Freedom of Information Act Fee and Fee Waiver Processing at the Department of Energy
GAO-05-405: Published: May 27, 2005. Publicly Released: Jun 17, 2005.
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The Freedom of Information Act (FOIA) gives the public the right to access information about the federal government. In addressing requests for information, agencies have the authority to assess fees for certain categories of requesters to cover the costs of locating and copying records, as well as discretion to waive fees if specific criteria are met. GAO was asked to determine, for fiscal year 2004, the volume and nature of FOIA request processing at the Department of Energy (DOE), to what extent DOE followed the act and related Office of Management and Budget and Department of Justice guidance in processing cases that involve fees, and to what extent DOE communicated its fee-related decisions to requesters.
In fiscal year 2004, DOE received 2,289 new FOIA cases, of which 31 percent (705 of 2,289) were received by the department's headquarters in Washington, D.C., and DOE sites at Albuquerque, New Mexico, and Richland, Washington--the sites selected for our review. Generally, very few of the requests at these sites involved assessments of fees or requests for waivers of possible fees. DOE's process includes several phases ranging from initial processing and acknowledgement to preparing and releasing records to requesters. DOE generally followed FOIA and related guidance when determining fee categories for requesters, fee waivers, and actual fees to be charged. All three sites we reviewed always made explicit determinations about requesters' fee categories in accordance with guidance. DOE also generally adhered to guidance in determining fee waivers by seeking information addressing the prescribed criteria for making fee waiver determinations. In assessing actual fees to be charged, FOIA offices at all three sites charged fees in accordance with guidance. DOE's FOIA offices often did not communicate the specifics of their fee-related decisions to FOIA requesters. For example, while DOE headquarters often informed requesters of determinations about their fee category, the Richland and Albuquerque offices rarely did. In addition, the three sites rarely informed requesters of the outcome of fee waiver determinations. Further, when fees were not charged, requesters were rarely informed of the reason. Current FOIA guidelines do not require agencies to inform requesters of fee-related decisions. However, without being informed of fee-related determinations, requesters could misunderstand agency fee determinations and have false expectations for the handling of future FOIA requests.
Recommendation for Executive Action
Status: Closed - Not Implemented
Comments: The Department of Justice has taken no action to implement this recommendation. The department continues to express the view, originally expressed in comments to our report, that it cannot provide guidance that it sees as falling outside its jurisdictional purview. We disagreed with this view, because Justice is the lead agency for providing guidance and support to federal agencies on FOIA issues. Thus, as we confirmed with OMB, our recommendation was appropriately addressed to Justice. Nonetheless, in April 2009, the Department of Justice reiterated its view in response to our inquiry on actions to implement this recommendation, saying that "fee assessment is the responsibility of OMB, is governed by OMB's guidelines, and is implemented through agency regulations."
Recommendation: To improve FOIA requesters' understanding of agency fee-related determinations, the Attorney General should direct the co-directors of the Department of Justice's Office of Information and Privacy to revise FOIA guidance to include a requirement that agencies explicitly inform requesters of all fee-related determinations associated with their requests, including a notification that fees were not assessed, if applicable.
Agency Affected: Department of Justice