§ 2411.13 - Fees.

§ 2411.13 Fees.

(a) Definitions. For the purpose of this section:

(1) The term direct costs means those expenditures that the Authority, the General Counsel, the Panel, Solicitor or the IG actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of the rate to cover benefits) and the cost of operating duplication machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.

(2) The term search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents as well as all reasonable efforts to locate and retrieve information from records maintained in electronic form or format. Searches may be done manually or by computer using existing programming. The Authority, the General Counsel, the Panel Solicitor or the IG shall ensure that searches are done in the most efficient and least expensive manner reasonably possible. For example, if duplicating an entire document would be quicker and less expensive, a line-by-line search should not be done.

(3) The term duplication refers to the process of making a copy of a document necessary to respond to a FOIA request. Such copies can take the form of paper copy, audio-visual materials, or machine-readable documentation, among others.

(4) The term review refers to the process of examining documents located in response to a commercial-use request (see paragraph (a)(5) of this section) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.g., doing all that is necessary to prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.

(5) The term commercial-use request refers to a request from or on behalf of one who seeks information 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. In determining whether a requester properly belongs in this category, the Authority, the General Counsel, the Panel, Solicitor or the IG will look first to the use to which a requester will put the document requested. Where the Authority, the General Counsel, the Panel, Solicitor or the IG has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the Authority, the General Counsel, the Panel, Solicitor or the IG may seek additional clarification before assigning the request to a specific category.

(6) The term educational institution refers to a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education that operates a program or programs of scholarly research.

(7) The term non-commercial scientific institution refers to an institution that is not operated on a commercial basis as that term is referenced in paragraph (a)(5) 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.

(8) The term representative of the news media refers to 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. The term news means information that is about current events or that would be of current interest to the public. Examples of news-media entities include television or radio stations broadcasting to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public including news organizations that disseminate solely on the Internet. These examples are not intended to be all-inclusive. Moreover, as methods of news delivery evolve, such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the FLRA may also consider the past publication record of the requester in making such a determination.

(b) Exceptions to fee charges.

(1) With the exception of requesters seeking documents for a commercial use, the Authority, the General Counsel, the Panel, Solicitor or the IG will provide the first 100 pages of duplication and the first two hours of search time without charge. The word pages in this paragraph refers to paper copies of standard size, usually 81⁄2 by 11. The term search time in this paragraph is based on a manual search for records. In applying this term to searches made by computer, when the cost of the search as set forth in paragraph (d)(2) of this section equals the equivalent dollar amount of two hours of the salary of the person performing the search, the Authority, the General Counsel, the Panel, Solicitor or the IG will begin assessing charges for the computer search. No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.

(2) The Authority, the General Counsel, the Panel, Solicitor or the IG will not charge fees to any requester, including commercial-use requesters, if the cost of collecting the fee would be equal to or greater than the fee itself.

(3) As provided in § 2411.8(c)(5), the Authority, the General Counsel, the Panel, Solicitor or the IG will not charge search fees (or duplication fees if the requester is an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media, as described in this section), when the time limits are not met.

(4)

(i) The Authority, the General Counsel, the Panel, Solicitor or the IG will provide documents without charge or at reduced charges if 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 is not primarily in the commercial interest of the requester.

(ii) In determining whether disclosure is in the “public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government” under paragraph (b)(4)(i) of this section, the Authority, the General Counsel, the Panel, and the IG Solicitor or the IG, as appropriate, will consider the following factors:

(A) The subject of the request. The subject of the requested records must concern identifiable operations or activities of the Federal government, with a connection that is direct and clear, not remote or attenuated;

(B) The informative value of the information to be disclosed. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding;

(C) The contribution to an understanding of the subject by the general public likely to result from disclosure. 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 and his or her ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration; and

(D) The significance of the contribution to the public understanding. The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. The Authority, the General Counsel, the Panel, and the IG Solicitor or the IG, as appropriate, shall not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is “important” enough to be made public.

(iii) In determining whether disclosure “is not primarily in the commercial interest of the requester” under paragraph (b)(4)(i) of this section, the Authority, the General Counsel, the Panel, and the IG Solicitor or the IG, as appropriate, will consider the following factors:

(A) The existence and magnitude of a commercial interest. The processing agency component will identify any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (a)(5) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity in the administrative process to provide explanatory information regarding this consideration; and,

(B) The primary interest in disclosure. A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. The Authority, the General Counsel, the Panel, and the IG Solicitor or the IG, as appropriate, ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.

(iv) A request for a fee waiver based on the public interest under paragraph (b)(4)(i) of this section must address these factors as they apply to the request for records in order to be considered by the Authority, the General Counsel, the Panel, Solicitor or the IG.

(v) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Authority, the General Counsel, the Panel, Solicitor or the IG. 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 on which the fee-waiver request was received.

(vi) When only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.

(c) Level of fees to be charged. The level of fees to be charged by the Authority, the General Counsel, the Panel, Solicitor or the IG, in accordance with the schedule set forth in paragraph (d) of this section, depends on the category of the requester. The fee levels to be charged are as follows:

(1) A request for documents appearing to be for commercial use will be charged to recover the full direct costs of searching for, reviewing for release, and duplicating the records sought.

(2) A request for documents from an educational or non-commercial scientific institution will be charged for the cost of duplication alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must requesters—whether faculty, staff, or students—must show that the request is being made under the auspices of a qualifying institution in connection with their role at the institution, and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research.

(3) The Authority, the General Counsel, the Panel, Solicitor or the IG shall provide documents to requesters who are representatives of the news media for the cost of duplication alone, excluding charges for the first 100 pages.

(4) The Authority, the General Counsel, the Panel, Solicitor or the IG shall charge requesters who do not fit into any of the categories of this section fees that recover the full direct cost of searching for and duplicating records that are responsive to the request, except that the first 100 pages of duplication and the first two hours of search time shall be furnished without charge. Requests from record subjects for records about themselves filed in Authority, Office of General Counsel, Panel, or IG systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974, which permits fees only for duplication.

(d) The following fees shall be charged in accordance with paragraph (c) of this section:

(1) Manual searches for records. The salary rate (i.e., basic pay plus 16 percent) of the employee(s) making the search. Search time under this paragraph and paragraph (d)(2) of this section may be charged for even if the Authority, the General Counsel, the Panel Solicitor or the IG fails to locate records or if records located are determined to be exempt from disclosure.

(2) Computer searches for records. The actual direct cost of providing the service, including the cost of operating computers and other electronic equipment, and the salary (i.e., basic pay plus 16 percent of that rate to cover benefits) of the employee conducting the search.

(3) Review of records. The salary rate (i.e., basic pay plus 16 percent of that rate to cover benefits) of the employee(s) conducting the review. This charge applies only to requesters who are seeking documents for commercial use, and only to the review necessary at the initial administrative level to determine the applicability of any relevant FOIA exemptions, and not at the administrative-appeal level of an exemption already applied.

(4) Duplication of records. Twenty-five cents per page for paper-copy duplication of documents, which the Authority, the General Counsel, the Panel, and the IG have Solicitor or the IG has determined is the reasonable direct cost of making such copies, taking into account the average salary of the operator and the cost of the duplication machinery. For copies of records produced on tapes, disks, or other media, the Authority, the General Counsel, the Panel, Solicitor or the IG shall charge the actual cost of production, including operator time. When paper documents must be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials, including operator time. For all other forms of duplication, the Authority, the General Counsel, the Panel, and the Solicitor or the IG will charge the direct costs, including operator time.

(5) Forwarding material to destination. Postage, insurance, and special fees will be charged on an actual-cost basis.

(e) Aggregating requests. When the Authority, the General Counsel, the Panel, Solicitor or the IG reasonably believes that a requester or group of requesters is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the Authority, the General Counsel, the Panel, Solicitor or the IG will aggregate any such requests and charge accordingly.

(f) Charging interest. Interest at the rate prescribed in 31 U.S.C. 3717 may be charged to those requesters who fail to pay fees charged, beginning on the 31st day following the billing date. Receipt of a fee by the Authority, the General Counsel, the Panel, Solicitor or the IG, whether processed or not, will stay the accrual of interest.

(g) Advance payments. The Authority, the General Counsel, the Panel, Solicitor or the IG will not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless:

(1) The Authority, the General Counsel, the Panel, Solicitor or the IG estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. In those circumstances, the Authority, the General Counsel, the Panel, Solicitor or the IG will notify the requester of the likely cost and obtain satisfactory assurance of full payment, where the requester has a history of prompt payment of FOIA fees, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or

(2) A requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 days of the date of the billing), in which case the Authority, the General Counsel, the Panel, Solicitor or the IG requires the requester to pay the full amount owed plus any applicable interest, as provided in this section, or demonstrate that the requester has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the agency begins to process a new request or a pending request from that requester. When the Authority, the General Counsel, the Panel, Solicitor or the IG has a reasonable basis to believe that a requester has misrepresented his or her identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity. When the Authority, the General Counsel, the Panel, Solicitor or the IG acts under paragraph (g)(1) or (2) of this section, the administrative time limits prescribed in subsection (a)(6) of the FOIA (i.e., 20 working days from receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extension of these time limits) will begin only after the Authority, the General Counsel, the Panel, Solicitor or the IG has received fee payments described in this section. If the requester does not pay the advance payment within 30 calendar days after the date of the fee determination, the request will be closed.

(h) When a person other than a party to a proceeding before the FLRA makes a request for a copy of a transcript or recording of the proceeding, the Authority, the General Counsel, the Panel, Solicitor or the IG, as appropriate, will handle the request under this part.

(i) Payment of fees shall be made by check or money order payable to the U.S. Treasury.

(j) The fee schedule of this section does not apply to fees charged under any statute that specifically requires the Authority, the General Counsel, the Panel, the Solicitor or the IG to set and collect fees for particular types of records. In instances in which records responsive to a request are subject to a statutorily based fee-schedule program, the Authority, the General Counsel, the Panel, Solicitor or the IG will inform the requester of the contact information for that program.

[74 FR 50674, Oct. 1, 2009, as amended at 82 FR 2855, Jan. 10, 2017; 88 FR 67061, Sept. 29, 2023]