Access to Information Under the Freedom of Information Act
| Published date | 24 June 2020 |
| Citation | 85 FR 37778 |
| Record Number | 2020-12704 |
| Section | Rules and Regulations |
| Court | Committee For Purchase From People Who Are Blind Or Severely Disabled |
Federal Register, Volume 85 Issue 122 (Wednesday, June 24, 2020)
[Federal Register Volume 85, Number 122 (Wednesday, June 24, 2020)]
[Rules and Regulations]
[Pages 37778-37785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12704]
[[Page 37778]]
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COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED
41 CFR Part 51-8
RIN 3037-AA10
Access to Information Under the Freedom of Information Act
AGENCY: Committee for Purchase From People Who Are Blind or Severely
Disabled.
ACTION: Final rule.
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SUMMARY: The Committee for Purchase From People Who Are Blind or
Severely Disabled (Committee) amends it's regulations in their entirety
under the Freedom of Information Act (FOIA) to incorporate changes made
to the FOIA by the FOIA Improvement Act of 2016. In addition, this
document amends provisions in the fee section to reflect developments
in the case law and to streamline the description of the factors to be
considered when making fee waiver determinations.
DATES: Effective July 31, 2020.
ADDRESSES: Committee for Purchase From People Who Are Blind or Severely
Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-
4149.
FOR FURTHER INFORMATION CONTACT: For further information or to submit
comments contact: Timi Nickerson Kenealy, General Counsel,
[email protected], 703-603-2121.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule replaces and renumbers in its entirety the
Committee's regulations in 41 CFR part 51-8 to reflect statutory
changes associated with the Freedom of Information Act.
The Freedom of Information Act (FOIA) at 5 U.S.C. 552, requires
agencies to ``promulgate regulations, pursuant to notice and receipt of
public comment, specifying the schedule of fees applicable to the
processing of requests [the FOIA] and establishing procedures and
guidelines for determining when such fees should be waived or
reduced.'' Additionally, an agency may, in its regulation, designate
those components that can receive FOIA requests, provide for the
aggregation of certain requests, and provide for multitrack processing
of requests. Finally, the FOIA requires agencies to ``promulgate
regulations . . . providing for expedited processing of requests for
records.''
On June 30, 2016, the FOIA Improvement Act of 2016 (Act) was
signed. The Act requires agencies to notify requesters for engaging in
dispute resolution through the FOIA Public Liaison and the Office of
Government Information Services. It also requires that agencies:
(i) Make records that have been both released previously and
requested three or more times available to the public in electronic
format,
(ii) Establish a minimum of ninety days for requesters to appeal an
adverse determination, and
(iii) Provide, or direct requesters to, dispute resolution services
at various times throughout the FOIA process.
The FOIA Improvement Act also adds restrictions to when agencies
can charge certain fees if they are not able to meet FOIA's time
limits.
The changes associated with this final rule are consistent with
Department of Justice's Guidance for Agency FOIA Regulations issued
September 8, 2016, and adopts both the format and suggested language of
the accompanying Template for Agency FOIA Regulations.
The Committee for Purchase From People Who Are Blind or Severely
Disabled published a proposed rule in the Federal Register at 84 FR
23005, May 21, 2019. No comments were received.
II. Regulatory Procedures
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
This rule is not a significant regulatory action under E.O. 12866
and E.O. 13563.
Executive Order 13771--Reducing Regulations and Controlling Regulatory
Costs
The Committee believes this final rule is an E.O. 13771
deregulatory action. Many of the measures included in this document
should facilitate FOIA requests and production by making it easier for
requesters to research and review the Committee's FOIA rule before
submitting a request. It is deregulatory in nature in that it provides
relief to requestors however the Committee is unable to quantify these
savings.
III. Regulatory Flexibility Act
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
IV. Paperwork Reduction Act
This rule does not contain an information collection requirement
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
V. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments.
List of Subjects in 41 CFR Part 51-8
Administrative practice and procedure, Freedom of Information Act,
Privacy Act.
Dated: July 31, 2020.
Shelly Hammond,
Director, Contracting and Policy.
0
Therefore, the Committee revises 41 CFR part 51-8 to read as follows:
PART 51-8--PUBLIC AVAILABILTY OF AGENCY MATERIALS
Sec.
51-8.1 General.
51-8.2 Proactive Disclosures.
51-8.3 Requirements for Making Requests.
51-8.4 Responsibility for Responding to Requests.
51-8.5 Timing of Responses to Requests.
51-8.6 Responses to Requests.
51-8.7 Confidential Commercial Information.
51-8.8 Administrative Appeals.
51-8.9 Preservation of Records.
51-8.10 Fees.
51-8.11 Other Rights and Services.
Authority: 5 U.S.C. 552.
Sec. 51-8.1 General.
(a) This part contains the rules that the Committee for Purchase
From People Who Are Blind or Severely Disabled (Committee) follows in
processing requests for records under the Freedom of Information Act
(``FOIA''), 5 U.S.C. 552. The rules in this part should be read in
conjunction with the text of the FOIA and the Uniform Freedom of
Information Fee Schedule and Guidelines published by the Office of
Management and Budget (``OMB Guidelines''). Requests made by
individuals for records about themselves under the Privacy Act of 1974,
5 U.S.C. 552a, are processed under part 51-9 as well as under this
part. As a matter of policy, the Committee makes discretionary
disclosures of records or information exempt from disclosure under the
FOIA whenever disclosure would not foreseeably harm an interest
protected by a FOIA exemption, but this policy does not create any
right enforceable in court.
[[Page 37779]]
(b) The Committee has a centralized system for processing requests,
all requests are handled by the FOIA Officer.
Sec. 51-8.2 Proactive Disclosures.
Records that the Committee is required to make available for public
inspection in an electronic format may be accessed through the
Committee's public website: www.abilityone.gov. The Committee is
responsible for determining which of its records must be made publicly
available, for identifying additional records of interest to the public
that are appropriate for public disclosure, and for posting and
indexing such records. The Committee shall ensure that its website of
posted records and indices is reviewed and updated on an ongoing basis.
The Committee's FOIA Public Liaison contact information is available at
https://www.abilityone.gov/laws,_regulations_and_policy/foia.html.
Sec. 51-8.3 Requirements for Making Requests.
(a) General Information. (1) The Committee has designated a FOIA
office to process and respond to all FOIA requests. All Committee
departments have the capability to receive requests electronically
either through email or a web portal. A request will receive the
quickest possible response if it is addressed to the FOIA office. To
make a request for records, a requester should write directly to the
FOIA office.
(2) A requester may submit a request for records to the Executive
Director at the Committee's offices, 1401 S Clark Street, Suite 715,
Arlington, Virginia 22202-3259, or via email to [email protected], or
via facsimile to (703) 603-0655. The request must be in writing and
should indicate that it is being made under the FOIA. Failure to submit
a request in accordance with these procedures may delay the processing
of the request.
(3) A requester who is making a request for records about himself
or herself must comply with the verification of identity provision set
forth in part 51-9.
(4) Where a request for records pertains to a third party, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual or a declaration made in
compliance with the requirements set forth in 28 U.S.C. 1746 by that
individual authorizing disclosure of the records to the requester, or
by submitting proof that the individual has deceased (e.g., a copy of a
death certificate or an obituary). As an exercise of administrative
discretion, the Committee can require a requester to supply additional
information if necessary in order to verify that a particular
individual has consented to disclosure.
(b) Description of records sought. Requesters must describe records
sought in sufficient detail to enable Committee personnel to locate
them with a reasonable amount of effort. To the extent possible,
requesters should include specific information that may assist in
identifying the requested records, such as the date, title or name,
author, recipient, subject matter of the record, case number, file
designation, or reference number. In general, requesters should include
as much detail as possible about the specific records or the types of
records that they are seeking. Before submitting their requests,
requesters may contact the FOIA office or FOIA Public Liaison to
discuss the records they are seeking and to receive assistance in
describing the records. If after receiving a request the FOIA office
determines that it does not reasonably describe the records sought, the
FOIA office shall inform the requester what additional information is
needed or why the request is otherwise insufficient. Requesters who are
attempting to reformulate or modify such a request may discuss their
request with the FOIA office or FOIA Public Liaison, each of whom is
available to assist the requester in reasonably describing the records
sought. If a request does not reasonably describe the records sought,
the agency's response to the request may be delayed.
(c) If the Committee determines that a request does not reasonably
describe the records, it shall inform the requester of this fact and
extend to the requester an opportunity to clarify the request or to
confer promptly with knowledgeable Committee personnel to attempt to
identify the records being sought or to reformulate a request. The
Committee may offer assistance in identifying records and reformulating
a request where: The description is deemed insufficient, the production
of voluminous records is required, or a considerable number of work
hours would be required to complete the request that would interfere
with the business of the Committee.
Sec. 51-8.4 Responsibility for Responding to Requests.
(a) In general. Except in the instances described in paragraphs (c)
of this section, the Committee is responsible for responding to a
record request it received. In determining which records are responsive
to a request, the Committee ordinarily will include only records in its
possession as of the date that it begins its search. If any other date
is used, the Committee shall inform the requester of that date. A
record that is excluded from the requirements of the FOIA pursuant to 5
U.S.C. 552(c) is not considered responsive to a request. The Committee
has no obligation to create a record solely for the purpose of making
it available under the FOIA.
(b) Authority to grant or deny requests. The Executive Director, or
designee, is authorized to grant or deny any request for records that
are maintained by the Committee.
(c) Consultation, referral, and coordination. When reviewing
records located by the Committee in response to a request, the
Committee shall determine whether another agency of the Federal
Government is better able to determine whether the record is exempt
from disclosure under the FOIA. As to any such record, the Committee
shall proceed in one of the following ways:
(1) Consultation. When records originated with the Committee
processing the request, but contain information of interest to another
agency, or other Federal Government office, the Committee should
typically consult with that other agency prior to making a release
determination.
(2) Referral. (i) When upon the receipt of the request the
Committee determines that a different agency, or other Federal
Government office is best able to determine whether to disclose the
record, the Committee should refer the responsibility for responding to
the request to the other agency, as long as that agency is subject to
the FOIA. Ordinarily, the agency that originated the record will be
presumed to be best able to make the disclosure determination. However,
if the Committee processing the request and the originating agency
jointly agree that the former is in the best position to respond
regarding the record, then the record may be handled as a consultation.
(ii) Whenever the Committee refers any part of the responsibility
for responding to a request to another agency, it shall document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral and inform the requester of the name(s) of
the agency to which the record was referred, including that agency's
FOIA contact information.
(3) Coordination. The standard referral procedure is not
appropriate where disclosure of the identity of the agency to which the
referral would be made could harm an interest protected by an
applicable exemption, such as the exemptions that protect personal
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privacy or national security interests. For example, if the Committee
responding to a request for records on a living third party locates
within its files records originating with a law enforcement agency, and
if the existence of that law enforcement interest in the third party
was not publically known, then to disclose that law enforcement
interest could cause an unwarranted invasion of the personal privacy of
the third party. Similarly, if the Committee locates within its files
material originating with an Intelligence Community agency, and the
involvement of that agency in the matter is classified and not publicly
acknowledged, then to disclose or give attribution to the involvement
of that Intelligence Community agency could cause national security
harms. In such instances, in order to avoid harm to an interest
protected by an applicable exemption, the Committee, upon receipt of
the request, should coordinate with the originating component or agency
to seek its views on the disclosability of the record. The release
determination for the record that is the subject of the coordination
should then be conveyed to the requester by the Committee.
(d) Classified information. Whenever a request involves a record
containing information that has been classified or may be appropriate
for classification by another agency under any applicable executive
order concerning the classification of records, the Committee shall
refer the responsibility for responding to the request regarding that
information to the agency that classified the information, or that
should consider the information for classification. Whenever a
component's record contains information that has been derivatively
classified (e.g., when it contains information classified by another
agency), the Committee shall refer the responsibility for responding to
that portion of the request to the agency that classified the
underlying information.
(e) Timing of responses to consultations and referrals. All
consultations and referrals received by the Committee will be handled
according to the date that the FOIA request was received by the first
agency.
(f) Agreements regarding consultations and referrals. The Committee
may establish agreements with other agencies to eliminate the need for
consultations or referrals with respect to particular types of records.
Sec. 51-8.5 Timing of Responses to Requests.
(a) In general. (1) The Committee ordinarily will respond to
requests according to their order of receipt. The time limits
prescribed in the FOIA will begin only after the Committee identifies a
request as being made under the FOIA and deemed received by the
Committee.
(2) An initial determination whether, and to what extent, to grant
each request for records or a fee waiver shall be made within 10
business days after receipt of that request. The requester shall be
notified as soon as the determination is made.
(3) When a requester complies with the procedures established in
this part for obtaining records under the FOIA, the request shall
receive prompt attention, and a response will be made within 20
business days.
(b) Unusual circumstances. Whenever the Committee cannot meet the
statutory time limit for processing a request because of ``unusual
circumstances,'' as defined in the FOIA, and the Committee extends the
time limit on that basis, the Committee shall, before expiration of the
20-day period to respond, notify the requester in writing of the
unusual circumstances involved and of the date by which processing of
the request can be expected to be completed. Where the extension
exceeds 10 working days, the Committee will, as described by the FOIA,
provide the requester with an opportunity to modify the request or
arrange an alternative time period for processing the original or
modified request. The Committee shall make available its FOIA office
and its FOIA Public Liaison for this purpose. The agency must also
alert requesters to the availability of the Office of Government
Information Services to provide dispute resolution services.
(c) Aggregating requests. For the purposes of satisfying unusual
circumstances under the FOIA, the Committee may aggregate requests in
cases where it reasonably appears that multiple requests, submitted
either by a requester or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances. The Committee shall not aggregate multiple requests that
involve unrelated matters.
(d) Multitrack processing. (1) The Committee may use two or more
processing tracks by distinguishing between simple, complex, and
expedited requests based on the amount of work and/or time needed to
process a request or the number of pages involved. Expedited processing
shall be in accordance with the standards set forth in paragraph (g) of
this section. Among the factors a component may consider are the number
of pages involved in processing the request and the need for
consultations or referrals. The Committee shall advise requesters of
the track into which their request falls and, when appropriate, shall
offer the requesters an opportunity to narrow their request so that it
can be placed in a different processing track.
(e) Expedited processing. (1) Requests and appeals may be taken out
of order and given expedited treatment whenever it is determined that
they involve:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by a person who is primarily
engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the government's integrity that
affect public confidence.
(2) A request for expedited processing may be made at any time.
Requests based on paragraphs (e)(1)(i) through (iv) of this section
must be submitted to the Committee's FOIA office.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. For example,
under paragraph (e)(1)(ii) of this section, a requester who is not a
full-time member of the news media must establish that the requester is
a person whose primary professional activity or occupation is
information dissemination, though it need not be the requester's sole
occupation. Such a requester also must establish a particular urgency
to inform the public about the government activity involved in the
request--one that extends beyond the public's right to know about
government activity generally. The existence of numerous articles
published on a given subject can be helpful in establishing the
requirement that there be an ``urgency to inform'' the public on the
topic. As a matter of administrative discretion, the Committee may
waive the formal certification requirement.
(4) The Committee shall notify the requester within 10 calendar
days of the receipt of a request for expedited processing of its
decision whether to grant or deny expedited processing. If expedited
processing is granted, the request will be given priority and processed
as soon as practicable. If a
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request for expedited processing is denied, any appeal of that decision
shall be acted on expeditiously.
Sec. 51-8.6 Responses to Requests.
(a) In general. The Committee should, to the extent practicable,
communicate with requesters having access to the internet using
electronic means, such as email or web portal.
(b) Acknowledgment of requests. The Committee shall acknowledge the
request and assign it an individualized tracking number if it will take
longer than 10 working days to process. The Committee shall include in
the acknowledgement a brief description of the records sought to allow
requesters to more easily keep track of their requests.
(c) Grants of requests. When the Committee makes a determination to
grant a request in full or in part, it shall notify the requester in
writing. The Committee shall inform the requester of any fees charged
under subpart 51-8.10 of this part and shall disclose the requested
records to the requester promptly upon payment of any applicable fees.
The Committee must inform the requester of the availability of the FOIA
Public Liaison to offer assistance.
(d) Adverse determinations of requests. If the Committee makes an
adverse determination denying a request in any respect, the requester
will be notified in writing. Adverse determinations, or denials of
requests, include decisions that: The requested record is exempt, in
whole or in part; the request does not reasonably describe the records
sought; the information requested is not a record subject to the FOIA;
the requested record does not exist, cannot be located, or has been
destroyed; or the requested record is not readily reproducible in the
form or format sought by the requester. Adverse determinations also
include denials involving fees or fee waiver matters or denials of
requests for expedited processing.
(e) Content of denial. The denial will be signed by the Executive
Director or designee and include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied in denying the request;
(3) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the volume is
otherwise indicated by deletions marked on records that are disclosed
in part or if providing an estimate would harm an interest protected by
an applicable exemption;
(4) A statement that the denial may be appealed under subpart 51-
8.8 of this part, and a description of the appeal requirements set
forth therein; and
(5) A statement notifying the requester of the assistance available
from the Committee's FOIA Public Liaison and the dispute resolution
services offered by Office of Government Information Services (OGIS).
Sec. 51-8.7 Confidential Commercial Information.
(a) Definitions.
(1) Confidential commercial information means commercial or
financial information obtained by the Committee from a submitter that
may be protected from disclosure under Exemption 4 of the FOIA, 5
U.S.C. 552(b)(4).
(2) Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides confidential commercial information,
either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, either at the time of submission or
within a reasonable time thereafter, any portion of its submission that
it considers to be protected from disclosure under Exemption 4. These
designations expire 10 years after the date of the submission unless
the submitter requests and provides justification for a longer
designation period.
(c) When notice to submitters is required. (1) The Committee will
promptly provide written notice to the submitter of confidential
commercial information whenever records containing such information are
requested under the FOIA if, after reviewing the request, the
responsive records, and any appeal by the requester, the Committee
determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The Committee has a reason to believe that the requested
information may be protected from disclosure under Exemption 4, but has
not yet determined whether the information is protected from disclosure
under that exemption or any other applicable exemption.
(2) The notice must either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information. In cases involving a voluminous
number of submitters, notice may be made by posting or publishing the
notice in a place or manner reasonably likely to accomplish
notification.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) The Committee determines that the information is exempt under
the FOIA;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous, except that, in such a case,
the Committee shall give the submitter written notice of any final
decision to disclose the information and shall provide that notice
within a reasonable number of days prior to a specified disclosure
date.
(e) Opportunity to object to disclosure. (1) The Committee will
specify a reasonable time period within which the submitter must
respond to the notice referenced above. If a submitter has any
objections to disclosure, it should provide the Committee a detailed
written statement that specifies all grounds for withholding the
particular information under any exemption of the FOIA. In order to
rely on Exemption 4 as basis for nondisclosure, the submitter must
explain why the information constitutes a trade secret or commercial or
financial information that is privileged or confidential.
(2) A submitter who fails to respond within the time period
specified in the notice shall be considered to have no objection to
disclosure of the information. Information received by the Committee
after the date of any disclosure decision shall not be considered by
the Committee. Any information provided by a submitter under this
subpart may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. The Committee will consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose the requested information.
(g) Notice of intent to disclose. (1) Whenever the Committee
decides to
[[Page 37782]]
disclose information over the objection of a submitter, the Committee
will provide the submitter written notice, which will include:
(i) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(ii) A description of the information to be disclosed; and
(iii) A specified disclosure date, which must be a reasonable time
after the notice, and not less than 10 business days after the date of
the notice submission.
(iv) A statement that the submitter must notify the Committee
immediately if the submitter intends to seek injunctive relief.
(2) Notwithstanding paragraph (e)(2) of this section, even if the
submitter fails to respond to Committee's notice specified in paragraph
(c) of this section, whenever the Committee decides to disclose the
commercial information, the Committee will provide the submitter
written notice of disclosure, as specified in paragraph (g)(1) of this
section.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, the Committee will promptly notify the submitter.
(i) Requester notification. The Committee will notify the requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
Sec. 51-8.8 Administrative Appeals.
(a) Requirements for making an appeal. A requester may appeal any
adverse determinations to the Committee's Chief FOIA Officer. The
contact information for the FOIA Officer is available at the
Committee's website, at https://www.abilityone.gov/laws,_regulations_and_policy/foia.html. Appeals can be submitted
through email or the web portal accessible on the FOIA web page.
Examples of adverse determinations are provided in Sec. 51-8.6(d). The
requester must make the appeal in writing and to be considered timely
it must be postmarked, or in the case of electronic submissions,
transmitted, within 90 calendar days after the date of the response.
The appeal should clearly identify the Committee's determination that
is being appealed and the assigned request number. To facilitate
handling, the requester should mark both the appeal letter and
envelope, or subject line of the electronic transmission, ``Freedom of
Information Act Appeal.''
(b) Adjudication of appeals. (1) The Committee Executive Director
or designee will act on behalf of the Committee on all appeals under
this section.
(2) An appeal ordinarily will not be adjudicated if the request
becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, the
Committee's Chief FOIA Officer shall take appropriate action to ensure
compliance with
(c) Decisions on appeals. A decision on an appeal must be made in
writing. A decision that upholds a Committee determination will contain
a statement that identifies the reasons for the affirmance, including
any FOIA exemptions applied. The decision will provide the requester
with notification of the statutory right to file a lawsuit and will
inform the requester of the mediation services offered by the Office of
Government Information Services (OGIS) of the National Archives and
Records Administration as a non-exclusive alternative to litigation. If
a Committee's decision is remanded or modified on appeal, the requester
will be notified of that determination in writing. The Committee will
thereafter further process the request in accordance with that appeal
determination and respond directly to the requester.
(d) Engaging in dispute resolution services provided by OGIS.
Mediation is a voluntary process. If the Committee agrees to
participate in the mediation services provided by the Office of
Government Information Services, it will actively engage as a partner
to the process in an attempt to resolve the dispute.
(e) When appeal is required. Before seeking review by a court of a
Committee's adverse determination, a requester generally must first
submit a timely administrative appeal.
Sec. 51-8.9 Preservation of Records.
The Committee will preserve all correspondence pertaining to the
requests it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized
pursuant to Title 44 of the United States Code or the General Records
Schedule 4.2 of the National Archives and Records Administration.
Records will not be destroyed while they are the subject of a pending
request, appeal, or lawsuit under the Act.
Sec. 51-8.10 Fees.
(a) In general. The Committee will charge for processing requests
under the FOIA in accordance with the provisions of this section and
with the OMB Guidelines. In order to resolve any fee issues that arise
under this section, the Committee may contact a requester for
additional information. The Committee shall ensure that searches,
review, and duplication are conducted in the most efficient and the
least expensive manner. The Committee will ordinarily collect all
applicable fees before sending copies of records to a requester.
Requesters must pay fees by check or money order payable to the United
States Department of Treasury.
(b) Definitions. For purposes of this section:
(1) Commercial use request is a request that asks for information
for a use or a purpose that furthers a commercial, trade, or profit
interest, which can include furthering those interests through
litigation. The Committee's decision to place a requester in the
commercial use category will be made on a case-by-case basis based on
the requester's intended use of the information.
(2) Direct costs are those expenses that an agency incurs in
searching for and duplicating (and, in the case of commercial use
requests, reviewing) records in order to respond to a FOIA request. For
example, direct costs include the salary of the employee performing the
work (i.e., the basic rate of pay for the employee, plus 16 percent of
that rate to cover benefits) and the cost of operating computers and
other electronic equipment, such as photocopiers and scanners. Direct
costs do not include overhead expenses such as the costs of space, and
of heating or lighting a facility.
(3) Duplication is reproducing a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
(4) Educational institution is any school that operates a program
of scholarly research. A requester in this fee category must show that
the request is made in connection with the requester's role at the
educational institution. The Committee may seek assurance from the
requester that the request is in furtherance of scholarly research and
agencies will advise requesters of their placement in this category.
Example 1 to paragraph (b)(4). A request from a professor of
geology at a university for records relating to soil erosion, written
on letterhead of the
[[Page 37783]]
Department of Geology, would be presumed to be from an educational
institution.
Example 2 to paragraph (b)(4). A request from the same professor of
geology seeking drug information from the Food and Drug Administration
in furtherance of a murder mystery he is writing would not be presumed
to be an institutional request, regardless of whether it was written on
institutional stationary.
Example 3 to paragraph (b)(4). A student who makes a request in
furtherance of the student's coursework or other school-sponsored
activities and provides a copy of a course syllabus or other reasonable
documentation to indicate the research purpose for the request, would
qualify as part of this fee category.
(5) Noncommercial scientific institution is an institution that is
not operated on a ``commercial'' basis, as defined in paragraph (b)(1)
of this section and that is operated solely for the purpose of
conducting scientific research the results of which are not intended to
promote any particular product or industry. A requester in this
category must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are
sought to further scientific research and are not for a commercial use.
(6) Representative of the news media is any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations that broadcast ``news'' to the public at
large and publishers of periodicals that disseminate ``news'' and make
their products available through a variety of means to the general
public, including news organizations that disseminate solely on the
internet. A request for records supporting the news-dissemination
function of the requester shall not be considered to be for a
commercial use. ``Freelance'' journalists who demonstrate a solid basis
for expecting publication through a news media entity shall be
considered as a representative of the news media. A publishing contract
would provide the clearest evidence that publication is expected;
however, the Committee shall also consider a requester's past
publication record in making this determination.
(7) Review is the examination of a record located in response to a
request in order to determine whether any portion of it is exempt from
disclosure. Review time includes processing any record for disclosure,
such as doing all that is necessary to prepare the record for
disclosure, including the process of redacting the record and marking
the appropriate exemptions. Review costs are properly charged even if a
record ultimately is not disclosed. Review time also includes time
spent both obtaining and considering any formal objection to disclosure
made by a confidential commercial information submitter under Sec. 51-
8.7, but it does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(8) Search is the process of looking for and retrieving records or
information responsive to a request. Search time includes page-by-page
or line-by-line identification of information within records and the
reasonable efforts expended to locate and retrieve information from
electronic records.
(c) Charging fees. In responding to FOIA requests, the Committee
will charge the following fees unless a waiver or reduction of fees has
been granted under paragraph (k) of this section. Because the fee
amounts provided below already account for the direct costs associated
with a given fee type, the Committee should not add any additional
costs to charges calculated under this section.
(1) Search. (i) Requests made by educational institutions,
noncommercial scientific institutions, or representatives of the news
media are not subject to search fees. The Committee will charge search
fees for all other requesters, subject to the restrictions of paragraph
(d) of this section. The Committee may properly charge for time spent
searching even if responsive records are not located or if the
Committee determines that the records are entirely exempt from
disclosure.
(ii) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require
new programming, the fees shall be as follows: Professional--$10.00;
and clerical/administrative--$4.75.
(iii) Requesters shall be charged the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. Requesters shall be notified
of the costs associated with creating such a program and must agree to
pay the associated costs before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by
an agency at a Federal records center operated by the National Archives
and Records Administration (NARA), additional costs shall be charged in
accordance with the Transactional Billing Rate Schedule established by
NARA.
(2) Duplication. Duplication fees shall be charged to all
requesters, subject to the restrictions of paragraph (d) of this
section. The Committee shall honor a requester's preference for
receiving a record in a particular form or format where it is readily
reproducible by the Committee in the form or format requested. Where
photocopies are supplied, agencies will provide one copy per request at
the cost of 25[cent] per page. For copies of records produced on tapes,
disks, or other media, the Committee will charge the direct costs of
producing the copy, including operator time. Where paper documents must
be scanned in order to comply with a requester's preference to receive
the records in an electronic format, the requester shall also pay the
direct costs associated with scanning those materials. For other forms
of duplication, agencies will charge the direct costs.
(3) Review. The Committee will charge review fees to requesters who
make commercial use requests. Review fees will be assessed in
connection with the initial review of the record, i.e., the review
conducted by the Committee to determine whether an exemption applies to
a particular record or portion of a record. No charge will be made for
review at the administrative appeal stage of exemptions applied at the
initial review stage. However, if a particular exemption is deemed to
no longer apply, any costs associated with the Committee's re-review of
the records in order to consider the use of other exemptions may be
assessed as review fees. Review fees will be charged at the same rates
as those charged for a search under paragraph (c)(1)(ii) of this
section.
(d) Restrictions on charging fees. (1) No search fees will be
charged for requests by educational institutions (unless the records
are sought for a commercial use), noncommercial scientific
institutions, or representatives of the news media.
(2)(i) If the Committee fails to comply with the FOIA's time limits
in which to respond to a request, it may not charge search fees, or, in
the instances of requests from requesters described in paragraph (d)(1)
of this section, may not charge duplication fees, except as described
in paragraphs (d)(2)(ii) through (iv) of this section.
[[Page 37784]]
(ii) If the Committee has determined that unusual circumstances, as
defined by the FOIA, apply and the Committee provided timely written
notice to the requester in accordance with the FOIA, a failure to
comply with the time limit shall be excused for an additional 10 days.
(iii) If the Committee has determined that unusual circumstances,
as defined by the FOIA, apply and more than 5,000 pages are necessary
to respond to the request, the Committee may charge search fees, or, in
the case of requesters described in paragraph (d)(1) of this section,
may charge duplication fees if the following steps are taken. The
Committee must have provided timely written notice of unusual
circumstances to the requester in accordance with the FOIA and the
Committee must have discussed with the requester via written mail,
email, or telephone (or made not less than three good-faith attempts to
do so) how the requester could effectively limit the scope of the
request in accordance with 5. U.S.C. 552(a)(6)(B)(ii). If this
exception is satisfied, the Committee may charge all applicable fees
incurred in the processing of the request.
(iv) If a court has determined that exceptional circumstances
exist, as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(4) Except for requesters seeking records for a commercial use,
Committee shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(5) No fee will be charged when the total fee, after deducting the
100 free pages (or its cost equivalent) and the first two hours of
search, is equal to or less than $25.
(e) Notice of anticipated fees in excess of $25.00. (1) When the
Committee determines or estimates that the fees to be assessed in
accordance with this section will exceed $25.00, the requesting party
will be notified of the actual or estimated amount of the fees,
including a breakdown of the fees for search, review or duplication,
unless a written statement from the requester has been received
indicating a willingness to pay fees as high as those anticipated. If
only a portion of the fee can be readily estimated, the Committee shall
advise the requester accordingly. If the requester is a noncommercial
use requester, the notice shall specify that the requester is entitled
to the statutory entitlements of 100 pages of duplication at no charge
and, if the requester is charged search fees, two hours of search time
at no charge, and shall advise the requester whether those entitlements
have been provided.
(2) If the Committee notifies the requester that the actual or
estimated fees are in excess of $25.00, the request will not be
considered received and further work will not be completed until the
requester commits in writing to pay the actual or estimated total fee,
or designates some amount of fees the requester is willing to pay, or,
in the case of a noncommercial use, requester who has not yet been
provided with the requester's statutory entitlements, designates that
the requester seeks only that which can be provided by the statutory
entitlements. The requester must provide the commitment or designation
in writing, and must, when applicable, designate an exact dollar amount
the requester is willing to pay. The Committee is not required to
accept payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but the Committee estimates that the total
fee will exceed that amount, the Committee will toll the processing of
the request when it notifies the requester of the estimated fees in
excess of the amount the requester has indicated a willingness to pay.
The Committee will inquire whether the requester wishes to revise the
amount of fees the requester is willing to pay or modify the request.
Once the requester responds, the time to respond will resume from where
it was at the date of the notification.
(4) The Committee will make available the FOIA Public Liaison or
other personnel to assist any requester in reformulating a request to
meet the requester's needs at a lower cost.
(f) Charges for other services. Although not required to provide
special services, if the Committee chooses to do so as a matter of
administrative discretion, the direct costs of providing the service
will be charged. Examples of such services include certifying that
records are true copies, providing multiple copies of the same
document, or sending records by means other than first class mail.
(g) Charging interest. The Committee may charge interest on any
unpaid bill for processing FOIA requests starting on the 31st day
following the date of billing the requester. Interest rates will be
assessed at the rate provided in 31 U.S.C. 3717 and will accrue from
the billing date until payment is received by the Committee.
(h) Aggregating requests. When the Committee reasonably believes
that a requester or a group of requesters acting in concert is
attempting to divide a single request into a series of requests for the
purpose of avoiding fees, the Committee may aggregate those requests
and charge accordingly. The Committee may presume that multiple
requests of this type made within a 30-day period have been made in
order to avoid fees. For requests separated by a longer period, the
Committee will aggregate them only where there is a reasonable basis
for determining that aggregating the requests is warranted in view of
all the circumstances involved. Multiple requests involving unrelated
matters shall not be aggregated.
(i) Advance payments. (1) For requests other than those described
in paragraphs (i)(2) or (i)(3) of this section, the Committee shall not
require the requester to make an advance payment before work is
commenced or continued on a request. Payment owed for work already
completed (i.e., payment before copies are sent to a requester) is not
an advance payment.
(2) When the Committee determines or estimates that a total fee to
be charged under this section will exceed $250.00, it may require that
the requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. The Committee
may elect to process the request prior to collecting fees when it
receives a satisfactory assurance of full payment from a requester with
a history of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee within 30 calendar days of the billing date, the
Committee may require that the requester pay the full amount due, plus
any applicable interest on that prior request, and the Committee may
require that the requester make an advance payment of the full amount
of any anticipated fee before the Committee begins to process a new
request or continues to process a pending request or any pending
appeal. Where the Committee has a reasonable basis to believe that a
requester has misrepresented the requester's identity in order to avoid
paying outstanding fees, it may require that the requester provide
proof of identity.
(4) In cases in which the Committee requires advance payment, the
request will not be considered received and further work will not be
completed until the required payment is received. If the requester does
not pay the advance payment within 30 calendar days after
[[Page 37785]]
the date of the Committee's fee determination, the request will be
closed.
(j) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. In instances where records responsive
to a request are subject to a statutorily-based fee schedule program,
the Committee shall inform the requester of the contact information for
that program.
(k) Requirements for waiver or reduction of fees. (1) Requesters
may seek a waiver of fees by submitting a written application
demonstrating how disclosure of the requested 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 is not primarily in the commercial interest of the requester.
(2) The Committee will furnish records responsive to a request
without charge or at a reduced rate when it determines, based on all
available information, that the factors described in paragraphs
(k)(2)(i) through (ii) of this section are satisfied:
(i) Disclosure of the requested information would shed light on the
operations or activities of the government. The subject of the request
must concern identifiable operations or activities of the Federal
Government with a connection that is direct and clear, not remote or
attenuated.
(ii) Disclosure of the requested information is likely to
contribute significantly to public understanding of those operations or
activities. This factor is satisfied when the following criteria are
met:
(A) Disclosure of the requested records must be meaningfully
informative about the Committee operations or activities. The
disclosure of information that already is in the public domain, in
either the same or a substantially identical form, would not be
meaningfully informative if nothing new would be added to the public's
understanding.
(B) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public must be
considered. The Committee ordinarily will presume that a representative
of the news media will satisfy this consideration.
(iii) The disclosure must not be primarily in the commercial
interest of the requester. To determine whether disclosure of the
requested information is primarily in the commercial interest of the
requester, the Committee will consider the following criteria:
(A) The Committee must identify whether the requester has any
commercial interest that would be furthered by the requested
disclosure. A commercial interest includes any commercial, trade, or
for profit interest. Requesters must be given an opportunity to provide
explanatory information regarding this consideration.
(B) If there is an identified commercial interest, the Committee
must determine whether that is the primary interest furthered by the
request. A waiver or reduction of fees is justified when the
requirements of paragraphs (k)(2)(i) through (ii) of this section are
satisfied and any commercial interest is not the primary interest
furthered by the request. The Committee ordinarily will presume that
when a news media requester has satisfied the requirements of
paragraphs (k)(2)(i) through (ii) of this section, the request is not
primarily in the commercial interest of the requester. Disclosure to
data brokers or others who merely compile and market government
information for direct economic return will not be presumed to
primarily serve the public interest.
(3) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(4) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the Committee and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time as long as the underlying record request is pending or
on administrative appeal. When a requester who has committed to pay
fees subsequently asks for a waiver of those fees and that waiver is
denied, the requester must pay any costs incurred up to the date the
fee waiver request was received.
Sec. 51-8.11 Other Rights and Services.
Nothing in this part shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
Michael R. Jurkowski,
Deputy Director, Business & PL Operations.
[FR Doc. 2020-12704 Filed 6-23-20; 8:45 am]
BILLING CODE 6353-01-P
