Cause of Action Institute (“CoA Institute”) filed a lawsuit yesterday against the White House Office of Management and Budget (“OMB”), continuing the parties’ longstanding feud over the agency’s failure to update thirty-year-old guidelines for the adjudication of fee issues under the Freedom of Information Act (“FOIA”).  In June 2016, CoA Institute submitted a petition for rulemaking to OMB asking it to revise the government-wide 1987 Uniform Freedom of Information Act Fee Schedule and GuidelinesAfter CoA Institute filed suit to compel a response, OMB denied the petition, arguing incorrectly that no agency subject to the FOIA is “currently relying” on outdated or statutorily superseded guidance.  The new lawsuit seeks judicial review of that denial.

The FOIA requires agencies to produce records at a reduced cost if a requester qualifies for a “favored” fee category, such as “representative of the news media.”  Agencies also must release records free of charge, if the requested information is in the public interest and a requester has a means to distribute it.  Unfortunately, agencies often use these fee provisions as a mechanism to block requesters from conducting rigorous oversight of the agency.

The 1987 OMB fee guidelines, which were created at the direction of Congress, were intended to provide helpful direction for agencies navigating these often-tricky fee issues.  But the legal landscape has changed a great deal over the past three decades.  For example, recognizing how information technology and journalism has fundamentally changed in recent years, Congress added a statutory definition of “representative of the news media” to the FOIA in 2007.  That definition expressly notes how “alternative media” and nascent news-media requesters—including nonprofit organizations—qualify for favored fee treatment.  But Congress’s statutory definition conflicts with the definition provided in the OMB fee guidelines, which limit news-media requester status to entities “organized and operated to publish or broadcast news to the public.”

Judicial developments have only added to the problem of relying on the OMB fee guidelines as authoritative.  In 2015, the D.C. Circuit rejected the Federal Trade Commission’s attempt to use the outdated “organized and operated” standard to deny CoA Institute’s its status as a “representative of the news media” and confirmed Congress’s new statutory definition.  The next year, in Sack v. Department of Justice, the same court rejected the OMB fee guidelines’ definition of an “education institutional,” which categorically excluded students from qualifying.

Contrary to OMB’s position in its denial of CoA Institute’s petition, the government-wide fee guidelines are widely used by agencies.  At least forty-four agencies still incorporate the “organized and operated” standard in their regulatory definitions of a “representative of the news media.”  Countless agencies explicitly refer to the OMB fee guidelines as binding, and some have consequently refused to update aspects of their FOIA fee regulations, instead deferring to OMB’s policy-setting role.

OMB sits at a unique place in the administrative state.  It has the authority to require adherence to cross-agency rules that can increase government transparency.  Ensuring that FOIA fees are not improperly used to block agency oversight is one way that OMB can make a difference.

Ryan P. Mulvey is Counsel at Cause of Action Institute