(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 271.11 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.
8-822.1
(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 Committee actually incurs
in searching for, reviewing, and duplicating records in response to
a request made under section 271.11, 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 Committee may assume that a person requesting
records pursuant to section 271.11 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 secretary of
the Committee shall notify the requester of the estimated amount.
Upon receipt of such notice, the requester may confer with the secretary
of the Committee to reformulate the request to lower the costs or
may authorize a higher amount. The time period for responding to requests
under section 271.12(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 Committee may require
advance payment of any fee estimated to exceed $250. The Committee
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 271.12(e), and the processing of the request
shall be suspended until the Committee receives the required payment.
(3) Late charges. The Committee 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.
8-822.2
(d) Categories of uses. The fees assessed depend upon the intended use for the records requested.
In determining which category is appropriate, the Committee 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 Committee 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 Committee 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) All other requesters refers to those requesters who do
not fall within any of the categories described in paragraphs (d)(1)
through (4) of this section.
(6) 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 Committee 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 Committee may
aggregate any such requests and charge accordingly. It is considered
reasonable for the Committee to presume that multiple requests of
this type made within a 30-day period have been made to avoid fees.
Multiple requests involving unrelated matters cannot be aggregated.
(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 271.12(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 Committee shall 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 operation
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 Committee 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 Committee
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 shall 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 Committee’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 Committee shall 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 271.14(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 Committee and should address the criteria referenced in paragraphs
(g)(1) through (5) of this section. 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 Committee fails
to comply with the FOIA’s time limits in which to respond to a request,
the Committee may not charge search fees, or, in the instances of
requests from requesters described in paragraphs (d)(2) through (4)
of this section, will not charge duplication fees, except as permitted
under paragraphs (h)(2) through (4) of this section.
(2) If the Committee has determined 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 provided in section
271.12(e)(3), the Committee 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 Committee has determined 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,
the Committee 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 Committee 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.
(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 Committee, 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 Committee may waive
fees in excess of that amount.
(j) Special services. The Committee 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.
Table 1 to section
271.16—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 |
