[Federal Register Volume 85, Number 243 (Thursday, December 17, 2020)]
[Notices]
[Pages 81955-81958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27707]


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OFFICE OF MANAGEMENT AND BUDGET


Final Revisions to Uniform Freedom of Information Act Fee 
Schedule and Guidelines

AGENCY: Office of Management and Budget.

ACTION: Notice of revised guidelines.

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SUMMARY: The Office of Management and Budget (OMB) is finalizing 
revisions to sections of its Uniform Freedom of Information Act Fee 
Schedule and Guidelines (``Guidelines'') last published in 1987. This 
action is necessary to conform the Guidelines with statutory amendments 
to the Freedom of Information Act (FOIA) and to clarify the scope of 
the Guidelines. This action is intended to provide Federal agencies 
with guidance on the appropriate and uniform application of FOIA 
processing fees.

DATES: These revisions to the Guidelines are effective December 17, 
2020.

FOR FURTHER INFORMATION CONTACT: Jonathan Hill, Office of Information 
and Regulatory Affairs, OMB, at (202) 395-1658 or 
[email protected].

SUPPLEMENTARY INFORMATION: The Freedom of Information Reform Act of 
1986, Public Law 99-570 (1986), required OMB to promulgate a uniform 
schedule of fees and guidelines, pursuant to notice and public comment, 
for agencies to use when processing FOIA requests. 5 U.S.C. 
552(a)(4)(A)(i). OMB issued the Uniform Freedom of Information Act Fee 
Schedule and Guidelines, 52 FR 10012 (available at https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/foia_fee_schedule_1987.pdf) on March 27, 1987. In the ensuing years, 
the FOIA has been amended, notably by the OPEN Government Act of 2007, 
Public Law 110-175 (2007), and the FOIA Improvement Act of 2016, Public 
Law 114-185 (2016). In response, OMB has undertaken to revise the 
Guidelines.
    On May 4, 2020, OMB published a notice in the Federal Register, 85 
FR 26499, seeking comments on four proposed substantive revisions. OMB 
also proposed to revise Section 4. Inquiries, to update contact 
information for questions about the Guidelines. OMB received comments 
directly and through Regulations.gov from 13 entities, including both 
individuals and organizations. OMB greatly appreciates the detailed 
comments it received, and believes the final guidance, as modified in 
response to those comments, has been significantly improved. A 
description of the relevant comments, and OMB's responses, follow.
    (1) OMB proposes to revise Section 2. Scope to indicate that the 
Guidelines do not address the waiver or reduction of fees if disclosure 
is in the public interest.
    Four commenters recommended that OMB address public interest fee 
waivers in the Guidelines. OMB finds that addressing fee waivers is 
beyond the allowable scope of this guidance. In relevant part, the FOIA 
requires OMB to promulgate guidelines ``which shall provide for a 
uniform schedule of fees for all agencies.'' 5 U.S.C. 552(a)(4)(A)(i). 
As OMB explained in the preamble to the first publication of the 
Guidelines, ``OMB's role is limited by the plain wording of the statute 
to developing guidelines and a fee schedule.'' 52 FR 10016.
    The application of the OMB fee schedule to related fee categories 
is distinct from a public interest fee waiver. A requester's fee 
category concerns the services--search, duplication, and review--for 
which that requester may be assessed fees. See 5 U.S.C. 
552(a)(4)(A)(ii). By contrast, a public interest fee waiver concerns 
whether the requester will ultimately be responsible for paying any 
such fees. See 5 U.S.C. 552(a)(4)(A)(iii).
    The comments on this proposal suggested that there is an inter-
relationship between a requester's fee category and whether they are 
eligible for a public interest fee waiver, and as a result, the OMB 
Guidelines should also address public interest fee waivers. Whether or 
not the two issues involve a common element, for instance whether there 
is a commercial interest at stake, the fact remains that separate legal 
constructs have developed around each, and other, independent 
considerations are necessary to the analysis of each. To expound on 
distinct elements of the public interest fee waiver would exceed OMB's 
mandate, which is limited to fee categories.
    At least one commenter suggested that it would cause confusion 
among requesters and agencies for the Guidelines to address fee 
categories but not public interest fee waivers. OMB disagrees. Whatever 
commonalities there may be, OMB intends these Guidelines only to advise 
agencies with respect to fee categories. The revision to Section 2 is 
carefully worded, with citation to the public interest fee waiver 
provision in the FOIA, to specifically exclude from the scope of the 
Guidelines ``the waiver or reduction of fees if the disclosure of the 
information is in the public interest.'' No commenter offered a 
recommendation on a more effective way to achieve this limitation on 
the scope.
    OMB emphasizes that, while the Guidelines do not address public 
interest fee waivers, it is not the case that agencies have no guidance 
on this topic. Just as OMB issued the original Guidelines in response 
to the Freedom of Information Reform Act, one

[[Page 81956]]

commenter rightly pointed out that the Department of Justice (DOJ) 
issued its own New Fee Waiver Policy Guidance (Apr. 2, 1987) (https://www.justice.gov/oip/blog/foia-update-new-fee-waiver-policy-guidance). 
Furthermore, the DOJ Guide to the Freedom of Information Act (https://www.justice.gov/oip/doj-guide-freedom-information-act-0), updated in 
relevant part in September 2020, also provides a thorough survey and 
discussion of case law related to public interest fee waivers. Rather 
than causing confusion, OMB believes it is more effective and efficient 
for the Guidelines to explicitly and only address fee categories, and 
to continue the decades-long practice of deferring to other sources for 
guidance on public interest fee waivers.
    (2) OMB proposes to remove Section 6j, which defines 
``representative of the news media,'' given that this term is now 
defined in statute.
    Six commenters submitted recommendations related to this proposal. 
Each commenter recommended that, instead of removing Section 6j, OMB 
revise it to explicitly reiterate the statutory definition of ``a 
representative of the news media'' and/or incorporate judicial 
interpretations of that definition. OMB points out that the Guidelines 
already incorporate the FOIA's statutory definitions, and rejects these 
recommendations, except as discussed below.
    As a general proposition, agencies are expected to stay abreast of 
relevant statutory and judicial developments related to their 
implementation of the FOIA. It is usually unnecessary to issue guidance 
that merely reiterates standards that are stated authoritatively 
elsewhere, and in the case of judicial developments, that are more 
susceptible to evolving factors.
    This is especially true with respect to the statutory definition of 
``a representative of the news media.'' Section 6a of the Guidelines 
states clearly that ``[a]ll the terms defined in the Freedom of 
Information Act apply.'' There should be no doubt that this provision 
applies to the term ``a representative of the news media,'' which is 
defined at 5 U.S.C. 552(a)(4)(A)(ii). One commenter suggested that 
reiterating the statutory definition in the Guidelines would avoid 
confusion, but did not elaborate. OMB fails to see what confusion would 
result from expressly incorporating all of the statutory definitions, 
rather than spelling them out in the guidance. Rather than causing 
confusion, OMB considers cross-referencing the statutory definition an 
effective way to avoid potential future confusion, if Congress amends 
the definition.
    Similarly, OMB does not agree with the all of the recommendations 
to incorporate judicial interpretations of the statutory definition 
into these Guidelines, but has made some modifications based on these 
comments. In the notice, OMB indicated that part of the purpose of 
revising the Guidelines is ``to provide clarity in light of evolving 
judicial interpretation,'' and to ``ensure they reflect . . . leading 
judicial decisions.'' 85 FR 26500.
    This goal has its limits, however. Commenters urged the 
incorporation of a D.C. Circuit opinion that interpreted the statutory 
definition of ``a representative of the news media.'' See Cause of 
Action v. FTC, 799 F.3d 1108, 1125 (D.C. Cir. 2015). Insofar as the 
decision rejects the definition of ``representative of the news media'' 
in Section 6j as factually inconsistent with the current statutory 
definition, OMB agrees with the comments and has removed the 
inconsistent language from the Guidelines. Instead the Guidelines 
cross-reference the definition now provided in statute, to avoid any 
inconsistency.
    However, OMB does not believe it is generally necessary to 
incorporate, proactively, judicially-developed analytical frameworks 
into the Guidelines, especially when no inconsistency is evident. In 
fact, there are practical and policy reasons why doing so is imprudent. 
Along these lines, OMB rejects other, specific recommendations made by 
commenters to incorporate other aspects of judicial holdings in the 
Guidelines.
    First, there are hundreds of FOIA cases decided each year.\1\ It 
would not be efficient to try to update the Guidelines to account for 
the decisions in these cases. While OMB recognizes that not every 
holding would require updates to the Guidelines, there would be 
diminishing returns in trying to parse out which ones rise to that 
level and retrospectively evaluating which ones last the test of time. 
To borrow an economic term, there would be an opportunity cost that 
would serve neither agencies nor the public, if agencies were to wait 
for OMB to update the Guidelines before applying otherwise applicable 
case law.
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    \1\ One commenter drew OMB's attention to the FOIA Project, 
which claims that its website ``includes detailed information on 
every case that challenges government withholding [under the FOIA] 
in federal court.'' See www.foiaproject.org/about (last visited Dec. 
10, 2020). While OMB has not verified this number, the FOIA Project 
reports that in fiscal year 2020, 844 FOIA cases were filed. See 
www.foiaproject.org (last visited Dec. 10, 2020).
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    Relatedly, it is not OMB's role to serve as legal counsel to 
agencies. Every agency has attorneys, and the Office of Information 
Policy (OIP) at the Department of Justice exists, in part, to 
``provide[ ] legal counsel and training to agency personnel,'' with 
respect to complying with the FOIA. See www.justice.gov/oip/about-office (last visited Dec. 10, 2020). In fact, DOJ's Guide to the 
Freedom of Information Act, discussed above, is a ``comprehensive legal 
treatise on the FOIA'' that ``contains a detailed analysis of the key 
judicial opinions issued on the FOIA,'' including those related to fees 
and fee waivers. See https://www.justice.gov/oip/doj-guide-freedom-information-act-0 (last visited Dec. 10, 2020). OMB considers that 
agencies' primary source of advice concerning the application of 
judicial decisions should be the attorneys who represent them.
    One commenter opined that some elements of Section 6j continue to 
warrant inclusion in the Guidelines, such as the definition of 
``news.'' As the commenter recognizes, however, the definition of 
``news'' in the statute, 5 U.S.C. 552(a)(4)(A)(ii), is unchanged from 
the definition in Section 6j. Moreover, OMB fails to perceive any 
significant substantive differences--and the commenter failed to 
identify any--between the rest of the text in Section 6j and in the 
statute. Insofar as any difference exists, OMB considers that Congress 
had the language in the Guidelines at its disposal when it amended the 
FOIA, and chose to diverge. In that case, OMB defers to the language in 
the statute as the best indicator of Congress's will. Just as discussed 
above, OMB considers it unnecessary to restate the language in the 
statute.
    Several commenters recommended that OMB include in the Guidelines 
examples of types of entities that would be considered representatives 
of the news media. OMB declines. Congress has provided the framework 
agencies should use to determine when a requester qualifies as a 
representative of the news media, and the courts have interpreted, and 
continue to interpret, that framework. To the extent such authorities 
leave no doubt whether a type of entity qualifies as a representative 
of the news media, OMB will let those authorities speak for themselves. 
To the extent there is a doubt, as discussed above, OMB defers to 
agency counsel to advise on the proper application of the law under 
specific circumstances. Furthermore, OMB considers that including a 
list of

[[Page 81957]]

examples, even with a disclaimer that it is non-exclusive, runs the 
risk of being interpreted as exclusive. Failure to include a type of 
requester in this list--especially in light of the rapid evolution of 
the state of technology and information dissemination--could lead to 
the conclusion that such a requester is not a representative of the 
news media. This outcome would not serve agencies nor the public.
    One commenter recommended that OMB define representative of the 
news media because the Guidelines define other fee categories. The 
difference is that the FOIA does not define those other categories in 
the way that it defines ``a representative of the news media.'' As 
discussed, OMB does not consider it necessary to repeat the law.
    Furthermore, as discussed above, the definition in the statute 
generally covers the same subject matter as exists in Section 6j. 
Therefore, removing the section and cross-referencing the statute does 
not result in the loss of detail.
    OMB received comments of a technical nature on two issues. One 
commenter pointed out that the preamble of the notice seeking comments 
misidentified the section that OMB proposed to remove as Section 6f, 
instead of Section 6j. This comment is correct; however, no further 
revision to the Guidelines is necessary. OMB correctly identified 
Section 6j later in the notice, and there was no evident confusion 
about OMB's intent. Existing-Section 6j is clearly the provision that 
defines ``representative of the news media,'' and despite the earlier 
typographical error, commenters discerned OMB's intent and provided 
recommendations in response. OMB affirms that its actions with respect 
to this proposal relate to Section 6j, not Section 6f.
    Two comments pointed out that OMB failed to address a cross-
reference to Section 6j appearing in Section 8c. OMB responds by 
revising Section 8c to bring it into conformity with its decision to 
remove Section 6j. Section 8c will refer to the statutory definition, 
rather than the definition in Section 6j.
    (3) OMB proposes to revise Section 8b. Educational and Non-
commercial Scientific Institution Requesters to clarify that both 
teachers and students may be eligible for inclusion in this fee 
category.
    OMB received recommendations from three commenters with respect to 
this proposal.
    Two commenters recommended that Section 8b be further revised to 
clarify that it applies not only to teachers and students but to other 
staff of educational institutions, such as librarians. OMB accepts this 
recommendation and revises the relevant language in Section 8b to 
include ``faculty, staff, or students.'' While the comments focused on 
staff of educational institutions, OMB considers that the inclusion of 
``staff'' also appropriately accounts for requests made in connection 
with a non-commercial scientific institution. So long as staff of an 
educational or non-commercial scientific institution can demonstrate 
that their request is being made in connection with their role at the 
institution, OMB considers them to be appropriately within the scope of 
this fee category.
    One commenter suggested that it would be necessary to amend Section 
6h to conform to the new language in Section 8b, to ensure consistency. 
OMB perceives no inconsistency, and therefore rejects this 
recommendation. The commenter drew an analogy to the relationship 
between Section 6j and Section 8c, discussed above. Section 6j and 
Section 8c both address requesters. Conversely, Section 6h (and Section 
6i) defines a type of institution, while Section 8b addresses 
requesters associated with those institutions. The FOIA requires 
agencies to determine the nature of the institution as a distinct 
entity, which is why OMB provides a separate definition in Section 6. 
OMB does not consider clarifying who may be considered a requester, in 
Section 8b, to have a necessary impact on the definition of the 
institution, in Section 6h or Section 6i.
    (4) OMB proposes to add a subsection to Section 9. Administrative 
Actions to Improve Assessment and Collection of Fees to indicate that 
agencies may not charge certain fees when they fail to comply with the 
FOIA's time limits, except under certain circumstances provided in the 
statute.
    OMB received recommendations related to this proposal from three 
commenters. Two commenters recommended that OMB provide additional 
guidance on the application of the referenced provision concerning an 
agency's failure to comply with the FOIA's time limits, 5 U.S.C. 
552(a)(4)(A)(viii). OMB did not accept these recommendations. This is a 
complex statutory provision better addressed through legal analysis and 
individualized counsel, rather than OMB policy. Furthermore, insofar as 
the provision relies on terms defined in the statute, OMB defers to the 
statutory language and judicial interpretation, just as discussed 
above. OMB points out that the Department of Justice has issued 
guidance on this provision, including a ``Decision Tree for Assessing 
Fees.'' See Dep't of Justice, OIP Guidance: Prohibition on Assessing 
Certain Fees When the FOIA's Time Limits Are Not Met (Oct. 19, 2016), 
https://www.justice.gov/oip/oip-guidance/prohibition_on_assessing_certain_fees_when_foia_time_limits_not_met 
(last visited Dec. 10, 2020).
    One requester recommended that all charges and fees be waived for 
United States citizens when the government fails to comply with 
requests in a timely manner. This comment appears to OMB to be 
insufficiently supported by statutory authority, and therefore it is 
rejected.
    In addition to the four topics discussed above, OMB received a 
number of comments on topics that were clearly out of scope of the 
proposal and therefore will not be addressed here.
    As discussed in the notice seeking comment, OMB revises Section 4. 
Inquiries to update contact information for questions about the 
Guidelines.
    For the reasons discussed in the Preamble, and under the authority 
of 5 U.S.C. 552(a)(4)(A)(i) and 44 U.S.C. chapter 35, OMB amends the 
Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR 
10012, by removing Section 6j, adding Section 9f, and revising Sections 
2, 4, 8b, and 8c to read as follows:

UNIFORM FREEDOM OF INFORMATION ACT FEE SCHEDULE AND GUIDELINES

* * * * *
    2. Scope--* * * This Fee Schedule and Guidelines, including 
Sections 6 and 8, does not address the waiver or reduction of fees 
if the disclosure of the information is in the public interest, as 
provided in 5 U.S.C. 552(a)(4)(A)(iii).
* * * * *
    4. Inquiries--Inquiries should be directed to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
at [email protected].
* * * * *
    8. Fees to be Charged--Categories of Requesters. * * *
    b. Educational and Non-commercial Scientific Institution 
Requesters--* * * To be eligible for inclusion in this category, 
requesters--whether faculty, staff, or students--must show that the 
request is being made in connection with their role at the 
institution, and that the records are not sought for a commercial 
use, but are sought in furtherance of scholarly (if the request is 
from an educational institution) or scientific (if the request is 
from a non-commercial scientific institution) research. * * *
    c. Requesters who are Representatives of the News Media--* * * 
To be eligible for inclusion in this category, a requester must meet 
the criteria established by the FOIA. See 5 U.S.C. 552(a)(4)(A)(ii). 
* * *
* * * * *
    9. Administrative Actions to Improve Assessment and Collection 
of Fees--* * *

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    f. Failure to Comply with Time Limits--An agency may not charge 
search fees (or in the case of educational or non-commercial 
scientific institution requesters, or representatives of the news 
media, duplication fees) if it has failed to comply with any time 
limit under 5 U.S.C. 552(a)(6), except as provided in 5 U.S.C. 
552(a)(4)(A)(viii).

Paul J. Ray,
Administrator, Office of Information and Regulatory Affairs.
[FR Doc. 2020-27707 Filed 12-16-20; 8:45 am]
BILLING CODE 3110-01-P