(a) Fee schedules. Consistent with the limitations set forth in
5 U.S.C. 552(a)(4)(A)(viii), the fees applicable to a request for
records pursuant to section 261.11 are set forth in table 1 to this
section. These fees cover only the full allowable direct costs of
search, duplication, and review. No fees will be charged where the
average cost of collecting the fee (calculated at $5.00) exceeds the
amount of the fee.
(b) For purposes of computing fees.
(1) Search time includes all time spent
looking for material that is responsive to a request, including line-by-line
identification of material within documents. Such activity is distinct
from “review” of material to determine whether the material is exempt
from disclosure.
(2)
Direct costs mean those expenditures that the Board actually incurs
in searching for, reviewing, and duplicating records in response to
a request made under section 261.11, as shown in table 1 to this section.
(3) Duplication refers
to the process of making a copy, in any format, of a document.
(4) Review refers to
the process of examining documents that have been located as being
potentially responsive to a request for records to determine whether
any portion of a document is exempt from disclosure. It includes doing
all that is necessary to prepare the documents for release, including
the redaction of exempt information. It does not include time spent
resolving general legal or policy issues regarding the application
of exemptions.
(c) Payment procedures. The Board may assume that a person requesting
records pursuant to section 261.11 will pay the applicable fees, unless
the request includes a limitation on fees to be paid or seeks a waiver
or reduction of fees pursuant to paragraph (g) of this section.
(1) Advance notification
of fees. If the estimated charges are likely to exceed the amount
authorized by the requester, the Office of the Secretary shall notify
the requester of the estimated amount. Upon receipt of such notice,
the requester may confer with the Office of the Secretary to reformulate
the request to lower the costs or may authorize a higher amount. The
time period for responding to requests under section 261.12(e) and
the processing of the request will be suspended until the requester
agrees in writing to pay the applicable fees.
(2) Advance payment. The Board may require advance payment of any fee estimated to exceed
$250. The Board may also require full payment in advance where a requester
has previously failed to pay a fee in a timely fashion. The time period
for responding to a request under section 261.12(e) and the processing
of the request will be suspended until the Office of the Secretary
receives the required payment.
(3) Late charges. The Board may assess interest charges when fee payment is not made
within 30 days of the date on which the billing was sent. Interest
is at the rate prescribed in 31 U.S.C. 3717 and accrues from the date
of the billing.
(d) Categories of uses. The fees assessed depend
upon the intended use for the records requested. In determining which
category is appropriate, the Board will look to the intended use set
forth in the request for records. Where a requester’s description
of the use is insufficient to make a determination, the Board may
seek additional clarification before categorizing the request.
(1) A commercial use requester is one who requests records for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is made, which can include furthering
those interests through litigation.
(2) Representative of the news media is any person or entity that gathers information of potential interest
to a segment of the public, uses its editorial skills to turn the
raw materials into a distinct work, and distributes that work to an
audience, including organizations that disseminate solely on the internet.
The term “news” means information that is about current events or
that would be of current interest to the public. A non-affiliated
journalist who demonstrates a solid basis for expecting publication
through a news media entity, such as a publishing contract or past
publication record, will be considered as a representative of the
news media.
(3) Educational
institution is any school that operates a program of scholarly
research. A requester in this fee category must show that the request
is made in connection with his or her role at the educational institution.
The Board may seek verification from the requester that the request
is in furtherance of scholarly research.
(4) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis,
as defined in paragraph (d)(1) of this section, and that is operated
solely for the purpose of conducting scientific research the results
of which are not intended to promote any particular product or industry.
A requester in this category must show that the request is authorized
by and is made under the auspices of a qualifying institution and
that the records are sought to further scientific research and are
not for a commercial use.
(5) Fees table. Please refer to table
1 to this section to determine what fees apply for different categories
of users.
(e) Nonproductive search. Fees for search and review may be charged
even if no responsive documents are located or if the request is denied.
(f) Aggregated requests. A requester may not file multiple requests at the same time, solely
in order to avoid payment of fees. If the Board reasonably believes
that a requester is separating a single request into a series of requests
for the purpose of evading the assessment of fees, the Board may aggregate
any such requests and charge accordingly. It is considered reasonable
for the Board to presume that multiple requests of this type made
within a 30-day period have been made to avoid fees.
(g) Waiver or reduction of fees. A
request for a waiver or reduction of the fees, and the justification
for the waiver, shall be included with the request for records to
which it pertains. If a waiver is requested and the requester has
not indicated in writing an agreement to pay the applicable fees if
the waiver request is denied, the time for response to the request
for documents, as set forth in section 261.12(e), shall not begin
until either a waiver has been granted or, if the waiver is denied,
until the requester has agreed to pay the applicable fees.
(1) The Board will grant a waiver or reduction
of fees where it is determined both that disclosure of the 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 that the disclosure of information is not primarily in the commercial
interest of the requester. In making this determination, the Board
will consider the following factors:
(i) Whether the subject
of the records would shed light on identifiable operations or activities
of the government with a connection that is direct and clear, not
remote or attenuated; and
(ii) Whether disclosure of the information
is likely to contribute significantly to public understanding of those
operations or activities. This factor is satisfied when the following
criteria are met:
(A) Disclosure of the requested records must
be meaningfully informative about government operations or activities.
The disclosure of information that already is in the public domain,
in either the same or a substantially identical form, would not be
meaningfully informative if nothing new would be added to the public’s
understanding.
(B) The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject, as opposed to the individual
understanding of the requester. A requester’s expertise in the subject
area as well as the requester’s ability and intention to effectively
convey information to the public must be considered. The Board will
presume that a representative of the news media will satisfy this
consideration.
(iii) The disclosure must not be primarily
in the commercial interest of the requester. A commercial interest
includes any commercial, trade, profit, or litigation interest.
(2) A request
for a waiver or reduction of fees must include:
(i) A clear
statement of the requester’s interest in the documents;
(ii) The use proposed for
the documents and whether the requester will derive income or other
benefit for such use;
(iii) A statement of how the public will benefit from such use and
from the Board’s release of the documents;
(iv) A description of the method by
which the information will be disseminated to the public; and
(v) If specialized use
of the information is contemplated, a statement of the requester’s
qualifications that are relevant to that use.
(3) The requester has the
burden to present evidence or information in support of a request
for a waiver or reduction of fees.
(4) The Board will notify the requester
of its
determination on the request for a waiver or reduction of fees. The
requester may appeal a denial in accordance with section 261.14(a).
(5) Where only some of
the records to be released satisfy the requirements for a waiver of
fees, a waiver must be granted for those records.
(6) A request for a waiver or reduction
of fees should be made when the request for records is first submitted
to the Board and should address the criteria referenced above. A requester
may submit a fee waiver request at a later time so long as the underlying
record request is pending or on administrative appeal. When a requester
who has committed to pay fees subsequently asks for a waiver of those
fees and that waiver is denied, the requester must pay any costs incurred
up to the date the fee waiver request was received.
(h) Restrictions on charging
fees.
(1) If the Board fails
to comply with the FOIA’s time limits in which to respond to a request,
the Board may not charge search fees, or, in the instances of requests
from requesters described in paragraphs (d)(2) through (4) of this
section, may not charge duplication fees, except as permitted under
paragraphs (h)(2) through (4) of this section.
(2) If the Board determines that unusual
circumstances exist, as described in 5 U.S.C. 552(a)(6)(B), and has
provided timely written notice to the requester and subsequently responds
within the additional 10 working days as provided in section 261.12(e)(3),
the Board may charge search fees, or, in the case of requesters described
in paragraphs (d)(2) through (4) of this section, may charge duplication
fees.
(3) If the Board
determines that unusual circumstances exist, as described in 5 U.S.C.
552(a)(6)(B), and more than 5,000 pages are necessary to respond to
the request, then the Board may charge search fees, or, in the case
of requesters described in paragraphs (d)(2) through (4) of this section,
may charge duplication fees, if the Board has:
(i) Provided
timely written notice of unusual circumstances to the requester in
accordance with the FOIA; and
(ii) Discussed with the requester via
written mail, email, or telephone (or made not less than three good-faith
attempts to do so) how the requester could effectively limit the scope
of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii).
(4) If a court has determined
that exceptional circumstances exist, as defined by the FOIA, a failure
to comply with the time limits shall be excused for the length of
time provided by the court order.
8-206.1
(i) Employee requests. In connection with any
request by an employee, former employee, or applicant for employment,
for records for use in prosecuting a grievance or complaint of discrimination
against the Board, fees shall be waived where the total charges (including
charges for information provided under the Privacy Act of 1974 (5
U.S.C. 552a)) are $50 or less; but the Board may waive fees in excess
of that amount.
(j) Special services. The Board may agree to provide, and set fees
to recover the costs of, special services not covered by the FOIA,
such as certifying records or information and sending records by special
methods such as express mail or overnight delivery.
8-206.2
Table 1 to section
261.16—Fees
| Type of requester |
Search costs per hour |
Review costs per hour |
Duplication costs |
| Commercial |
Clerical/technical
staff—$20 |
Clerical/technical
staff—$20 |
Photocopy per standard
page—.10 |
| Professional/supervisory
staff—$40 |
Professional/supervisory
staff—$40 |
Other types of duplication—Direct
costs |
| Manager/senior
professional staff—$65 |
Manager/senior professional staff—$65 |
|
| Computer
search, including computer search time, output, operator’s salary—Direct
costs |
| Educational; or non-commercial scientific;
or news media |
Costs waived |
Costs waived |
First 100 pages free, then: Photocopy per standard page—.10 |
| Other types of duplication—Direct
costs |
| All other requesters |
First
2 hours free, then: Clerical/technical staff—$20 |
Costs waived |
First 100 pages free, then: Photocopy per standard page—.10 |
| Professional/supervisory
staff—$40 |
Other types of duplication—Direct
costs |
| Manager/senior
professional staff—$65 |
|
| Computer search, including computer search
time, output, operator’s salary—Direct costs |
