Information Management
Freedom of Information Act Fee and Fee Waiver Processing at the Department of Energy Gao ID: GAO-05-405 May 27, 2005The 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.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-05-405, Information Management: Freedom of Information Act Fee and Fee Waiver Processing at the Department of Energy
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Report to the Ranking Minority Member, Committee on the Judiciary, U.S.
Senate:
May 2005:
Information Management:
Freedom of Information Act Fee and Fee Waiver Processing at the
Department of Energy:
GAO-05-405:
GAO Highlights:
Highlights of GAO-05-405, a report to the Ranking Minority Member,
Committee on the Judiciary, U.S. Senate:
Why GAO Did This Study:
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.
What GAO Found:
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 acknowledgment to preparing
and releasing records to requesters. The table shows the disposition of
FOIA requests for fiscal year 2004 at these three DOE sites.
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.
Fee Disposition of Requests Reviewed:
[See Table 2]
What GAO Recommends:
To improve FOIA requesters‘ understanding of agency fee decisions, GAO
recommends that Justice revise its FOIA guidelines to require that
requesters be explicitly informed of all fee-related determinations
associated with their requests.
In commenting on a draft of this report, DOE clarified its process at
one field office and stated that it is implementing the GAO
recommendation. Justice stated that the recommendation was addressed to
the wrong agency; however, GAO believes Justice is the proper addressee
because it provides guidance and support to federal agencies on FOIA
issues.
www.gao.gov/cgi-bin/getrpt?GAO-05-405.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Linda Koontz at (202) 512-
6240 or koontzl@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
DOE's FOIA Requests in Fiscal Year 2004:
DOE Generally Adhered to FOIA Guidance:
DOE Did Not Always Inform Requesters About Fee and Fee-Waiver
Decisions:
Conclusions:
Recommendation for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Comments from the Department of Energy:
Appendix III: Comments from the Department of Justice:
Related GAO Products:
Tables:
Table 1: FOIA Charges by Category:
Table 2: Fee Disposition of Requests Reviewed:
Table 3: Cases in Which Fees Were Charged:
Table 4: Communication of Fee Category Determinations to Requesters:
Table 5: Communication of Fee Waiver Determinations to Requesters:
Table 6: Communication of Fee Decision When Fees Were Not Charged:
Table 7: Number of Requests Excluded by Location:
Table 8: Number of Cases Analyzed:
Figure:
Figure 1: DOE Headquarters FOIA Process:
Abbreviations:
DOE: Department of Energy:
FOIA: Freedom of Information Act:
OMB: Office of Management and Budget:
[See PDF for image]
[End of figure]
[See PDF for image]
[End of figure]
Letter May 26, 2005:
The Honorable Patrick J. Leahy:
Minority Democratic Member:
Committee on the Judiciary:
United States Senate:
Dear Senator Leahy:
The Freedom of Information Act (FOIA) provides the public with a legal
right to access government information about the operations and
decisions of the federal government. Specific requests by the public
for information through FOIA have led to the disclosure of waste,
fraud, abuse, and wrongdoing in the government. The act authorizes
agencies to recoup certain direct costs associated with processing
requests, which may include search, duplication, or review, depending
on the requester's fee category. It defines three categories for
requesters: (1) commercial; (2) educational, noncommercial scientific
institutions, and representatives of the news media; or (3) other.
Agencies also have discretion to reduce or waive fees under various
circumstances.
This report responds to your request that we conduct a detailed review
of FOIA request processing at one agency, the Department of Energy
(DOE). Specifically, as agreed with your office, our objectives were to
determine for fiscal year 2004:
* the volume and nature of FOIA request processing at DOE,
* the extent to which DOE's process for handling fee assessments and
waivers was consistent with FOIA and related guidance, and:
* the extent to which DOE communicated its fee-related decisions to
requesters.
To address these objectives, we analyzed FOIA case files from three DOE
locations, reviewed FOIA and related guidance, and interviewed
officials from each location. The three DOE locations we assessed were
responsible for about 77 percent of the fee waiver cases in fiscal year
2004 and 35 percent of the cases in which fees were charged. Further
details on our scope and methodology are provided in appendix I. Our
work was conducted from June 2004 through March 2005, in accordance
with generally accepted government auditing standards, at Washington,
D.C; Albuquerque, New Mexico; and Richland, Washington.
Results in Brief:
In fiscal year 2004, DOE reported receiving 2289 new FOIA cases and
closing 2440. Of all new cases received, headquarters, Albuquerque, and
Richland received 31 percent (705 of 2289). In approximately 5 percent
(35 of 705) of these cases, requesters were charged a fee; most (30 of
35) of these cases involved commercial requesters. In total, the three
sites charged about $4,700 in fees; DOE Headquarters charged requesters
about $2,200, Albuquerque charged about $1,300, and Richland charged
about $1,200. Further, of the 705 cases, 24 percent (171 of 705)
involved requesters formally asking for a fee waiver, and only two of
these requesters were actually assessed fees.
At the three locations, DOE generally followed FOIA and related
guidance when assessing fees and determining fee waivers. When DOE
determined a requester's fee category, all three locations always made
explicit fee category determinations. DOE also generally adhered to
guidance when making fee waiver determinations. Officials at all three
locations indicated that if they believed, based on their knowledge and
experience, that the charge for the request was going to be below a
predetermined threshold specified in guidance, they would not go
through the process of making a formal fee waiver determination.
Lastly, in assessing actual fees to be charged, FOIA offices at all
three sites charged fees in accordance with guidance.
The three DOE locations often did not communicate the specifics of
their fee-related decisions to requesters. For example, while DOE
Headquarters often informed requesters of determinations about their
fee category, the sites at Richland and Albuquerque rarely did. In
addition, the three sites rarely informed requesters of the outcome of
fee waiver determinations. When fees were not charged, requesters were
rarely informed of the reason. However, without understanding what
determinations have actually been made, requesters could develop false
expectations about how future requests will be handled. Of the 17 FOIA
requesters we interviewed, more than half (11) believed they had
received fee waivers from DOE, when in fact no such waivers had been
granted. Without clearer communication of fee-related determinations,
requesters are likely to not fully understand agency fee
determinations, which could lead to dissatisfaction with the FOIA
process in general.
To improve requesters' understanding of agency fee-related
determinations, we are recommending that the Attorney General direct
the co-directors of the Department of Justice's Office of Information
and Privacy to revise its guidelines to include a requirement that
requesters be explicitly informed of all fee-related determinations
associated with their requests.
We provided a draft of this report to DOE and Justice for their review
and comment. Copies of DOE's and Justice's comments are included in
appendixes II and III, respectively. DOE reported that it had already
taken steps to implement our recommendation, although the department
noted that it was not required to provide requesters with fee-related
notifications when potential fees would be below the minimum amount for
charging. Justice stated that our recommendation was addressed to the
wrong agency, because it did not fall within the jurisdictional purview
of the department and therefore Justice cannot properly implement the
recommendation. However, we disagree. Justice is the lead agency for
providing guidance and support to federal agencies on FOIA issues. To
confirm that we had appropriately addressed our recommendation to
Justice rather than the Office of Management and Budget (OMB)--which is
required to issue a uniform schedule of fees for all agencies--we
contacted the Deputy Administrator, Office of Information and
Regulatory Affairs, OMB, who agreed that the recommendation should be
addressed to Justice.
Background:
FOIA established a legal right of access to government records and
information, on the basis of the principles of openness and
accountability in government. Before the act, an individual seeking
access to federal records had faced the burden of establishing a right
to examine them. FOIA also established a "right to know" standard for
access, instead of a "need to know," and shifted the burden of proof
from the individual to the government agency seeking to deny access.
FOIA was originally enacted in 1966 and has been amended several times,
most recently in 2002.
Citizens are requesting an ever-increasing amount of information from
the federal government, as reflected in a steadily increasing number of
FOIA requests. In fiscal year 2003, over 3 million requests were
received by federal agencies, an increase of 36 percent over the
previous year. Further, the number of requests closed was also more
than 3 million, an increase of 34 percent compared with the previous
year. The number of requests closed is, in part, an indicator of the
responsiveness of agencies in providing the public with requested
information and shows that agencies are taking steps to respond to the
increasing FOIA workload.
FOIA provides the public with access to government information either
through "affirmative agency disclosure"--publishing information in the
Federal Register or making it available in reading rooms--or in
response to public requests for disclosure. Public requests for
disclosure of records are the best known type of FOIA disclosure. Any
member of the public may request access to information held by federal
agencies, without showing a need or reason for seeking the information.
Agencies may deny access to material (e.g., by withholding records or
redacting information) only if it falls within any of nine statutory
categories of exemptions. There are also FOIA exclusions for specific,
sensitive records held by law enforcement agencies. In addition,
agencies have a statutory requirement to meet certain time frames for
determining whether to comply with requests, making determinations with
respect to appeals of adverse determinations, and determining whether
to provide expedited processing of requests. Requesters are entitled to
know the reasons for denials, to appeal denials, and to challenge them
in court. Under the act, agencies are required to submit annual reports
on their FOIA activities to the Attorney General.
Roles of Justice and OMB in FOIA Implementation:
The Department of Justice oversees agencies' compliance with FOIA and
is the primary source of policy guidance for agencies. Justice's
specific requirements under the act are to:
* make agencies' annual FOIA reports available through a single
electronic access point and notify Congress as to their availability;
* in consultation with OMB, develop guidelines for the required agency
reports, so that all reports use common terminology and follow a
similar format; and:
* submit an annual report on FOIA statistics and the efforts undertaken
by Justice to encourage agency compliance.
In addition, FOIA requires OMB to issue guidelines to "provide for a
uniform schedule of fees for all agencies."[Footnote 1] Agencies are
required to conform to the OMB fee guidelines. Further, in 1987, the
Department of Justice issued guidelines on waiving fees when FOIA
requests are determined to be in the public interest. Under the
guidelines, requests for waivers or reduction of fees are considered on
a case-by-case basis, taking into account both the public interest and
the requester's commercial interests.
FOIA Processing at DOE:
Some FOIA requests are relatively simple to process, such as requests
for specific pieces of information that the requester sends directly to
the appropriate office. Other requests require more extensive
processing, depending on the complexity of the request, the volume of
information involved, the need for the agency FOIA office to work with
offices that have relevant subject-matter expertise to find and obtain
information, the need for a FOIA officer to review and redact
information in the responsive material, the need to communicate with
the requester about the scope of the request, and the need to
communicate with the requester about the fees that will be charged for
fulfilling the request (or whether fees will be waived). FOIA
processing, especially review of classified, sensitive, or privacy-
related material, can be labor-intensive.
DOE's process typically begins when the agency's headquarters FOIA
office receives a written request (fax, letter, e-mail, or electronic
form on DOE's Web site).[Footnote 2] From that point, the request goes
through several phases, which include:
* initial processing,
* acknowledgment of the request,
* fee determination and identification of office with relevant subject
matter expertise,
* search and retrieval of records,
* preparation of records for release, and:
* issuing of the final response to the requester.
Initial processing is focused on ensuring that the request is a proper
FOIA request and that all relevant information has been obtained from
the requester.[Footnote 3] From here, an acknowledgment letter informs
the requester that the department received the request and also
provides the requester with a tracking number. FOIA officials then
review the case to determine which office may have responsive records
and make an initial determination about fees and, if a fee waiver has
been requested, whether it is to be granted. After the appropriate
office has located responsive records, a determination is made about
what, if any, information is exempt from public release and should be
redacted from records planned to be released, which would result in a
"partial grant" of requested information. Finally, the agency assembles
the responsive records to be released and provides them to the
requester. Figure 1 depicts the FOIA process at DOE Headquarters.
Figure 1: DOE Headquarters FOIA Process:
[See PDF for image]
Note: DOCS (Document Online Coordination System) is DOE's electronic
document management system.
[End of figure]
From the receipt of the request until a final decision is made about
the release or withholding of documents, DOE has a number of
opportunities to communicate with requesters. As recorded in DOE's FOIA
case files, the types of communications included:
* acknowledgment letters, which informed requesters that DOE received
the request;
* interim letters, which provided requesters with additional
information pertaining to their request and may have requested
additional information to clarify the request;
* final letters, which provided requesters with the final outcome of
their request;
* oral communications, which were made typically via telephone and
provided clarification and additional information about how the request
was being handled; and:
* e-mail messages, which also provided clarification and additional
information about DOE's handling of the request.
Aside from very minor variations, the FOIA process at the Albuquerque
and Richland field offices is essentially the same. The FOIA offices at
each site receive requests centrally and assign them to appropriate
offices with subject-matter expertise for action.
Fee Structure and Fee Waivers:
Agency determinations about fees and fee waivers are complex decisions
that include determining (1) the requester's fee category, (2) whether
a fee waiver is to be granted, and (3) the actual fees to be charged.
FOIA stipulates three types of fee categories for requesters: (1)
commercial; (2) educational, noncommercial scientific institution, and
representative of the news media; and (3) other. Further, fees can be
charged for three types of FOIA-related activities--search,
duplication, and review--depending on the requester's fee category. In
addition, in certain situations fees may not be charged to a requester,
as, for example, when a fee waiver is granted or when the applicable
fees are below a certain threshold.
Commercial users can be charged for the broadest range of FOIA-related
activities, including document search, review, and duplication.
Commercial use is defined in the OMB fee schedule guidelines as "a use
or purpose that furthers the commercial, trade or profit interests of
the requester or the person on whose behalf the request is being made."
The second category exempts search and review fees for documents sought
for noncommercial use by educational or noncommercial scientific
institutions, and for representatives of the news media. The third
category of fees, which applies to all requesters who do not fall
within either of the other two categories, allows for "reasonable"
charges for document search and duplication. Table 1 shows the FOIA-
related activities for which agencies can charge by fee category, as
stipulated in the act.
Table 1: FOIA Charges by Category:
Category of requester: Category 1: Commercial requester;
Activities for which agencies can charge: Search: Yes;
Activities for which agencies can charge: Review: Yes;
Activities for which agencies can charge: Duplication: Yes.
Category of requester: Category 2: Educational, noncommercial
scientific institutions, and representatives of the news media;
Activities for which agencies can charge: Search: No;
Activities for which agencies can charge: Review: No;
Activities for which agencies can charge: Duplication: Yes (100 pages
free).
Category of requester: Category 3: Other;
Activities for which agencies can charge: Search: Yes (2 hours free);
Activities for which agencies can charge: Review: No;
Activities for which agencies can charge: Duplication: Yes (100 pages
free).
Source: GAO analysis of 5 U.S.C. § 552 (a)(4)(A)(iv).
[End of table]
Although the act generally requires that requesters pay fees for their
requests to be processed, in certain circumstances, fees are not to be
charged. For example, as stipulated in the act, fees may not be charged
when the government's cost of collecting and processing the fee is
likely to equal or exceed the amount of the fee itself.
Further, under certain circumstances, the act requires an agency to
furnish documents without charge, or at reduced charges. This is
commonly referred to as the FOIA fee waiver. An agency must provide a
fee waiver if two conditions are met:
* disclosure of the requested 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:
* disclosure of the information is not primarily in the commercial
interest of the requester.
Under the act and guidance, when these requirements are both satisfied,
based upon information supplied by a requester or otherwise made known
to the agency, the fee waiver or reduction is to be granted by the FOIA
officer. Where one or both of these requirements is not satisfied, a
fee waiver is not warranted. As these criteria suggest, fee waivers are
to be granted on a case-by-case basis. Individuals who receive fee
waivers in some cases may not necessarily receive them in other cases.
DOE's FOIA Requests in Fiscal Year 2004:
In fiscal year 2004, DOE reported receiving 2,289 new FOIA cases and
closing 2,440.[Footnote 4] In 76 percent (1848 of 2440) of the closed
cases, DOE provided some or all requested records to the requesters. Of
all new cases received across the department, headquarters,
Albuquerque, and Richland--the sites selected for our review--received
31 percent (705 of 2,289). Specifically, headquarters received 431
cases, Albuquerque received 152 cases, and Richland received 122 cases.
In approximately 5 percent (35 of 705) of the cases at these three
sites, requesters were charged a fee; 86 percent (30 of 35) of these
cases involved commercial requesters. In total, the three sites charged
about $4,700 in fees. DOE Headquarters charged requesters about $2,200;
Albuquerque charged about $1,300; and Richland charged about $1,200.
Further, of the 705 cases, 24 percent (171 of 705) involved requesters
formally asking for a fee waiver, and only two of these requesters were
actually assessed fees (see table 2).
Table 2: Fee Disposition of Requests Reviewed:
Request description: Fee waiver not requested;
Number of requests charged a fee: 33;
Number of requests not charged a fee: 501;
Total: 534.
Request description: Fee waiver requested;
Number of requests charged a fee: 2;
Number of requests not charged a fee: 169;
Total: 171.
Request description: Fee waiver granted;
Number of requests charged a fee: 0;
Number of requests not charged a fee: 38;
Total: 38.
Request description: Fee waiver denied;
Number of requests charged a fee: 0;
Number of requests not charged a fee: 8;
Total: 8.
Request description: No record of an explicit fee waiver
determination[A];
Number of requests charged a fee: 2;
Number of requests not charged a fee: 123;
Total: 125.
Source: GAO.
[A] These case files do not contain documentation showing that an
explicit fee waiver determination was made. According to DOE officials,
in most cases this is because they believed, based on their knowledge
and experience, that the costs incurred would be below DOE's $15
threshold for charging fees and that there was no need to make a fee
waiver determination.
[End of table]
DOE Generally Adhered to FOIA Guidance:
Based on an analysis of 170 cases,[Footnote 5] DOE at these three
locations generally followed FOIA and related guidance in its processes
for making each of three major decisions related to fees and fee
waivers: (1) determining the requester's fee category, (2) determining
if a fee waiver is to be granted, and (3) assessing actual fees, if
any, to be charged.
FOIA and related guidance issued by OMB and Justice give FOIA officers
detailed directions about how to handle fees and fee waivers. First,
FOIA officers need to determine a requester's fee category in order to
know what types of activities the requester can be charged for. The
three types of fee categories for requesters are (1) commercial; (2)
educational, noncommercial scientific institution, and representative
of the news media; and (3) other. Then, if a requester is eligible to
be charged fees, a determination must be made if any of those fees can
be waived. Assuming a requester has asked for a fee waiver, FOIA
personnel must evaluate information provided by the requesters,
addressing six criteria[Footnote 6] outlined in the Justice guidance in
order to make a fee waiver determination. Finally, assuming fees have
not been waived, FOIA personnel must assess the actual fees to be
charged. According to guidance, no fee is to be charged if the
requester has received a fee waiver or if the amount to be charged is
under a predetermined threshold. Otherwise, FOIA personnel are to
determine the amount of time spent on search, review, and duplication,
and, based on a requester's fee category, charge the appropriate fees.
Determining a requester's fee category is the simplest of the three
decisions in terms of the information needed to make a decision, and it
typically takes little time. Officials at all three sites we reviewed
always (170 of 170 cases) made explicit fee category determinations.
Headquarters officials stated that if a requester did not provide
enough information to make a fee category determination, FOIA personnel
would often attempt to locate additional information, for example
through the Web, in order to make an expeditious category
determination.
DOE also generally adhered to FOIA guidance in determining if a fee
waiver was to be granted by seeking information to address all relevant
fee waiver criteria. Often, if requesters did not sufficiently address
all the fee-waiver criteria in their initial requests, officials sought
additional information from the requesters. DOE also generally adhered
to FOIA guidance by asking requesters to address all relevant fee
waiver criteria. For example, headquarters requested additional
information to address fee waiver criteria in 21 cases wherein
sufficient information was not included with the original request.
Officials at all three sites indicated that if they believed, based on
their knowledge and experience, that the charge for the request was
going to be below the threshold, they would not go through the process
of making an explicit fee waiver determination.
In assessing actual fees to be charged, if any, FOIA offices at all
three sites we reviewed charged fees in accordance with guidance. The
three locations charged fees in 34 completed cases.[Footnote 7] For
example, requesters were appropriately charged for search, review, or
duplication based on their FOIA category.[Footnote 8] In addition, all
three locations uniformly complied with the regulation of granting 2
hours of free search time and 100 pages of free duplication to
requesters in certain categories. Table 3 lists the 34 completed cases
in which fees were charged, by location and category.
Table 3: Cases in Which Fees Were Charged:
Category: Commercial;
Headquarters: 14;
Albuquerque: 11;
Richland: 4;
Total: 29.
Category: Educational, scientific, and news media;
Headquarters: 1;
Albuquerque: 0;
Richland: 0;
Total: 1.
Category: Other;
Headquarters: 0;
Albuquerque: 4;
Richland: 0;
Total: 4.
Total;
Headquarters: 15;
Albuquerque: 15;
Richland: 4;
Total: 34.
Source: GAO.
[End of table]
In many cases in which fees were not charged to requesters, we could
not determine if DOE made its decision correctly, because the necessary
information to determine fees--an accounting of search time and cost,
review time and cost, and the number of pages duplicated--was not
routinely recorded. Of the cases we reviewed that did not charge a fee
(136 of 170), about 61 percent (83 of 136) did not include records of
all of the necessary information. Officials at each of the sites stated
that--as was the case with many fee waiver determinations--they often
did not record such information when they believed, based on their
knowledge and experience, that the costs incurred would be below DOE's
$15 threshold for charging fees.
DOE Did Not Always Inform Requesters About Fee and Fee-Waiver
Decisions:
DOE's three FOIA offices did not always communicate all the specifics
of their fee-related decisions to requesters. Requesters were sometimes
informed of one or more of the three major fee-related decisions,
especially fee category decisions. However, they were rarely given a
full explanation of all relevant decisions. Because of the complexity
of the decision-making process for fees and fee waivers, providing a
full explanation of what decisions have been reached is important.
Without a clear understanding of DOE's fee-related determinations,
requesters could have false expectations about how their future
requests are to be handled.
Current FOIA processing guidelines do not require agencies to
explicitly inform requesters of fee-related decisions. However,
informing requesters about fee and fee-waiver decisions is important
because it can provide an explanation to the requester about the
specific and possibly unique circumstances of a particular fee
determination. For example, although an agency may determine that a
requester is not eligible for a fee waiver, based on the information
provided, it may not actually charge any fee for the request because
the charges would be below the minimum threshold. If the requester was
not informed of this, he or she could mistakenly believe that a waiver
had indeed been granted and might expect that a similar waiver would be
granted for future FOIA requests. While not specifically referring to
fee determinations, Justice has cited the importance of communications
as an element of customer service.
The three DOE sites did not always communicate fee category decisions
to requesters. Of the three locations, headquarters was most likely to
inform requesters of their fee category. Richland and Albuquerque
rarely communicated fee category determinations to requesters. Table 4
enumerates how often requesters were informed of fee category
determinations for the cases we reviewed.
Table 4: Communication of Fee Category Determinations to Requesters:
Description: Fee category communicated;
Headquarters: 57;
Albuquerque: 11;
Richland: 5;
Total: 73.
Description: Fee category not communicated;
Headquarters: 22;
Albuquerque: 31;
Richland: 44;
Total: 97.
Description: Total;
Headquarters: 79;
Albuquerque: 42;
Richland: 49;
Total: 170.
Source: GAO.
[End of table]
The three sites also rarely informed requesters of the outcome of fee
waiver determinations. Specifically, requesters were not informed of
fee waiver determinations in 87 percent of the completed fee waiver
cases that we reviewed (83 of 95). Whenever DOE's case files show that
an explicit determination was made denying a fee waiver, the requester
was informed of this decision. This occurred seven times in fiscal year
2004. However, fee waiver determinations were not always recorded in
the case files. DOE officials indicated that if they believed fees
would be below the threshold, based on their knowledge and experience,
they would not address a fee waiver request explicitly, and,
accordingly, requesters would not be informed of any fee waiver
decision. Further, in 22 cases at headquarters, requesters were
notified that a fee waiver determination would not be addressed until
they provided additional information addressing the fee waiver criteria
that DOE is required to use in reaching its fee waiver determinations.
However, the records in these cases do not indicate whether additional
information was obtained, nor do they reflect a final determination of
fee waiver status. Table 5 shows communication of completed fee waiver
case determinations by location.
Table 5: Communication of Fee Waiver Determinations to Requesters:
Description: Communicated granting of fee waiver;
Headquarters: 3;
Albuquerque: 2;
Richland: 0;
Total: 5.
Description: Communicated denial of fee waiver;
Headquarters: 1;
Albuquerque: 0;
Richland: 6;
Total: 7[A].
Description: Did not communicate fee waiver determination;
Headquarters: 45;
Albuquerque: 14;
Richland: 24;
Total: 83.
Description: Additional support had been requested to address decision
criteria;
Headquarters: 22;
Albuquerque: 0;
Richland: 0.
Total;
Headquarters: 49;
Albuquerque: 16;
Richland: 30;
Total: 95.
Source: GAO.
[A] In addition to these seven cases, Headquarters, at the time of our
review, had one open case where a fee waiver had been denied.
[End of table]
Although the DOE offices informed requesters when fees were assessed
and actually charged, they did not always explicitly inform requesters
of decisions not to charge fees, even when fees might have been
applicable. In half of the cases we reviewed in which fees were not
charged (68 of 136), requesters were not informed about the decision
not to charge a fee. Without being informed about this decision, a
requester could mistakenly believe that fees were not applicable and
develop a false expectation that fees also would not be applicable for
future requests. Table 6 below shows the disposition of cases by
location in which a fee was not charged.
Table 6: Communication of Fee Decision When Fees Were Not Charged:
Description: Fee decision communicated;
Headquarters: 32;
Albuquerque: 24;
Richland: 12;
Total: 68.
Description: Fee decision not communicated;
Headquarters: 32;
Albuquerque: 3;
Richland: 33;
Total: 68.
Source: GAO.
[End of table]
Further, in most (24 of 35) cases where fees were charged, requesters
were not informed of the complete details of the fees to be charged. In
assessing fees, FOIA personnel are to determine the amount of time
spent on search, review, and duplication, and, based on a requester's
fee category, charge the appropriate fees. If requesters do not receive
detailed information about these determinations, including an
accounting of what activities they were not charged for, they may not
be able to understand how fees had been assessed. Although Albuquerque
consistently informed requesters about the complete details of assessed
fees, headquarters and Richland rarely did.
Without a clear understanding of what determinations DOE has made,
requesters could develop false expectations on how future requests
would be handled. For example, 11 of 17 requesters we interviewed who
had requested a fee waiver believed they had received a fee waiver from
DOE, yet in actuality none of them had. Without clearer communication
of fee-related determinations, requesters are likely to not fully
understand agency fee determinations, which could lead to
dissatisfaction with the response to future FOIA requests.
Conclusions:
DOE reported closing 2,440 FOIA requests in fiscal year 2004 and
provided some or all of the requested records in 76 percent of the
cases. Requesters were charged fees in about 5 percent of cases.
Further, in most cases, DOE followed FOIA and related guidance in each
of the three major decisions related to fees and fee waivers that arise
for any given request. However, DOE did not always communicate these
decisions to requesters.
Current FOIA processing guidance issued by Justice does not require
agencies to explicitly inform requesters of any fee-related decisions.
However, doing so would be beneficial. If requesters do not understand
what determinations have actually been made, they could develop false
expectations for the handling of future FOIA requests.
Recommendation for Executive Action:
To improve FOIA requesters' understanding of agency fee-related
determinations, we recommend that the Attorney General 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 Comments and Our Evaluation:
We received written comments on a draft of this report from the DOE's
Director, Office of Management, Budget, and Evaluation/Chief Financial
Officer, and the Co-Directors, Office of Information and Privacy, of
the Department of Justice, which are reproduced in appendixes II and
III, respectively.
DOE provided its comments in three parts. First, DOE reported that it
had already taken steps to implement our recommendation, although the
department noted that it was not required to provide requesters with
notifications about fee-waiver determinations when potential fees would
be below the minimum amount for charging. Second, the department noted
that its past procedures did not call for notifying requesters about
fee determinations when processing fees were below the minimum
threshold. Finally, the department disagreed with our characterization
of fee waiver determinations at the Richland field office, stating that
Richland does not have a practice of automatically granting fee waivers
to public interest groups and news media. We have accordingly revised
the final report to clarify our characterization of Richland's fee-
waiver practices.
Justice stated that our recommendation was addressed to the wrong
agency, because it did not fall within the jurisdictional purview of
the department and therefore Justice cannot properly implement the
recommendation. However, we disagree. Justice is the lead agency for
providing guidance and support to federal agencies on FOIA issues and
has statutory responsibility for encouraging agency compliance with the
act.[Footnote 9] Justice has several vehicles for providing such
guidance, including the periodically updated Freedom of Information Act
Guide and Privacy Act Overview, as well as training materials and other
online updates such as the department's "FOIA Post." To confirm that we
had appropriately addressed our recommendation to Justice rather than
OMB--which is required to issue a uniform schedule of fees for all
agencies--we contacted the Deputy Administrator, Office of Information
and Regulatory Affairs, OMB, who agreed that the recommendation should
be addressed to Justice.
As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
from the date of this letter. At that time, we will send copies of this
report to the Attorney General; the Secretary of Energy; and the heads
of other interested congressional committees. Copies will be made
available to others on request. In addition, this report will be
available at no charge on our Web site at [Hyperlink,
http://www.gao.gov].
If you have any questions concerning this report, please call me at
(202) 512-6240 or send e-mail to [Hyperlink, koontzl@gao.gov]. Key
contacts and major contributors to this report are Barbara Collier,
John de Ferrari, Wilfred Holloway, Stephanie Lee, David Plocher, and
Elizabeth Zhao.
Sincerely yours,
Signed by:
Linda D. Koontz:
Director, Information Management Issues:
[End of section]
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Our objectives were to determine, for fiscal year 2004, (1) the volume
and nature of Freedom of Information Act (FOIA) request processing at
the Department of Energy (DOE), (2) the extent to which the
department's process for handling fee assessments and waivers is
consistent with FOIA and related guidance, and (3) the extent to which
DOE has clearly communicated its fee-related decisions to requesters.
To determine the volume and nature of FOIA request processing at DOE,
we reviewed documentation indicating the volume of requests received by
the department, and we analyzed in detail the nature of DOE
Headquarters' FOIA process. We assessed the reliability of the DOE
Headquarters' process by reviewing existing information about the FOIA
process and interviewing agency officials knowledgeable about the
process. We determined that the data were sufficiently reliable for the
purposes of this report.
To determine the extent to which DOE's process for handling fee
assessments and waivers was consistent with guidance, we analyzed the
requirements in FOIA, the Department of Justice guidance, and OMB
guidance, and we compared these requirements to those contained in
DOE's regulations. We then analyzed information gathered from selected
FOIA case files to determine if DOE was complying with regulations at
selected locations.
We also used data from the selected case files to determine the extent
to which the department clearly communicated its fee-related decisions
to requesters. The case files from DOE contained several types of
communications between DOE and requesters. These communications allowed
us to assess how and when DOE communicated fee-related decisions to
requesters.
To select the case files for our analysis, we began by identifying the
number of fee waiver cases at each of DOE's field locations. We then
chose field locations that processed the majority of fee waiver cases
in fiscal year 2004. We determined that DOE Headquarters and the
department's sites at Albuquerque, New Mexico, and Richland,
Washington, processed about 77 percent of DOE's fee waiver cases in
fiscal year 2004 and 35 percent of the cases in which fees were
charged. These three locations received a total of 705 new FOIA
requests in fiscal year 2004. From these 705 cases, we selected (1) all
cases in which fees were charged, (2) all cases in which fee waivers
were requested, and (3) a random sample of 43 cases not involving a fee
being charged or a fee waiver being requested. This process produced a
group of 253 cases. The remaining 452 of the original 705 cases were
not reviewed.
After making an initial assessment of these 253 cases, we excluded
several types of requests from our analysis, including requests that
were open, canceled, referred to another agency, or not proper FOIA
requests:
* An open request is one that has not yet been completed.
* A canceled request occurs when the requester decides that he or she
no longer wants to receive the information requested.
* A request referred to another agency is one that cannot be completed
at the original location to which it was sent, and therefore needs to
be sent to another location either within DOE or another agency.
* A request is determined not to be a proper FOIA request when any one
of the following conditions is met: (1) the documents requested are not
reasonably described, (2) the request does not contain a statement
regarding fee agreement or request for a fee waiver, (3) the request
asks a question rather than requesting documents, and (4) the documents
requested do not exist--that is, they would need to be created, or the
date of the request letter is earlier than the date of required
publication of the agency document.
Table 7 shows the numbers of cases that we excluded for any of these
four reasons. In one of the open cases DOE did charge a fee.
Table 7: Number of Requests Excluded by Location:
Description of request: Open;
Headquarters: 30;
Albuquerque: 12;
Richland: 1;
Total: 43.
Description of request: Canceled;
Headquarters: 1;
Albuquerque: 2;
Richland: 3;
Total: 6.
Description of request: Referred to another agency;
Headquarters: 28;
Albuquerque: 3;
Richland: 1;
Total: 32.
Description of request: Not a proper FOIA request;
Headquarters: 1;
Albuquerque: 0;
Richland: 1;
Total: 2.
Total;
Headquarters: 60;
Albuquerque: 17;
Richland: 6;
Total: 83.
Source: GAO.
[End of table]
After excluding these 83 cases, 170 cases remained, which formed the
review group we used in our analysis. Table 8 below shows the number,
description, and location of the cases in our final review group.
Table 8: Number of Cases Analyzed:
Description of case: Cases in which fees were charged and no fee waiver
was requested;
Headquarters: 15;
Albuquerque: 13;
Richland: 4;
Total: 32.
Description of case: Cases in which fees were charged and fee waiver
was requested;
Headquarters: 0;
Albuquerque: 2;
Richland: 0;
Total: 2.
Description of case: Cases in which no fee was charged and fee waiver
was requested;
Headquarters: 49;
Albuquerque: 14;
Richland: 30;
Total: 93.
Description of case: Cases in which no fee was charged and no fee
waiver was requested;
Headquarters: 15;
Albuquerque: 13;
Richland: 15;
Total: 43.
Totals;
Headquarters: 79;
Albuquerque: 42;
Richland: 49;
Total: 170.
Source: GAO.
[End of table]
In addition to the case file analysis, we surveyed requesters about
their interaction with DOE and the processing of their FOIA request. Of
the 170 cases we analyzed, we identified 86 distinct requesters who
were charged a fee or requested a fee waiver. The DOE case files
contained contact information for 61 of the 86 requesters. We surveyed
each of these 61 requesters and obtained 20 responses. For 17 of these
responses the requester asked for a fee waiver, and for the remaining 3
responses the requester had been charged a fee.
Our work was performed from June 2004 through March 2005, in accordance
with generally accepted government auditing standards, at Washington,
D.C; Albuquerque, New Mexico; and Richland, Washington.
[End of section]
Appendix II: Comments from the Department of Energy:
Department of Energy:
Washington, DC 20585:
April 28, 2005:
Ms. Linda D. Koontz:
Director, Information Management Issues:
Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Ms. Koontz:
The Department of Energy (DOE) has reviewed the draft Government
Accountability Office (GAO) report entitled Information Management -
Freedom of Information Act Fee and Fee Waiver Processing at the
Department of Energy and has several comments.
First, the draft report states that the three audited DOE sites
(Headquarters, Albuquerque, and Richland) rarely informed requesters
of the outcome of fee waiver determinations. In most of these cases,
DOE had determined that the fees incurred to process the requests were
less than the minimum amount at which fees are assessed by the
Department under its Freedom of Information Act (FOIA) implementing
regulation. As such, a fee waiver determination was not required, and
we determined that it was not necessary to inform the requester.
Nonetheless, all three sites have modified their procedures and are now
informing requesters that a fee waiver determination is not required,
even when fees to process the request are less than the minimum amount
assessed by the Department. Although not required to provide such a
statement to a requester, the DOE sites recognize that such specificity
might help a requester understand the FOIA process better.
Second, DOE does not agree with the statement that the DOE sites did
not provide requesters the reasons for a determination when fees were
not charged because the Department of Justice guidance does not require
it. As stated above, the Department's past procedures did not require
informing the requestor when processing fees were below the minimum
threshold.
Finally, the draft report represents that officials at the Richland
Operations Office "automatically granted fee waivers to news media and
public interest groups without having them address all of the fee
waiver criteria." This statement is incorrect. Richland does not have a
policy or practice to grant fee waivers without having the requester
address the fee waiver criteria.
Richland does have a particular public interest requester that makes
frequent requests to that office. The requester always provides
information to address all of the fee waiver criteria, but officials at
Richland do not always evaluate the submissions for four of the
criteria because the officials have sufficient knowledge about the
group's operations and activities to be able to make a fee waiver
determination. The other two criteria are always evaluated by Richland
for each request and the requester may be asked to provide additional
information before a fee waiver determination is made.
Richland received only one request for a fee waiver determination
during the audit period from a news media group. A fee waiver
determination was not necessary in that case, because it was determined
that the fees incurred to process the request were less than the
minimum amount at which fees are assessed by the Department.
Thank you for the opportunity to review the draft report. If you have
any questions, please contact Mr. Abel Lopez, Director, FOIA and
Privacy Act Group, at (202) 586-5955.
Sincerely,
Signed by James T. Campbell for:
Susan J. Grant:
Director, Office of Management, Budget and Evaluation/Chief Financial
Officer:
[End of section]
Appendix III: Comments from the Department of Justice:
U.5. Department of Justice:
Office of Information and Privacy:
Washington, D.C. 20530:
Telephone: (202) 514-3642
May 12, 2005:
Ms. Linda D. Koontz:
Director, Information Management Issues:
United States Government Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548:
Dear Ms. Koontz:
This letter responds to your staff's notification to us, on April 25,
2005, that the Government Accountability Office intends to go forward
with issuance of its recently prepared draft report pertaining to fee
matters under the Freedom of Information Act, and that the Department
of Justice will be the recipient of the recommendation made in that
report.
As we pointed out to your staff during a recent meeting, we are gravely
concerned that this report's central recommendation is addressed to the
wrong federal agency. Such a recommendation, if it is to be made, does
not fall within the jurisdictional purview of the Department of
Justice. Therefore, the Department of Justice cannot properly implement
this recommendation.
As in the past, please do not hesitate to call upon us, and the
Department of Justice in general, regarding any matter on which we can
provide meaningful assistance at any time. The Department requests that
this letter be published in the final report.
Sincerely,
Signed by:
Richard L. Huff:
Co-Director:
Signed by:
Daniel J. Metcalfe:
Co-Director:
[End of section]
Related GAO Products:
Information Management: Update on Freedom of Information Act
Implementation Status. [Hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-04-257]. Washington, D.C.: February 18, 2004.
Freedom of Information Act: Agency Views on Changes Resulting from New
Administration Policy. [Hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-03-981]. Washington, D.C.: September 3, 2003.
Information Management: Update on Implementation of the 1996 Electronic
Freedom of Information Act Amendments. [Hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-02-493]. Washington, D.C.: August
30, 2002.
Information Management: Progress in Implementing the 1996 Electronic
Freedom of Information Act Amendments. [Hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-01-378]. Washington, D.C.: March
16, 2001.
(310718):
FOOTNOTES
[1] This provision was added by the Freedom of Information Reform Act
of 1986 (Pub. L. 99-570). See OMB, Uniform Freedom of Information Act
Fee Schedule and Guidelines, 52 FR 10011 (Mar. 27, 1987), effective
April 27, 1987.
[2] Field offices receive and process requests independently of
headquarters but use similar processes.
[3] Among other things, a FOIA requester is required to provide an
assurance to pay any applicable fees, and if DOE cannot obtain such an
assurance--either in the original request or through follow-up--its
practice is not to process the request.
[4] The number of requests closed is larger than that received because
DOE resolved cases that had remained open from previous years.
[5] Of the 705 cases received by the three DOE locations in fiscal year
2004, we selected a review group totaling 170 cases that included all
completed cases in which fees were charged (34 cases), all completed
cases in which fee waivers were requested (95 cases), and a randomly
selected group of nonfee and non-fee-waiver related cases (43 cases).
Note that for two of the cases in which fees were charged, fee waivers
were also requested. For a complete description of the selection
process for our review group, see appendix I.
[6] The six criteria are that (1) the subject matter of the request
must concern identifiable "operations or activities of the government";
(2) the releasable portions of the requested information must be
meaningfully informative in relation to the subject matter of the
request; (3) the disclosure must contribute to the public at large as
opposed to a narrow audience; (4) the disclosure must contribute
"significantly" to public understanding of government operations and
activities; (5) the public interest must outweigh any commercial
interest; and (6) the requester's primary interest is not commercial.
[7] One of the 35 fee charged cases shown in table 2 had not been fully
processed at the time of our review.
[8] One deviation was that Richland's policy of charging 10 cents per
page for duplication was not consistent with DOE's guidance, which
stipulates a duplication charge of 5 cents per page.
[9] 5 U.S.C. § 552 (e)(5).
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