Information Management: Freedom of Information Act Fee and Fee	 
Waiver Processing at the Department of Energy (27-MAY-05,	 
GAO-05-405).							 
                                                                 
The Freedom of Information Act (FOIA) gives the public the right 
to access information about the federal government. In addressing
requests for information, agencies have the authority to assess  
fees for certain categories of requesters to cover the costs of  
locating and copying records, as well as discretion to waive fees
if specific criteria are met. GAO was asked to determine, for	 
fiscal year 2004, the volume and nature of FOIA request 	 
processing at the Department of Energy (DOE), to what extent DOE 
followed the act and related Office of Management and Budget and 
Department of Justice guidance in processing cases that involve  
fees, and to what extent DOE communicated its fee-related	 
decisions to requesters.					 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-05-405 					        
    ACCNO:   A25319						        
  TITLE:     Information Management: Freedom of Information Act Fee   
and Fee Waiver Processing at the Department of Energy		 
     DATE:   05/27/2005 
  SUBJECT:   Federal law					 
	     Federal regulations				 
	     Fees						 
	     Freedom of information				 
	     Government information				 
	     Information disclosure				 
	     Information resources management			 
	     Records						 
	     Reporting requirements				 
	     Waivers						 

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GAO-05-405

United States Government Accountability Office

  GAO	Report to the Ranking Minority Member, Committee on the Judiciary, U.S.
                                     Senate

May 2005

                                  INFORMATION
                                   MANAGEMENT

 Freedom of Information Act Fee and Fee Waiver Processing at the Department of
                                     Energy

                                       a

GAO-05-405

[IMG]

May 2005

INFORMATION MANAGEMENT

Freedom of Information Act Fee and Fee Waiver Processing at the Department of
Energy

                                 What GAO Found

In fiscal year 2004, DOE received 2,289 new FOIA cases, of which 31
percent (705 of 2,289) were received by the department's headquarters in
Washington, D.C., and DOE sites at Albuquerque, New Mexico, and Richland,
Washington-the sites selected for our review. Generally, very few of the
requests at these sites involved assessments of fees or requests for
waivers of possible fees. DOE's process includes several phases ranging
from initial processing and acknowledgement to preparing and releasing
records to requesters. The table shows the disposition of FOIA requests
for fiscal year 2004 at these three DOE sites.

DOE generally followed FOIA and related guidance when determining fee
categories for requesters, fee waivers, and actual fees to be charged. All
three sites we reviewed always made explicit determinations about
requesters' fee categories in accordance with guidance. DOE also generally
adhered to guidance in determining fee waivers by seeking information
addressing the prescribed criteria for making fee waiver determinations.
In assessing actual fees to be charged, FOIA offices at all three sites
charged fees in accordance with guidance.

DOE's FOIA offices often did not communicate the specifics of their
feerelated decisions to FOIA requesters. For example, while DOE
headquarters often informed requesters of determinations about their fee
category, the Richland and Albuquerque offices rarely did. In addition,
the three sites rarely informed requesters of the outcome of fee waiver
determinations. Further, when fees were not charged, requesters were
rarely informed of the reason. Current FOIA guidelines do not require
agencies to inform requesters of fee-related decisions. However, without
being informed of feerelated determinations, requesters could
misunderstand agency fee determinations and have false expectations for
the handling of future FOIA requests.

            Fee Disposition of Requests Reviewed Request description

Number of requests charged a fee

Number of requests not charged a fee Total

                   Fee waiver not requested     33             501        534 
                       Fee waiver requested     2              169        171 
                         Fee waiver granted     0               38         38 
                          Fee waiver denied     0                8          8 

No record of an explicit fee

a

                         waiver determination 2 123 125

Source: GAO.

aThese case files do not contain documentation showing that an explicit
fee waiver determination was made. According to DOE officials, in most
cases this is because they believed, based on their knowledge and
experience, that the costs incurred would be below DOE's $15 threshold for
charging fees and that there was no need to make a fee waiver
determination.

United States Government Accountability Office

Contents

  Letter

Results in Brief
Background
DOE's FOIA Requests in Fiscal Year 2004
DOE Generally Adhered to FOIA Guidance
DOE Did Not Always Inform Requesters About Fee and Fee-Waiver

Decisions
Conclusions
Recommendation for Executive Action
Agency Comments and Our Evaluation

                                                                  1 2 3 10 11

13 16 16 16

Appendixes

                            Appendix I: Objectives, Scope, and Methodology 19
                       Appendix II: Comments from the Department of Energy 22
                     Appendix III: Comments from the Department of Justice 24

  Related GAO Products

    Tables                Table 1: FOIA Charges by Category                 9 
                    Table 2: Fee Disposition of Requests Reviewed          10 
                      Table 3: Cases in Which Fees Were Charged            13 
              Table 4: Communication of Fee Category Determinations to   
                                     Requesters                            14 
               Table 5: Communication of Fee Waiver Determinations to    
                                     Requesters                            15 
               Table 6: Communication of Fee Decision When Fees Were Not 
                                       Charged                             15 
                  Table 7: Number of Requests Excluded by Location         20 
                          Table 8: Number of Cases Analyzed                21 

Figure Figure 1: DOE Headquarters FOIA Process 7

Contents

Abbreviations

DOE Department of Energy
FOIA Freedom of Information Act
OMB Office of Management and Budget

This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
its entirety without further permission from GAO. However, because this
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copyright holder may be necessary if you wish to reproduce this material
separately.

A

United States Government Accountability Office Washington, D.C. 20548

May 27, 2005

The Honorable Patrick J. Leahy Minority Democratic Member Committee on the
Judiciary United States Senate

Dear Senator Leahy:

The Freedom of Information Act (FOIA) provides the public with a legal
right to access government information about the operations and decisions
of the federal government. Specific requests by the public for information
through FOIA have led to the disclosure of waste, fraud, abuse, and
wrongdoing in the government. The act authorizes agencies to recoup
certain direct costs associated with processing requests, which may
include search, duplication, or review, depending on the requester's fee
category. It defines three categories for requesters: (1) commercial; (2)
educational, noncommercial scientific institutions, and representatives of
the news media; or (3) other. Agencies also have discretion to reduce or
waive fees under various circumstances.

This report responds to your request that we conduct a detailed review of
FOIA request processing at one agency, the Department of Energy (DOE).
Specifically, as agreed with your office, our objectives were to determine
for fiscal year 2004

o  the volume and nature of FOIA request processing at DOE,

o 	the extent to which DOE's process for handling fee assessments and
waivers was consistent with FOIA and related guidance, and

o 	the extent to which DOE communicated its fee-related decisions to
requesters.

To address these objectives, we analyzed FOIA case files from three DOE
locations, reviewed FOIA and related guidance, and interviewed officials
from each location. The three DOE locations we assessed were responsible
for about 77 percent of the fee waiver cases in fiscal year 2004 and 35
percent of the cases in which fees were charged. Further details on our
scope and methodology are provided in appendix I. Our work was conducted
from June 2004 through March 2005, in accordance with

generally accepted government auditing standards, at Washington, D.C.;
Albuquerque, New Mexico; and Richland, Washington.

Results in Brief	In fiscal year 2004, DOE reported receiving 2289 new FOIA
cases and closing 2440. Of all new cases received, headquarters,
Albuquerque, and Richland received 31 percent (705 of 2289). In
approximately 5 percent (35 of 705) of these cases, requesters were
charged a fee; most (30 of 35) of these cases involved commercial
requesters. In total, the three sites charged about $4,700 in fees; DOE
Headquarters charged requesters about $2,200, Albuquerque charged about
$1,300, and Richland charged about $1,200. Further, of the 705 cases, 24
percent (171 of 705) involved requesters formally asking for a fee waiver,
and only two of these requesters were actually assessed fees.

At the three locations, DOE generally followed FOIA and related guidance
when assessing fees and determining fee waivers. When DOE determined a
requester's fee category, all three locations always made explicit fee
category determinations. DOE also generally adhered to guidance when
making fee waiver determinations. Officials at all three locations
indicated that if they believed, based on their knowledge and experience,
that the charge for the request was going to be below a predetermined
threshold specified in guidance, they would not go through the process of
making a formal fee waiver determination. Lastly, in assessing actual fees
to be charged, FOIA offices at all three sites charged fees in accordance
with guidance.

The three DOE locations often did not communicate the specifics of their
fee-related decisions to requesters. For example, while DOE Headquarters
often informed requesters of determinations about their fee category, the
sites at Richland and Albuquerque rarely did. In addition, the three sites
rarely informed requesters of the outcome of fee waiver determinations.
When fees were not charged, requesters were rarely informed of the reason.
However, without understanding what determinations have actually been
made, requesters could develop false expectations about how future
requests will be handled. Of the 17 FOIA requesters we interviewed, more
than half (11) believed they had received fee waivers from DOE, when in
fact no such waivers had been granted. Without clearer communication of
fee-related determinations, requesters are likely to not fully understand
agency fee determinations, which could lead to dissatisfaction with the
FOIA process in general.

To improve requesters' understanding of agency fee-related determinations,
we are recommending that the Attorney General direct the co-directors of
the Department of Justice's Office of Information and Privacy to revise
its guidelines to include a requirement that requesters be explicitly
informed of all fee-related determinations associated with their requests.

We provided a draft of this report to DOE and Justice for their review and
comment. Copies of DOE's and Justice's comments are included in appendixes
II and III, respectively. DOE reported that it had already taken steps to
implement our recommendation, although the department noted that it was
not required to provide requesters with fee-related notifications when
potential fees would be below the minimum amount for charging. Justice
stated that our recommendation was addressed to the wrong agency, because
it did not fall within the jurisdictional purview of the department and
therefore Justice cannot properly implement the recommendation. However,
we disagree. Justice is the lead agency for providing guidance and support
to federal agencies on FOIA issues. To confirm that we had appropriately
addressed our recommendation to Justice rather than the Office of
Management and Budget (OMB)-which is required to issue a uniform schedule
of fees for all agencies-we contacted the Deputy Administrator, Office of
Information and Regulatory Affairs, OMB, who agreed that the
recommendation should be addressed to Justice.

Background	FOIA established a legal right of access to government records
and information, on the basis of the principles of openness and
accountability in government. Before the act, an individual seeking access
to federal records had faced the burden of establishing a right to examine
them. FOIA also established a "right to know" standard for access, instead
of a "need to know," and shifted the burden of proof from the individual
to the government agency seeking to deny access. FOIA was originally
enacted in 1966 and has been amended several times, most recently in 2002.

Citizens are requesting an ever-increasing amount of information from the
federal government, as reflected in a steadily increasing number of FOIA
requests. In fiscal year 2003, over 3 million requests were received by
federal agencies, an increase of 36 percent over the previous year.
Further, the number of requests closed was also more than 3 million, an
increase of 34 percent compared with the previous year. The number of
requests closed is, in part, an indicator of the responsiveness of
agencies in

providing the public with requested information and shows that agencies
are taking steps to respond to the increasing FOIA workload.

FOIA provides the public with access to government information either
through "affirmative agency disclosure"-publishing information in the
Federal Register or making it available in reading rooms-or in response to
public requests for disclosure. Public requests for disclosure of records
are the best known type of FOIA disclosure. Any member of the public may
request access to information held by federal agencies, without showing a
need or reason for seeking the information. Agencies may deny access to
material (e.g., by withholding records or redacting information) only if
it falls within any of nine statutory categories of exemptions. There are
also FOIA exclusions for specific, sensitive records held by law
enforcement agencies. In addition, agencies have a statutory requirement
to meet certain time frames for determining whether to comply with
requests, making determinations with respect to appeals of adverse
determinations, and determining whether to provide expedited processing of
requests. Requesters are entitled to know the reasons for denials, to
appeal denials, and to challenge them in court. Under the act, agencies
are required to submit annual reports on their FOIA activities to the
Attorney General.

    Roles of Justice and OMB in FOIA Implementation

The Department of Justice oversees agencies' compliance with FOIA and is
the primary source of policy guidance for agencies. Justice's specific
requirements under the act are to

o 	make agencies' annual FOIA reports available through a single
electronic access point and notify Congress as to their availability;

o 	in consultation with OMB, develop guidelines for the required agency
reports, so that all reports use common terminology and follow a similar
format; and

o 	submit an annual report on FOIA statistics and the efforts undertaken
by Justice to encourage agency compliance.

In addition, FOIA requires OMB to issue guidelines to "provide for a
uniform schedule of fees for all agencies."1 Agencies are required to
conform to the OMB fee guidelines. Further, in 1987, the Department of
Justice issued guidelines on waiving fees when FOIA requests are
determined to be in the public interest. Under the guidelines, requests
for waivers or reduction of fees are considered on a case-by-case basis,
taking into account both the public interest and the requester's
commercial interests.

FOIA Processing at DOE	Some FOIA requests are relatively simple to
process, such as requests for specific pieces of information that the
requester sends directly to the appropriate office. Other requests require
more extensive processing, depending on the complexity of the request, the
volume of information involved, the need for the agency FOIA office to
work with offices that have relevant subject-matter expertise to find and
obtain information, the need for a FOIA officer to review and redact
information in the responsive material, the need to communicate with the
requester about the scope of the request, and the need to communicate with
the requester about the fees that will be charged for fulfilling the
request (or whether fees will be waived). FOIA processing, especially
review of classified, sensitive, or privacy-related material, can be
labor-intensive.

DOE's process typically begins when the agency's headquarters FOIA office
receives a written request (fax, letter, e-mail, or electronic form on
DOE's Web site).2 From that point, the request goes through several
phases, which include

o  initial processing,

o  acknowledgment of the request,

o 	fee determination and identification of office with relevant subject
matter expertise,

1This provision was added by the Freedom of Information Reform Act of 1986
(Pub. L. 99570). See OMB, Uniform Freedom of Information Act Fee Schedule
and Guidelines, 52 FR 10011 (Mar. 27, 1987), effective April 27, 1987.

2Field offices receive and process requests independently of headquarters
but use similar processes.

o  search and retrieval of records,

o  preparation of records for release, and

o  issuing of the final response to the requester.

Initial processing is focused on ensuring that the request is a proper
FOIA request and that all relevant information has been obtained from the
requester.3 From here, an acknowledgment letter informs the requester that
the department received the request and also provides the requester with a
tracking number. FOIA officials then review the case to determine which
office may have responsive records and make an initial determination about
fees and, if a fee waiver has been requested, whether it is to be granted.
After the appropriate office has located responsive records, a
determination is made about what, if any, information is exempt from
public release and should be redacted from records planned to be released,
which would result in a "partial grant" of requested information. Finally,
the agency assembles the responsive records to be released and provides
them to the requester. Figure 1 depicts the FOIA process at DOE
Headquarters.

3Among other things, a FOIA requester is required to provide an assurance
to pay any applicable fees, and if DOE cannot obtain such an
assurance-either in the original request or through follow-up-its practice
is not to process the request.

Figure 1: DOE Headquarters FOIA Process

Source: GAO analysis of DOE Headquarters process.

Note: DOCS (Document Online Coordination System) is DOE's electronic
document management system.

From the receipt of the request until a final decision is made about the
release or withholding of documents, DOE has a number of opportunities to
communicate with requesters. As recorded in DOE's FOIA case files, the
types of communications included

o 	acknowledgment letters, which informed requesters that DOE received the
request;

o 	interim letters, which provided requesters with additional information
pertaining to their request and may have requested additional information
to clarify the request;

o 	final letters, which provided requesters with the final outcome of
their request;

o 	oral communications, which were made typically via telephone and
provided clarification and additional information about how the request
was being handled; and

o 	e-mail messages, which also provided clarification and additional
information about DOE's handling of the request.

Aside from very minor variations, the FOIA process at the Albuquerque and
Richland field offices is essentially the same. The FOIA offices at each
site receive requests centrally and assign them to appropriate offices
with subject-matter expertise for action.

    Fee Structure and Fee Waivers

Agency determinations about fees and fee waivers are complex decisions
that include determining (1) the requester's fee category, (2) whether a
fee waiver is to be granted, and (3) the actual fees to be charged. FOIA
stipulates three types of fee categories for requesters: (1) commercial;
(2) educational, noncommercial scientific institution, and representative
of the news media; and (3) other. Further, fees can be charged for three
types of FOIA-related activities-search, duplication, and review-depending
on the requester's fee category. In addition, in certain situations fees
may not be charged to a requester, as, for example, when a fee waiver is
granted or when the applicable fees are below a certain threshold.

Commercial users can be charged for the broadest range of FOIA-related
activities, including document search, review, and duplication. Commercial
use is defined in the OMB fee schedule guidelines as "a use or purpose
that furthers the commercial, trade or profit interests of the requester
or the person on whose behalf the request is being made." The second
category exempts search and review fees for documents sought for
noncommercial use by educational or noncommercial scientific institutions,
and for representatives of the news media. The third category of fees,
which applies to all requesters who do not fall within either of the other
two categories, allows for "reasonable" charges for document search and
duplication. Table 1 shows the FOIA-related activities for which agencies
can charge by fee category, as stipulated in the act.

Table 1: FOIA Charges by Category

                    Activities for which agencies can charge

                        Category of requester Search Review    Duplication    
             Category 1: Commercial requester        Yes Yes              Yes 
                     Category 2: Educational,          No No              Yes 
                     noncommercial scientific                (100 pages free) 
                                institutions,                
              and representatives of the news                
                                        media                
                            Category 3: Other         Yes No              Yes 
                                              (2 hours free) (100 pages free) 

Source: GAO analysis of 5 U.S.C. S: 552 (a)(4)(A)(iv).

Although the act generally requires that requesters pay fees for their
requests to be processed, in certain circumstances, fees are not to be
charged. For example, as stipulated in the act, fees may not be charged
when the government's cost of collecting and processing the fee is likely
to equal or exceed the amount of the fee itself.

Further, under certain circumstances, the act requires an agency to
furnish documents without charge, or at reduced charges. This is commonly
referred to as the FOIA fee waiver. An agency must provide a fee waiver if
two conditions are met:

o 	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

o 	disclosure of the information is not primarily in the commercial
interest of the requester.

Under the act and guidance, when these requirements are both satisfied,
based upon information supplied by a requester or otherwise made known to
the agency, the fee waiver or reduction is to be granted by the FOIA
officer. Where one or both of these requirements is not satisfied, a fee
waiver is not warranted. As these criteria suggest, fee waivers are to be
granted on a case-by-case basis. Individuals who receive fee waivers in
some cases may not necessarily receive them in other cases.

  DOE's FOIA Requests in Fiscal Year 2004

In fiscal year 2004, DOE reported receiving 2,289 new FOIA cases and
closing 2,440.4 In 76 percent (1848 of 2440) of the closed cases, DOE
provided some or all requested records to the requesters. Of all new cases
received across the department, headquarters, Albuquerque, and
Richland-the sites selected for our review-received 31 percent (705 of
2,289). Specifically, headquarters received 431 cases, Albuquerque
received 152 cases, and Richland received 122 cases.

In approximately 5 percent (35 of 705) of the cases at these three sites,
requesters were charged a fee; 86 percent (30 of 35) of these cases
involved commercial requesters. In total, the three sites charged about
$4,700 in fees. DOE Headquarters charged requesters about $2,200;
Albuquerque charged about $1,300; and Richland charged about $1,200.
Further, of the 705 cases, 24 percent (171 of 705) involved requesters
formally asking for a fee waiver, and only two of these requesters were
actually assessed fees (see table 2).

                 Table 2: Fee Disposition of Requests Reviewed

                                   Number of requests Number of         
                                                      requests          
               Request description      charged a fee not charged a fee Total 
          Fee waiver not requested                 33               501   534 
              Fee waiver requested                  2               169   171 
                Fee waiver granted                  0                38 
                 Fee waiver denied                  0                 8 
        No record of an explicit                                        
        fee waiver determination a                  2               123   125 

Source: GAO.

aThese case files do not contain documentation showing that an explicit
fee waiver determination was made. According to DOE officials, in most
cases this is because they believed, based on their knowledge and
experience, that the costs incurred would be below DOE's $15 threshold for
charging fees and that there was no need to make a fee waiver
determination.

4The number of requests closed is larger than that received because DOE
resolved cases that had remained open from previous years.

  DOE Generally Adhered to FOIA Guidance

Based on an analysis of 170 cases,5 DOE at these three locations generally
followed FOIA and related guidance in its processes for making each of
three major decisions related to fees and fee waivers: (1) determining the
requester's fee category, (2) determining if a fee waiver is to be
granted, and (3) assessing actual fees, if any, to be charged.

FOIA and related guidance issued by OMB and Justice give FOIA officers
detailed directions about how to handle fees and fee waivers. First, FOIA
officers need to determine a requester's fee category in order to know
what types of activities the requester can be charged for. The three types
of fee categories for requesters are (1) commercial; (2) educational,
noncommercial scientific institution, and representative of the news
media; and (3) other. Then, if a requester is eligible to be charged fees,
a determination must be made if any of those fees can be waived. Assuming
a requester has asked for a fee waiver, FOIA personnel must evaluate
information provided by the requesters, addressing six criteria6 outlined
in the Justice guidance in order to make a fee waiver determination.
Finally, assuming fees have not been waived, FOIA personnel must assess
the actual fees to be charged. According to guidance, no fee is to be
charged if the requester has received a fee waiver or if the amount to be
charged is under a predetermined threshold. Otherwise, FOIA personnel are
to determine the amount of time spent on search, review, and duplication,
and, based on a requester's fee category, charge the appropriate fees.

Determining a requester's fee category is the simplest of the three
decisions in terms of the information needed to make a decision, and it
typically takes little time. Officials at all three sites we reviewed
always (170 of 170 cases) made explicit fee category determinations.
Headquarters officials

5Of the 705 cases received by the three DOE locations in fiscal year 2004,
we selected a review group totaling 170 cases that included all completed
cases in which fees were charged (34 cases), all completed cases in which
fee waivers were requested (95 cases), and a randomly selected group of
nonfee and non-fee-waiver related cases (43 cases). Note that for two of
the cases in which fees were charged, fee waivers were also requested. For
a complete description of the selection process for our review group, see
appendix I.

6The six criteria are that (1) the subject matter of the request must
concern identifiable "operations or activities of the government"; (2) the
releasable portions of the requested information must be meaningfully
informative in relation to the subject matter of the request; (3) the
disclosure must contribute to the public at large as opposed to a narrow
audience; (4) the disclosure must contribute "significantly" to public
understanding of government operations and activities; (5) the public
interest must outweigh any commercial interest; and (6) the requester's
primary interest is not commercial.

stated that if a requester did not provide enough information to make a
fee category determination, FOIA personnel would often attempt to locate
additional information, for example through the Web, in order to make an
expeditious category determination.

DOE also generally adhered to FOIA guidance in determining if a fee waiver
was to be granted by seeking information to address all relevant fee
waiver criteria. Often, if requesters did not sufficiently address all the
feewaiver criteria in their initial requests, officials sought additional
information from the requesters. DOE also generally adhered to FOIA
guidance by asking requesters to address all relevant fee waiver criteria.
For example, headquarters requested additional information to address fee
waiver criteria in 21 cases wherein sufficient information was not
included with the original request. Officials at all three sites indicated
that if they believed, based on their knowledge and experience, that the
charge for the request was going to be below the threshold, they would not
go through the process of making an explicit fee waiver determination.

In assessing actual fees to be charged, if any, FOIA offices at all three
sites we reviewed charged fees in accordance with guidance. The three
locations charged fees in 34 completed cases.7 For example, requesters
were appropriately charged for search, review, or duplication based on
their FOIA category.8 In addition, all three locations uniformly complied
with the regulation of granting 2 hours of free search time and 100 pages
of free duplication to requesters in certain categories. Table 3 lists the
34 completed cases in which fees were charged, by location and category.

7One of the 35 fee charged cases shown in table 2 had not been fully
processed at the time of our review.

8One deviation was that Richland's policy of charging 10 cents per page
for duplication was not consistent with DOE's guidance, which stipulates a
duplication charge of 5 cents per page.

  Table 3: Cases in Which Fees Were Charged Category Headquarters Albuquerque
                                 Richland Total

                                           Commercial    14      11      4    
              Educational, scientific, and news media    1        0      0    
                                                Other    0        4      0    
                                                Total    15      15      4    

Source: GAO.

In many cases in which fees were not charged to requesters, we could not
determine if DOE made its decision correctly, because the necessary
information to determine fees-an accounting of search time and cost,
review time and cost, and the number of pages duplicated-was not routinely
recorded. Of the cases we reviewed that did not charge a fee (136 of 170),
about 61 percent (83 of 136) did not include records of all of the
necessary information. Officials at each of the sites stated that-as was
the case with many fee waiver determinations-they often did not record
such information when they believed, based on their knowledge and
experience, that the costs incurred would be below DOE's $15 threshold for
charging fees.

  DOE Did Not Always Inform Requesters About Fee and Fee-Waiver Decisions

DOE's three FOIA offices did not always communicate all the specifics of
their fee-related decisions to requesters. Requesters were sometimes
informed of one or more of the three major fee-related decisions,
especially fee category decisions. However, they were rarely given a full
explanation of all relevant decisions. Because of the complexity of the
decision-making process for fees and fee waivers, providing a full
explanation of what decisions have been reached is important. Without a
clear understanding of DOE's fee-related determinations, requesters could
have false expectations about how their future requests are to be handled.

Current FOIA processing guidelines do not require agencies to explicitly
inform requesters of fee-related decisions. However, informing requesters
about fee and fee-waiver decisions is important because it can provide an
explanation to the requester about the specific and possibly unique
circumstances of a particular fee determination. For example, although an
agency may determine that a requester is not eligible for a fee waiver,
based on the information provided, it may not actually charge any fee for
the request because the charges would be below the minimum threshold. If
the

requester was not informed of this, he or she could mistakenly believe
that a waiver had indeed been granted and might expect that a similar
waiver would be granted for future FOIA requests. While not specifically
referring to fee determinations, Justice has cited the importance of
communications as an element of customer service.

The three DOE sites did not always communicate fee category decisions to
requesters. Of the three locations, headquarters was most likely to inform
requesters of their fee category. Richland and Albuquerque rarely
communicated fee category determinations to requesters. Table 4 enumerates
how often requesters were informed of fee category determinations for the
cases we reviewed.

Table 4: Communication of Fee Category Determinations to Requesters

                          Description Headquarters Albuquerque Richland Total 
            Fee category communicated           57          11        5 
        Fee category not communicated           22          31       44 
                                Total           79          42       49   170 

Source: GAO.

The three sites also rarely informed requesters of the outcome of fee
waiver determinations. Specifically, requesters were not informed of fee
waiver determinations in 87 percent of the completed fee waiver cases that
we reviewed (83 of 95). Whenever DOE's case files show that an explicit
determination was made denying a fee waiver, the requester was informed of
this decision. This occurred seven times in fiscal year 2004. However, fee
waiver determinations were not always recorded in the case files. DOE
officials indicated that if they believed fees would be below the
threshold, based on their knowledge and experience, they would not address
a fee waiver request explicitly, and, accordingly, requesters would not be
informed of any fee waiver decision. Further, in 22 cases at headquarters,
requesters were notified that a fee waiver determination would not be
addressed until they provided additional information addressing the fee
waiver criteria that DOE is required to use in reaching its fee waiver
determinations. However, the records in these cases do not indicate
whether additional information was obtained, nor do they reflect a final
determination of fee waiver status. Table 5 shows communication of
completed fee waiver case determinations by location.

Table 5: Communication of Fee Waiver Determinations to Requesters

                          Description Headquarters Albuquerque Richland Total 
         Communicated granting of fee                                   
                               waiver            3           2        0 
           Communicated denial of fee                                   
                               waiver            1           0        6   7 a 
              Did not communicate fee                                   
                               waiver                                   
                        determination           45          14       24 
        Additional support had been                                     
        requested to address decision                                   
                             criteria           22           0        0 
                                Total           49          16       30 

Source: GAO.

aIn addition to these seven cases, Headquarters, at the time of our
review, had one open case where a fee waiver had been denied.

Although the DOE offices informed requesters when fees were assessed and
actually charged, they did not always explicitly inform requesters of
decisions not to charge fees, even when fees might have been applicable.
In half of the cases we reviewed in which fees were not charged (68 of
136), requesters were not informed about the decision not to charge a fee.
Without being informed about this decision, a requester could mistakenly
believe that fees were not applicable and develop a false expectation that
fees also would not be applicable for future requests. Table 6 below shows
the disposition of cases by location in which a fee was not charged.

Table 6: Communication of Fee Decision When Fees Were Not Charged

              Description Headquarters Albuquerque Richland Total

Fee decision communicated 32 24 12

                    Fee decision not communicated 32 3 33 68

Source: GAO.

Further, in most (24 of 35) cases where fees were charged, requesters were
not informed of the complete details of the fees to be charged. In
assessing fees, FOIA personnel are to determine the amount of time spent
on search, review, and duplication, and, based on a requester's fee
category, charge the appropriate fees. If requesters do not receive
detailed information about these determinations, including an accounting
of what activities they

were not charged for, they may not be able to understand how fees had been
assessed. Although Albuquerque consistently informed requesters about the
complete details of assessed fees, headquarters and Richland rarely did.

Without a clear understanding of what determinations DOE has made,
requesters could develop false expectations on how future requests would
be handled. For example, 11 of 17 requesters we interviewed who had
requested a fee waiver believed they had received a fee waiver from DOE,
yet in actuality none of them had. Without clearer communication of
feerelated determinations, requesters are likely to not fully understand
agency fee determinations, which could lead to dissatisfaction with the
response to future FOIA requests.

Conclusions	DOE reported closing 2,440 FOIA requests in fiscal year 2004
and provided some or all of the requested records in 76 percent of the
cases. Requesters were charged fees in about 5 percent of cases. Further,
in most cases, DOE followed FOIA and related guidance in each of the three
major decisions related to fees and fee waivers that arise for any given
request. However, DOE did not always communicate these decisions to
requesters.

Current FOIA processing guidance issued by Justice does not require
agencies to explicitly inform requesters of any fee-related decisions.
However, doing so would be beneficial. If requesters do not understand
what determinations have actually been made, they could develop false
expectations for the handling of future FOIA requests.

Recommendation for 	To improve FOIA requesters' understanding of agency
fee-related determinations, we recommend that the Attorney General direct
the co-

Executive Action	directors of the Department of Justice's Office of
Information and Privacy to revise FOIA guidance to include a requirement
that agencies explicitly inform requesters of all fee-related
determinations associated with their requests, including a notification
that fees were not assessed, if applicable.

Agency Comments and 	We received written comments on a draft of this
report from the DOE's Director, Office of Management, Budget, and
Evaluation/Chief Financial

Our Evaluation Officer, and the Co-Directors, Office of Information and
Privacy, of the

Department of Justice, which are reproduced in appendixes II and III,
respectively.

DOE provided its comments in three parts. First, DOE reported that it had
already taken steps to implement our recommendation, although the
department noted that it was not required to provide requesters with
notifications about fee-waiver determinations when potential fees would be
below the minimum amount for charging. Second, the department noted that
its past procedures did not call for notifying requesters about fee
determinations when processing fees were below the minimum threshold.
Finally, the department disagreed with our characterization of fee waiver
determinations at the Richland field office, stating that Richland does
not have a practice of automatically granting fee waivers to public
interest groups and news media. We have accordingly revised the final
report to clarify our characterization of Richland's fee-waiver practices.

Justice stated that our recommendation was addressed to the wrong agency,
because it did not fall within the jurisdictional purview of the
department and therefore Justice cannot properly implement the
recommendation. However, we disagree. Justice is the lead agency for
providing guidance and support to federal agencies on FOIA issues and has
statutory responsibility for encouraging agency compliance with the act.9
Justice has several vehicles for providing such guidance, including the
periodically updated Freedom of Information Act Guide and Privacy Act
Overview, as well as training materials and other online updates such as
the department's "FOIA Post." To confirm that we had appropriately
addressed our recommendation to Justice rather than OMB-which is required
to issue a uniform schedule of fees for all agencies-we contacted the
Deputy Administrator, Office of Information and Regulatory Affairs, OMB,
who agreed that the recommendation should be addressed to Justice.

As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days from
the date of this letter. At that time, we will send copies of this report
to the Attorney General; the Secretary of Energy; and the heads of other
interested congressional committees. Copies will be made available to

95 U.S.C. S: 552 (e)(5).

others on request. In addition, this report will be available at no charge
on our Web site at www.gao.gov.

If you have any questions concerning this report, please call me at (202)
512-6240 or send e-mail to [email protected]. Key contacts and major
contributors to this report are Barbara Collier, John de Ferrari, Wilfred
Holloway, Stephanie Lee, David Plocher, and Elizabeth Zhao.

Sincerely yours,

Linda D. Koontz Director, Information Management Issues

Appendix I

                       Objectives, Scope, and Methodology

Our objectives were to determine, for fiscal year 2004, (1) the volume and
nature of Freedom of Information Act (FOIA) request processing at the
Department of Energy (DOE), (2) the extent to which the department's
process for handling fee assessments and waivers is consistent with FOIA
and related guidance, and (3) the extent to which DOE has clearly
communicated its fee-related decisions to requesters.

To determine the volume and nature of FOIA request processing at DOE, we
reviewed documentation indicating the volume of requests received by the
department, and we analyzed in detail the nature of DOE Headquarters' FOIA
process. We assessed the reliability of the DOE Headquarters' process by
reviewing existing information about the FOIA process and interviewing
agency officials knowledgeable about the process. We determined that the
data were sufficiently reliable for the purposes of this report.

To determine the extent to which DOE's process for handling fee
assessments and waivers was consistent with guidance, we analyzed the
requirements in FOIA, the Department of Justice guidance, and OMB
guidance, and we compared these requirements to those contained in DOE's
regulations. We then analyzed information gathered from selected FOIA case
files to determine if DOE was complying with regulations at selected
locations.

We also used data from the selected case files to determine the extent to
which the department clearly communicated its fee-related decisions to
requesters. The case files from DOE contained several types of
communications between DOE and requesters. These communications allowed us
to assess how and when DOE communicated fee-related decisions to
requesters.

To select the case files for our analysis, we began by identifying the
number of fee waiver cases at each of DOE's field locations. We then chose
field locations that processed the majority of fee waiver cases in fiscal
year 2004. We determined that DOE Headquarters and the department's sites
at Albuquerque, New Mexico, and Richland, Washington, processed about 77
percent of DOE's fee waiver cases in fiscal year 2004 and 35 percent of
the cases in which fees were charged. These three locations received a
total of 705 new FOIA requests in fiscal year 2004. From these 705 cases,
we selected (1) all cases in which fees were charged, (2) all cases in
which fee waivers were requested, and (3) a random sample of 43 cases not
involving a fee being charged or a fee waiver being requested. This
process produced

Appendix I
Objectives, Scope, and Methodology

a group of 253 cases. The remaining 452 of the original 705 cases were not
reviewed.

After making an initial assessment of these 253 cases, we excluded several
types of requests from our analysis, including requests that were open,
cancelled, referred to another agency, or not proper FOIA requests:

o  An open request is one that has not yet been completed.

o 	A cancelled request occurs when the requester decides that he or she no
longer wants to receive the information requested.

o 	A request referred to another agency is one that cannot be completed at
the original location to which it was sent, and therefore needs to be sent
to another location either within DOE or another agency.

o 	A request is determined not to be a proper FOIA request when any one of
the following conditions is met: (1) the documents requested are not
reasonably described, (2) the request does not contain a statement
regarding fee agreement or request for a fee waiver, (3) the request asks
a question rather than requesting documents, and (4) the documents
requested do not exist-that is, they would need to be created, or the date
of the request letter is earlier than the date of required publication of
the agency document.

Table 7 shows the numbers of cases that we excluded for any of these four
reasons. In one of the open cases DOE did charge a fee.

    Table 7: Number of Requests Excluded by Location Description of request
                    Headquarters Albuquerque Richland Total

                                     Open    30        12       1          43 
                                Cancelled         1    2        3           6 
               Referred to another agency    28        3        1          32 
                Not a proper FOIA request         1    0        1           2 
                                    Total    60        17       6          83 

Source: GAO.

Appendix I
Objectives, Scope, and Methodology

After excluding these 83 cases, 170 cases remained, which formed the
review group we used in our analysis. Table 8 below shows the number,
description, and location of the cases in our final review group.

 Table 8: Number of Cases Analyzed Description of case Headquarters Albuquerque
                                 Richland Total

              Cases in which fees were charged                        
               and no fee waiver was requested   15      13         4 
              Cases in which fees were charged                        
                  and fee waiver was requested    0       2         0 
             Cases in which no fee was charged                        
                  and fee waiver was requested   49      14        30 
             Cases in which no fee was charged                        
               and no fee waiver was requested   15      13        15 
                                        Totals   79      42        49     170 

Source: GAO.

In addition to the case file analysis, we surveyed requesters about their
interaction with DOE and the processing of their FOIA request. Of the 170
cases we analyzed, we identified 86 distinct requesters who were charged a
fee or requested a fee waiver. The DOE case files contained contact
information for 61 of the 86 requesters. We surveyed each of these 61
requesters and obtained 20 responses. For 17 of these responses the
requester asked for a fee waiver, and for the remaining 3 responses the
requester had been charged a fee.

Our work was performed from June 2004 through March 2005, in accordance
with generally accepted government auditing standards, at Washington,
D.C.; Albuquerque, New Mexico; and Richland, Washington.

                                  Appendix II

                     Comments from the Department of Energy

Appendix II
Comments from the Department of Energy

                                  Appendix III

                    Comments from the Department of Justice

Related GAO Products

Information Management: Update on Freedom of Information Act
Implementation Status. GAO-04-257. Washington, D.C.: February 18, 2004.

Freedom of Information Act: Agency Views on Changes Resulting from New
Administration Policy. GAO-03-981. Washington, D.C.: September 3, 2003.

Information Management: Update on Implementation of the 1996 Electronic
Freedom of Information Act Amendments. GAO-02-493. Washington, D.C.:
August 30, 2002.

Information Management: Progress in Implementing the 1996 Electronic
Freedom of Information Act Amendments. GAO-01-378. Washington, D.C.: March
16, 2001.

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