The ultimate student discount: No more paying for FOIA search-and-retrieval



An “educational” discount in fees for obtaining federal records applies to students as well as to their schools, a federal appeals court says.

The May 20 ruling is a significant advance for the access rights of student journalists, who’ll now be spared from paying for federal agencies to locate and retrieve documents, an expense that can run into the thousands.

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To be clear, the D.C. Circuit Court of Appeals’ ruling in Sack v. Department of Defense applies only to the federal Freedom-of-Information Act, which entitles requesters to records from U.S. government agencies. It has no effect on the much more commonly used state FOIA laws that students are more likely to use for access to records of their own educational institutions.

When a requester asks a federal agency to produce documents, the government normally is allowed to charge hourly fees for the time spent finding and reviewing the documents. But the federal FOIA statute limits what agencies can charge “educational institutions” to just the actual cost of making copies.

University of Virginia graduate student Kathryn Sack, aggrieved by a $900 bill from the Pentagon to locate records needed for her doctoral research, insisted that the “educational institution” discount should apply to her. A U.S. district judge disagreed, but on Friday, a three-judge panel of the D.C. Circuit ruled in Sack’s favor.

“If teachers can qualify for reduced fees, so can students,” Judge Brett M. Kavanaugh wrote in the court’s 3-0 opinion. “ Students who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution.” 

Students affiliated with journalistic publications were already eligible for the fee reduction, which extends to “a representative of the news media.” But a student doing a research paper for a journalism course unaffiliated with a recognized media outlet – or perhaps with nothing more than the aspiration of selling the work as a freelancer – fell into a zone of uncertainty that the appeals court has now helpfully clarified.

The ruling struck down as unreasonable a guideline disseminated by the federal Office of Management and Budget, which authorized agencies to treat requests from students as ineligible for the discounted educational rate: 

The Guideline says that a geology teacher seeking information about soil erosion to support her research is entitled to reduced fees. But why not the geology student seeking the same information for the same reason? Crickets.

Although students are far more likely to deal with state rather than federal agencies in the ordinary course of their reporting, it has become increasingly common for college journalists to need access to federal records because of the U.S. Department of Education’s stepped-up enforcement of the Title IX anti-discrimination statute. Forgiveness from search-and-retrieval fees will be welcome relief to those requesters. 

Regrettably, the court’s opinion introduced a needless hurdle by authorizing federal agencies to demand proof that the student’s work is needed “to further coursework or other school-sponsored activity,” such as a copy of a syllabus, a letter from a professor “or the like.”  It will bear careful watching whether agencies bent on dissuading requesters – or turning a profit from them – will respect the court’s admonishment: “We caution agencies against requiring hard-to-obtain verifications that will have the practical effect of deterring or turning away otherwise valid student FOIA requests.”

Tagged: D.C. Circuit, FOIA, Freedom of Information Act, public records, recent-news
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