Legal Authority 28 CFR 16.10

28 CFR 16.10 (up to date as of 1/25/2024)
Fees.

28 CFR 16.10 (Jan. 25, 2024)

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Title 28 —Judicial Administration
Chapter I —Department of Justice
Part 16 —Production or Disclosure of Material or Information
Subpart A —Procedures for Disclosure of Records Under the Freedom of Information Act
Source: AG Order No. 3517–2015, 80 FR 18106, Apr. 3, 2015, unless otherwise noted.
Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717.

§ 16.10 Fees.
(a) In general. Components shall charge for processing requests under the FOIA in accordance with the
provisions of this section and with the OMB Guidelines. In order to resolve any fee issues that arise under
this section, a component may contact a requester for additional information. Components shall ensure
that searches, review, and duplication are conducted in the most efficient and the least expensive manner.
A component ordinarily will collect all applicable fees before sending copies of records to a requester.
Requesters must pay fees by check or money order made payable to the Treasury of the United States.
(b) Definitions. For purposes of this section:
(1) Commercial use request is a request that asks for information for a use or a purpose that furthers a
commercial, trade, or profit interest, which can include furthering those interests through litigation. A
component's decision to place a requester in the commercial use category will be made on a caseby-case basis based on the requester's intended use of the information.
(2) Direct costs are those expenses that an agency incurs in searching for and duplicating (and, in the
case of commercial use requests, reviewing) records in order to respond to a FOIA request. For
example, direct costs include the salary of the employee performing the work (i.e., the basic rate of
pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating
computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not
include overhead expenses such as the costs of space, and of heating or lighting a facility.
(3) Duplication is reproducing a copy of a record, or of the information contained in it, necessary to
respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
(4) Educational institution is any school that operates a program of scholarly research. A requester in
this fee category must show that the request is made in connection with the requester's role at the
educational institution. Components may seek assurance from the requester that the request is in
furtherance of scholarly research and will advise requesters of their placement in this category.

Example 1. A request from a professor of geology at a university for records relating to soil
erosion, written on letterhead of the Department of Geology, would be presumed to be from
an educational institution.
Example 2. A request from the same professor of geology seeking drug information from
the Food and Drug Administration in furtherance of a murder mystery he is writing would not
be presumed to be an institutional request, regardless of whether it was written on
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institutional stationery.
Example 3. A student who makes a request in furtherance of the student's coursework or
other school-sponsored activities and provides a copy of a course syllabus or other
reasonable documentation to indicate the research purpose for the request, would qualify as
part of this fee category.
(5) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as
defined in paragraph (b)(1) of this section and that is operated solely for the purpose of conducting
scientific research the results of which are not intended to promote any particular product or
industry. A requester in this category must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are sought to further scientific research
and are not for a commercial use.
(6) Representative of the news media is any person or entity that actively gathers information of
potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. The term “news” means information that is
about current events or that would be of current interest to the public. Examples of news media
entities include television or radio stations that broadcast “news” to the public at large and
publishers of periodicals that disseminate “news” and make their products available through a
variety of means to the general public, including news organizations that disseminate solely on the
Internet. A request for records supporting the news-dissemination function of the requester shall not
be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for
expecting publication through a news media entity shall be considered as a representative of the
news media. A publishing contract would provide the clearest evidence that publication is expected;
however, components shall also consider a requester's past publication record in making this
determination.
(7) Review is the examination of a record located in response to a request in order to determine whether
any portion of it is exempt from disclosure. Review time includes processing any record for
disclosure, such as doing all that is necessary to prepare the record for disclosure, including the
process of redacting the record and marking the appropriate exemptions. Review costs are properly
charged even if a record ultimately is not disclosed. Review time also includes time spent both
obtaining and considering any formal objection to disclosure made by a confidential commercial
information submitter under § 16.7, but it does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(8) Search is the process of looking for and retrieving records or information responsive to a request.
Search time includes page-by-page or line-by-line identification of information within records and the
reasonable efforts expended to locate and retrieve information from electronic records.
(c) Charging fees. In responding to FOIA requests, components shall charge the following fees unless a
waiver or reduction of fees has been granted under paragraph (k) of this section. Because the fee
amounts provided below already account for the direct costs associated with a given fee type,
components should not add any additional costs to charges calculated under this section.
(1) Search.

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(i)

28 CFR 16.10(c)(1)(i)

Requests made by educational institutions, noncommercial scientific institutions, or
representatives of the news media are not subject to search fees. Search fees shall be charged
for all other requesters, subject to the restrictions of paragraph (d) of this section. Components
may properly charge for time spent searching even if they do not locate any responsive records
or if they determine that the records are entirely exempt from disclosure.

(ii) For each quarter hour spent by personnel searching for requested records, including electronic
searches that do not require new programming, the fees shall be as follows:
professional—$10.00; and clerical/administrative—$4.75.
(iii) Requesters shall be charged the direct costs associated with conducting any search that
requires the creation of a new computer program to locate the requested records. Requesters
shall be notified of the costs associated with creating such a program and must agree to pay
the associated costs before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by an agency at a Federal records center
operated by the National Archives and Records Administration (NARA), additional costs shall
be charged in accordance with the Transactional Billing Rate Schedule established by NARA.
(2) Duplication. Duplication fees shall be charged to all requesters, subject to the restrictions of
paragraph (d) of this section. A component shall honor a requester's preference for receiving a
record in a particular form or format where it is readily reproducible by the component in the form or
format requested. Where photocopies are supplied, the component shall provide one copy per
request at a cost of five cents per page. For copies of records produced on tapes, disks, or other
media, components shall charge the direct costs of producing the copy, including operator time.
Where paper documents must be scanned in order to comply with a requester's preference to
receive the records in an electronic format, the requester shall pay the direct costs associated with
scanning those materials. For other forms of duplication, components shall charge the direct costs.
(3) Review. Review fees shall be charged to requesters who make commercial use requests. Review fees
shall be assessed in connection with the initial review of the record, i.e., the review conducted by a
component to determine whether an exemption applies to a particular record or portion of a record.
No charge will be made for review at the administrative appeal stage of exemptions applied at the
initial review stage. However, if a particular exemption is deemed to no longer apply, any costs
associated with a component's re-review of the records in order to consider the use of other
exemptions may be assessed as review fees. Review fees shall be charged at the same rates as
those charged for a search under paragraph (c)(1)(ii) of this section.
(d) Restrictions on charging fees.
(1) No search fees will be charged for requests by educational institutions (unless the records are
sought for a commercial use), noncommercial scientific institutions, or representatives of the news
media.
(2) If a component fails to comply with the FOIA's time limits in which to respond to a request, it may not
charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of
this section, may not charge duplication fees, except as described in paragraphs (d)(2)(i) through (iii)
of this section.
(i)

If a component has determined that unusual circumstances as defined by the FOIA apply and
the agency provided timely written notice to the requester in accordance with the FOIA, a failure
to comply with the time limit shall be excused for an additional 10 days.

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(ii) If a component has determined that unusual circumstances as defined by the FOIA apply, and
more than 5,000 pages are necessary to respond to the request, the component may charge
search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may
charge duplication fees if the following steps are taken. The component must have provided
timely written notice of unusual circumstances to the requester in accordance with the FOIA
and the component must have discussed with the requester via written mail, email, or
telephone (or made not less than three good-faith attempts to do so) how the requester could
effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this
exception is satisfied, the component may charge all applicable fees incurred in the processing
of the request.
(iii) If a court has determined that exceptional circumstances exist as defined by the FOIA, a failure
to comply with the time limits shall be excused for the length of time provided by the court
order.
(3) No search or review fees will be charged for a quarter-hour period unless more than half of that
period is required for search or review.
(4) Except for requesters seeking records for a commercial use, components shall provide without
charge:
(i)

The first 100 pages of duplication (or the cost equivalent for other media); and

(ii) The first two hours of search.
(5) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of
search, a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no
fee will be charged.
(e) Notice of anticipated fees in excess of $25.00.
(1) When a component determines or estimates that the fees to be assessed in accordance with this
section will exceed $25.00, the component shall notify the requester of the actual or estimated
amount of the fees, including a breakdown of the fees for search, review or duplication, unless the
requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the
fee can be estimated readily, the component shall advise the requester accordingly. If the requester
is a noncommercial use requester, the notice shall specify that the requester is entitled to the
statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged
search fees, two hours of search time at no charge, and shall advise the requester whether those
entitlements have been provided.
(2) In cases in which a requester has been notified that the actual or estimated fees are in excess of
$25.00, the request shall not be considered received and further work will not be completed until the
requester commits in writing to pay the actual or estimated total fee, or designates some amount of
fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet
been provided with the requester's statutory entitlements, designates that the requester seeks only
that which can be provided by the statutory entitlements. The requester must provide the
commitment or designation in writing, and must, when applicable, designate an exact dollar amount
the requester is willing to pay. Components are not required to accept payments in installments.

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(3) If the requester has indicated a willingness to pay some designated amount of fees, but the
component estimates that the total fee will exceed that amount, the component shall toll the
processing of the request when it notifies the requester of the estimated fees in excess of the
amount the requester has indicated a willingness to pay. The component shall inquire whether the
requester wishes to revise the amount of fees the requester is willing to pay or modify the request.
Once the requester responds, the time to respond will resume from where it was at the date of the
notification.
(4) Components shall make available their FOIA Public Liaison or other FOIA professional to assist any
requester in reformulating a request to meet the requester's needs at a lower cost.
(f) Charges for other services. Although not required to provide special services, if a component chooses to
do so as a matter of administrative discretion, the direct costs of providing the service shall be charged.
Examples of such services include certifying that records are true copies, providing multiple copies of the
same document, or sending records by means other than first class mail.
(g) Charging interest. Components may charge interest on any unpaid bill starting on the 31st day following
the date of billing the requester. Interest charges shall be assessed at the rate provided in 31 U.S.C. 3717
and will accrue from the billing date until payment is received by the component. Components shall 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.
(h) Aggregating requests. When a component reasonably believes that a requester or a group of requesters
acting in concert is attempting to divide a single request into a series of requests for the purpose of
avoiding fees, the component may aggregate those requests and charge accordingly. Components may
presume that multiple requests of this type made within a 30-day period have been made in order to avoid
fees. For requests separated by a longer period, components will aggregate them only where there is a
reasonable basis for determining that aggregation is warranted in view of all the circumstances involved.
Multiple requests involving unrelated matters shall not be aggregated.
(i)

Advance payments.
(1) For requests other than those described in paragraphs (i)(2) or (i)(3) of this section, a component
shall not require the requester to make an advance payment before work is commenced or
continued on a request. Payment owed for work already completed (i.e., payment before copies are
sent to a requester) is not an advance payment.
(2) When a component determines or estimates that a total fee to be charged under this section will
exceed $250.00, it may require that the requester make an advance payment up to the amount of the
entire anticipated fee before beginning to process the request. A component may elect to process
the request prior to collecting fees when it receives a satisfactory assurance of full payment from a
requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee to any component or
agency within 30 calendar days of the billing date, a component may require that the requester pay
the full amount due, plus any applicable interest on that prior request, and the component may
require that the requester make an advance payment of the full amount of any anticipated fee before
the component begins to process a new request or continues to process a pending request or any
pending appeal. Where a component has a reasonable basis to believe that a requester has
misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that
the requester provide proof of identity.

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(4) In cases in which a component requires advance payment, the request shall not be considered
received and further work will not be completed until the required payment is received. If the
requester does not pay the advance payment within 30 calendar days after the date of the
component's fee determination, the request will be closed.
(j)

Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees
charged under any statute that specifically requires an agency to set and collect fees for particular types
of records. In instances where records responsive to a request are subject to a statutorily-based fee
schedule program, the component shall inform the requester of the contact information for that program.

(k) Requirements for waiver or reduction of fees.
(1) Requesters may seek a waiver of fees by submitting a written application demonstrating how
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 is not
primarily in the commercial interest of the requester.
(2) A component must furnish records responsive to a request without charge or at a reduced rate when
it determines, based on all available information, that 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 is not primarily in the commercial interest of the
requester. In deciding whether this standard is satisfied the component must consider the factors
described in paragraphs (k)(2)(i) through (iii) of this section:
(i)

Disclosure of the requested information would shed light on the operations or activities of the
government. The subject of the request must concern identifiable operations or activities of the
Federal Government with a connection that is direct and clear, not remote or attenuated.

(ii) Disclosure of the requested information would be likely to contribute significantly to public
understanding of those operations or activities. This factor is satisfied when the following
criteria are met:
(A) Disclosure of the requested records must be meaningfully informative about government
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 meaningfully informative
if nothing new would be added to the public's understanding.
(B) The disclosure must 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 the requester's ability and
intention to effectively convey information to the public must be considered. Components
will presume that a representative of the news media will satisfy this consideration.
(iii) The disclosure must not be primarily in the commercial interest of the requester. To determine
whether disclosure of the requested information is primarily in the commercial interest of the
requester, components will consider the following criteria:
(A) Components must identify whether the requester has any commercial interest that would
be furthered by the requested disclosure. A commercial interest includes any commercial,
trade, or profit interest. Requesters must be given an opportunity to provide explanatory
information regarding this consideration.

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(B) If there is an identified commercial interest, the component must determine whether that
is the primary interest furthered by the request. A waiver or reduction of fees is justified
when the requirements of paragraphs (k)(2)(i) and (ii) of this section are satisfied and any
commercial interest is not the primary interest furthered by the request. Components
ordinarily will presume that when a news media requester has satisfied the requirements
of paragraphs (k)(2)(i) and (ii) of this section, the request is not primarily in the
commercial interest of the requester. Disclosure to data brokers or others who merely
compile and market government information for direct economic return will not be
presumed to primarily serve the public interest.
(3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver
shall be granted for those records.
(4) Requests for a waiver or reduction of fees should be made when the request is first submitted to the
component and should address the criteria referenced above. A requester may submit a fee waiver
request at a later time so long as the underlying record request is pending or on administrative
appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those
fees and that waiver is denied, the requester shall be required to pay any costs incurred up to the
date the fee waiver request was received.
[AG Order No. 3517–2015, 80 FR 18106, Apr. 3, 2015, as amended by AG Order 3803–2016, 82 FR 728, Jan. 4, 2017]

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