The White House Office of Management and Budget (“OMB”) published a notice of proposed revisions to its Uniform Freedom of Information Act Fee Schedule and Guidelines in today’s issue of the Federal Register. OMB first published the guidelines, which are binding on all agencies subject to the Freedom of Information Act (“FOIA”), over thirty-years ago. They have never been updated, despite repeated requests from the transparency community, the FOIA Federal Advisory Committee, and the Archivist of the United States. The much-anticipated revisions aim to improve FOIA administration and ensure more equitable resolution of fee issues across the government. OMB’s notice comes amid a lawsuit filed by Cause of Action Institute (“CoA Institute”) to force such an update.
CoA Institute’s Litigation Efforts
In June 2016, CoA Institute submitted a petition for rulemaking to OMB asking it to revise the 1987 fee guidelines. After CoA Institute filed suit to compel a response, OMB denied the petition, arguing that no agency is “currently relying” on outdated or statutorily superseded guidance. CoA Institute filed a second lawsuit filed in September 2019 seeking judicial review of OMB’s denial, but in the face of CoA Institute’s motion for summary judgment, the agency sought a stay while it undertook the requested revision, thus effectively granting CoA Institute’s petition.
OMB’s proposed changes cover three general areas, namely, compliance with legislative amendments and leading judicial decisions, as well as improved clarity in how the guidelines impact the different type of fee determinations required under the FOIA.
Fee Category Definitions
The FOIA requires agencies to produce records at a reduced cost if the requester qualifies for a “favored” fee category, such as “representatives of the news media.” When OMB’s fee guidelines were first published, they provided helpful direction for agencies navigating often-tricky fee issues. But the legal landscape has changed a great deal over the past thirty years.
For example, in 2007, recognizing how information technology and journalism has fundamentally changed, Congress added a statutory definition of “representative of the news media” to the FOIA. 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 guidelines, which limit news-media requester status to entities “organized and operated to public or broadcast news to the public.” Thankfully, OMB’s update will conform the guidelines to the law on this issue and avoid the costly and unnecessary litigation—such as CoA Institute’s successful D.C. Circuit appeal against the Federal Trade Commission—that can arise when agencies improperly rely on OMB’s guidelines.
The D.C. Circuit has similarly clarified application of the FOIA’s “educational institution” fee category. In Sack v. Department of Justice, the court rejected the OMB fee guidelines’ approach, which categorically excluded students from qualifying for preferential fee treatment. OMB’s adoption of the Sack standard—which was already required of agencies under guidance from the Department of Justice’s Office of Information Policy—is yet another positive development.
Other Improvements to the Fee Guidelines
OMB’s notice would clarify other aspects of the guidelines, too, by incorporating recently introduced statutory limitations on the ability of agencies to collect fees when they fail to comply with time limits, as well as explaining that the guidelines should not impact public interest fee waiver determinations.
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 the OMB can make a difference. It is simply unfortunate that it took multiple lawsuits and decades of public outcry for OMB to carry out its obligations to update its guidelines. At least things are now heading in a positive direction.
The public will have thirty days to provide feedback on OMB’s proposed revisions.
Ryan P. Mulvey is Counsel at Cause of Action Institute
