The FOIA blog

Commerce Loses Lawsuit on FOIA Fees

David Yanofsky, a writer for Quartz, has won his lawsuit against the Department of Commerce's International Trade Administration for records the agency tried to charge $13,000 for.  The agency argued that the database of immigration records is not covered by FOIA fee statutes but two other statutes.  The court disagreed with the agency and remanded the case to the agency to now figure out the fee the requester should pay under the FOIA.  The opinion and write up of the case by the plaintiff can be found here.

As a side note, I brought litigation against this same agency last year for a number of FOIA requests that had been either stalled administratively or had other issues with them causing the records to not be released.  After bringing suit, the agency released many of the records and the case was settled.  It's always a shame when agency recalcitrance brings forth lawsuits that, if the agency operated correctly, wouldn't be brought in the first place.

OMB Sued on FOIA Fee Guidelines

After nearly 40 years it was bound to happen.  Cause of Action Institute has sued OMB for failing to update its fee guidance for Freedom of Information Act (“FOIA”) requests. As Cause of Action states, "OMB’s fee guidance is outdated and now conflicts with both statutory and judicial authorities. The FOIA law requires OMB to establish these guidelines and requires every agencies’ fee rules to conform to OMB’s guidance. The FOIA Advisory Committee and the Archivist of the United States have also recommended that OMB update this guidance."

The lawsuit can be found here.

My take is that OMB should act on this issue; they have plenty of employees to do it.  They can take employees who are making America less safe by getting rid of needed environmental and safety regulations and have them work on FOIA fee guidance.
 

DOJ Issues Guidance on FOIA Fee Restrictions

The Department of Justice has published its guidance on the fee restrictions imposed on agencies by the FOIA Improvement Act of 2016.  Basically, if agencies fail to respond to requesters within the statutory period they have to give up on collecting certain fees, including search fees.

Journalists Survey on Release to One, Release to All.

The Reporters Committee for Freedom of the Press has released a survey of journalists on the longstanding FOIA rule that a release to one is a release to all.  Most journalists generally support the rule, but many seek a delay in the release to the original requester to the release of the information to the rest of the world.

This debate has become a bit of a heated topic as the federal government moves to online portals for the administration of FOIA requests.  These portals generally allow anyone to see what was requested and released in almost real time.  Many journalists feel that they lose a competitive edge when the results of their releases are published to the public at the same time they get the information.  However, the flip side of this argument is that journalists, as members of the news media, generally do not have to pay fees for the information where a member of the general public would have to pay for this information.

The Department of Justice is supposed to be reviewing this issue and is allegedly having a meeting with "journalists" in September.  Of course, with the advent of the internet and changes made to the FOIA law in 2007, it's difficult to even classify who is a "journalist" in the FOIA world. 

It's a big confusing issue and will continue to be debated for, at least, the near future.

DC Circuit: Students Qualify For Educational Institution Fee Status Under FOIA

The Washington Post has this on the DC Circuit's decision that students can qualify for the Educational Institution Fee Status under the FOIA - prior to this decision only professors usually were granted this fee status.

This Week in FOIA: DOJ Guidance and Fee Status Decision

The Department of Justice has issued guidance on when it is appropriate and how still interested letters should be used by requesters.  Some agencies have been accused of using still interested letters as a way to close requests rather than processing the material.

Judge Christopher Cooper of the District of Columbia Federal Court has overturned a Department of Homeland Security decision that the Transactional Records Access Clearinghouse (TRAC), which is associated with Syracuse University was a commercial user for FOIA purposes.  The decision found that TRAC was both a member of the news media and an education user for FOIA fees.  This case shows that there is a dire need for leadership in FOIA - there was no reason it got to litigation in the first place.  I'm not sure it was even a close case that plaintiff would not prevail, and even if it was a close case, the fee classification should have gone to the requester as FOIA should be read in the most liberal and broad manner to promote transparency.  This is important in fee cases, especially in light of the fact that if DHS had gotten fees they would have gone to the general treasury, not the DHS FOIA program.  Instead over a year of court clogging litigation has taken place and the requester is still waiting for the request to be processed.

FOIA Fees Subcommittee Notes

The FOIA Fees Subcommittee of the FOIA Advisory group met on December 3 and the notes of the meeting have been published here.

FOIA fees are an important issue -- one that balances the need to collect some revenue, provide waivers to certain requesters and make sure that information can still be released.  The notes make interesting reading.

My Latest Article -- The Crazy World of FOIA Fees

In my latest article on LLRX.Com, I discuss the most misunderstood thing in FOIA, fees.

DOJ to Hold FOIA Lecture on Fees

The Office of Information Policy has announced that it will hold a Director's Lecture on August 8 in Washington D.C.  The topic of the lecture will be FOIA fees.  More information can be found here.

For Fee Purposes, 20 Days is 20 Days

Judge James Boasberg of the United States District Court for the District of Columbia has ruled that when Congress said in its 2007 amendments to the FOIA that agencies could not charge fees except for exceptional circumstances when they failed to process the request within the statutory time period they actually meant just that.  Judge Boasberg ruled against the Department of the Interior's National Park Service where they tried to charge fees in a case where they ruled against the requester's fee waiver request but did so after the 20 days had expired. 

For those of us who have tried to bring this provision of the FOIA to the attention of FOIA Officers and Appeal Offices but have been routinely ignored, this is a very positive result.  While no one wants to see FOIA Offices lose funding, their failure to process requests in a timely manner now has results that affect their bottom line.

Update -- the comment below makes a good point (one that I had obviously forgotten) -- fees collected are not related to operating costs of FOIA Operations; and I'm not sure anyone actually takes this into consideration when budgeting for FOIA Operations.