What is the two-part public interest test an agency uses to grant a FOIA fee waiver?

Under the federal Freedom of Information Act (FOIA), agencies may charge fees for searching, reviewing, and duplicating records. A requester can ask the agency to waive or reduce those fees. To grant a public interest fee waiver, the agency applies a two-part test: disclosure must (1) be in the public interest because it is likely to contribute significantly to public understanding of government operations or activities, and (2) not be primarily in the commercial interest of the requester. Both parts must be satisfied.

Part One: The Public Interest

The first prong asks whether releasing the records is “likely to contribute significantly to public understanding of the operations or activities of the government.” Agencies typically weigh several factors:

• Subject matter — Do the records concern the operations or activities of the government, rather than purely private matters?
• Informative value — Is the information likely to reveal something meaningful and not already public?
• Contribution to public understanding — Will disclosure inform the broader public, not just the individual requester?
• Significance — Will it enhance public understanding to a meaningful degree?

The burden is on the requester to explain, in the request itself, how disclosure meets these factors. Vague assertions of public interest are usually not enough.

Part Two: No Primary Commercial Interest

The second prong asks whether disclosure is primarily in the requester’s commercial interest. If the records would mainly serve a business or financial purpose, a full waiver is generally denied. Agencies compare any commercial benefit against the identified public interest; when the public interest outweighs the commercial stake, this prong can still be met. A commercial purpose does not automatically disqualify a requester, but it weighs against a waiver.

Practical Notes

A fee waiver is distinct from a requester’s fee category (such as news media, educational, or commercial), though the two interact. Provide your waiver justification up front, since agencies decide based on the request as submitted. Remember that the federal FOIA generally gives agencies 20 business days to respond, and that state public-records laws vary — their fee and waiver rules differ from FOIA and from one another.

For more background, see our FOIA and public records topic.