Freedom of Information Act; implementation,
[Federal Register: June 17, 1998 (Volume 63, Number 116)]
[Proposed Rules]
[Page 33023-33033]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jn98-25]
GENERAL SERVICES ADMINISTRATION
41 CFR Part 105-60
RIN 3090-AG16
Public Availability of Agency Records and Informational Materials
AGENCY: Office of Management and Workplace Programs, GSA.
ACTION: Proposed rule.
SUMMARY: The General Services Administration (GSA) proposes to revise its regulations which implement the Freedom of Information Act (FOIA), to incorporate the requirements of the Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C. 552, as amended by Public Law 104-231.
DATES: Comments must be received by July 17, 1998.
ADDRESSES: Comments should be submitted to the Freedom of Information Officer (CAI), General Services Administration, 1800 F Street, NW., Washington, DC 20405.
FOR FURTHER INFORMATION CONTACT: Mary Cunningham, GSA Freedom of Information Act (FOIA) Officer (202-501-3415); or Helen C. Maus, Office of General Counsel (202-501-1460).
[[Page 33024]]
SUPPLEMENTARY INFORMATION: This rule was not submitted to the Office of Management and Budget pursuant to Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, because it is not a significant regulatory action as defined in Executive Order 12866. The Paperwork Reduction Act does not apply because the rule does not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. Sec. 3501, et seq.
The principles of Executive Order 12988 of February 5, 1996, Civil Justice Reform, have been incorporated where applicable.
The Administrator certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. Sec. Sec. 601-612. Pursuant to 5 U.S.C. Sec. 605(b), this rule is therefore exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.
Comprehensive Summary
-
Implementation of the FOIA. These regulations implement the FOIA which codified Pub. L. 89-487 and amended section 3 of the Administrative Procedure Act, formerly 5 U.S.C. 1002 (1964 ed.). These regulations also implement Pub. L. 93-502, popularly known as the Freedom of Information Act Amendments of 1974, as amended by Pub. L. 99-570, the Freedom of Information Reform Act of 1986; the Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C. 552, as amended by Public Law 104-213; and Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Information, of June 23, 1987.
The revisions also update organizational references.
For the reasons set out in the preamble, 41 CFR Part 105-60 is proposed to be revised to read as follows:
PART 105-60--PUBLIC AVAILABILITY OF AGENCY RECORDS AND INFORMATIONAL MATERIALS
Sec. 105-60.000 Scope of part.
Subpart 105-60.1--General Provisions
105-60.101 Purpose 105-60.102 Application. 105-60.103 Policy. 105-60.103-1 Availability of records. 105-60.103-2 Applying exemptions. 105-60.104 Records of other agencies. Subpart 105-60.2--Publication of General Agency Information and Rules in the Federal Register 105-60.201 Published information and rules. 105-60.202 Published materials available for sale to the public. Subpart 105-60.3--Availability of Opinions, Orders, Policies, Interpretations, Manuals, and Instructions 105-60.301 General. 105-60.302 Available materials. 105-60.303 Rules for public inspection and copying. 105-60.304 Public Information Handbook and Index. 105-60.305 Fees. 105-60.305-1 Definitions. 105-60.305-2 Scope of subpart. 105-60.305-3 GSA records available without charge. 105-60.305-4 GSA records available at a fee. 105-60.305-5 Searches. 105-60.305-6 Reviews. 105-60.305-7 Assurance of payment. 105-60.305-8 Prepayment of fees. 105-60.305-9 Form of payment. 105-60.305-10 Fee schedule. 105-60.305-11 Fees for authenticated and attested copies. 105-60.305-12 Administrative actions to improve assessment and collection of fees. 105-60.305-13 Waiver of fee.
Subpart 105-60.4--Described Records
105-60.401 General 105-60.402 Procedures for making records available. 105-60.402-1 Submission of requests. 105-60.402-2 Response to initial requests. 105-60.403 Appeal within GSA. 105-60.404 Extension of time limits. 105-60.405 Processing requests for confidential commercial information.
Subpart 105-60.5--Exemptions
105-60.501 Categories of records exempt from disclosure under the FOIA. Subpart 105-60.6--Production or Disclosure by Present or Former General Services Administration Employees in Response to Subpoenas or Similar Demands in Judicial or Administrative Proceedings 105-60.601 Purpose of scope of subpart. 105-60.602 Definitions. 105-60.603 Acceptance of service of a subpoena duces tecum or other legal demand on behalf of the General Services Administration. 105-60.604 Production or disclosure prohibited unless approved by the Appropriate Authority. 105-60.605 Procedure in the event of a demand for production or disclosure. 105-60.606 Procedure where response to demand is required prior to receiving instructions. 105-60.607 Procedure in the event of an adverse ruling. 105-60.608 Fees, expenses, and costs.
Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 486(c).
Sec. 105-60.000 Scope of part.
(a) This part sets forth policies and procedures of the General Services Administration (GSA) regarding public access to records documenting:
(1) Agency organization, functions, decisionmaking channels, and rules and regulations of general applicability;
(2) Agency final options and orders, including policy statements and staff manuals;
(3) Operational and other appropriate agency records; and
(4) Agency proceedings.
(b) This part also covers exemptions from disclosure of these records; procedures for the public to inspect or obtain copies of GSA records; and instructions to current and former GSA employees on the response to a subpoena or other legal demand for material or information received or generated in the performance of official duty or because of the person's official status.
(c) Any policies and procedures in any GSA internal or external directive inconsistent with the policies and procedures set forth in this part are superseded to the extent of that inconsistency.
Subpart 105-60.1--General Provisions
Sec. 105-60.101 Purpose.
This part 105-60 implements the provisions of the Freedom of Information Act (FOIA), as amended, 5 U.S.C. 552. The regulations in this part also implement Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Information, of June 23, 1987 (3 CFR, 1987 Comp., p. 235). This part prescribes procedures by which the public may inspect and obtain copies of GSA records under the FOIA, including administrative procedures which must be exhausted before a requester invokes the jurisdiction of an appropriate United States District Court for GSA's failure to respond to a proper request within the statutory time limits, for a denial of agency records or challenge to the adequacy of a search, or for a denial of a fee waiver.
Sec. 105-60.102 Application.
This part applies to all records and informational materials generated, maintained, and controlled by GSA that come within the scope of 5 U.S.C. 552.
Sec. 105-60.103 Policy.
Sec. 105-60.103-1 Availability of records.
The policies of GSA with regard to the availability of records to the public are:
(a) GSA records are available to the greatest extent possible in keeping with
[[Page 33025]]
the spirit and intent of the FOIA. GSA will disclose information in any existing GSA record, with noted exceptions, regardless of the form or format of the record. GSA will provide the record in the form or format requested if the record is reproducible by the agency in that form or format without significant expenditure of resources. GSA will make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.
(d) The person making the request does not need to demonstrate an interest in the records or justify the request.
(c) The FOIA does not give the public the right to demand that GSA compile a record that does not already exist. For example, FOIA does not require GSA to collect and compile information from multiple sources to create a new record. GSA may compile records or perform minor reprogramming to extract records from a database or system when doing so will not significantly interfere with the operation of the automated system in question or involve a significant expenditure of resources.
(b) Similarly, FOIA does not require GSA to reconstruct records that have been destroyed in compliance with disposition schedules approved by the Archivist of the United States. However, GSA will not destroy records after a member of the public has requested access to them and will process the request even if destruction would otherwise be authorized.
(e) If the record requested is not complete at the time of the request, GSA may, at its discretion, inform the requester that the complete record will be provided when it is available, with no additional request required, if the record is not exempt from disclosure.
(f) Requests must be addressed to the office identified in Sec. 105-60.402-1.
(g) Fees for locating and duplicating records are listed in Sec. 105-60.305-10.
Sec. 105-60.103-2 Applying exemptions.
GSA may deny a request for a GSA record if it falls within an exemption under the FOIA outlined in subpart 105-60.5 of this part. Except when a record is classified or when disclosure would violate any Federal statute, the authority to withhold a record from disclosure is permissive rather than mandatory. GSA will not withhold a record unless there is a compelling reason to do so; i.e., disclosure will likely cause harm to a Governmental or private interest. In the absence of a compelling reason, GSA will disclose a record even if it otherwise is subject to exemption. GSA will cite the compelling reason(s) to requesters when any record is denied under FOIA.
Sec. 105-60.104 Records of other agencies.
If GSA receives a request for access to records that are known to be the primary responsibility of another agency, GSA will refer the request to the agency concerned for appropriate action. For example, GSA will refer requests to the appropriate agency in cases in which GSA does not have sufficient knowledge of the action or matter that is the subject of the requested records to determine whether the records must be released or may be withheld under one of the exemptions listed in subpart 105-60.5. If GSA does not have the requested records, the agency will attempt to determine whether the requested records exist at another agency and, if possible, will forward the request to that agency. GSA will inform the requester that GSA has forwarded the request to another agency.
Subpart 105-60.2--Publication of General Agency Information and Rules in the Federal Register
Sec. 105-60.201 Published information and rules.
In accordance with 5 U.S.C. 552(a)(1), GSA publishes in the Federal Register, for the guidance of the public, the following general information concerning GSA:
(a) Description of the organization of the Central Office and regional offices and the established places at which, the employees from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
(b) Statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the places where forms may be obtained, and instructions on the scope and contents of all papers, reports, or examinations;
(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by GSA; and
(e) Each amendment, revision, or repeal of the materials described in this section.
Sec. 105-60.202 Published materials available for sale to the public.
(a) Substantive rules of general applicability adopted by GSA as authorized by law that this agency publishes in the Federal Register and which are available for sale to the public by the Superintendent of Documents at pre-established prices are: The General Services Administration Acquisition Regulation (48 CFR Ch. 5), the Federal Acquisition Regulation (48 CFR Ch. 1), the Federal Property Management Regulations (41 CFR Ch. 101), and The Federal Travel Regulation (41 CFR Ch. 301-304).
(b) GSA also provides technical information, including manuals and handbooks, to other Federal entities, e.g., the National Technical Information Service, with separate statutory authority to make information available to the public at pre-established fees.
(c) Requests for information available through the sources in paragraph (a) and (b) of this section will be referred to those sources.
Subpart 105-60.3--Availability of Opinions, Orders, Policies, Interpretations, Manuals, and Instructions
Sec. 105-60.301 General.
GSA makes available to the public the materials described under 5 U.S.C. 552(a)(2), which are listed in Sec. 105-60.302 through an extensive electronic home page, http://www.gsa.gov/. A public handbook listing those materials as described in Sec. 105-60.304 is available at GSA's Central Office in Washington, DC, and at the website at http:// www.gsa.gov/staff/c/ca/publ.htm. Members of the public who do not have the means to access this information electronically, and who are not located in the Washington, DC area, may contact the Freedom of Information Act office in any of the regional offices listed in this regulation. These offices will make arrangements for members of the public to access the information at a computer located at the FOIA office. Reasonable copying services are provided at the fees specified in Sec. 105-60.305.
Sec. 105-60.302 Available materials.
GSA materials available under this subpart 105-60.3 are as follows:
(a) Final opinions, including concurring and dissenting opinions and orders, made in the adjudication of cases.
(b) Those statements and policy and interpretations that have been adopted by GSA and are not published in the Federal Register.
(c) Administrative staff manuals and instructions to staff affecting a member of the public unless these materials are promptly published and copies offered for sale.
[[Page 33026]]
Sec. 105-60.303 Rules for public inspection and copying.
(a) Locations. Selected areas containing the materials available for public inspection and copying, described in this section 105- 60.302, are located in the following places:
Central Office (GSA Headquarters)
General Services Administration, Washington, DC, Telephone: 202- 501-2262, FAX: 202-501-2727, Email: gsa.foia@gsa.gov, 1800 F Street, NW (CAI), Washington, DC 20405 Office of the Inspector General
FOIA Officer, Office of Inspector General (J), General Services Administration, 1800 F Street NW., Room 5324, Washington, DC 20405 New England Region
General Services Administration (1AB) (Comprised of the States of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont), Thomas P. O'Neill, Jr., Federal Building, 10 Causeway Street, Boston, MA 02222, Telephone: 617-565-8100, FAX: 617-565-8101 Northeast and Caribbean Region
(Comprised of the States of New Jersey, New York, the Commonwealth of Puerto Rico, and the Virgin Islands), General Services Administration (2AR), 26 Federal Plaza, New York, NY 10278, Telephone: 212-264-1234, FAX: 212-264-2760 Mid-Atlantic Region
(Comprised of the States of Delaware, Maryland, Pennsylvania, Virginia, and West Virginia, excluding the Washington, DC metropolitan area)
General Services Administration (3ADS), 100 Penn Square East, Philadelphia, PA 19107, Telephone: 215-656-5530, FAX: 215-656-5590 Southeast Sunbelt Region
(Comprised of the States of Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee)
General Services Administration (4E), 401 West Peachtree Street, Atlanta, GA 30365, Telephone: 404-331-5103, FAX: 404-331-1813 Great Lakes Region
(Comprised of the States of Illinois, Indiana, Ohio, Minnesota, Michigan, and Wisconsin)
General Services Administration (5ADB), 230 South Dearborn Street, Chicago, IL 60604, Telephone: 312-353-5383, FAX: 312-353- 5385 Heartland Region
(Comprised of the States of Iowa, Kansas, Missouri, and Nebraska)
General Services Administration (6ADB), 1500 East Bannister Road, Kansas City, MO 64131, Telephone: 816-926-7203, FAX: 816-823- 1167 Greater Southwest Region
(Comprised of the States of Arkansas, Louisiana, New Mexico, Texas, and Oklahoma)
General Services Administration (7ADQ), 819 Taylor Street, Fort Worth, TX 76102, Telephone: 817-978-3902, FAX: 817-978-4867 Rock Mountain Region
(Comprised of the States of Colorado, North Dakota, South Dakota, Montana, Utah, and Wyoming)
Business Service Center, General Services Administration (8PB- B), Building 41, Denver Federal Center, Denver, CO 80225, Telephone: 303-236-7408, FAX: 303-236-7403 Pacific Rim Region
(Comprised of the States of Hawaii, California, Nevada, Arizona, Guam, and Trust Territory of the Pacific)
Business Service Center, General Services Administration (9ADB), 525 Market Street, San Francisco, CA 94105, Telephone: 415-522-2715, FAX: 415-522-2705 Northwest/Arctic Region
(Comprised of the States of Alaska, Idaho, Oregon, and Washington)
General Services Administration (10L), GSA Center, 15th and C Streets, SW., Auburn, WA 98002, Telephone: 206-931-7007, FAX: 206- 931-7195 National Capital Region
(Comprised of the District of Columbia and the surrounding metropolitan area)
General Services Administration (WPFA-L), 7th and D Streets SW., Washington, DC 20407, Telephone: 202-708-5854, FAX: 202-708-4655
(b) Time. The offices listed in paragraph (a) of this section will be open to the public during the business hours of the GSA office where they are located.
(c) Reproduction services and fees. The GSA Central Office or the Regional Business Service Centers will furnish reasonable copying and reproduction services for available materials at the fees specified in Sec. 105-60.305.
Sec. 105-60.304 Public Information Handbook and Index.
GSA publishes a handbook for the public that identifies information regarding any matter described in Sec. 105-60.302. This handbook also lists published information available from GSA and describes the procedures the public may use to obtain information using the Freedom of Information Act (FOIA). This handbook may be obtained without charge from any of the GSA FOIA offices listed in Sec. 105-60.303(a), or at the GSA Internet Homepage (http://www.gsa.gov/staff/c/ca/cai/ foiabk.htm).
Sec. 105-60.305 Fees.
Sec. 105-60.305-1 Definitions.
For the purpose of this part:
(a) A statute specifically providing for setting the level of fees for particular types of records (5 U.S.C. 552(a)(4)(A)(vii)) means any statute that specifically requires a Government agency to set the level of fees for particular types of records, as opposed to a statute that generally discusses such fees. Fees are required by statute to:
(1) Make Government information conveniently available to the public and to private sector organizations;
(2) Ensure that groups and individuals pay the cost of publications and other services which are for their special use so that these costs are not borne by the general taxpaying public;
(3) Operate an information dissemination activity on self- sustaining basis to the maximum extent possible; or
(4) Return revenue to the Treasury for defraying, wholly or in part, appropriated funds used to pay the cost of disseminating Government information.
(b) The term direct costs means those expenditures which GSA actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing and redacting) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits), and the cost of operating duplicating machinery. Overhead expenses such as costs of space, and heating or lighting the facility where the records are stored are not included in direct costs.
(c) The term search includes all time spent looking for material that is responsive to a request, including line-by-line identification of material within documents. Searches will be performed in the most efficient and least expensive manner so as to minimize costs for both the agency and the requester. Line-by-line searches will not be undertaken when it would be more efficient to duplicate the entire document. ``Search'' for responsive material is not the same as ``review'' of a record to determine whether it is exempt from disclosure in whole or in part (see paragraph c of this section). Searches may be done manually or by computer using existing programming or are programming when this would not significantly interfere with the operation of the automated system in question.
(d) The term duplication means the process of making a copy of a document in response to a FOIA request. Copies can take the form of paper, microform, audiovisual materials, or magnetic tapes or disks. To the extent practicable, GSA will provide a copy of the material in the form specified by the requester.
(e) The term review means the process of examining documents located in response to a request to determine if any portion of that document is permitted to be withheld and processing any
[[Page 33027]]
documents for disclosure. See Sec. 015-60.305-6.
(f) The term commercial-use request means a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or person on whose behalf the request is made. GSA will determine whether a requester properly belongs in this category by determining how the requester will use the documents.
(g) The term educational institution means a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education which operates a program or programs of scholarly research.
(h) The term noncommercial scientific institution means an institution that is not operated on a ``commercial'' basis as that terms is used in paragraph (f) of this section and which is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.
(i) The term representative of the news media means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term ``news'' means information that is about current events or that would be of current interest to the public. Examples of news media include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of ``news'') who make their products available for purchase or subscription by the general public. ``Freelance'' journalists will be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization even though they are not actually employed by it.
Sec. 105-60.305-2 Scope of this subpart.
This subpart sets forth policies and procedures to be followed in the assessment and collection of fees from a requester for the search, review, and reproduction of GSA records.
Sec. 105-60.305-3 GSA records available without charge.
GSA records available to the public are displayed in the Business Service Center for each GSA region. The address and phone number of the Business Service Centers are listed in Sec. 105-60.303. Certain material related to bids (excluding construction plans and specifications) and any material displayed are available without charge upon request.
Sec. 105-60.305-4 GSA records available at a fee.
(a) GSA will make a record not subject to exemption available at a time and place mutually agreed upon by GSA and the requester at fees shown in Sec. 105-60.305-10. Waivers of these fees are available under the conditions described in Sec. 105-60.305.13. GSA will agree to:
(1) Show the originals to the requester;
(2) Make one copy available at a fee; or
(3) A combination of these alternatives.
(b) GSA will make copies of voluminous records as quickly as possible. GSA may, in its discretion, make a reasonable number of additional copies for a fee when commercial reproduction services are not available to the requester.
Sec. 105-60.305-5 Searches.
(a) GSA may charge for the time spent in the following activities in determining ``search time'' subject to applicable fees as provided in Sec. 105-60.305-10:
(1) Time spent in trying to locate GSA records which come within the scope of the request;
(2) Time spent in either transporting a necessary agency searcher to a place of record storage, or in transporting records to the locations of a necessary agency searcher; and
(3) Direct costs of the use of computer time to locate and extract requested records.
(b) GSA will not charge for the time spent in monitoring a requester's inspection of disclosed agency records.
(c) GSA may assess fees for search time even if the search proves unsuccessful or if the records located are exempt from disclosure.
Sec. 105-60.305-6 Reviews.
(a) GSA will charge only commercial-use requesters for review time.
(b) GSA will charge for the time spent in the following activities in determining ``review time'' subject to applicable fees as provided in Sec. 105-60.305-10:
(1) Time spent in examining a requested record to determine whether any or all of the record is exempt from disclosure, including time spent consulting with submitters of requested information; and
(2) Time spent in deleting exempt matter being withheld from records otherwise made available.
(c) GSA will not charge for:
(1) Time spent in resolving issues of law or policy regarding the application of exemptions; or
(2) Review at the administrative appeal level of an exemption already applied. However, records or portions of records withheld in full under an exemption which is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. GSA will charge for such subsequent review.
Sec. 105-60.305-7 Assurance of payment.
If fees for search, review, and reproduction will exceed $25 but will be less than $250, the requester must provide written assurance of payment before GSA will process the request. If this assurance is not included in the initial request, GSA will notify the requester that assurance of payment is required before the request is processed. GSA will offer requesters an opportunity to modify the request to reduce the fee.
Sec. 105-60.305-8 Prepayment of fees.
(a) Fees over $250. GSA will require prepayment of fees for search, review, and reproduction which are likely to exceed $250. When the anticipated total fee exceeds $250, the requester will receive notice to prepay and at the same time will be given an opportunity to modify his or her request to reduce the fee. When fees will exceed $250, GSA will notify the requester that it will not start processing a request until payment is received.
(b) Delinquent payments. As noted in Sec. 105-60.305-12(d), requesters who are delinquent in paying for previous requests will be required to repay the old debt and to prepay for any subsequent request. GSA will inform the requester that it will process no additional requests until all fees are paid.
Sec. 105-60.305-9 Form of payment.
Requesters should pay fees by check or money order made out to the General Services Administration and addressed to the official named by GSA in its correspondence. Payment may also be made by means of Mastercard or Visa. For information concerning payment by credit cards, call 816-926-7551.
Sec. 105-60.305-10 Fee schedule.
(a) When GSA is aware that documents responsive to a request are maintained for distribution by an agency operating a statutory fee based program, GSA will inform the requester of the procedures for obtaining records from those sources.
[[Page 33028]]
(b) GSA will consider only the following costs in fees charged to requesters of GSA records:
(1) Review and search fees.
Manual searches by clerical staff: $13 per hour or fraction of an hour.
Manual searches and reviews by professional staff in cases in which clerical staff would be unable to locate the requested records: $29 per hour or fraction of an hour.
Computer searches: Direct cost to GSA.
Transportation or special handling of records: Direct cost to GSA.
(2) Reproduction fees.
Pages no larger than 8\1/2\ by 14 inches, when reproduced by routine electrostatic copying: 10 cents per page.
Pages over 8\1/2\ by 14 inches: Direct cost of reproduction to GSA.
Pages requiring reduction, enlargement, or other special services: Direct cost of reproduction to GSA.
Reproduction by other than routine electrostatic copying: Direct cost of reproduction to GSA.
(c) Any fees not provided for under paragraph (b) of this section, shall be calculated as direct costs, in accordance with Sec. 105- 60.305-1(b).
(d) GSA will assess fees based on the category of the requester as defined in Sec. 105-60.305-1(f) through (i); i.e., commercial-use, educational and noncommercial scientific institutions, news media, and all other. The fees listed in paragraph (b) of this section apply with the following exceptions:
(1) GSA will not charge the requester if the fee is $25 or less as the cost of collection is greater than the fee.
(2) Educational noncommercial scientific institutions and the news media will be charged for the cost of reproduction alone. These requesters are entitled to the first 100 pages (paper copies) of duplication at no cost. The following are examples of how these fees are calculated:
(i) A request that results in 150 pages of material. No fee would be assessed for duplication of 150 pages. The reason is that these requesters are entitled to the first 100 pages at no charge. The charge for the remaining 50 pages would be $5.00. This amount would not be billed under the preceding section.
(ii) A request that results in 450 pages of material. The requester in this case would be charged $35.00. The reason is that the requester is entitled to the first 100 pages at no charge. The charge for the remaining 350 pages would be $35.
(3) Noncommercial requesters who are not included under paragraph (d)(2) of this section will be entitled to the first 100 pages (paper copies) of duplication at no cost and two hours of search without charge. The term ``search time'' generally refers to manual search. To apply this term to searches made by computer, GSA will determine the hourly cost of operating the central processing unit and the operator's hourly salary plus 16 percent. When the cost of search (including the operator time and the cost of operating the computer to process a request) reaches the equivalent dollar amount of two hours of the salary of the person performing a manual search, i.e., the operator, GSA will begin assessing charges for computer search.
(4) GSA will charge commercial-use requesters fees which recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Commercial-use requesters are not entitled to two hours of free search time.
(e) Determining category of requester. GSA may ask any requester to provide additional information at any time to determine what fee category he or she falls under.
Sec. 105-60.305-11 Fees for authenticated and attested copies.
The fees set forth in Sec. 105-60.30510 to apply to requests for authenticated and attested copies of GSA records.
Sec. 105-60.305-12 Administrative actions to improve assessment and collection of fees.
(a) Charging interest. GSA may charge requesters who fail to pay fees interest on the amount billed starting on the 31st day following the day on which the billing was sent. Interest will be at the rate prescribed in 31 U.S.C. 3717.
(b) Effect of the Debt Collection Act of 1982. GSA will take any action authorized by the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), including disclosure to consumer reporting agencies, use of collection agencies, and assessment of penalties and administrative costs, where appropriate, to encourage payment.
(c) Aggregating requests. When GSA reasonably believes that a requester, or group of requesters acting in concert, is attempting to break a down a request into a series of requests related to the same subject for the purpose of evading the assessment of fees, GSA will combine any such requests and charge accordingly, including fees for previous requests where charges were not assessed. GSA will presume that multiple requests of this type within a 30-day period are made to avoid fees.
(d) Advance payments. Whenever a requester is delinquent in paying the fee for a previous request (i.e., within 30 days of the date of billing), GSA will require the requester to pay the full amount owed plus any applicable interest penalties and administrative costs as provided in paragraph (a) of this section or to demonstrate that he or she has, in fact, paid the fee. In such cases, GSA will also require advance payment of the full amount of the estimated fee before the agency begins to process a new request or a pending request from that requester. When advance payment is required under this section, the administrative time limits in subsection (a)(6) of the FOIA (i.e., 10 working days from receipt of appeals from initial denial plus permissible time extensions) will begin only after GSA has received the fee payments described in Sec. 105-60.305-8.
Sec. 105-60.305-13 Waiver of fee.
(a) Any request for a waiver or the reduction of a fee should be included in the initial letter requesting access to GSA records under Sec. 105-60.402-1. The waiver request should explain how disclosure of the information would request should explain how disclosure of the information would contribute significantly to public's understanding of the operations or activities of the Government and would not be primarily in the commercial interest of the requester. In responding to a request, GSA will consider the following factors:
(1) Whether the subject of the requested records concerns ``the operations or activities of the Government.'' The subject matter of the requested records must specifically concern identifiable operations or activities of the Federal Government. The connection between the records and the operations or activities must be direct and clear, not remote or attenuated.
(2) Whether the disclosure is ``likely to contribute'' to an understanding of Government operations or activities. In this connection, GSA will consider whether the requested information is already in the public domain. If it is, then disclosure of the information in the public domain. If it is, then disclosure of the information would not be likely to contribute to an understanding of Government operations or activities, as nothing new would be added to the public record.
(3) Whether disclosure of the requested information will contribute to ``public's understanding.'' The focus here must be on the contribution to public's understanding rather than personal benefit to be derived by the requester. For purposes of this analysis, the identity and qualifications of the requester should be considered to determine whether the requester is in a position to contribute to public's understanding through the requested disclosure.
[[Page 33029]]
(4) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and if so: whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public's interest in disclosure, that disclosure is ``primarily in the commercial interest of the requester.''
(b) GSA will ask the requester to furnish additional information if the initial request is insufficient to evaluate the merits of the request. GSA will not start processing a request until the fee waiver issue has been resolved unless the requester has provided written assurance of payment in full if the fee waiver is denied by the agency.
Subpart 105-60.4--Described Records
Sec. 105-60.401 General.
(a) Except for records made available in accordance with subparts 105-60.2 and 105-60.3 of this part, GSA will make records available to a requester promptly when the request reasonably describes the records unless GSA invokes an exemption in accordance with subpart 105-60.5 of this part. Although the burden of reasonable description of the records rests with the requester, whenever practical GSA will assist requesters to describe records more specifically.
(b) Whenever a request does not reasonably describe the records requested, GSA may contact the requester to seek a more specific description. The 20-workday time limit set forth in Sec. 105-60.402-2 will not start until the official identified in Sec. 105-60.402-1 or other responding official receives a request reasonably describing the records.
Sec. 105-60.402 Procedures for making records available.
This subpart sets forth initial procedures for making records available when they are requested, including administrative procedures to be exhausted prior to seeking judicial review by an appropriate United States District Court.
Sec. 105-60.402-1 Submission of requests.
For records located in the GSA Central Office, the requester must submit a request in writing to the GSA FOIA Officer, General Services Administration (GSA), Washington, DC 20405. Requesters may FAX requests to (202) 501-2727, or submit a request by electronic mail to gsa.foi@gsa.gov. For records located in the Office of Inspector General, the requester must submit a request to the FOIA Officer, Office of Inspector General, General Services Administration, 1800 F Street NW., Room 5324, Washington, DC 20405. For records located in the GSA regional offices, the requester must submit a request to the FOIA Officer for the relevant region, at the address listed in Sec. 105- 60.303(a). Requests should include the words ``Freedom of Information Act Request'' prominently marked on both the face of the request letter and the envelope. The 20-workday time limit for agency decisions set forth in Sec. 105-60.402-2 begins with receipt of a request in the office of the official identified in this section, unless the provisions under Secs. 105-60.305-8 and 105-60.305-12(d) apply. Failure to include the words ``Freedom of Information Act Request'' or to submit a request to the official identified in this section will result in processing delays. A requester with questions concerning a FOIA request should contact the GSA FOIA Office, General Services Administration (GSA), 18th and F Streets, NW., Washington, DC 20405, (202) 501-2262.
Sec. 105-60.402-2 Response to initial requests.
(a) GSA will respond to an initial FOIA request that reasonably describes requested records, including a fee waiver request, within 20 workdays (that is, excluding Saturdays, Sundays, and legal holidays) after receipt of a request by the office of the appropriate official specified in Sec. 105-60.402-1. This letter will provide the agency's decision with respect to disclosure or nondisclosure of the requested records, or, if appropriate, a decision on a request for a fee waiver. If the record to be disclosed are not provided with the initial letter, the records will be sent as soon as possible thereafter.
(b) In unusual circumstances, as described in Sec. 105-60.404, GSA will inform the requester of the agency's need to take an extension of time, not to exceed an additional 10 workdays. This notice will afford requesters an opportunity to limit the scope of the request so that it may be processed within prescribed time limits or an opportunity to arrange an alternative time frame for processing the request or a modified request. Such mutually agreed time frames will supersede the 10 day limit for extensions.
(c) GSA will consider requests for expedited processing from requesters who submit a statement describing a compelling need and certifying that this need is true and correct to the best of such person's knowledge and belief. A compelling need means:
(1) Failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(2) The information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity. An individual primarily engaged in disseminating information means a person whose primary activity involves publishing or otherwise disseminating information to the public. ``Urgently needed'' information has a particular value that will be lost if not disseminated quickly, such as a breaking news story or general public interest. Information of historical interest only, or information sought for litigation or commercial activities would not qualify, nor would a news media publication or broadcast deadline unrelated to the newsbreaking nature of the information.
(d) GSA will decide whether to grant expedited processing within five working days of receipt of the request. If the request is granted, GSA will process the request ahead of non-expedited requests, as soon as practicable. If the request is not granted, GSA will give expeditious consideration to administrative appeals of this denial.
(e) GSA may, at its discretion, establish three processing queues based on whether any request have been granted expedited status and on the difficulty and complexity of preparing a response. Within each queue, responses will be prepared on a ``first in, first out'' basis. One queue will be made up of expedited requests; the second, of simple responses that clearly can be prepared without requesting an extension of time; the third, of responses that will require an extension of time.
Sec. 105-60.403 Appeal within GSA.
(a) A requester who receives a denial of a request, in whole or in part, a denial of a request for expedited processing or of a fee waiver request may appeal that decision within GSA. A requester may also appeal the adequacy of the search if GSA determines that it has searched for but has no requested records. The requester must send the appeal to the GSA FOIA Officer, General Services Administration (CAI), Washington, DC 20405, regardless of whether the denial being appealed was made in the Central Office or in a regional office. For denials which originate in the Office of Inspector General, the requester must send the appeal to the Inspector General, General Services Administration, 1800 F Street NW., Washington, DC 20405.
[[Page 33030]]
(b) The GSA FOIA Officer must receive an appeal no later than 120 calendar days after receipt by the requester of the initial denial of access or fee waiver.
(c) An appeal must be in writing and include a brief statement of the reasons he or she thinks GSA should release the records or provide expedited processing and enclose copies of the initial request and denial. The appeal letter must include the word ``Freedom of Information Act Appeal'' on both the face of the appeal letter and on the envelope. Failure to follow these procedures will delay processing of the appeal. GSA has 20 workdays after receipt of a proper appeal of denial of records to issue a determination with respect to the appeal. The 20-workday time limit shall not begin until the GSA FOIA Officer receives the appeal. As noted in Sec. 105-60.404, the GSA FOIA Officer may extend this time limit in unusual circumstances. GSA will process appeals of denials of expedited processing as soon as possible after receiving them.
(d) A requester who receives a denial of an appeal, or who has not received a response to an appeal or initial request within the statutory time frame may seek judicial review in the United States District Court in the district in which the requester resides or has a principal place of business, or where the records are situated, or in the United States District Court for the District of Columbia.
Sec. 105-60.404 Extension of time limits.
(a) In unusual circumstances, the GSA FOIA Officer or the regional FOIA Officer may extend the time limits prescribed in Secs. 105-60.402 and 105-60-403. For purposes of this section, the term ``unusual circumstances'' means:
(1) The need to search for an collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are described in a single request;
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of GSA having substantial subject-matter interest therein; or
(4) The need to consult with the submitter of the requested information.
(b) If necessary, GSA may take more than one extension of time. However, the total extension of time to respond to any single request shall not exceed 10 workdays. The extension may be divided between the initial and appeal stages or within a single stage. GSA will provide written notice to the requester of any extension of time limits.
Sec. 105-60.405 Processing requests for confidential commercial information.
(a) General. The following additional procedures apply when processing requests for confidential commercial information.
(b) Definitions. For the purposes of this section, the following definitions apply:
(1) Confidential commercial information means records provided to the Government by a submitter that contain material arguably exempt from release under 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.
(2) Submitter means a person or entity which provides to the Government information which may constitute confidential commercial information. The term ``submitter'' includes, but is not limited to, individuals, partnerships, corporations, State governments, and foreign governments.
(c) Designating confidential commercial information. Since January 1, 1988, submitters have been required to designate confidential commercial information as such when it is submitted to GSA or at a reasonable time thereafter. For information submitted in connection with negotiated procurements, the requirements of Federal Acquisition Regulation 48 CFR 15.406(c)(8) and 52.215-12 also apply.
(d) Procedural requirements--consultation with the submitter. (1) If GSA receives a FOIA request for potentially confidential commercial information, it will notify the submitter immediately by telephone and invite and opinion whether disclosure will or will not cause substantial competitive harm.
(2) GSA will follow up the telephonic notice promptly in writing before releasing any records unless paragraph (f) of this section applies.
(3) If the submitter indicates an objection to disclosure GSA will give the submitter seven workdays from receipt of the letter to provide GSA with a detailed written explanation of how disclosure of any specified portion of the records would be competitively harmful.
(4) If the submitter verbally states that there is no objection to disclosure, GSA will confirm this fact in writing before disclosing any records.
(5) At the same time GSA notifies the submitter, it will also advise the requester that there will be a delay in responding to the request due to the need to consult with the submitter.
(6) GSA will review the reasons for nondisclosure before independently deciding whether the information must be released or should be withheld. If GSA decides to release the requested information, it will provide the submitter with a written statement explaining why his or her objections are not sustained. The letter to the submitter will contain a copy of the material to be disclosed or will offer the submitter an opportunity to review the material in one of GSA's offices. If GSA decides not to release the material, it will notify the submitter orally or in writing.
(7) If GSA determines to disclose information over a submitter's objections, it will inform the submitter that GSA will delay disclosure for 5 workdays from the estimated date the submitter receives GSA's decision before it releases the information. The decision letter to the requester shall state that GSA will delay disclosure of material it has determined to disclose to allow for the notification of the submitter.
(e) When notice is required. (1) For confidential commercial information submitted prior to January 1, 1988, GSA will notify a submitter whenever it receives a FOIA request for such information:
(i) If the records are less than 10 years old and the information has been designated by the submitter as confidential commercial information; or
(ii) If GSA has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.
(2) For confidential commercial information submitted on or after January 1, 1988, GSA will notify a submitter whenever it determines that the agency may be required to disclose records:
(i) That the submitter has previously designated as privileged or confidential; or
(ii) That GSA believes could reasonably be expected to cause substantial competitive harm if disclosed.
(3) GSA will provide notice to a submitter for a period of up to 10 years after the date of submission.
(f) When notice is not required. The notice requirements of this section will not apply if:
(1) GSA determines that the information should not be disclosed;
(2) The information has been published or has been officially made available to the public;
[[Page 33031]]
(3) Disclosure of the information is required by law other than the FOIA;
(4) Disclosure is required by an agency rule that:
(i) Was adopted pursuant to notice and public comment;
(ii) Species narrow classes of records submitted to the agency that are to be released under FOIA; and
(iii) Provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that disclosure of the information could reasonably be expected to cause substantial competitive harm;
(5) The information is not designated by the submitter as exempt from disclosure under paragraph (c) of this section, unless GSA has substantial reason to believe that disclosure of the information would be competitively harmful; or
(6) The designation made by the submitter in accordance with paragraph (c) of this section appears obviously frivolous; except that, in such cases, the agency must provide the submitter with written notice of any final administrative decision five workdays prior to disclosing the information.
(g) Lawsuits. If a FOIA requester sues the agency to compel disclosure of confidential commercial information, GSA will notify the submitter as soon as possible. If the submitter sues GSA to enjoin disclosure of the records, GSA will notify the requester.
Subpart 105-60.5--Exemptions
Sec. 105-60.501 Categories of records exempt from disclosure under the FOIA.
(a) 5 U.S.C. 552(b) provides that the requirements of the FOIA do not apply to matters that are:
(1) Specifically authorized under the criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such executive order;
(2) Related solely to the internal personnel rules and practices of an agency;
(3) Specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute:
(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Records of information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
(i) Could reasonably be expected to interfere with enforcement proceedings;
(ii) Would deprive a person of a right to a fair trial or an impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical safety of any individual;
(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps, concerning wells.
(b) GSA will provide any reasonably segregable portion of a record to a requester after deletion of the portions that are exempt under this section. If GSA must delete information from a record before disclosing it, this information, and the reasons for withholding it, will be clearly described in the cover letter to the requester or in an attachment. Unless indicating the extent of the deletion would harm an interest protected by an exemption, the amount of deleted information shall be indicated on the released portion of paper records by use of brackets or darkened areas indicating removal of information. In the case of electronic deletion, the amount of redacted information shall be indicated at the place in the record where such deletion was made, unless including the indication would harm an interest protected by the exemption under which the exemption was made.
(c) GSA will invoke no exemption under this section to deny access to records that would be available pursuant to a request made under the Privacy Act of 1974 (5 U.S.C. 522a) and implementing regulations, 41 CFR Part 105-64, or if disclosure would cause no demonstrable harm to any governmental or private interest.
(d) Pursuant to National Defense Authorization Act for Fiscal Year 1997, Pub. L. 104-201, section 821, 110 Stat. 2422, GSA will invoke Exemption 3 to deny access to any proposal submitted by a vendor in response to the requirements of a solicitation for a competitive proposal unless the proposal is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal.
(e) Whenever a request is made which involves access to records described in Sec. 105-60.501(a)(7)(i) and the investigation or proceeding involves a possible violation of criminal law, and there is reason to believe that the subject of the investigation or proceeding is not aware of it, and disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.
(f) Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed.
(g) Whenever a request is made that involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in paragraph (a)(1) of this section, the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.
[[Page 33032]]
Subpart 105-60.6--Production or Disclosure by Present or Former General Services Administration Employees in Response to Subpoenas or Similar Demands in Judicial or Administrative Proceedings
Sec. 105-60.601 Purpose and scope of subpart.
(a) By virtue of the authority vested in the Administrator of General Services by 5 U.S.C. 301 and 40 U.S.C. 486(c) this subpart establishes instructions and procedures to be followed by current and former employees of the General Services Administration in response to subpoenas or similar demands issued in judicial or administrative proceedings for production or disclosure of material or information obtained as part of the performance of a person's official duties or because of the person's official status. Nothing in these instructions applies to responses to subpoenas or demands issued by the Congress or in Federal grand jury proceedings.
(b) This subpart provides instructions regarding the internal operations of GSA and the conduct of its employees, and is not intended and does not, and may not, be relied upon to create any right or benefit, substantive or procedural, enforceable at law by a party against GSA.
Sec. 105-60.602 Definitions.
For purposes of this subpart, the following definitions apply:
(a) Material means any document, record, file or data, regardless of the physical form or the media by or through which it is maintained or recorded, which was generated or acquired by a current or former GSA employee by reason of the performance of that person's official duties or because of the person's official status, or any other tangible item, e.g., personal property possessed or controlled by GSA.
(b) Information means any knowledge or facts contained in material, and any knowledge or facts acquired by current or former GSA employee as part of the performance of that person's official duties or because of that person's official status.
(c) Demand means any subpoena, order, or similar demand for the production or disclosure of material, information or testimony regarding such material or information, issued by a court or other authority in a judicial or administrative proceeding, excluding congressional subpoenas or demands in Federal grand jury proceedings, and served upon a present or former GSA employee.
(d) Appropriate Authority means the following officials who are delegated authority to approve or deny responses to demands for material, information or testimony:
(1) The Counsel to the Inspector General for material and information which is the responsibility of the GSA Office of Inspector General or testimony of current or former employees of the Office of the Inspector General;
(2) The Counsel to the GSA Board of Contract Appeals for material and information which is the responsibility of the Board of Contract Appeals or testimony of current or former Board of Contract Appeals employees;
(3) The GSA General Counsel, Associate General Counsel(s) or Regional Counsel for all material, information, or testimony not covered by paragraphs (d)(1) and (2) of this section.
Sec. 105-60.603 Acceptance of service of a subpoena duces tecum or other legal demand on behalf of the General Services Administration.
(a) The Administrator of General Services and the following officials are the only GSA personnel authorized to accept service of a subpoena or other legal demand on behalf of GSA: the GSA General Counsel and Associate General Counsel(s) and, with respect to material or information which is the responsibility of a regional office, the Regional Administrator and Regional Counsel. The Inspector General and Counsel to the Inspector General, as well as the Chairman and Vice Chairman of the Board of Contract Appeals, are authorized to accept service for material or information which are the responsibility of their respective organizations.
(b) A present or former GSA employee not authorized to accept service of a subpoena or other demand for material, information or testimony obtained in an official capacity shall respectfully inform the process server that he or she is not authorized to accept service on behalf of GSA and refer the process server to an appropriate official listed in paragraph (a) of this section.
(c) A Regional Administrator or Regional Counsel shall notify the General Counsel of a demand which may raise policy concerns or affect multiple regions.
Sec. 105.60.604 Production or disclosure prohibited unless approved by the Appropriate Authority.
No current or former GSA employee shall, in response to a demand, produce any material or disclose, through testimony or other means, any information covered by this subpart, without prior approval of the Appropriate Authority.
Sec. 105.-60.605 Procedure in the event of a demand for production or disclosure.
(a) Whenever service of a demand is attempted in person or via mail upon a current or former GSA employee for the production of material or the disclosure of information covered by this subpart, the employee or former employee shall immediately notify the Appropriate Authority through his or her supervisor or his or her former service, staff office, or regional office. The supervisor shall notify the Appropriate Authority. For current or former employees of the Office of Inspector General located in regional offices, Counsel to the Inspector General shall be notified through the immediate supervisor or former employing field office.
(b) The Appropriate Authority shall require that the party seeking material or testimony provide the Appropriate Authority with an affidavit, declaration, statement, and/or a plan as described in paragraphs (c)(1), (2), and (3) of this section if not included with or described in the demand. The Appropriate Authority may waive this requirement for a demand arising out of proceedings to which GSA or the United States is a party. Any waiver will be coordinated with the United States Department of Justice (DOJ) in proceedings in which GSA, its current or former employees, or the United States are represented by DOJ.
(c)(1) Oral testimony. If oral testimony is sought by a demand, the Appropriate Authority shall require the party seeking the testimony or the party's attorney to provide, by affidavit or other statement, a detailed summary of the testimony sought and its relevance to the proceedings. Any authorization for the testimony of a current or former GSA employee shall be limited to the scope of the demand as summarized in such statement or affidavit.
(2) Production of material. When information other than oral testimony is sought by a demand, the Appropriate Authority shall require the party seeking production or the party's attorney to provide a detailed summary, by affidavit or other statement, of the information sought and its relevance to the proceeding.
(3) The Appropriate Authority may require a plan or other information from the party seeking testimony or production of material of all demands reasonably foreseeable, including, but not limited to, names of all current and former GSA employees from whom testimony or production is or will likely be sought, areas of inquiry, for current
[[Page 33033]]
employees the length of time away from duty anticipated, and identification of documents to be used in each deposition or other testimony, where appropriate.
(d) The Appropriate Authority will notify the current or former employee, the appropriate supervisor, and such other persons as circumstances may warrant, whether disclosure or production is authorized, and of any conditions or limitations to disclosure or production.
(e) Factors to be considered by the Appropriate Authority in responding to demands:
(1) Whether disclosure or production is appropriate under rules or procedure governing the proceeding out of which the demand arose;
(2) The relevance of the testimony or documents to the proceedings;
(3) The impact of the relevant substantive law concerning applicable privileges recognized by statute, common law, judicial interpretation or similar authority;
(4) The information provided by the issuer of the demand in response to requests by the Appropriate Authority pursuant to paragraphs (b) and (c) of this section;
(5) The steps taken by the issuer of the demand to minimize the burden of disclosure or production on GSA, including but not limited to willingness to accept authenticated copies of material in lieu of personal appearance by GSA employees;
(6) The impact on pending or potential litigation involving GSA or the United States as a party;
(7) In consultation with the head of the GSA organizational component affected, the burden on GSA which disclosure or production would entail; and
(8) Any additional factors unique to a particular demand or proceeding.
(f) The Appropriate Authority shall not approve a disclosure or production which would:
(1) Violate a statute or a specific regulation;
(2) Reveal classified information, unless appropriately declassified by the originating agency;
(3) Reveal a confidential source or informant, unless the investigative agency and the source or informant consent;
(4) Reveal records or information compiled for law enforcement purposes which would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would be impaired;
(5) Reveal trade secrets or commercial or financial information which is privileged or confidential without prior consultation with the person from whom it was obtained; or
(6) Be contrary to a recognized privilege.
(g) The Appropriate Authority's determination, including any reasons for denial or limitations on disclosure or production, shall be made as expeditiously as possible and shall be communicated in writing to the issuer of the demand and appropriate current or former GSA employee(s). In proceedings in which GSA, its current or former employees, or the United States are represented by DOJ, the determination shall be coordinated with DOJ which may respond to the issuer of the subpoenas or demand in lieu of the Appropriate Authority.
Sec. 105-60.606 Procedure where response to demand is required prior to receiving instructions.
(a) If a response to a demand is required before the Appropriate Authority's decision is issued, a GSA attorney designated by the Appropriate Authority for the purpose shall appear with the employee or former employee upon whom the demand has been made, and shall furnish the judicial or other authority with a copy of the instructions contained in this subpart. The attorney shall inform the court or other authority that the demand has been or is being referred for the prompt consideration by the Appropriate Authority. The attorney shall respectfully request the judicial or administrative authority to stay the demand pending receipt of the requested instructions.
(b) The designated GSA attorney shall coordinate GSA's response with DOJ's Civil Division or the relevant Office of the United States Attorney and may request that a DOJ or Assistant United States Attorney appear with the employee in addition to or in lieu of a designated GSA attorney.
(c) If an immediate demand for production or disclosure is made in circumstances which preclude the appearance of a GSA or DOJ attorney on the behalf of the employee or the former employee, the employee or former employee shall respectfully make a request to the demanding authority for sufficient time to obtain advice of counsel.
Sec. 105-60.607 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with Sec. 105-60.606 pending receipt of instructions, or if the court or other authority rules that the demand must be compiled with irrespective of instructions by the Appropriate Authority not to produce the material or disclose the information sought, the employee or former employee upon whom the demand has been made shall respectfully decline to comply, citing these instructions and the decision of the United States Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Sec. 105-60.608 Fees, expenses, and costs.
(a) In consultation with the Appropriate Authority, a current employee who appears as a witness pursuant to a demand shall ensure that he or she receives all fees and expenses, including travel expenses, to which witnesses are entitled pursuant to rules applicable to the judicial or administrative proceedings out of which the demand arose.
(b) Witness fees and reimbursement for expenses received by a GSA employee shall be disposed of in accordance with rules applicable to Federal employees in effect at the time.
(c) Reimbursement to the GSA for costs associated with producing material pursuant to a demand shall be determined in accordance with rules applicable to the proceedings out of which the demand arose.
Dated: June 9, 1998. Joseph R. Rodriquez, Acting Associate Administrator for Management and Workplace Programs.
[FR Doc. 98-15948Filed6-16-98; 8:45 am]
BILLING CODE 6820-34-M
