US Federal Advisors Urge More Leeway on Fee Waivers

19 April 2016

By Toby McIntosh

An advisory committee on the US Freedom of Information Act has recommended that government agencies should be given more administrative discretion not to charge fees.

Ending two years of work, the advisory committee (which will be reconstituted) made this suggestion and others as part of a call for the Office of Management and Budget to rewrite decades-old guidance to agencies on interpreting FOIA.

On fees, the subcommittee worked out compromise language after some members, mainly from government agencies, resisted language supportive of total agency discretion to grant fee waivers. Such flexibility would foster confusion, favoritism and litigation, said speakers, including Melanie Pustay, Director of the Office of Information Policy of the United States Department of Justice.

Supporters of more leeway on fees countered that many agencies already exercise such discretion, that confusion exists about waivers and that litigation over fees is costly. One suggested abolishing fees altogether. The subcommittee report documents that fees contribute only about one percent of the cost of administering the FOIA.

The recommendation was moderated to achieve a unanimous recommendation. It says that the Archivist (to whom the advisory committee reports) should urge OMB to issue new FOIA guidance that would “address how agencies may use their administrative discretion (rather than a formal waiver) to decide not to charge FOIA fees when the interests of the United States would be served and is clearly articulated.”

See the committee report on fees and recommendations.

Among the other recommendations, the committee said OMB should provide  additional guidance on what constitutes a “representative of the news media” that takes into account the changes in the journalism profession over the past 30 years due to technological advancements.

The Ombudsman’s office recently announced that it is seeking nominations for two-year appointments to the FOIA Advisory Committee.

Oversight Report Critical

The committee also received a subcommittee report concluding that government’s oversight methods for of the FOIA process “are not sufficient.”

The subcommittee collected previously released agency reports on compliance with the FOIA, an “phenomenal” effort that generated praise for Nate Jones (an advisory committee member) and Lauren Harper, both of the National Security Archive (the Washington-based nongovernmental organization that also publishes FreedomInfo.org.)

The agency reports indicate that the oversight challenges “have not been effectively addressed in a systematic fashion, but rather with a ‘one agency at a time’ approach,” the subcommittee concluded. “While challenges of resources, jurisdiction, and management make it difficult to propose specific solutions to address the issues documented in these reports, it is clear that improvements are necessary regarding the oversight and accountability of FOIA administration.”

Jones said, “Reporting is important but it can’t be the be all and end all of FOIA compliance.” At the top performing agencies there is strong commitment from top leaders, he said. He advocated having government “FOIA watchdogs” as monitors.

Commercial Requests

The subcommittee held a lively discussion of an academic study whose author presented her conclusion that the government is subsidizing private sector FOIA requesters.

Commercial requesters account for more than 80 percent of requests at some agencies, said Margaret Kwoka, who documented her findings in FOIA Inc.,” the final version of which has just appeared in the Duke Law Journal.

The University of Denver law professor said “it is entirely likely that some fraction of commercial requests do advocate democratic goals” but also said that some requesters are seeking information about competitors, others are conducting due diligence about potential environmental problems with real estate deals, and some are building proprietary databases whose use can be expensive.

FOIA fees cover almost none of the costs, she said, creating “an unintended corporate subsidy.” The Food and Drug Administration has a $33 million FOI budget and about three-fourths of the FOIA traffic comes from commercial requesters, she said. Government could save money lower FOIA requests times by proactively releasing the most-requested material and also, she said, suggested some incentives for agencies and higher fees for commercial requesters.

Some government officials on the advisory panel cited several potential problems with wholesale disclosure, including how to deal with situations when the submitter of information must be notified of its release. Several committee members discounted this and suggested minimizing the step by improving the design of government information gathering.

Larry Gottesman, a committee member from the Environmental Protection Agency, said his agency expects to reduce the number of FOIA requests by about 40 percent with the coming introduction of “My Property” which will enable users to see if a property has environmental problems and to receive an official “Certificate of Conformity.”

Also frequently requested are FDA Form 483 inspection reports on drug manufacturing facilities. An FDA official in the audience told the committee that the agency gets requests for about 25 percent of the 10,000-12,000 reports but that posting them all would not be the best use of resources. She said the agency had proactively issued some reports in anticipation of public interest, such as those about pharmaceutical compounding firms.

 

 

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