Subpart C
Under 70.38(b), direct costs are the actual expenditures a component incurs to search for and duplicate records (and review for commercial requests). Direct costs include the Federal employee’s salary (the basic rate of pay plus 16% to cover benefits) and the cost of operating duplication machinery, and they exclude overhead expenses such as space, heating, or lighting. See the definition at 70.38(b).
No. Overhead expenses such as the costs of space, heating, or lighting the facility are not included in direct costs under 70.38(b). Direct costs are limited to actual expenditures for searching, duplicating, and (for commercial requests) reviewing records.
Under 70.38(c), duplication is making a copy of a record necessary to respond to a request, and that copy can be paper, microform, audio-visual materials, or electronic media such as a CD or other electronic records. See 70.38(c).
Under 70.38(d), a search includes looking for and retrieving records responsive to a FOIA request, including page-by-page or line-by-line identification and reasonable efforts to locate information in electronic formats. A search does not include the review of material to determine exemptions, which is treated separately. See 70.38(d).
Under 70.38(e), review is the examination of located records to decide whether any portion is exempt from disclosure and preparing materials for release (including excising exempt portions). Review time also includes contacting submitters and addressing their objections, but it does not include resolving general legal or policy issues. See 70.38(e).
Under 70.38(f), a request is treated as for commercial use when the requester seeks information to further commercial, trade, or profit interests (including through litigation). If the agency reasonably believes the requester will use the records commercially, it should ask for clarification and give the requester a chance to explain. See 70.38(f).
Yes—under 70.38(f), seeking records for litigation can be considered a commercial use if the requester seeks information that furthers commercial, trade, or profit interests; litigation is specifically mentioned as a possible commercial use. Agencies should evaluate the requester’s intended use and seek clarification when there is reasonable cause to doubt the stated use. See 70.38(f).
Under 70.38(g), an educational institution is a preschool, elementary or secondary school, undergraduate or graduate institution, professional or vocational institution, or an institution that operates a program or programs of scholarly research. The research program must be carried out under the institution’s auspices, not solely the individual researcher’s independent work. See 70.38(g) and 70.38(g)(1).
A professor’s request qualifies under the educational institution definition when the research is carried out under the institution’s auspices (for example, funded through the institution). A professor seeking records for independent work like writing a personal book does not qualify. See 70.38(g)(2).
Under 70.38(h), a non-commercial scientific institution is an organization operated solely to conduct scientific research and not on a commercial basis, with results not intended to promote a specific product or industry. Unlike the broader educational institution definition in 70.38(g), a non-commercial scientific institution is focused specifically on non-commercial scientific research. See 70.38(h).
Under 70.38(i), a representative of the news media is any person or entity that gathers information of potential public interest, uses editorial skills to create a distinct work, and distributes that work to an audience. This includes traditional broadcasters and publishers as well as news organizations operating solely on the internet. See 70.38(i).
Under 70.38(i)(1), factors indicating news media status include press accreditation, guild membership, a history of continuing publication, business registration, and Federal Communications Commission licensing. No single factor is determinative; agencies consider the overall evidence. See 70.38(i)(1).
Under 70.38(i)(3), a freelance journalist will be treated as a news media representative if they can show a solid basis for expecting publication through a news media entity—this can be a publication contract or a past record of publication with such organizations. See 70.38(i)(3).
Yes. Under 70.38(d), searches must include reasonable efforts to locate and retrieve responsive information from records maintained in electronic form or format, and FOIA components should ensure searches are done in the most efficient and least expensive manner reasonably possible. See 70.38(d).
Yes. Under 70.38(e), review time includes time spent contacting any submitter and considering and responding to objections to disclosure made by a submitter under the referenced procedure. See 70.38(e).
Under 70.38(f), if a component has reasonable cause to doubt the requester’s stated use, it must provide the requester a reasonable opportunity to submit further clarification about the intended use before determining fee status. See 70.38(f).
Yes. Under 70.38(g), a request tied to research funding granted to the institution—i.e., research carried out under the institution’s auspices—qualifies under the educational institution definition and thus may receive the fee treatment applicable to educational institutions.
Yes. Under 70.38(i), news organizations that operate solely on the internet are explicitly included as examples of representatives of the news media for FOIA fee purposes.