Title 40

SECTION 1850.10

1850.10 Fees.

§ 1850.10 Fees.

(a) Generally. Except as provided elsewhere in this section, the Records Management Officer shall assess fees where applicable in accordance with this section for search, review, and duplication of records requested. The Records Management Officer shall also have authority to furnish documents without any charge or at a reduced charge if disclosure of the 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 is not primarily in the commercial interest of the requester.

(b)(1) Fee schedule; waiver of fees. The fees applicable to a request for Council records pursuant to § 1850.5 are set forth in the following uniform fee schedule:

(2) Search. (i) The Council shall charge search fees for all requests, subject to the limitations of paragraph (b)(5) of this section. The Records Management Officer shall charge for time spent searching for responsive records, even if no responsive record is located or if the Records Management Officer withholds records located as entirely exempt from disclosure. Search fees shall equal the direct costs of conducting the search by the Council employee involved, plus 16 percent of the salary rate to cover benefits.

(ii) For computer searches of records, the Council will charge requesters the direct costs of conducting the search. In accordance with paragraph (f) of this section, however, the Council will charge certain requesters no search fee and certain other requesters are entitled to the cost equivalent of two hours of manual search time without charge. These direct costs include the costs attributable to the salary of an operator/programmer performing a computer search.

(3) Duplication. The Council will charge duplication fees to all requesters, subject to the limitations of paragraph (b)(5) of this section. The fee for a paper photocopy of a record (no more than one copy of which need be supplied) is 5 cents per page. The Records Management Officer will charge the requester for the direct costs, including operator time, of making copies produced by computer, such as tapes or printouts. The Records Management Officer will charge a requester the direct costs of providing other forms of duplication.

(4) Review. The Council will charge review fees to requesters who make a commercial use request. Review fees generally are limited to the initial record review, i.e., the review done when the Records Management Officer determines whether an exemption applies to a particular record at the initial request level. The Council will not charge a requester for additional review at the administrative appeal level. Review fees consist of the direct costs of conducting the review by the Council employee involved, plus 16 percent of the salary rate to cover benefits.

(5) Limitations on charging fees. (i) The Council will not charge a search fee for requests from educational institutions, noncommercial scientific institutions, or representatives of the news media.

(ii) The Council will not charge a search fee or review fee for a quarter-hour period unless more than half of that period is required for search or review.

(iii) The Council will not charge a fee to a requester whenever the total fee calculated under this paragraph is $25 or less for the request.

(iv) Except for requesters seeking records for a commercial use, the Council will provide without charge the first 100 pages of duplication (or the cost equivalent) and the first two hours of search.

(v) The provisions of paragraphs (b)(5)(iii) and (iv) of this section work together. This means that for requesters other than those seeking records for a commercial use, no fee shall be charged unless the cost of search is in excess of two hours plus the cost of duplication in excess of 100 pages totals more than $25.

(vi) No search fees shall be charged to a requester when the Council does not comply with the statutory time limits at 5 U.S.C. 552(a)(6) in which to respond to a request, unless unusual or exceptional circumstances (as those terms are defined by the FOIA) apply to the processing of the request.

(vii) No duplication fees shall be charged to requesters in the fee category of a representative of the news media or an educational or noncommercial scientific institution when the Council does not comply with the statutory time limits at 5 U.S.C. 552(a)(6) in which to respond to a request, unless unusual or exceptional circumstances (as those terms are defined by the FOIA) apply to the processing of the request.

(c) Payment procedures. All requesters shall pay the applicable fee before the Council sends copies of the requested records, unless the Records Management Official grants a fee waiver. Requesters must pay fees by check or money order made payable to the “Treasury of the United States.” Checks and money orders should be mailed to 500 Poydras Street, Suite 1117, New Orleans, LA 70130.

(d) Advance notification of fees. If the estimated charges exceed $25, the Records Management Officer shall notify the requester of the estimated amount, unless the requester has indicated a willingness to pay fees as high as those anticipated. Upon receipt of such notice, the requester may confer with the Records Management Officer to reformulate the request to lower the costs. Council staff shall suspend processing the request until the requester provides the Records Management Officer with a written guarantee that the requester will make payment upon completion of processing (i.e., upon completion of the search, review and duplication, but prior the Council sending copies of the requested records to the requester).

(e) Advance payment. The Records Management Officer shall require advance payment of any fee estimated to exceed $250. The Records Management Officer also shall require full payment in advance where a requester has previously failed to pay a fee in a timely fashion. If an advance payment of an estimated fee exceeds the actual total fee by $1 or more, the Council shall refund the difference to the requester. The Council shall suspend the processing of the request and the statutory time period for responding to the request until the Records Management Officer receives the required payment.

(f) Categories of uses. The fees assessed depend upon the fee category. In determining which category is appropriate, the Records Management Officer shall look to the identity of the requester and the intended use set forth in the request for records. Where a requester's description of the use is insufficient to make a determination, the Records Management Officer may seek additional clarification before categorizing the request.

(1) Commercial use requester: The fees for search, duplication, and review apply.

(2) Educational institutions, non-commercial scientific institutions, or representatives of the news media requesters: The fees for duplication apply. The Council will provide the first 100 pages of duplication free of charge.

(3) All other requesters: The fees for search and duplication apply. The Council will provide the first two hours of search time and the first 100 pages of duplication free of charge.

(g) Nonproductive search. The Council may charge fees for search even if no responsive documents are found.

(h) Interest charges. The Records Management Officer may assess interest charges on any unpaid bill starting on the 31st calendar day following the date the Council sent the bill to the requester. The Council will charge interest at the rate prescribed in 31 U.S.C. 3717 on fees payable in accordance with this section. The Council will follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.

(i) Aggregated requests. A requester may not file multiple requests at the same time solely in order to avoid payment of fees. If the Council reasonably believes that a request, or a group of requesters acting in concert, is attempting to break down a request into a series of requests for the purpose of evading the assessment of fees, the Council may aggregate any such requests and charge accordingly. The Records Management Officer may reasonably presume that one requester making multiple requests on the same topic within a 30-day period has done so to avoid fees.

(j) Waiver or reduction of fees. To seek a waiver, a requester shall include the request for waiver or reduction of fees, and the justification for such based on the factors set forth in this paragraph, with the request for records to which it pertains. If a requester requests a waiver or reduction and has not indicated in writing an agreement to pay the applicable fees, the time for responding to the request for Council records shall not begin until the Records Management Officer makes a determination regarding the request for a waiver or reduction of fees.

(1) Records responsive to a request shall be furnished without charge, or at a reduced rate below that established in paragraph (b) of this section, where the Council determines, after consideration of all available information, that the requester has demonstrated that:

(i) 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

(ii) Disclosure of the information is not primarily in the commercial interest of the requester.

(2) In deciding whether 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, the Council will consider the following factors:

(i) The subject of the request: Whether the subject of the requested records concerns the operations or activities of the Government. The subject of the requested records must concern identifiable operations or activities of the Federal government, with a connection that is direct and clear, not remote or attenuated.

(ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding of Government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be likely to contribute to such an understanding.

(iii) The contribution to an understanding of the subject by the public: Whether disclosure of the requested information will contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as his or her ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration. Merely providing information to media sources is insufficient to satisfy this consideration.

(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of Government operations or activities. The public's understanding of the subject in question prior to disclosure must be significantly enhanced by the disclosure.

(3) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the Council will consider the following factors:

(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. The Council shall consider any commercial interest of the requester (with reference to the definition of “commercial use request” in § 1850.2(b)), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.

(ii) The primary interest in disclosure: Whether any identified commercial interest of the requester is sufficiently great, in comparison with the public interest in disclosure, that disclosure if “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified if the public interest standard (paragraph (j)(1)(i) of this section) is satisfied and the public interest is greater than any identified commercial interest in disclosure. The Council shall presume that if a news media requester has satisfied the public interest standard, the public interest is the primary interest served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market Government information for direct economic return shall not be presumed to primarily serve the public interest.

(4) A request for a waiver or reduction of fees shall include a clear statement of how the request satisfies the criteria set forth in paragraphs (j)(2) and (3) of this section, insofar as they apply to each request. The burden shall be on the requester to present evidence or information in support of a request for a waiver or reduction of fees.

(5) Where only some of the records to be released satisfy the requirements for a fee waiver, a waiver shall be granted for those records.

(6) The Records Management Officer shall make a determination on the request for a waiver or reduction of fees and shall notify the requester accordingly. A denial may be appealed to the General Counsel in accordance with § 1850.7.

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