Multiple FOAA Requests

Training for: Legal Notes

Question: Can multiple FOAA (Freedom of Access Act) records requests from the same requester or group of requesters be aggregated or combined for purposes of the statutory $15 per hour fee for staff time to search, retrieve and compile the records?

Answer: Our statute doesn’t answer this question, and we’re not aware of any Maine case law on point, but certain federal regulations and guidelines may offer some useful guidance.

Both the U.S. Department of Justice’s FOIA (Freedom of Information Act) regulations (see 80 Fed. Reg. at 18,099-18,114) and the President’s Office of Management and Budget’s fee guidelines (see 52 Fed. Reg. at 10,019-20) specifically address this subject. In summary, these federal guidelines authorize federal agencies to aggregate multiple records requests from the same requester or group of requesters if the requests are for related materials and if the agency reasonably believes the requester or requesters are attempting to avoid fees by dividing a single request into a series of requests. The federal guidelines state that it is reasonable to presume that multiple requests for related materials made within a 30-day period have been made in order to avoid fees. For requests made over a longer period of time, the guidelines say the agency should have a solid basis for believing the requester is attempting to avoid fees. The guidelines also say that to aggregate requests from multiple requesters, the agency must have a concrete basis for concluding that the requesters are acting in concert.

To be absolutely clear, these federal guidelines apply only to federal agencies and federal law; we are not suggesting they govern state or local agencies or Maine’s law. Still, as we said, they may provide some helpful guidance on how our law should be interpreted in the absence of any express provision or court decision. Using the reasoning embedded in the federal guidelines, we think Maine’s Freedom of Access Act probably does allow municipal agencies and officials to aggregate multiple requests from the same requester or group of requesters if the requests are for related materials and if they are made within relatively close proximity of each other, such as within a 30-day period. This would mean that the first hour of staff time for aggregated requests is free, but each hour after that, including the first hour of subsequent requests, is chargeable at $15 per hour (see 1 M.R.S.A. § 408-A(8)(B)).

If an agency or officials intends to aggregate requests for purposes of the $15 per hour fee, we recommend that this be disclosed to the requester as soon as it becomes apparent that aggregation is warranted. This should be in the agency’s or official’s next acknowledgment of receipt of a request, which must be given within five working days (see 1 M.R.S.A. § 408-A(3)). We also recommend that the acknowledgment be in writing so there is tangible proof of notice of intent to aggregate.

For the record, under no circumstances should an agency or official aggregate multiple requests from the same requester but for unrelated materials or on unrelated subjects.

For a comprehensive summary of all fees authorized under FOAA, see “FOAA Fees,” Maine Townsman, Legal Notes, December 2015. (By R.P.F.)

Question: Can multiple FOAA (Freedom of Access Act) records requests from the same requester or group of requesters be aggregated or combined for purposes of the statutory $15 per hour fee for staff time to search, retrieve and compile the records?

Answer: Our statute doesn’t answer this question, and we’re not aware of any Maine case law on point, but certain federal regulations and guidelines may offer some useful guidance.

Both the U.S. Department of Justice’s FOIA (Freedom of Information Act) regulations (see 80 Fed. Reg. at 18,099-18,114) and the President’s Office of Management and Budget’s fee guidelines (see 52 Fed. Reg. at 10,019-20) specifically address this subject. In summary, these federal guidelines authorize federal agencies to aggregate multiple records requests from the same requester or group of requesters if the requests are for related materials and if the agency reasonably believes the requester or requesters are attempting to avoid fees by dividing a single request into a series of requests. The federal guidelines state that it is reasonable to presume that multiple requests for related materials made within a 30-day period have been made in order to avoid fees. For requests made over a longer period of time, the guidelines say the agency should have a solid basis for believing the requester is attempting to avoid fees. The guidelines also say that to aggregate requests from multiple requesters, the agency must have a concrete basis for concluding that the requesters are acting in concert.

To be absolutely clear, these federal guidelines apply only to federal agencies and federal law; we are not suggesting they govern state or local agencies or Maine’s law. Still, as we said, they may provide some helpful guidance on how our law should be interpreted in the absence of any express provision or court decision. Using the reasoning embedded in the federal guidelines, we think Maine’s Freedom of Access Act probably does allow municipal agencies and officials to aggregate multiple requests from the same requester or group of requesters if the requests are for related materials and if they are made within relatively close proximity of each other, such as within a 30-day period. This would mean that the first hour of staff time for aggregated requests is free, but each hour after that, including the first hour of subsequent requests, is chargeable at $15 per hour (see 1 M.R.S.A. § 408-A(8)(B)).

If an agency or officials intends to aggregate requests for purposes of the $15 per hour fee, we recommend that this be disclosed to the requester as soon as it becomes apparent that aggregation is warranted. This should be in the agency’s or official’s next acknowledgment of receipt of a request, which must be given within five working days (see 1 M.R.S.A. § 408-A(3)). We also recommend that the acknowledgment be in writing so there is tangible proof of notice of intent to aggregate.

For the record, under no circumstances should an agency or official aggregate multiple requests from the same requester but for unrelated materials or on unrelated subjects.

For a comprehensive summary of all fees authorized under FOAA, see “FOAA Fees,” Maine Townsman, Legal Notes, December 2015. (By R.P.F.)