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 more specific audiences that depend on specialized publications for their information. And it is the press that is in the best position to disseminate the information to a wider audience. Because Congress wanted to foster broad dissemination of information through the disclosure of government records, it encouraged such disclosures with preferential fee provisions. Thus, under the 1986 amendments, the press cannot be charged for anything but duplication costs in excess of 100 pages.
How broad the dissemination must be is one of the unanswered questions. Congress talked in terms of benefits to the "general public" when it introduced the fee waiver concept in 1974 and courts and agencies have sometimes used that language to argue that only dissemination to a broad general audience will suffice.
But the sponsors of the 1986 amendments, Sen. Patrick Leahy (D-VT), Rep. Glenn English (D-OK) and Rep. Tom Kindness (R-OH), indicated that the specialized press was also intended to benefit from preferential fees. So, when a trade publication covering the beer industry was denied preferential treatment because its request would only benefit the beer industry, staff at the Office of Management and Budget quickly reminded the agency of the inappropriateness of that position.
Freelancers have had the hardest time convincing agencies to waive fees. Since much freelance work is done on speculation, writers may not actually be representing a publication when they make the request. Many freelancers do some basic research into an area, including making a FOIA request, before they decide whether there is enough to write an article. On the agency side, there have to be some guidelines that protect the agencies from a deluge of would-be writers and students who inform them that they plan to write a book or an article.
The 1986 amendments did not just include preferences for the press and academic researchers. They also tried to make it easier for the little guys by providing that requesters who were not either press or commercial users would be entitled to two hours of free search time and 100 free pages of duplication. The idea was that most requests either involved 100 pages or less, or could be distilled to 100 pages or less, and that records responsive to such small requests could usually be located in under two hours. In other words, most requests would be free. Further, adding on the normal $30 threshold raises the amount of information that much more.
The message that fees should not be used as barriers and that only marginal costs should be charged has been toned down recently in some jurisdictions. A conservative government in Ontario amended its Freedom of Information and Protection of Privacy Act and its municipal counterpart last year to include fees for all requests, including requests for your own personal information, and also added charges for appealing a denial to the Information and Privacy Commissioner.
Several years before that, the government of Australia raised fees for making requests under its statute as well. Incremental increases in the cost of making requests does seem to have an effect -- it cuts down on the number of requests. While that may or may not be good, if citizen access to government information is a laudable goal in a democratic society, then government actions that directly contradict that goal are suspect.
There is plenty more to say here and this piece has only scratched the surface. But by providing an overview of some of the basic policy goals in charging for government information, I hope to set the stage for a further discussion of the role of fees in access to government information. There is no free lunch, but there may be good policy reasons to include price supports.
Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues. E-mail: <firstname.lastname@example.org>.