David Sobel
Electronic Privacy Information Center
Washington, D.C.
I approach information access issues from the prospective of somebody who actually uses the Freedom of Information Act as a requester and who has represented many requesters of information and also as someone who as a result of that activity has frequently found it necessary to litigate cases against federal agencies in order to overcome the various obstacles that agencies put up when they are confronted with requests for information.
I think it is important to recognize that the bureaucracy has never been very open minded and really very friendly towards the idea of a Freedom of Information Act. It is frequently forgotten that when the FOIA was strengthened in 1974 following Watergate that it was only enacted over the veto of President Ford. So there has always been a good deal of bureaucratic resistance to this idea of open access to information.
The way that bureaucratic resistance manifests itself in some cases is felt in the area of fee assessment. I know there has been a lot of discussion earlier today about the issue of cost recovery on the part of federal agencies when requests for information are made. In my experience, while I think there are cases where some agencies do in fact have a real concern with cost recovery, frequently I think that issue is raised as a smoke screen and what the agency is really looking to do is frustrate the requester and basically put out the word that requesting information here is a difficult proposition.
You have a lot of hurdles you have to overcome and more often than not I think the agencies either 1) just think that FOIA requests are a hassle and it gives them work that they really don't see being consistent with their agency mission, or 2) they really don't want to be held accountable. They just don't believe that the public really does have a right to get access to their information and oversee what the agency is doing.
So, the cost issue is frequently raised in an effort to frustrate the principal of public access. Congress has been aware of this problem and most recently revisited the issue in 1986, when it amended the FOIA specifically to address the problem of agencies creating barriers in the context of fee assessments. What Congress did, and I think it is a reasonable balance, is they decided to remove as much as possible the arbitrariness from the fee assessment process.
Prior to the 1986 amendments there was a general purpose so called public interest fee waiver in the FOIA. Basically what this provided for was that an agency would waive the otherwise applicable fees if a determination was made that providing the information to the particular requester was in the public interest. There was no statutory definition of that term, as a result it resulted in quite a bit of litigation and also a lot of resistance on part of the agencies. There were many instances, for instance, in which news media requesters were denied public interest fee waivers.
So with that experience over a ten year period Congress reassessed the fee situation in 1986 and decided that for the first time three distinct categories of requesters would be created. The objective was to make the fee assessment process more objective and less arbitrary. What Congress set is a most favored fee category. The representatives of the news media who use the act and the academic scholarly requesters who use the act should get preferential treatment in the assessment of fees. A requester that falls in that category is subject to fee assessment only for the cost of actually duplicating the requested information.
The least favored category, on the other hand, is a so-called commercial use requester. This is a requester who has no public interest pretenses behind their request. They are asking for information not with the intention of making it public or informing the public but using it for their own commercial advantage. These requesters are treated least favorably, and they are subject to the assessment of fees for the cost of searching for responsive information, reviewing that information once it is retrieved to determine whether or not it may properly be released, and finally the cost of duplicating the information.
All other requesters, so called all "other requesters", who do not fall into either the most favored or the least favored category are subject to processing fees for searching for the information and duplicating the information. I think that this is a very reasonable approach to the problem, because for one thing it recognizes that there are various costs involved in making information public. First of all, there is the cost of searching for information which frequently can involve a good deal of agency staff time, particularly in the case of a request that is not very narrowly focused.
This was an issue that many of the agencies prior to the '86 amendment had complained about, the amount of time that they had to devote to searching for information. Then, as I said, there is the process of reviewing the retrieved information. This is also potentially a very time consuming process frequently involving agency legal resources, for instance, to determine whether or not the requested information might be subject to one of the nine statutory exemptions.
Really the least involved and least costly part of the process is actually duplicating the information that was going to be released. So, by apportioning these costs depending upon the interest of the requester I think that Congress has struck what is a fairly reasonable balance in terms of cost shifting. While I think there is a lot of resistance to the idea of introducing a user fee concept into this process, I think this does strike the right balance.
Finally, even with those fees that may be assessed, for instance the news media requester is still subject to duplication fees, the fees that may be assessed such as duplication fees in that case, are also subject to a public interest fee waiver. This is an expanded definition that is contained in the statute. Basically the definition of public interest for purposes of waiving the fee is if the information would educate the public as to the operation of the government. The fees that may be assessed or determined by the category of the requester, those fees are then looked at to see if there is a public interest in the release of the information which would merit the waiver of those fees.
I think as we look more and more at the question of how should these costs of providing information to the public be assessed we really can't ignore the fact that the Freedom of Information Act contains a recently amended provision for doing this. I think that really needs to be the starting point for any further examination of the issue.