FOIA is free?

Privacy Act and FOIA requests are free.  In its original passing of the PA and FOIA, Congress specifically established that these requests would cost nothing, and through the last fifty years, the free nature of this public service- to let the people know how the Government operates and to give Americans access to their own records- has been continually upheld. 

Even more so, the free nature of the FOIA and PA is evident in that if a request ends up reaching litigation in a Federal Court, the Plaintiff (a person who made a request, who subsequently sues the government because of redactions, failure to respond, issues with the scope of the search, refusal to amend, or the disclosure of a record illegally) can receive compensation for legal fees for their attorneys under the Access to Justice Act.  (More on this in another blog post but yes, if you sue the Government under the FOIA or PA you don’t have to pay for your lawyer if you “substantially prevail.”)  That’s correct- a request is free and if you sue and win, you do not have to pay for your own attorney, the Government does.

So, the question now is probably “why would I ever hire someone to help with a PA or FOIA request?”

Two major reasons... 

First, duplicative requests can be denied by an Agency.  If you request the same record(s) more than once, an Agency can deny the request in full and not search or process the record(s).  Generally, you’ve got one shot to request a record and after that it can be denied.  So, having expert assistance can make sure your request meets all the procedural and legal standards the first time.

Second, the PA and FOIA allow for Federal Agencies (sometimes called “Initial Denial Authorities”) to impose fees on requesters.  As a general rule, the first two hours of any search for a record is free (except for commercial requesters).  But, after that, fees can be assessed depending on how long the search takes, the processing of records (review and redaction) and duplication (very rarely used as almost every record is given in electronic form).

While each Federal agency has their own unique rules and procedure for attempting to assess fees, the process generally goes like this:

1.      In an initial submission a fee waiver can be requested, the category of requester chosen (commercial, academic/scientific/media, or “other”- more on this later), and a willingness to pay up to a certain amount in fees given.

2.      If there is an attempt to asses fees by the Government, the Agency responds back with an estimate based on the amount of time it thinks the search, processing and duplication will take and the level of employee who will do the work, and tells the requester they can agree to the fees, narrow their request, or appeal the decision to a higher authority in the Agency. 

a.      In this case the time line to produce records is stopped until there is a response by the requester.  However, if fees are collected the records must be produced within 20 working days.  You don’t actually have to pay the fees to get the search started, only promise to pay them although a deposit can be requested.

3.      If the requester agrees to the fees or narrows the records get processed. If they do not agree the requester appeals to the Agency appellate authority.

4.      The appellate authority grants or denies the appeal.

5.      If there is a grant of the appeal the original request gets processed.

6.      A denial allows the requester to sue in Federal court or they drop the request.

That may seem like a lot, and it is.  The FOIA and PA are complicated.  The reality is that many Agencies use fees to stop requesters from getting the records they seek.  Fees are often a tool for the Government to intimidate requesters by the cost associated with the request to withdraw or narrow it to a shell of what was originally desired; ultimately, making the work the Government is required to do, either go away or become much, much easier.

Each requester is considered one of three different types. Under the FOIA and PA the three basic categories of requesters are commercial, academic/scientific/media, and “other.”

Commercial requesters, as one could assume, are those representing a company or other for-profit institution seeking records, often those related to competing bids for government contracts.  There are no fee waivers for commercial requesters.  A commercial requester can seek to bring down the cost of a request but there is no blanket waiver of fees for them.

Academic, scientific and media requesters have their searches, processing and duplications free.  Fees are never assessed to this category.  Also, some non-governmental organizations are be considered academic or media requesters but that varies by organization and agency that processes the records.

The final category, “other”, is a very broad, but it generally is defined as a non-commercial or academic requester.  Most often, the “other” category is a general member of the public, a person referred to in emails or official correspondence, a witness to an incident, or the subject of the record.  An “other” requester generally receives two free hours of search time but otherwise fees can be assessed for searches that exceed this, all processing and duplication.  An “other” requester can seek a fee waiver, but there is no right to a blanket non-assessment of fees.  Rights to Records has seen Federal Agencies attempt to collect more than $5,000 from some “other” requesters who are often regular citizens just seeking to get information about themself or how the Government operates.

Rights to Records assists all three types of requesters.  However, when it comes to fees, it is fairly cut-and-dry for commercial and academic/scientific/media requesters.  Rights to Records finds assistance is often most needed, and valuable, for the “other” requester.

Rights to Records has assisted in over 75 requests and fee waiver submissions and appeals.  Through proactive application of regulation and case law in the initial request, Rights to Records has successfully prevented Agencies from using obstructionist tactics through attempted assessment of unreasonable fees.  These forward-thinking arguments for fee waivers ensure our clients receive the records they seek without having to narrow their request, in a timely manner, and without unreasonable fees.

At the end of the day, PA and FOIA requests are free, and they should be.  Rights to Records encourages anyone who is interested in gaining their own records or seeing how the Government operates to submit their own request.  However, be warned, the Government can, and has, used fees as a tool to get around their requirement to respond or force a requester to narrow their request.  A reasonable upfront investment in the services of Rights to Records can assist in minimizing fees and get the records you need.