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have been the subject of government surveillance were entitled to

waivers under the public benefit test. (Others said that they

Among the 41 decisions giving reasons having to do with the

costs or expense of searching for or reproducing documents, 10

waivers were denied on the ground that the information could only

be found after an extensive search or substantial expense and in 26

other instances (mostly from one Department) it was simply stated that

the public would be better served by conserving public funds than

by a waiver, even if there was some possibility of public benefit

from the waiver. A few decisions used cost as the basis for grant

ing a waiver, rather than denying one (saying that the amounts,

although greater than the agencies' automatic fee thresholds, were

not large). In one instance, a waiver was denied on the specific

ground (among others) that waivers had been granted to the same

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environmental group in the past--and the agency felt that the past

waivers (totalling approximately $120) had been expensive.

A few agencies have denied waivers on the ground that the

search would be unlikely to find any documents useful to the

requester; another denied a waiver on the ground that the identi

fied documents, though they were all collected in one place, would

not reveal any "new facts." At least one decision denied a waiver

because the agency felt the FOIA should be "self-supporting."

Finally, in 23 instances, agencies denied waivers on the

ground that the information was available elsewhere to the public without

granting the requested fee waiver. In 7 cases the information was

said to be substantially available, in 6 cases it was said to be

available, and in 10 more the requester was told he could inspect

the documents (but not obtain a waiver for copying) in public read

ing rooms operated by the agency. In 3 of the cases involving such

reading rooms, the requester was in the same city as the documents.

However, in 3 cases the requester was in another state and would

have to travel at his own expense (requester in Ohio, documents in

Washington, D.C.; requester in Oregon, documents in Idaho;

requester in Washington State, documents in New York).

In 4

other cases the locations were not clear.

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APPENDIX E

29/ Many agencies provided no data or had no waiver requests. The following table shows the agencies for which data were obtained on both the number of FOIA requests and the number of fee waiver requests in 1978.

(See Table on next page)

This sample only covers a portion of the federal government and is offered only to give some idea of the percentage of FOIA requests which ask for fee waivers. Note that the number of waiver requests in the data for the Department of Housing and Urban Development accounted for more than half of the total number of waiver requests. Apart from HUD, fee waivers were one percent of the total FOIA requests, or 768 waiver requests out of the 75,813 FOIA requests.

I am pleased to respond to the questions in your letter of November 20, 1980, based on my testimony on November 18, 1980. These responses and my testimony are my own professional opinion and not that of the University of Oregon. Your questions and my answers are as follows:

(1) In your view, are denied fee waivers appealable to the head of an agency and, ultimately, to a court under Freedom of Information Act appeal procedures?

It is my legal opinion that denials of fee waivers are appealable to the head of an agency and to the courts under present law. In Rizzo v. Tyler, 438 F.Supp. 895, 898 (S.C.N.Y. 1977), the Department of Justice argued that it was not "withholding agency records" when it denied a fee waiver and therefore that $552 (a) (4) (B)'s grant of jurisdiction to U.S. district courts "to enjoin [an] agency from withholding agency records" was inapplicable. However, the court rejected the argument, saying that "an attempt to condition disclosure upon the payment of fees improperly imposed is the sort of improper withholding that this court may enjoin [under $552 (a) (4) (B)]."

(2) To what extent are fee waiver denials being so appealed, and with what result?

It is extremely difficult to conclude from present data what percentage or proportion of fee waiver denials are appealed to the higher levels of an agency, but I would guess that it does not exceed one out of ten. What my data do show is that out of 210 fee waiver appeal decisions studied, 175 (83%) were denied by the higher levels of the agencies.