§ 294.109 Fees

5 CFR 294.109(a)(a) Applicability of fees.

5 CFR 294.109(a)(1)(1) OPM will furnish, without charge, reasonable quantities of material that it has available for free distribution to the public.

5 CFR 294.109(a)(2)(2) OPM may furnish other materials, subject to payment of fees intended to recoup the full allowable direct costs of providing services. Fees for these materials may be waived if the request meets the requirements specified in paragraph (f) of this section.

5 CFR 294.109(a)(3)(3) If a request does not include an acceptable agreement to pay fees and does not otherwise convey a willingness to pay fees, OPM will promptly provide notification of the estimated fees. This notice will offer an opportunity to confer with OPM staff to reformulate the request to meet the requester's needs at a lower cost. Upon agreement to pay the required fees, OPM will further process the request.

5 CFR 294.109(a)(4)(4) As described in § 294.107, OPM ordinarily responds to FOIA requests in a decentralized manner. Because of this, OPM may at times refer a single request to two or more OPM entities to make separate direct responses. In such cases, each responding entity may assess fees as provided by this section, but only for direct costs associated with any response it has prepared.

5 CFR 294.109(a)(5)(5) If fees for document search are authorized as provided in paragraph (c) of this section, OPM may assess charges for employee time spent searching for documents and other direct costs of a search, even if a search fails to locate records or if records located are determined to be exempt from disclosure. Searches should be conducted in the most efficient and least expensive manner so as to minimize the cost for both the agency and the requester, e.g., personnel should not engage in line-by-line search when photocopying an entire document would be a less expensive and quicker way to comply with a request.

5 CFR 294.109(a)(6)(6) Services requested and performed but not required under the FOIA, such as formal certification of records as true copies, will be subject to charges under the Federal User Charge Statute (31 U.S.C. 483a) or other applicable statutes.

5 CFR 294.109(b)(b) Rates used to compute fees. The following rates form the basis for assessing reasonable, standard charges for document search, duplication, and review as required by 5 U.S.C. 552(a)(4). The listing of rates below should be used in conjunction with the fee components listed in paragraph (c) of this section:

5 CFR 294.109(c)(c) Assessing fees based on requester's category. Rates are assessed differently for the different categories of requesters as defined in § 294.103. Requests have three cost components for the purpose of assessing fees: the cost of document search, the cost of duplication, and the cost of review. OPM will apply the rates in paragraph (b) of this section to the cost components that apply to the requester's category as follows:

5 CFR 294.109(d)(d) Payment of fees. Fees are payable by check or money order to the Office of Personnel Management.

5 CFR 294.109(d)(1)(1) If the total charge for fulfilling the request will be less than $25, no fee will be assessed (except as provided in paragraph (d)(3) of this section).

5 CFR 294.109(d)(2)(2) If a request may reasonably result in a fee assessment of more than $25, OPM will not release the records unless the requester agrees in advance to pay the anticipated charges.

5 CFR 294.109(d)(3)(3) OPM may aggregate requests and charge fees accordingly, when there is a reasonable belief that a requester, or a group of requesters acting in concert, is attempting to break down a request into a series of requests to evade the assessment of fees.

5 CFR 294.109(d)(3)(i)(i) If multiple requests of this type occur within a 30-day period, OPM may provide notice that it is aggregating the requests and that it will apply the fee provisions of this section, including any required agreement to pay fees and any advance payment.

5 CFR 294.109(d)(3)(ii)(ii) Before aggregating requests of this type made over a period longer than 30 days, OPM will assure that it has a solid basis on which to conclude that the requesters are acting in concert and are acting specifically to avoid payment of fees.

5 CFR 294.109(d)(3)(iii)(iii) OPM will not aggregate multiple requests on unrelated subjects from one person.

5 CFR 294.109(e)(e) Payment of fees in advance. If OPM estimates or determines that fees are likely to exceed $250, OPM may require the payment of applicable fees in advance.

5 CFR 294.109(e)(1)(1) If an OPM official, who is authorized to make a decision on a particular request, determines that the requester has a history of prompt payment of FOIA fees, OPM will provide notice of the likely cost and obtain satisfactory assurance of full payment.

5 CFR 294.109(e)(2)(2) When a person, or an organization that a person represents, has previously failed to pay assessed fees in a timely manner (i.e., payment was not made within 30 days of the billing date), OPM will require full payment of all fees in advance.

5 CFR 294.109(e)(3)(3) If a person, or an organization that a person represents, has not paid fees previously assessed, OPM will not begin to process any new request for records until the requester has paid the full amount owed plus any applicable interest, and made a full advance payment for the new request.

5 CFR 294.109(f)(f) Waiver or reduction of fees. OPM will 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 release of the material is not primarily in the commercial interest of the requester.

5 CFR 294.109(f)(1)(1) In determining whether disclosure is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government, OPM shall consider the following factors:

5 CFR 294.109(f)(1)(i)(i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the Government”;

5 CFR 294.109(f)(1)(ii)(ii) The information value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding of Government operations or activities;

5 CFR 294.109(f)(1)(iii)(iii) The contribution to an understanding of the subject by the general public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding”; and

5 CFR 294.109(f)(1)(iv)(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.

5 CFR 294.109(f)(2)(2) In determining whether disclosure of the information is or is not primarily in the commercial interest of the requester, OPM shall consider the following factors:

5 CFR 294.109(f)(2)(i)(i) The existence and magnitude of a commercial interest. Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so—

5 CFR 294.109(f)(2)(ii)(ii) The primary interest in disclosure. Whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.”

5 CFR 294.109(f)(3)(3) In all cases the burden of proof shall be on the requester to present evidence or information in support of a request for a waiver or reduction of fees.

5 CFR 294.109(g)(g) Denial of waiver request.

5 CFR 294.109(g)(1)(1) An OPM official may deny a request for a full or partial waiver of fees without further consideration if the request does not include:

5 CFR 294.109(g)(1)(i)(i) A clear statement of the requester's interest in the requested information;

5 CFR 294.109(g)(1)(ii)(ii) A clear statement of the use proposed for the information and whether the requester will derive income or other benefit from such use;

5 CFR 294.109(g)(1)(iii)(iii) A clear statement of how the public will benefit from OPM's release of the requested information; and

5 CFR 294.109(g)(1)(iv)(iv) If specialized use of the documents is contemplated, a clear statement of the requester's qualifications that are relevant to the specialized use.

5 CFR 294.109(g)(2)(2) A requester may appeal the denial of a waiver request as provided by § 294.110 of this part.

5 CFR 294.109(h)(h) Fees not paid; penalties; debt collection.

5 CFR 294.109(h)(1)(1) If a request, which requires the advance payment of fees under the criteria specified in this section, is not accompanied by the required payment, OPM will promptly notify the requester that the required fee must be paid within 30 days, and that OPM will not further process the request until it receives payment.

5 CFR 294.109(h)(2)(2) OPM may begin assessing interest charges on an unpaid bill starting on the 31st day following the date on which the bill was sent. Interest will be charged at the rate prescribed in 31 U.S.C. 3717, and will accrue from the date of the billing.

5 CFR 294.109(h)(3)(3) To encourage the repayment of debts incurred under this subpart, OPM may use the procedures authorized by Public Law 97-365, the Debt Collection Act of 1982. This may include disclosure to consumer reporting agencies and the use of collection agencies.