Q&A
Fee Waivers for Freedom of Information Act Processing
Prepared by Jane Perkins
September 24, 2008
Q: My office is considering filing a Freedom of Information Act request to obtain
documents from the U.S. Department of Health and Human Services. We are a nonprofit organization and are concerned that we are unable to afford the request because
there will be a fee associated with it.
A. The Freedom of Information Act (FOIA) does provide for processing fees.
However, there are exceptions. A recent case, Center for Medicare Advocacy v. United
States Dep?t of Health & Human Services, _ F. Supp. 2d _, No. 05-2266 (RBW), 2008
WL 429283 (D.D.C. Sept. 17, 2008), discusses some of these exceptions. The opinion is
helpful to advocates and consumer organizations because it provides some analysis of
when the federal government should grant a request for waiving the fees associated with
processing an FOIA request. Another part of the decision, however, upheld the
government?s claims that some documents were exempted from disclosure.
Background
DHHS has promulgated a regulation that establishes video-conferencing for Medicare
administrative hearings. Pursuant to the FOIA, 5 U.S.C. § 552, the Center for Medicare
Advocacy, a non-profit entity that educates and advocates for Medicare beneficiaries, asked
DHHS for copies of all documents pertaining to the design and establishment of Medicare
administrative law hearings conducted with the use of video-conferencing. Filed on August 25,
2005, the FOIA request also asked DHHS to process the request on an expedited basis and to
waive the processing fee.
DHHS acknowledged the request in a letter dated October 3, 2005. However, not having
received the documents, the Center considered the response a denial of its request and filed suit
in U.S. district court on November 23, 2005. Over the next several months, DHHS mailed the
Center responses to the request, allowing some documents to be released but withholding others.
DHHS also denied the requests for a fee waiver and expedited processing.
Court requires DHHS to waive processing fees
While generally requiring requesters to pay for processing, the FOIA authorizesfee
reductions in some instances. This case focused on 5 U.S.C. § 552(a)(4)(iii), which authorizes a
federal agency to waive the processing fee when the request is in the public interest because it is
likely to contribute significantly to public understanding of the operations or activities of the
government and is not primarily in the commercial interest of the requester. The requester has
the burden of establishing the need for a fee reduction or waiver.
When reviewing a fee waiver request, DHHS will assess the following factors:
1. How, if at all, do the records to be disclosed pertain to the operations or activities of
the federal government?
2. Would disclosure of the records reveal any meaningful information about government
operations or activities? Can one learn from these records anything about such
operations that is not already public knowledge?
3. Will the disclosure advance the understanding of the general public as distinguished
from a narrow segment of interested persons?
4. Will the contribution to public understanding be a significant one? Will the public?s
understanding of the government?s operations be substantially greater as a result of
the disclosure?
45 C.F.R. § 5.4(b).
Looking at the Center?s request against the first factor, the court found that the
documents requested concerned the operations of the government. The court rejected an
interesting argument posted by the government?that the fee should not be waived because some
of the documents were brochures submitted by private parties seeking to do business with the
government. According to the court, this excuse was not a proper basis for denying the fee
waiver because ??[t]he materials can?provide insight on the options and factors under
consideration by the agency as it designed and implemented the new hearings systems.
Accordingly, they concern the activities of the federal government.? 2008 WL 429283, *15.
The court also rejected the government?s argument (citing the second and fourth factors)
that the fee should not be waived because some of the requested material was already publicly
available. The courtsaid the request should have been evaluated based on the potential
contribution the information would have on the public?s understanding and not on the fact that
some of the material was publicly available. The court also found the Center?s role in training
Medicare beneficiaries and advocates, commenting on policies, and litigating on behalf of
beneficiaries meant that the Center was able to make the information more accessible to
members of the public who cannot readily locate a particular regulation, provision orreport on a
government website. Id.
Documents protected from release under Exemption 5
The federal government argued that a number of documents were exempted from release.
Although the court quoted a standard of review that placed a heavy burden on the government,
the court upheld the government?s refusal to release the documents under exemption 5 of the
FOIA. See 2008 WL 429283, *7 (quotations and citations omitted). Exemption 5 protects
?inter-agency or intra-agency memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency[.]? 5 U.S.C. § 552(b)(5). Courts have
interpreted traditional civil discovery privileges into exemption 5, including the deliberative
process privilege and the attorney-client privilege.
Deliberative process privilege. Thus, the court protected from disclosure documents that
it found to be pre-decisional in nature, reflecting advisory opinions and recommendations. These
included documents containing suggestions shared between attorneys in the General Counsel?s
office and a Department of Justice attorney, suggested responses to proposed regulations, and
suggestions regarding draft questions and answers about conducting Medicare appeals. In its
ruling, the court said the purpose behind the deliberative process privilege is to
ensure open communication between subordinates and supervisors, prevent premature
disclosure of policies before final adoption, and to avoid public confusion if grounds for
policies that were not part of the final adopted agency policy happened to be exposed to
the public.
Id at *9.
Attorney-client privilege. Although noting that the attorney client privilege does not
allow an agency to withhold a document merely because it is a communication between the
agency and its lawyers, id. at *12, the court found the remainder of the withheld documents to
be protected by the attorney-client privilege. The court rejected the Center?s argument that the
government?s claims to withhold needed to specifically identify the legal advice sought and
given. Rather, the court said the government needed only to describe each withheld document
(including the source and recipient), explain how the document involves confidential attorneyclient communications, and show that the document relates to a legal matter for which the client
has sought professional advice. In particular, the court was persuaded by the affidavit submitted
by the director of DHHS?s freedom of information division, attesting to the privileged nature of
the withheld documents.
