No arguments over information policy have been any louder, or have caused more long-term resentment, than those about fees for government information. One of the most common gripes from agency FOI staff is: "why should the Washington Post or NBC get a fee waiver when they request information? They are for-profit companies that make plenty of money." While special treatment for the press is a subset of the fee issues, it illustrates the frustration in government over why the cost of responding to a request is almost always far more than the agency can hope to recover in fees from the requester.
In part, such attitudes stem from a misunderstanding or dissatisfaction with the broad philosophy behind open records laws. Legislatures have made the determination that rights of access to government information are an inherently good and necessary part of a democracy. In a system of government of the people, by the people and for the people, the ability of citizens to know what the government is doing or not doing is an important element of self-government. And the nature of it is such that the assets and liabilities are not expected to cancel each other out at the end of each fiscal year.
Congress has never said that requesters should pay nothing, but it has been reasonably firm in insisting that requesters pay no more than marginal costs -- the costs associated with the direct act of processing the request. The two most common elements in this scheme are search time -- the time it takes a person reasonably familiar with the agency's records to locate responsive records -- and duplication costs, normally in the neighborhood of 10 cents a page, but usually more than the local copying store.
Commonly, agencies have a threshold level for charging fees, traditionally about $30, which means that if the costs are less than that, the agency will waive the charge. While this sounds magnanimous, it is driven both by efficiency and amendments to the Freedom of Information Act. Both get the agency to the same place. If it costs more than $30 to process a check, the agency actually loses money if it requires payment. That principle was added to FOIA when its fee provisions were overhauled in 1986.
The government has also moved to impose some further barriers on requesters at both ends of the economic scale. When the idea of waiving fees was first introduced into the statute in 1974, one of the commonly accepted grounds for waiving fees was because the requester couldn't afford to pay them. Some time ago -- probably driven by a flood of inmate requests -- agencies abandoned that position and indigence is no longer grounds for granting a request. So, for people on limited budgets, the message is that information may still be a bargain, but it's not free.
On the other side of the fence, the 1986 amendments added a new chargeable service -- review time -- which could only be charged to people using FOIA for commercial purposes. Review time is defined as the time it takes a professional staff member to review the records and determine if any exemptions are applicable. The policy idea behind review time was to shift the burden of payment toward that segment of the requesting community that was best able to pay it and which was using FOIA to further its own economic interests. When this provision was added, many people thought agencies would begin charging more to businesses, but there is little anecdotal information to support that assumption.
So why doesn't the Washington Post pay review time just like any other potential business requester? Because it has nothing to do with the health of the corporation, it has everything to do with how the information will be used. Information disclosures work best when they reach either wide audiences or