its photographs to the

Naval Historical Foundation, a nonprofit foundation, which reproduces

the photographs and charges the customer. Without such arrangements,

the costs of reproducing photographs and responding to requesters would

come from the archive’s budget, and the fees collected from the customer

would be deposited in Treasury’s Miscellaneous Receipts and would not

be available to offset the costs.3

 These arrangements, by reducing

budgetary pressures, have lessened the benefits that an archive could

achieve from implementing Section 1085.

All of the four primary archives charge fees for providing historical

information to requesters. However, none of the fees were in accordance

with the mandated DOD user fee schedule specified in Appendix 2 of DOD

FMR, Volume 11A, Chapter 4. In fact, archive officials told us that they

were unaware of the mandated fee schedule.

The “Schedule of Fees and Rates for Copying, Certifying, and Searching

Records Rendered to the Public” in Appendix 2 establishes a minimum fee

of $3.50 for any chargeable case and additional fees for searching and

providing copies of various records, photographs, forms, etc. For office

copy reproductions, a minimum fee of $3.50 per request (six pages or less)

is specified with a charge of $0.10 for each additional page. For

photography, the Appendix’s schedule of prices per print is based on the

size, type, and quantity ordered. For example, the price per print for an 8-

by 10-inch print ranges from $4.50 for one to nine prints to $1.75 for each

print in quantities of over 50. The specified charge for clerical search and

processing is $13.25 per hour with a minimum charge of $8.30.

 3

We have approved arrangements under which agencies contract with private firms for

processing, storing, and retrieving information and those firms charge and retain the fees

for providing the information. See 61 Comp. Gen. 285 (1982) and B-166506, October 20,

1975. We have not reviewed whether the archives’ arrangements would meet the approval

requirements or raise other issues.

Archives’ Fees Not in

Accordance With

DOD Mandated Fees
Page 8 GAO-02-34 DOD User Fees

Existing fees vary significantly among the archives. For example, the

charges for a paper copy made by archive staff ranged from

• no charge by the Air Force Historical Research Agency, to

• no charge by the Marine Corps Historical Center for the first 100 pages and

a charge of $0.15 for each page thereafter, to

• a charge by the Army Military History Institute of $0.25 per page, to

• a charge by the Naval Historical Center of $0.30 per page.

In general, the archives do not impose a minimum charge for providing

information. This could result in requesters receiving copies of documents

free or for less than a dollar as opposed to the $3.50 minimum specified in

the DOD’s User Charge fee schedule. The Marine Corps fees, which are

based on FOIA, resulted in any requester receiving up to 2 hours of search

time and 100 pages without a charge. With the exception of the Marine

Corps, the archives did not have a clearly identified basis for their fee

schedules.

The archives also appear to have different practices regarding which

requesters are charged and under what circumstances fees will be waived.

Archives officials told us that, in many cases, fees are not charged when

the request is from military personnel, veterans, or government employees.

Under the User Charge regulation, only members of the U.S. Armed

Forces, in their capacity as Service members, are exempt from charges.

Archive officials also said that fee waivers were used extensively for FOIA

requests. DOD’s FOIA regulations provide that the first 100 reproduced

images and 2 hours of research are free per request and that fees shall be

waived for all requesters when assessable costs for a FOIA request total

$15 or less. Further, the regulations provide that documents shall be

provided without charge or at reduced charge when a DOD component

determines that a waiver or reduction of fees is in the public interest and

likely to contribute significantly to public understanding of DOD.

DOD last revised its User Charge Statute fee schedule for copying,

certifying, and searching records in March 1986. At that time, DOD revised

its user fees instruction and added a schedule of fees and rates for services

related to copying, certifying, and searching records. The instruction

stated that this schedule was to be used for such services throughout

DOD. The same fees were included in the DOD FMR, Volume 11A, Chapter

4, Appendix 2, issued in March 1997. Although the Chief Financial Officers

Act of 1990 and OMB Circular A-25 require a biennial review of charges for

services, DOD Comptroller officials were not aware of any reviews having

DOD User Charge and

FOIA Fees Not

Current
Page 9 GAO-02-34 DOD User Fees

been done and had no documentation of reviews of the fee schedule for

copying, certifying, and searching records.

Fees being developed by the Army Military History Institute indicate that

the fees mandated in Appendix 2 might be significantly understated. For

example, the Institute’s early proposal, based on total direct and indirect

costs, shows a total fee of $10.50 for mailing a requester 10 paper copies of

an item, itemized as follows.

Pull-fee per item $5.00

$0.25 per page for paper to paper copies by staff times 10 pages 2.50

Minimum charge for mailing 10 copies or less 3.00

The total fee under Appendix 2 for the same order would be $3.90,

itemized as follows.

Minimum fee including 6 pages or less $3.50

4 additional pages at $0.10 per page for paper to paper copies by staff .40

In this case, the fee under Appendix 2 appears to be about one-third of the

Institute’s proposal. Comptroller officials noted that Appendix 2 provided

for a minimum clerical search and processing charge of $8.30 and that

including this minimum clerical charge in the above comparison would

result in a higher fee under Appendix 2 than under the Army Military

History Institute’s proposal. However, the officials had no information as

to whether the minimum clerical charge had been or would be included in

a fee involving a request for paper copies of an item. Further, if a search

charge is appropriate, the Institute’s proposal includes a $25 hourly

research charge as opposed to the $13.25 hourly charge for clerical search

and processing under Appendix 2.

The Institute’s proposal for five copies of an 8- x 10-inch photograph

shows a total fee of $105 (pull fee per item of $5 and $20 for each copy).

The total fee under Appendix 2 would be $22.50 ($4.50 per copy) or less

than one-fourth of the Institute’s proposal.

As with User Charges, DOD fee schedules for charges under FOIA are not

current. The FOIA fee schedule for general information, which is to be

based on direct cost, has not been updated since 1986. The FOIA fee

schedule for technical information, which is to be based on full cost (both
Page 10 GAO-02-34 DOD User Fees

direct and indirect costs), was last issued in 1998, but is the same as the

schedule first issued in 1986.

The collections reported by the four primary military archives are not

indicative of potential future collections under updated fee schedules.

Military archive officials reported collecting about $81,000 during fiscal

year 2000 with the Air Force reporting the most collections (about

$46,000) and the Marine Corps reporting the least (about $2,000).

However, these amounts are probably much less than amounts that should

be collected if updated fee schedules are established and effectively

implemented because of the following.

• Fees charged by the archives are generally less than those in DOD fee

schedules even though the fees in the DOD schedules are outdated and

could be understated by a factor of three or four.

• Archives officials said that fees are often waived for military personnel,

veterans, government employees, and others although such waivers are

not addressed by DOD’s regulations implementing the User Charge

Statute.

• Archive officials state that search fees are not usually charged, which can

be a significant element of cost that should be recovered.

• Arrangements that the archives have used to lessen budgetary impacts,

such as the Naval Historical Foundation collecting fees for Naval

Historical Center photographs, have reduced reported collections.

Further, there are many additional organizations that would have

increased collections resulting from updated fee schedules under the User

Charge Statute and FOIA. DOD Comptroller officials had no information

as to the amount of funds collected throughout DOD using the fee

structure mandated in the DOD FMR, Volume 11A, Chapter 4, Appendix 2.

They agreed that numerous offices and organizations throughout DOD—

some of which have significant numbers of requesters— should use the fee

schedule.

With regard to FOIA, DOD reported that about $670,000 was recovered

through assessed fees in fiscal year 2000, less than 2 percent of the

reported $36.5 million in costs associated with providing information

under FOIA. If FOIA fees are understated by a significant amount, as

appears possible, increases in collections from updated FOIA fee

schedules could be significant.

Benefits of Updated

Schedules and

Consistent

Implementation

Would Be Significant
Page 11 GAO-02-34 DOD User Fees

Because of DOD’s inconsistent use of authority to charge fees and use of

outdated fees schedules, the archives and other providers of public

information throughout DOD have not collected a million dollars or more

annually in user fees and have treated public requesters inconsistently.

DOD, in conjunction with considering implementation of Section 1085,

needs to ensure that fees charged to public requesters for information

throughout DOD are current and consistent. This is not the situation now

because (1) DOD has not revised its fee schedules under the User Charge

Statute and FOIA since 1986, (2) the primary military archives are not

using the mandated fee schedules, and (3) fees being charged to public

requesters vary significantly across these archives. Accordingly, a first

step that would precede implementation of Section 1085 is updating the

User Charge Statute and FOIA fee schedules. This would assist archives in

determining whether to implement Section 1085 and whether an archive

that implements Section 1085 needs a separate fee schedule. To provide

consistency throughout DOD, an archive implementing Section 1085 could

use DOD’s user fee schedule in lieu of establishing a new fee schedule

unless specific justification exists for the new schedule.

Further, after fee schedules are updated for the User Charge Statute and

FOIA, they need to be implemented consistently throughout DOD by all

offices and organizations responding to public requesters. Such

implementation is necessary for the fair and equitable treatment of the

public.

We recommend that the Under Secretary of Defense (Comptroller), and

the Director, Freedom of Information and Security Review, in conjunction

with the secretaries of the military departments and other DOD officials,

as appropriate,

• review and update fee schedules under the User Charge Statute and FOIA;

• for each archive implementing Section 1085, establish fee schedules that

are consistent with the updated fee schedules unless a determination is

made that a different fee schedule is justified; and

• undertake a notification, training, and follow-up effort to ensure that all

DOD offices and organizations responding to requesters for information

are properly using the updated fee schedules.

Conclusions

Recommendations for

Executive Action
Page 12 GAO-02-34 DOD User Fees

In written comments on a draft of this report, DOD concurred with the

recommendations and commented on actions that have been or are to be

taken.

With regard to the recommendation to review and update fee schedules

under the User Charge Statute, DOD commented that the Office of the

Under Secretary of Defense (Comptroller) will work with other

organizations to update, as appropriate, and publish a revised fee schedule

periodically. With regard to FOIA fee schedules, DOD commented that the

Directorate for Freedom of Information and Security Review, which is

responsible for those schedules, did not provide comments on the

recommendations.

With regard to the recommendation that the fee schedule for each archive

implementing Section 1085 be consistent with updated user charge fee

schedule, DOD commented that fee schedules authorized by Section 1085

are optional. DOD said that the Army Military History Institute, the only

archive developing a schedule of charges under Section 1085, would

consider, where appropriate, the changes in a revised user charge

schedule.

With regard to the recommendation to undertake a notification, training,

and follow-up effort, DOD commented that the Office of the Under

Secretary of Defense (Comptroller) has an established process for making

changes to the DOD FMR. It added that DOD audit organizations will be

requested to include user fee schedule compliance as a part of their

standard reviews, where applicable. Because archive officials were

unaware of the FMR fee schedule, we continue to believe that the more

substantive actions that we recommended are warranted.

We are sending copies of this report to the Office of the Under Secretary of

Defense (Comptroller); the Director, Freedom of Information and Security

Review; and interested congressional committees. Copies of this report

will also be made available to others upon request.

Agency Comments

and Our Evaluation
Page 13 GAO-02-34 DOD User Fees

Please contact me at (202) 512-9505 if you have any questions. Major

contributors to this report were David Childress, Mary Jo Lewnard, and

Edda Emmanuelli-Perez.

Gregory D. Kutz

Director

Financial Management and Assurance
Appendix I: Comments From the Department

of Defense

Page 14 GAO-02-34 DOD User Fees

Appendix I: Comments From the Department

of Defense
Appendix I: Comments From the Department

of Defense

Page 15 GAO-02-34 DOD User Fees
Appendix I: Comments From the Department

of Defense

Page 16 GAO-02-34 DOD User Fees (192029)
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