Freedom of Information Act
Federal Register: December 30, 2008 (Volume 73, Number 250)
Proposed Rules
Page 79734-79760
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr30de08-32
POSTAL SERVICE 39 CFR Parts 233, 261, 262, 263, 264, 265, and 266
Freedom of Information Act
AGENCY: Postal Service\TM\.
ACTION: Proposed rule.
SUMMARY: The Postal Service proposes to amend its regulations relating to records and information management. The proposed revisions contain, in part, new provisions to comply with Executive Order (EO) 13,392, entitled ``Improving Agency Disclosure of Information.''
DATES: Comments must be received by January 29, 2009.
ADDRESS: Comments may be mailed or delivered to the Manager, Records
Office, U. S. Postal Service, 475 L'Enfant Plaza, SW., Room 5821,
Washington, DC 20260. Copies of all written comments will be available at this address for public inspection and photocopying between 8 a.m. and 4 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Jane Eyre, Manager, Records Office, 202-268-2608.
SUPPLEMENTARY INFORMATION: The Postal Service is proposing to remove
Sec. 233.3 (h)(4) from Title 39 Code of Federal Regulations. The current regulation provides an 8-year retention period for files and records pertaining to mail covers. The Postal Service proposes to remove Sec. 233.3(h)(4) because the retention periods for files and records are already in the records retention schedule for the Postal
Service. Furthermore, USPS System of Records 700.100--Mail Cover
Program Records, contains procedures for record storage, retrieval, safeguards, and disposal of mail cover records and information.
Records and Information Management (Parts 261-264)
The Postal Service proposes to revise parts 261-264 concerning
Postal Service records and information management for administrative purposes, to clarify existing text, and to update and add definitions.
Release of Information (Part 265)
The Postal Service proposes to revise part 265, release of information, for administrative purposes, to clarify existing text, and to comply with provisions of EO 13,392. The EO requires, in part, that the Postal Service name a chief Freedom of Information Act officer, establish one or more requester service center(s), and name public liaisons. The Postal Service also made changes to update computer search fees incurred in processing records requests. We amended the computer search fees to reflect changes in the actual direct cost of retrieval, including computer search time and personnel costs. Computer search fees are subject to periodic revision, and have not been updated since September 2003. The new computer search fees are based on current industry standards and Postal Service salary schedules.
Privacy Information (Part 266)
The Postal Service proposes to revise part 266, privacy of information, for administrative purposes, to clarify existing text, and to update definitions.
List of Subjects 39 CFR Part 233
Administrative practice and procedure, Banks, Banking, Credit,
Crime, Infants and children, Law enforcement, Penalties, Privacy,
Seizures and forfeitures. 39 CFR Part 261
Archives and records. 39 CFR Parts 262 and 263
Archives and records. 39 CFR Part 264
Archives and records, Security measures. 39 CFR Part 265
Administrative practice and procedure, Courts, Freedom of information, Government employees. 39 CFR Part 266
Privacy.
For the reasons stated in the preamble, the Postal Service proposes to amend 39 CFR chapter I as follows:
PART 233--INSPECTION SERVICE AUTHORITY 1. The authority citation for part 233 continues to read:
Authority: 39 U.S.C. 101, 102, 202, 204, 401, 402, 403, 404, 406, 410, 411, 1003, 3005(e)(1); 12 U.S.C. 3401-3422; 18 U.S.C. 981, 1956, 1957, 2254, 3061; 21 U.S.C. 881; Omnibus Budget Reconciliation
Act of 1996, sec. 662 (Pub. L. No. 104-208).
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Sec. 233.3 [Amended] 2. In Sec. 233.3, remove paragraph (h)(4).
PART 261--RECORDS AND INFORMATION MANAGEMENT 3. Revise part 261 to read as follows:
PART 261--RECORDS AND INFORMATION MANAGEMENT
Sec. 261.1 Purpose and scope. 261.2 Authority. 261.3 Policy. 261.4 Responsibility.
Authority: 39 U.S.C. 401.
Sec. 261.1 Purpose and scope.
In accordance with 39 U.S.C. 410, the Postal Service is not subject to the provisions of the Federal Records Act of 1950, or any of its supporting regulations that provide for the conduct of records management in Federal agencies. The objective of parts 261 through 268 is to provide the basis for a Postal Service-wide records and information management program affecting all organizational components having the custody of any form of information and records.
Sec. 261.2 Authority.
(a) 39 U.S.C. 401(5) states that the Postal Service has the power to acquire property it deems necessary or convenient in the transaction of its business and to hold, maintain, sell, lease, or otherwise dispose of such property.
(b) 39 CFR 262.2 assigns to the Postal Service Records Office, located under the Privacy Office, responsibility for the retention, security, and privacy of Postal Service records and the power to authorize the disclosure of such records and to order their disposal by destruction or transfer. Included is the authority to issue records management policy and to delegate or take appropriate action if that policy is not adhered to or if questions of interpretation of procedure arise.
Sec. 261.3 Policy.
It is the policy of the Postal Service:
(a) To, as appropriate, create, preserve, protect and disclose records which contain adequate and proper documentation of the organization, functions, policies, decisions, operations, procedures, activities, and transactions of the Postal Service.
(b) To reduce to an absolute minimum the records holdings of the
Postal Service by strict adherence to established records retention schedules.
Sec. 261.4 Responsibility.
(a) The Chief Freedom of Information Act (FOIA) Officer. The Vice
President and Consumer Advocate is designated as the Chief FOIA Officer and is responsible for the following:
(1) Overseeing Postal Service compliance with the FOIA.
(2) Making recommendations to the Postmaster General regarding the
Postal Service's FOIA program.
(3) Monitoring and reporting on FOIA implementation and performance for the Postal Service.
(b) The Chief Privacy Officer, under the Vice President and
Consumer Advocate, is responsible for administering records and information management policies and for the compliance of all handbooks, directives, and instructions in support of this policy.
(c) The Manager, Records Office, under the Privacy Office, administers the Postal Service release of information and privacy of information programs with the assistance of FOIA coordinators in
Headquarters departments and the Consumer Affairs function of area and district offices.
(d) Freedom of Information Act Public Liaisons are responsible for the following:
(1) Managing FOIA Requester Service Centers (RSCs).
(2) Receiving concerns of requesters about the service provided by the FOIA RSC following an initial response.
(3) Ensuring a service-oriented response to requests and FOIA- related inquiries.
(4) Reporting to the Chief FOIA Officer on their activities.
(e) Freedom of Information Act Requester Service Centers. The FOIA
Requester Service Centers are responsible for the following:
(1) Facilitating communication between the Postal Service and FOIA requesters.
(2) Providing information to requesters concerning the status of
FOIA requests and information about responses to such requests.
(f) Freedom of Information Act Coordinator. The FOIA Coordinator, which is an ad hoc position located within each Headquarters department, area, and district office, is responsible for the following:
(1) Coordinating FOIA requests referred to or received by their functional or geographical area.
(2) Providing procedural guidance, upon request, to records custodians.
(3) Assisting the Manager of the Records Office with national records management activities, such as annual reporting of local FOIA and Privacy Act activities.
(g) Records Custodians are responsible for ensuring that records within their facilities or organizations are managed according to
Postal Service policies. Vice presidents or their designees are the custodians of records maintained at Headquarters. In the field, the records custodian is the head of a Postal Service facility such as an area, district, Post Office\TM\, or other Postal Service installation or designee that maintains Postal Service records. Senior medical personnel are the custodians of restricted medical records maintained within Postal Service facilities. The Custodian of Employee Assistance
Program (EAP) records is the Postal Service counselor, a supplier, or the public health service, whichever provided the services.
(h) Postal Service managers are responsible for administering records and information management policies and for complying with all handbooks, directives, and instructions in support of this policy. 4. Revise part 262 to read as follows:
PART 262--RECORDS AND INFORMATION MANAGEMENT DEFINITIONS
Sec. 262.1 Purpose and scope. 262.2 Officials. 262.3 Information. 262.4 Records. 262.5 Systems (Privacy). 262.6 Retention and disposal. 262.7 Non-records.
Authority: 5 U.S.C. 552, 552a; 39 U.S.C. 401
Sec. 262.1 Purpose and scope.
This part contains the official definition of those basic records and information management terms that are frequently used throughout
Postal Service regulations and directives.
Sec. 262.2 Officials.
(a) Chief Privacy Officer. The Chief Privacy Officer (CPO) is responsible for the issuance of policy on the protection of privacy and the release of Postal Service records with the power to authorize the disclosure of such records and to delegate or take appropriate action if that policy is not adhered to or if questions of interpretation or procedure arise. The CPO directs the activities of the Privacy Office and the Records Office.
(b) Manager, Records Office. The Manager, Records Office, manages the Records Office, and is responsible for establishing procedures and guidelines to ensure that record management practices are in compliance with the Privacy Act and FOIA. The Manager,
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Records Office, may also delegate or take appropriate action if policies are not adhered to or if questions of interpretation or procedures arise.
(c) Records Custodian. The postmaster or other head of a facility, such as an area vice president, district manager, or head of a postal installation or department, who maintains Postal Service records. Vice presidents are the custodians of records maintained at Headquarters.
Senior medical personnel are the custodians of restricted medical records maintained within postal facilities.
(d) Manager, Corporate Information Security Office. The Manager,
Corporate Information Security Office, is responsible for the following:
(1) Ensuring compliance with information security policies, including the protection of information resources containing customer, employee, or other individuals' information.
(2) Safeguarding and disposing of electronic records (including e- mails) that are maintained in information systems, including those that are subject to legal holds.
(3) Serving as the central contact for information security issues and providing security consultations as requested.
(e) Records Office. The Records Office is responsible for the issuance of policy on the maintenance and disposition of Postal Service records and information, and to delegate or take appropriate action if such policy is not adhered to or if questions of interpretation or procedure arise.
Sec. 262.3 Information.
Data combined with the knowledge of its context and having the potential to serve a Postal Service use. The Postal Service uses four designations for such records: Sensitive, critical, classified, and vital.
(a) Sensitive information. Records identified by the Postal Service as personal and business information which need assurance for confidentiality and integrity.
(b) Critical information. Records that must be available in order for the Postal Service to effectively perform its mission and meet legally assigned responsibilities and for which special precautions are taken to ensure accuracy, relevance, timeliness, and completeness.
(c) Classified information. Records that contain information about national defense and foreign relations that have been determined under relevant executive orders to require protection against unauthorized disclosure. Classified records in the custody of the Postal Service are managed by the Inspection Service.
(d) Vital information. Records that must be available in the event of an emergency in order to ensure the continuity of Postal Service operations and the preservation of the rights and interest of the
Postal Service, its employees, suppliers, and customers. Loss of or damage to these records means the Postal Service would not be able to re-establish normal business operations.
Sec. 262.4 Records.
Recorded information, regardless of media, format, or physical characteristics, including electronic data, developed or received by the Postal Service in connection with the transaction of its business and retained in its custody; for machine-readable records, a collection of logically related data treated as a unit.
(a) Active record--Information that is used for conducting current business.
(b) Inactive record--Information that is not used for conducting current business, but for which the retention period has not yet expired.
(c) Permanent record--A record determined as having sufficient historical or other value to warrant continued preservation. All other records are considered temporary and must be scheduled for disposal.
(d) Temporary record--A record determined to have insufficient value (on the basis of current standards) to warrant its permanent preservation.
(1) Emergency operating records. Certain vital records necessary to support essential functions of the Postal Service during and immediately following a national emergency.
(2) Rights and interest records. Certain vital records maintained to ensure the preservation of the rights and interests of the Postal
Service, its employees, contractors, and customers.
Sec. 262.5 Systems (Privacy).
(a) Privacy Act system of records. A Postal Service system containing information about individuals, including mailing lists, from which information is retrieved by the name of an individual or by some identifying number or symbol assigned to the individual, such as a
Social Security Account Number.
(b) Individual (record subject). Individual consumer, employee, or other individual. Does not include sole proprietorships, partnerships, or corporations. A business firm identified by the name of one or more persons is not an individual.
(c) Computer matching program. A ``matching program,'' as defined in the Privacy Act, 5 U.S.C. 552a(a)(8), is subject to the matching provisions of the Act, published guidance of the Office of Management and Budget, and these regulations. The term ``matching program'' includes any computerized comparison of:
(1) A Postal Service automated system of records with an automated system of records of another Federal agency, or with non-Federal records, for the purpose of:
(i) Establishing or verifying the eligibility of, or continuing compliance with statutory and regulatory requirements by, applicants for, recipients or beneficiaries of, participants in, or providers of services with respect to cash or in-kind assistance or payments under
Federal benefit programs, or
(ii) Recouping payments or delinquent debts under such Federal benefit programs.
(2) A Postal Service automated personnel or payroll system of records with another automated personnel or payroll system of records of the Postal Service or other Federal agency or with non-Federal records.
(d) Other computer matching activities. (1) The following kinds of computer matches are specifically excluded from the term ``matching program'':
(i) Statistical matches whose purpose is solely to produce aggregate data stripped of personal identifiers.
(ii) Statistical matches whose purpose is in support of any research or statistical project.
(iii) Law enforcement investigative matches whose purpose is to gather evidence against a named person or persons in an existing investigation.
(iv) Tax administration matches.
(v) Routine administrative matches using Federal personnel records, provided that the purpose is not to take any adverse action against an individual.
(vi) Internal matches using only records from Postal Service systems of records, provided that the purpose is not to take any adverse action against any individual.
(vii) Matches performed for security clearance background checks or for foreign counterintelligence.
(2) Although these and other matching activities that fall outside the definition of ``matching program'' are not subject to the matching provisions of the Privacy Act or OMB guidance, other provisions of the
Act and of these regulations may be applicable. No matching program or other matching activity may be conducted without the prior approval of the Records Office.
Page 79737
Sec. 262.6 Retention and disposal.
(a) Records control schedule. A directive describing records series that are maintained by components of the Postal Service. It provides maintenance, retention, transfer, and disposal instructions for each series listed, and serves as the authority for postal officials to implement such instructions.
(b) Disposal (records). The permanent removal of records or information from Postal Service custody. Included are the following:
(1) Transferring to the National Archives.
(2) Donating to the Smithsonian Institution, local museums, or historical societies.
(3) Selling as waste material.
(4) Discarding.
(5) Physically destroying.
(c) Retention period. The authorized length of time that a records series must be kept before its disposal. The period is usually stated in terms of months or years, but sometimes is expressed as contingent upon the occurrence of an event. Usually the retention period refers to the period of time between the creation of a series and its authorized disposal date, however, in some cases it refers to the length of time between the cutoff point and the disposal date.
Sec. 262.7 Non-records.
(a) Non-record material. Includes blank forms and surplus publications, handbooks, circulars, bulletins, announcements, and other directives as well as any material not directly associated with the transaction of Postal Service business.
(b) Personal papers. Those materials created or received during an individual's period of employment with the Postal Service that are of a purely private or nonofficial character, or that were neither created nor received in connection with Postal Service business. 5. Revise part 263 to read as follows:
PART 263--RECORDS RETENTION AND DISPOSITION
Sec. 263.1 Purpose and scope. 263.2 Policy. 263.3 Responsibility. 263.4 Records disposal. 263.5 Inquiries.
Authority: 39 U.S.C. 401.
Sec. 263.1 Purpose and scope.
This part contains the policy and general regulations pertaining to the retention and disposition of records and information throughout all organizational levels and components.
Sec. 263.2 Policy.
It is the policy of the Postal Service to establish and maintain schedules specifying the retention periods required for all official and duplicate record copies. Furthermore, it is the policy that all duplicate record copies and non-record material will be disposed of as soon as they have served their purpose.
Sec. 263.3 Responsibility.
(a) Records Office. The Records Office has the responsibility for providing for the establishment of retention schedules and has the authority to approve them. Furthermore, that office has the authority to dispose of Postal Service records by transfer or destruction.
(b) Records Custodians. Records Custodians are responsible for the retention and prompt disposal of records in their custody and for delegating, in writing, persons to perform these duties.
Sec. 263.4 Records disposal.
All disposal of records containing sensitive information, i.e., transfers to records storage centers, destruction, transfers external to the Postal Service, and maintenance of accounting records regarding such disposal, must be accomplished in accordance with procedures issued by the Records Office.
Sec. 263.5 Inquiries.
Inquiries regarding records maintenance and disposition should be directed to the Manager, Records Office, U.S. Postal Service, 475
L'Enfant Plaza, SW., Washington, DC 20260, or by telephone at (202) 268-2608. 6. Revise part 264 to read as follows:
PART 264--VITAL RECORDS
Sec. 264.1 Purpose and scope. 264.2 Policy. 264.3 Responsibility. 264.4 Vital Records Program.
Authority: 39 U.S.C. 401.
Sec. 264.1 Purpose and scope.
Certain records are critical to the continuity of Postal Service operations or to the preservation of the rights and interests of the
Postal Service, its employees, contractors, or customers. To ensure that these records are available when needed, specific controls are required which affect all organizational components having the custody of records defined as being ``vital.''
Sec. 264.2 Policy.
It is the policy of the Postal Service to ensure the availability of all records considered critical to the continuity of its operations and the preservation of the rights and interests of the Postal Service, its employees, contractors, and customers. Vital records shall be routinely maintained at predesignated off-site locations to ensure their availability when needed by management and operating personnel.
Sec. 264.3 Responsibility.
(a) Manager, Records Office. The Manager, Records Office, is responsible for categorizing records as vital, and in conjunction with the Chief Postal Inspector/Emergency Coordinator shall establish and maintain the vital records program and ensure compliance with supportive procedures.
(b) Chief Postal Inspector. As the Postal Service's Emergency
Coordinator, the Chief Postal Inspector shall establish and maintain, in coordination with the Office of the Deputy Postmaster General, Chief
Operating Officer (DPMG, COO), a program to ensure that vital records are available at predesignated off-site locations for use during a national emergency.
(c) Records Custodians. Records Custodians are responsible for maintaining a current record inventory list of their department's vital records. Vital records procedures must be followed, including the forwarding of vital records to predesignated off-site locations.
(d) Executive Vice President, Chief Information Officer. In coordination with the records custodian, the Executive Vice President,
Chief Information Officer is responsible for verifying that an adequate disaster recovery plan is in place for each department's electronic vital records. Information Technology will ensure that backup for electronic vital records is located at an appropriate facility away from the locations housing original electronic vital record with safeguards appropriate to ensure the quality and integrity of the vital records.
Sec. 264.4 Vital Records Program.
Complete procedures concerning the identification, categorization, processing, protection, and transfer of vital records are provided by the Manager, Records Office, or the USPS Emergency Coordinator, as appropriate. 7. Revise part 265 to read as follows:
PART 265--RELEASE OF INFORMATION
Sec. 265.1 Purpose and scope. 265.2 Policy. 265.3 Responsibility. 265.4 Inquiries.
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265.5 Public reading rooms. 265.6 Availability of records. 265.7 Procedure for inspection and copying of records. 265.8 Business information; procedures for predisclosure notification to submitters. 265.9 Schedule of fees. 265.10 Annual report. 265.11 Compliance with subpoena duces tecum, court orders, and summonses. 265.12 Demands for testimony or records in certain legal proceedings. 265.13 Compliance with subpoenas, summonses, and court orders by postal employees within the Inspection Service where the Postal
Service, the United States, or any other Federal agency is not a party.
Appendix A to Part 265--Fees for Computer Searches
Authority: 5 U.S.C. 552; 5 U.S.C. App. 3; 39 U.S.C. 401, 403, 410, 1001, 2601.
Sec. 265.1 Purpose and scope.
(a) This part contains the regulations of the Postal Service relating to the availability to the public of Postal Service records.
Included in this part are the regulations that implement part 552 of title 5, U.S.C., the ``Freedom of Information Act,'' insofar as it applies to the Postal Service.
(b) Official records of the Postal Service made available pursuant to the requirements of the Act shall be furnished to members of the public as prescribed by this part.
Sec. 265.2 Policy.
(a) It is the policy of the Postal Service to make its official records available to the public to the maximum extent consistent with the public interest. This policy requires a practice of full disclosure subject only to the specific exemptions required or authorized by law.
(b) The exemptions from mandatory disclosure provided by section 552(b) of title 5, and section 410(c) of title 39, U.S.C., for various types of records, reflect the fact that under some circumstances the public interest may be better served by leaving the disclosure of particular records to the discretion of the Postal Service than by requiring their disclosure. As to those records the disclosure of which is not prohibited by statute, Executive Order, or regulation, the discretion vested in the Postal Service is exercised after giving consideration to the following:
(1) The effect of non-disclosure on the public's right to know about a particular matter.
(2) The effect of disclosure on the right of privacy of any affected individuals.
(3) The effect of disclosure on the public interest in the economical, efficient, and orderly operation of the nation's mail system.
(4) Any other factors that may be relevant under the circumstances.
Sec. 265.3 Responsibility.
(a) Records Custodian. Official records are in the custody of the postmaster or other head of a facility or department at which they are maintained, as defined at Sec. 261.4 (c) of this chapter. These custodians are responsible for responding in the first instance to requests from members of the public for Postal Service records.
(b) Manager, Records Office. The Postal Service Manager, Records
Office, under the Privacy Office, is responsible for the overall administration of this part, including the issuance of detailed instructions to custodians.
(c) General Counsel. The General Counsel decides timely appeals authorized by this part.
Sec. 265.4 Inquiries.
Inquiries regarding the availability of Postal Service records should be directed to the appropriate Freedom of Information Act (FOIA)
RSC. If the appropriate FOIA RSC is not known, inquiries should be directed to the Manager, Records Office, U.S. Postal Service, 475
L'Enfant Plaza, SW., Washington, DC 20260, telephone (202) 268-2608.
Sec. 265.5 Public reading rooms.
The library of the Postal Service Headquarters, 475 L'Enfant Plaza,
SW., Washington, DC 20260, serves as public reading room for the materials which are listed in paragraphs (a)(2), (3), (4) and (5) of
Sec. 265.6 as available for public inspection and copying. Such of this material as has been created by the Postal Service on or after
November 1, 1996, and has not been published and offered for sale, also will be available in electronic format at the Postal Service's Web site at http://www.usps.com/foia.
Sec. 265.6 Availability of records.
(a) Records available to the public on request. (1) General. Postal
Service records are available for inspection or copying at the request of any person, in accordance with the provisions of this part, except as otherwise provided by law or regulations, including but not limited to paragraphs (b) through (g) of this section. Certain categories of records of particular interest are available on a continuing basis as provided in paragraphs (a)(2), (3), and (4) of this section and are listed in a public index as provided in paragraphs (a)(4) and (5) of this section. Access to other records may be requested on an individual basis in accordance with the procedures provided in Sec. 265.7.
Official records which are maintained on an electronic storage medium will normally be made available, in accordance with this part, as an exact duplicate of the requested original in a form readable by the human eye, such as a computer printout. On request, records will be provided in a different form or format if they are maintained in the requested form or format or if they can be readily reproduced in the requested form or format.
(2) Opinions. All final opinions and orders made in the adjudication of cases by the Judicial Officer and Administrative Law
Judges, all final determinations pursuant to section 404(b) of title 39, United States Code, to close or consolidate a Post Office, or to disapprove a proposed closing or consolidation, all advisory opinions concerning the private express statutes issued pursuant to 39 CFR 310.6, and all bid protest decisions are on file and available for inspection and copying at the Headquarters Library and, if created on or after November 1, 1996, also at the Postal Service's Web site identified at Sec. 265.5.
(3) Administrative manuals and instructions to staff. The manuals, instructions, and other publications of the Postal Service that affect members of the public are available through the Headquarters library and at many Post Offices and other postal facilities. Those which are available to the public but are not listed for sale may be inspected in the Headquarters library, at any postal facility that maintains a copy, or, if created on or after November 1, 1996, through the Web site identified at Sec. 265.5. Copies of publications which are not listed as for sale or as available free of charge may be obtained by paying a fee in accordance with Sec. 265.9.
(4) Previously released records. Records processed and disclosed after March 31, 1997, in response to a Freedom of Information Act request, which the Postal Service determines have become or are likely to become the subject of subsequent requests for substantially the same records, are available for inspection and copying at the Headquarters library. Any such records created by the Postal Service on or after
November 1, 1996, also will be available at the Postal Service's FOIA
Web site identified at Sec. 265.5. Records described in this paragraph that were not created by, or on behalf of, the Postal Service generally will not be available at the Postal Service's Web site. Records will be available in the form in which they were originally disclosed, except to the extent that they
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contain information that is not appropriate for public disclosure and may be withheld pursuant to this section. Any deleted material will be marked and the applicable exemption(s) indicated in accordance with
Sec. 265.7(d)(3). A general index of the records described in this paragraph is available for inspection and copying at the Headquarters library.
(5) Public index. (i) A public index is maintained in the
Headquarters library and at the Postal Service's Web site of all final opinions and orders made by the Postal Service in the adjudication of cases; Postal Service policy statements, which may be relied on as precedents in the disposition of cases; administrative staff manuals and instructions that affect the public; and other materials which the
Postal Service elects to index and make available to the public on request in the manner set forth in paragraph (a) of this section.
(ii) The index contains references to matters issued after July 4, 1967, and may reference matters issued prior to that date.
(iii) Any person may arrange for the inspection of any matter in the public index in accordance with the procedures of Sec. 265.7.
(iv) Copies of the public index and of matters listed in the public index may be purchased through the Headquarters library with payment of fees as listed in the index or as provided in Sec. 265.9.
(v) Materials listed in the public index that were created on or after November 1, 1996, will also be available in electronic format at the Postal Service's Web site at http://www.usps.gov/foia.
(6) Listings of employees' names. Upon written request, the Postal
Service will, to the extent required by law, provide a listing of postal employees working at a particular postal facility.
(b) Records not subject to mandatory public disclosure. Certain classes of records are exempt from mandatory disclosure under exemptions contained in the Freedom of Information Act and in section 410(c) of title 39, U.S.C. The Postal Service will exercise its discretion, in accordance with the policy stated in Sec. 265.2, as implemented by instructions issued by the Records Office with the approval of the General Counsel, in determining whether the public interest is served by the inspection or copying of records that are:
(1) Related solely to the internal personnel rules and practices of the Postal Service.
(2) Trade secrets, or privileged or confidential commercial or financial information, obtained from any person.
(3) Information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed. This class includes, but is not limited to:
(i) Information pertaining to methods of handling valuable
Registered Mail[supreg] items.
(ii) Records of money orders, except as provided in R900 of the
Mailing Standards of the United States Postal Service, Domestic Mail
Manual (DMM[supreg]).
(iii) Technical information concerning postage meters and prototypes submitted for Postal Service approval prior to leasing to mailers.
(iv) Reports of market surveys conducted by or under contract on behalf of the Postal Service.
(v) Records indicating rural carrier lines of travel.
(vi) Records compiled within the Postal Service that would be of potential benefit to persons or firms in economic competition with the
Postal Service.
(vii) Information that, if publicly disclosed, could materially increase procurement costs.
(viii) Information that, if publicly disclosed, could compromise testing or examination materials.
(4) Interagency or internal memoranda or letters that would not be available by law to a private party in litigation with the Postal
Service.
(5) Reports and memoranda of consultants or independent contractors, except to the extent they would be required to be disclosed if prepared within the Postal Service.
(6) Files personal in nature, including medical and personnel files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
(7) Information prepared for use in connection with proceedings under chapter 36 of title 39, U.S.C., relating to rate, classification, and service changes.
(8) Information prepared for use in connection with the negotiation of collective bargaining agreements under chapter 12 of title 39,
U.S.C., or minutes of, or notes kept during, negotiating sessions conducted under such chapter.
(9) Other matter specifically exempted from disclosure by statute.
(c) Records or information compiled for law enforcement purposes.
(1) Investigatory files compiled for law enforcement purposes, whether or not considered closed, are exempt by statute from mandatory disclosure except to the extent otherwise available by law to a party other than the Postal Service, 39 U.S.C. 410(c)(6). As a matter of policy, however, the Postal Service will normally make records or information compiled for law enforcement purposes available upon request unless the production of these records:
(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 (such as the Postal
Inspection Service) 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.
(2) Whenever a request is made which involves access to records described in Sec. 265.6(c)(1)(i), and
(i) The investigation or proceeding involves a possible violation of criminal law; and
(ii) There is reason to believe that,
(A) The subject of the investigation or proceeding is not aware of its pendency, and
(B) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the Postal Service may, during only such time as that circumstance continues, treat the records as not subject to the requirements of the Freedom of
Information Act.
(3) Whenever informant records maintained by a criminal law enforcement agency (such as the Postal Inspection Service) under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the records may be treated as not subject to the requirements of the Freedom of
Information Act unless the informant's status as an informant has been officially confirmed.
(4) Authority to disclose records or information compiled for law
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enforcement purposes to persons outside the Postal Service must be obtained from the Chief Postal Inspector, U.S. Postal Inspection
Service, 1735 North Lynn Street, Arlington, VA 22209, or designee.
(d) Disclosure of names and addresses of customers. Upon request, the names and addresses of specifically identified Postal Service customers will be made available only as follows:
(1) Change of address. The new address of any specific customer who has filed a permanent or temporary change-of-address order (by submitting PS Form 3575, a handwritten order, or an electronically communicated order) will be furnished to any person, except that the new address of a specific customer who has indicated on the order that the address change is for an individual or an entire family will be furnished only in those circumstances stated at paragraph (d)(5) of this section. Disclosure will be limited to the address of the specifically identified individual about whom the information is requested (not other family members or individuals whose names may also appear on the change-of-address order). The Postal Service reserves the right not to disclose the address of an individual for the protection of the individual's personal safety. Other information on PS Form 3575 or copies of the form will not be furnished except in those circumstances stated at paragraphs (d)(5)(i), (d)(5)(iii), or
(d)(5)(iv) of this section.
(2) Name and address of permit holder. The name and address of the holder of a particular bulk mail permit, permit imprint, or similar permit (but not including postage meter licenses), and the name of any person applying for a permit on behalf of a holder will be furnished to any person upon the payment of any fees authorized by paragraph (b) of
Sec. 265.9. For the name and address of a postage meter license holder, see paragraph (d)(3) of this section. (Lists of permit holders may not be disclosed to members of the public. See paragraph (e)(1) of this section.)
(3) Name and address of postage evidencing user. The name and address of an authorized user of a postage meter or PC Postage product
(postage evidencing systems) printing a specified indicium will be furnished to any person upon the payment of any fees authorized by paragraph (b) of Sec. 265.9, provided the user is using the postage meter or PC Postage product for business purposes. The request for this information must be sent to the manager of Postage Technology
Management, Postal Service Headquarters. The request must include the original or a photocopy of the envelope or wrapper on which the postage meter or PC postage indicium in question is printed, and a copy or description of the contents to support that the sender is a business or firm and not an individual. (Lists of authorized users of postage meters or PC Postage products may not be disclosed to members of the public.)
(4) Post Office boxholder information. Information from PS Form 1093, Application for Post Office Box or Caller Service, will be provided as follows:
(i) Except as provided in paragraph (d)(4)(iii) of this section, the boxholder applicant name and address from PS Form 1093 will be provided only in those circumstances stated in paragraphs (d)(5)(i) through (iii) of this section.
(ii) Except as provided in paragraph (d)(4)(iii) of this section, the names of persons listed as receiving mail, other than the boxholder applicant, will be furnished from PS Form 1093 only in those circumstances stated in paragraphs (d)(5)(i) and (iii) of this section.
(iii) When a copy of a protective order has been filed with the postmaster, information from PS Form 1093 will not be disclosed except pursuant to the order of a court of competent jurisdiction.
(5) Exceptions. Except as otherwise provided in these regulations, names, or addresses of Postal Service customers will be furnished only as follows:
(i) To a Federal, state, or local government agency upon prior written certification that the information is required for the performance of its duties. The Postal Service requires government agencies to use the format appearing at the end of this section when requesting the verification of a customer's current address or a customer's new mailing address. If the request lacks any of the required information or a proper signature, the postmaster will return the request to the agency, specifying the deficiency in the space marked ``OTHER''. A copy of PS Form 1093 may be provided.
(ii) To a person empowered by law to serve legal process, or the attorney for a party in whose behalf service will be made, or a party who is acting pro se, upon receipt of written information that specifically includes all of the following:
(A) A certification that the name or address is needed and will be used solely for service of legal process in connection with actual or prospective litigation;
(B) A citation to the statute or regulation that empowers the requester to serve process, if the requester is other than the attorney for a party in whose behalf service will be made, or a party who is acting pro se;
(C) The names of all known parties to the litigation;
(D) The court in which the case has been or will be commenced;
(E) The docket or other identifying number, if one has been issued;
(F) The capacity in which the boxholder is to be served, e.g., defendant or witness. By submitting such information, the requester certifies that it is true. The address of an individual who files with the postmaster a copy of a protective court order will not be disclosed except as provided under paragraphs (d)(5)(i), (iii), or (iv) of this section. A copy of PS Form 1093 will not be provided.
Note 1 to paragraph (d)(5)(ii): The Postal Service suggests use of the standard format appearing at the end of this section when requesting information under this paragraph. When using the standard format on the submitter's own letterhead, the standard format must be used in its entirety. The warning statement and certification specifically must be included immediately before the signature block. If the request lacks any of the required information or a proper signature, the postmaster will return it to the requester specifying the deficiency.
Note 2 to paragraph (d)(5)(ii): The term pro se means that a party is not represented by an attorney but by himself or herself.
(iii) In compliance with a subpoena or court order, except that change of address or boxholder information that is not otherwise subject to disclosure under these regulations may be disclosed only pursuant to a court order.
(iv) To a law enforcement agency, for oral requests made through the Inspection Service, but only after the Inspection Service has confirmed that the information is needed in the course of a criminal investigation. (All other requests from law enforcement agencies should be submitted in writing to the postmaster as in paragraph (d)(5)(i) of this section.)
(6) Jury service. The mailing address of any customer sought in connection with jury service, if known, will be furnished without charge upon prior written request to a court official, such as a judge, court clerk, or jury commissioner.
(7) Address verification. The address of a postal customer will be verified at the request of a Federal, State, or local government agency upon written certification that the information is required for the performance of the agency's duties. ``Verification'' means advising such an agency whether or not its address for a postal customer is one at which mail for that customer is
Page 79741
currently being delivered. ``Verification'' neither means nor implies knowledge on the part of the Postal Service as to the actual residence of the customer or as to the actual receipt by the customer of mail delivered to that address. The Postal Service requires government agencies to use the format appearing at the end of this section when requesting the verification of a customer's current address or a customer's new mailing address. If the request lacks any of the required information or a proper signature, the postmaster will return the request to the agency, specifying the deficiency in the space marked ``OTHER''.
(8) Business/Residence location. If the location of a residence or a place of business is known to a Postal Service employee, whether as a result of official duties or otherwise, the employee may, but need not, disclose the location or give directions to it. No fee is charged for such information.
(9) Private mailbox information. Information from PS Form 1583,
Application for Delivery of Mail Through Agent, will be provided as follows:
(i) Except as provided in paragraph (d)(9)(iii) of this section, information from PS Form 1583 will be provided only in the circumstance stated in paragraph (d)(5)(iii) of this section.
(ii) To the public only for the purpose of identifying a particular address as an address of an agent to whom mail is delivered on behalf of other persons. No other information, including, but not limited to, the identities of persons on whose behalf agents receive mail, may be disclosed to the public from PS Form 1583.
(iii) Information concerning an individual who has filed a protective court order with the postmaster will not be disclosed except pursuant to the order of a court of competent jurisdiction.
(e) Information not available for public disclosure. (1) Except as provided by paragraph (a)(6) of this section, the Postal Service and its officers and employees shall not make available to the public by any means or for any purpose any mailing list or other list of names or addresses (past or present) of postal patrons or other persons.
(2) Records or other documents which are classified or otherwise specifically authorized by Executive Order 12356 and implementing regulations to be kept secret in the interest of the national defense or foreign policy are not subject to disclosure pursuant to this part.
(3) Records consisting of trade secrets or confidential financial data, the disclosure of which is prohibited by section 1905 of title 18, U.S.C., are not subject to disclosure pursuant to this part.
(4) Other records, the disclosure of which is prohibited by statute, are not subject to disclosure pursuant to this part.
(f) Protection of the right of privacy. If any record required or permitted by this part to be disclosed contains the name of, or other identifying details concerning, any person, including an employee of the Postal Service, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, the name or other identifying details shall be deleted before the record is disclosed and the requester so informed.
(g) Disclosure in part of otherwise exempt record. Any reasonably segregable portion of a record shall be provided after deleting the information, which is neither subject to mandatory disclosure nor available as a matter of discretion.
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Sec. 265.7 Procedure for inspection and copying of records.
(a) Submission of requests.--(1) Form and content of request. To permit expeditious handling and timely response in accordance with the provisions of this part, a request to inspect or to obtain a copy of an identifiable Postal Service record shall be in writing and bear the caption ``Freedom of Information Act Request'' or otherwise be clearly and prominently identified as a request for records pursuant to the
Freedom of Information Act. A request shall be clearly and prominently identified as such on the envelope or other cover. Other requests for information will be considered informal requests and will be handled as expeditiously as practicable but not necessarily within the time limitations set forth in Sec. 265.7(b). An informal request will be granted or denied according to the substantive rules in Sec. 265.6, if found to be a request for a record. A Freedom of Information Act request shall identify the record sought as completely as possible, by name, description, or subject matter, and be sufficient to permit the custodian to locate it with a reasonable amount of effort. The request may state the maximum amount of fees for which the requester is willing to accept liability without prior notice. See paragraph (f)(2) of Sec. 265.8. If no amount is stated,
Page 79744
the requester will be deemed willing to accept liability for fees not to exceed $25.
(2) To whom submitted. A request shall be submitted to the appropriate Freedom of Information Act (FOIA) Requester Service Center
(RSC). If the FOIA RSC is not known, inquiry should be directed to the
Manager, Records Office, U.S. Postal Service, 475 L'Enfant Plaza, SW.,
Washington, DC 20260, telephone 202-268-2608. The FOIA RSC will either process the request or refer the request to the appropriate records custodian(s). The FOIA RSC will advise the requester of any such referral. A request that is not initially submitted to the appropriate
FOIA RSC shall be deemed to have been received by the Postal Service for purposes of computing the time for response in accordance with
Sec. 265.7(b) at the time that it is actually received by the appropriate FOIA RSC, or at the time the request is referred to the appropriate records custodian(s) by an FOIA RSC. If a request seeks records maintained at two or more facilities, the custodian shall be deemed to be the next senior common supervisor of the heads of the facilities, e.g., district manager, area vice president. The Records
Office is deemed to be the custodian, for purposes of this part, in all instances in which a request is for a listing of postal employees. See
Sec. 265.6(a)(6).
(3) Reasons for request. In view of the possibility that some or all of the records may be exempt from mandatory disclosure, the requester may state any reasons why the record should nevertheless be made available to him even if exempt.
(4) Request for waiver of fees. The requester may ask that fees or the advance payment of fees be waived in whole or in part. A fee waiver request shall indicate how the information will be used; to whom it will be provided; whether the requester intends to use the information for resale at a fee above actual cost; any personal or commercial benefit that the requester expects as a result of disclosure; in what manner the general public will benefit from disclosure; and information as to the intended user's identity, qualifications, expertise in the subject area, and ability and intention to disseminate the information to the public. (See Sec. 265.9(g)(3).)
(5) Categorical requests. A request for all or substantially all of the records within a specific category will be deemed a reasonable description of those records only if it is possible, without further information, to determine which particular records are sought. See paragraph (b)(3) of this section concerning the providing of additional information.
(6) Request for records located at numerous facilities. A request for records which are, or may be, located at all or a substantial number of Post Offices or other postal facilities will be deemed to be a reasonable description only of those records as are maintained at the
Post Offices or other facilities specifically identified in the request.
(b) Responsibilities of the records custodian. (1) The records custodian of the requested record is the person responsible for determining whether to grant or to deny the request. A custodian who is not an officer as defined in Sec. 221.4 of this chapter, however, may obtain the advice of Field Managing Counsel. The custodian should seek advice as soon as possible after receipt of the request so as to provide adequate time for legal review. Denial must be made in accordance with paragraph (d) of this section.
(2) The records custodian shall make the determination whether to release or deny the record(s) within 20 working days (i.e., exclusive of Saturdays, Sundays, and holidays) of receiving the request, and more rapidly if feasible. The custodian and the requester may, by mutual agreement, preferably in writing, establish a different response period.
(3) If a requested record cannot be located from the information supplied, the requester should be given an opportunity to supply additional information and, if feasible, to confer with the custodian or his/her representative, in an attempt to provide a reasonable description of the records sought. If additional information is furnished, the request will be deemed to have been received by the custodian when sufficient additional information to identify and locate the record with a reasonable amount of effort has been received.
(4) The records custodian shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the automated information system.
(5) The 20-working-day response period allowed in paragraph (b)(2) of this section may be extended by the custodian, after consultation with Field Managing Counsel or with the General Counsel, if the custodian is at Headquarters, for a period not to exceed an additional 10 working days, except as provided in paragraph (b)(7) of this section, when, and to the extent, reasonably necessary to permit the proper processing of a particular request, under one or more of the following unusual circumstances:
(i) The request requires a search for and collection of records from a facility other than that processing the request.
(ii) The request requires the search for, and collection and appropriate examination of, a voluminous amount of separate and distinct records.
(iii) The request requires consultation:
(A) With another agency having a substantial interest in the determination of whether to comply with the request, or
(B) Among two or more components of the Postal Service having substantial subject matter interest in the determination of whether to comply with the request.
(6) When the custodian finds that the additional time is required, he/she shall acknowledge the request in writing within the initial 20- day response period, state the reason for the delay, and indicate the date on which a decision as to disclosure is expected.
(7) If a request cannot be processed within the additional time provided by paragraph (b)(5) of this section, in spite of the exercise of due diligence, the custodian shall notify the requester of the exceptional circumstances preventing timely compliance and of the date by which it is expected that the determination will be made. The custodian also shall provide the requester an opportunity to limit the scope of the request so that it may be processed within the extended time limit, or an opportunity to arrange with the custodian an alternative time frame for processing the request or a modified request. The custodian shall nonetheless make a determination on the request as promptly as possible.
(8) If a requested record is known to have been destroyed, disposed of, or otherwise not to exist, the requester shall be so notified.
(c) Compliance with request upon affirmative determination by custodian. (1) When a requested record has been identified and is to be disclosed in whole or in part, the custodian shall ensure that the record is made available promptly and shall immediately notify the requester where and when and under what reasonable conditions, if any, including the payment of fees, the record will be available for inspection, or copies will be available. Postal Service records will normally be available for inspection and copying during regular business hours at the postal facilities at which they are maintained.
The custodian may, however, designate other reasonable locations and times for inspection and copying of some or all of the records within his custody.
Page 79745
(2) Any fees authorized or required to be paid in advance by Sec. 265.9(f)(3) shall be paid by the requester before the record is made available or a copy is furnished, unless payment is waived or deferred pursuant to Sec. 265.9(g).
(3) A custodian complying with a request may designate a representative to monitor any inspection or copying.
(d) Denial of request. (1) A reply denying a request in whole or in part shall be in writing, signed by the custodian or his designee, and shall include:
(i) A statement of the reason for, or justification of, the denial
(e.g., records personal in nature), including, if applicable, a reference to the provision or provisions of Sec. 265.6 authorizing the withholding of the record and a brief explanation of how each provision applies to the records requested.
(ii) If entire records or pages are withheld, a reasonable estimate of the number of records or pages, unless providing such estimate would harm an interest protected by the exemption relied upon.
(iii) A statement of the right to appeal and of the appeal procedure within the Postal Service (described in paragraph (e) of this section).
(2) The custodian is ordinarily the person responsible for the denial of the request. If the denial of a particular request has been directed by higher authority, however, the name and title or position of the person directing the denial shall be given in the reply to the requester in place of the custodian as the person responsible for the denial, and a copy of the denial shall be sent to that person.
(3) When information is deleted from a record that is disclosed in part, the custodian shall indicate, on the released portion of the record, the amount of information deleted, unless including that indication would harm an interest protected by the exemption relied on.
The indication must appear, if technically feasible, at the place in the record where such deletion is made.
(e) Appeal procedure. (1) If a request to inspect or to copy a record, or a request for expedited processing of the request, is denied, in whole or in part, if no determination is made within the period prescribed by this section, or if a request for waiver of fees is not granted, the requester may appeal to the General Counsel, U.S.
Postal Service, 475 L'Enfant Plaza, SW., Washington, DC 20260.
(2) The requester shall submit his appeal in writing within 30 days of the date of the denial or of the other action complained of, or within a reasonable time if the appeal is from a failure of the custodian to act. The General Counsel may, in his/her discretion, consider late appeals.
(3) In the event of the denial of a request or of other action or failure to act on the part of a custodian from which no appeal is taken, the General Counsel may, if he/she considers that there is doubt as to the correctness of the custodian's action or failure to act, review the action or failure to act as though an appeal pursuant to this section had been taken.
(4) A letter of appeal should include, as applicable:
(i) A copy of the request, of any notification of denial or other action, and of any other related correspondence.
(ii) A statement of the action, or failure to act, from which the appeal is taken.
(iii) A statement of the reasons why the requester believes the action or failure to act is erroneous.
(iv) A statement of the relief sought.
(f) Action on appeals. (1) The decision of the General Counsel or his designee constitutes the final decision of the Postal Service on the right of the requester to inspect or copy a record, or to expedited processing of the request, as appropriate. The General Counsel, will give prompt consideration to an appeal for expedited processing of a request. All other decisions normally will be made within 20 working days from the time of the receipt by the General Counsel. The 20-day response period may be extended by the General Counsel, or his designee, for a period not to exceed an additional 10 working days when reasonably necessary to permit the proper consideration of an appeal, under one or more of the unusual circumstances set forth in paragraph
(b)(5) of this section. The aggregate number of additional working days utilized pursuant to this paragraph (f)(1) and paragraph (b) of this section, however, may not exceed 10.
(2) The decision on the appeal shall be in writing. If the decision sustains a denial of a record, in whole or in part, or if it denies expedited processing, it shall state the justification therefore and shall inform the requester of his right to judicial review. In the case of records withheld, the decision also shall specify any exemption or exemptions relied on and the manner in which they apply to the record, or portion thereof, withheld.
(3) If not prohibited by or under law, the General Counsel, or his designee may direct the disclosure of a record even though its disclosure is not required by law or regulation.
(g) Expedited processing--(1) Criteria. A request for expedited processing of a request for records shall be granted when the requester demonstrates compelling need. For purposes of this paragraph,
``compelling need'' exists if:
(i) Failure of the requester 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
(ii) In the case of a request made by a person primarily engaged in disseminating information, there is an urgency to inform the public concerning actual or alleged Federal government activity.
(2) Request. A request for expedited processing shall be directed in writing to the appropriate Freedom of Information Act RSC. The requester must provide information in sufficient detail to demonstrate compelling need for the records and certify this statement to be true and correct to the best of the requester's knowledge and belief. The custodian may waive the formality of certification when deemed appropriate.
(3) Determination. The records custodian shall make a determination of whether to provide expedited processing and notify the requester within 10 days after the date of the request for expedited processing.
If the request is granted, the records custodian shall process the request for records as soon as practicable. If the request for expedited processing is denied, the written response will include the procedures at paragraph (d) of this section for appealing the denial.
Sec. 265.8 Business information; procedures for predisclosure notification to submitters.
(a) In general. This section provides a procedure by which persons submitting business information to the Postal Service can request that the information not be disclosed pursuant to a request under the
Freedom of Information Act. This section does not affect the Postal
Service's right, authority, or obligation to disclose information in any other context, nor is it intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the
Postal Service, its officers, or any person. Existing rights of submitters are also unaffected. For purposes of this section, the following definitions apply:
(1) Business information means commercial or financial information provided directly or indirectly to the Postal Service by a submitter that arguably is protected from disclosure under Exemption 4 of the
Freedom of Information Act, 5 U.S.C. 552(b)(4), which is restated in
Sec. 265.6(b)(2).
(2) Submitter means any person or entity who provides business
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information, directly or indirectly, to the Postal Service. The term includes, but is not limited to, corporations, state governments, and foreign governments.
(b) Notice to submitters. (1) The custodian shall, to the extent permitted by law, provide a submitter with prompt written notice of a
Freedom of Information Act request for the submitter's business information whenever required under paragraph (c) of this section, except as provided in paragraph (d) of this section, in order to afford the submitter an opportunity to object to disclosure pursuant to paragraph (f) of this section. Such written notice shall either describe the exact nature of the business information requested or provide copies of the records or portions of records containing the business information. In the case of an administrative appeal, the
General Counsel shall be responsible for providing such notification as may be appropriate under this section.
(2) When notice is given to a submitter under paragraph (b)(1) of this section, the requester also shall be notified that notice and an opportunity to object are being provided to the submitter pursuant to this section.
(c) When notice is required. Notice shall be given to a submitter whenever:
(1) The submitter has in good faith designated the information as information deemed protected from disclosure under Exemption 4, in accordance with the procedure described in paragraph (e) of this section, or
(2) In the opinion of the custodian, or of the General Counsel, in the case of an administrative appeal, it is likely that disclosure of the information would result in competitive harm to the submitter.
(d) Exceptions to notice requirements. The notice requirements of paragraph (b) of this section shall not apply if:
(1) The Postal Service determines without reference to the submitter that the information will not be disclosed.
(2) The information lawfully has been published or has been officially made available to the public.
(3) Disclosure of the information is required by law (other than the Freedom of Information Act, 5 U.S.C. 552).
(4) Disclosure of the particular kind of information is required by a Postal Service regulation, except that, in such case, advance written notice of a decision to disclose shall be provided to the submitter if the submitter had provided written justification for protection of the information under Exemption 4 at the time of submission or a reasonable time thereafter.
(e) Procedure for designating business information at the time of its submission. (1) Submitters of business information shall use good- faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, those portions of their submissions which they deem to be protected from disclosure under
Exemption 4. Each record, or portion thereof, to be so designated, shall be clearly marked with a suitable legend such as Privileged
Business Information--Do Not Release. When the designated records contain some information for which an exemption is not claimed, the submitter shall clearly indicate the portions for which protection is sought.
(2) At the time a designation is made pursuant to paragraph (e)(1) of this section, the submitter shall furnish the Postal Service with the name, title, address, and telephone number of the person or persons to be contacted for the purpose of the notification described in paragraph (b) of this section.
(3) Submitters who provide to a postal facility business information on a recurring basis and in substantially identical form may use the following simplified process: The first submission will provide in full the information required in paragraphs (e)(1) and (2) of this section; shall identify the type of information, e.g., PS Form 3602, to which it is intended to apply; and shall state that it is intended to serve as a designation for all of the information of this type that is submitted to the particular facility. Thereafter when providing this type of information, the submitter need only mark a submission with a reference to the letter designation. By written agreement with the head of the facility, even this marking may be dispensed with if it is not necessary to alert postal employees at that facility of the claim of exemption.
(4) A designation made pursuant to paragraph (e) of this section shall be deemed to have expired 10 years after the date the records were submitted unless the submitter requests, and provides reasonable justification for, a designation period of greater duration.
(5) The Postal Service will not determine the validity of any request for confidential treatment until a request for disclosure of the information is received.
(f) Opportunity to object to disclosure. Through the notice described in paragraph (b) of this section, the submitter shall be afforded a reasonable period of time within which to provide the Postal
Service with a detailed written statement of any objection to disclosure. Such statement shall specify all grounds for withholding any of the information under any exemption of the Freedom of
Information Act and, in the case of Exemption 4, shall demonstrate why the information is contended to be a trade secret or commercial or financial information that is privileged or confidential. Whenever possible, the submitter's claim of confidentiality should be supported by a statement or certification by an officer or authorized representative of the submitter that the information in question is in fact confidential, has not been disclosed to the public by the submitter, and is not routinely available to the public from other sources. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA.
(g) Determination that confidential treatment is warranted. If the custodian determines that confidential treatment is warranted for any part of the requested records, he shall inform the requester in writing in accordance with the procedures set out in Sec. 265.7(d) of this chapter, and shall advise the requester of the right to appeal. A copy of the letter of denial shall also be provided to the submitter of the records in any case in which the submitter had been notified of the request pursuant to paragraph (c) of this section.
(h) Notice of intent to disclose. The custodian, in the case of an initial request, or the General Counsel, in the case of an appeal, shall consider carefully a submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose business information. In the event of a decision to disclose business information over the objection of the submitter, the submitter shall be furnished a written notice which shall include the following:
(1) A description of the business information to be disclosed.
(2) A statement of the reasons for which the submitter's disclosure objections were not sustained.
(3) The specific date upon which disclosure will occur. Such notice of intent to disclose shall be forwarded to the submitter a reasonable number of days prior to the specified disclosure date, and the requester shall be notified likewise.
(i) Notice of FOIA lawsuit. Whenever a requester brings suit seeking to compel disclosure of business information, the General
Counsel shall promptly notify the submitter.
Sec. 265.9 Schedule of fees.
(a) Policy. The purpose of this section is to establish fair and equitable fees to
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permit the furnishing of records to members of the public while recovering the full allowable direct costs incurred by the Postal
Service. The Postal Service will use the most efficient and least costly methods available to it when complying with requests for records.
(b) Standard rates--(1) Record retrieval. Searches may be done manually or by computer using existing programming.
(i) Manual search. The fee for a manual search is $32 per hour
(fractions of an hour are rounded to the nearest half hour).
(ii) Computer search. The fee for retrieving data by computer is the actual direct cost of the retrieval, including computer search time, and personnel cost in effect at the time that the retrieval services are performed. The fees are subject to periodic revision. A copy of the fees are included within the public index. (See appendix
A.)
(2) Duplication. (i) Except where otherwise specifically provided in postal regulations, the fee for duplicating any record or publication is $0.15 per page.
(ii) The Postal Service may at its discretion make coin-operated copy machines available at any location, or otherwise give the requester the opportunity to make copies of Postal Service records at his own expense. Unless authorized by the Records Office, however, no off-site copying shall be permitted of records which, if lost, could not be replaced without inconvenience to the Postal Service.
(iii) The Postal Service will normally furnish only one copy of any record. If duplicate copies are furnished at the request of the requester, the $0.15 per-page fee shall be charged for each copy of each duplicate page without regard to whether the requester is eligible for free copies pursuant to paragraph (c) or (g) of this section. At his or her discretion, when it is reasonably necessary because of a lack of adequate copying facilities or other circumstances, the custodian may make the requested record available to the requester for inspection under reasonable conditions and need not furnish a copy thereof.
(3) Review. The fee for reviewing records located in response to a commercial use request is $32 per hour (fractions of an hour are rounded to the nearest half hour). Only requesters who are seeking documents for commercial use may be charged for review. ``Review'' is defined in paragraph (h)(4) of this section; ``commercial use'' is defined in paragraph (h)(5) of this section.
(4) Micrographics. Paragraphs (b)(1), (2), and (3) of this section also apply to information stored within micrographic systems.
(c) Four categories of fees to be charged. For the purpose of assessing fees under this section, a requester shall be classified into one of four categories: commercial use requesters; educational and noncommercial scientific institutions; representatives of the news media; and all other requesters. Requesters in each category must reasonably describe the records sought. Fees shall be charged requesters in each category in accordance with the following:
(1) Commercial use requesters. Fees shall be charged to recover the full direct costs of search, review, and duplication in accordance with the rates prescribed in paragraphs (b)(1) through (3) of this section, subject only to the general waiver set out in paragraph (g)(1) of this section. The term ``commercial use request'' is defined in paragraph
(h)(5).
(2) Educational and noncommercial scientific institutions. Fees shall be charged only for duplication in accordance with paragraph
(b)(2) of this section, except that the first 100 pages furnished in response to a particular request shall be furnished without charge.
(See also the general waiver provision in paragraph (g)(1) of this section.) To be eligible for the reduction of fees applicable to this category, the requester must show that the request is being made as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly or scientific research. These institutions are defined in paragraphs (h)(6) and (h)(7) of this section, respectively.
(3) Representatives of the news media. Fees shall be charged only for duplication in accordance with paragraph (b)(2) of this section, except that the first 100 pages furnished in response to a particular request shall be furnished without charge. (See also the general waiver provision in paragraph (g)(1) of this section.) To be eligible for the reduction of fees applicable to this category, the requester must meet the criteria in paragraph (h)(8) of this section, and the request must not be made for a commercial use.
(4) All other requesters. Fees shall be charged for search and duplication in accordance with paragraphs (b)(1) and (2) of this section, except that the first 100 pages of duplication and the first two hours of search time shall be furnished without charge. (See also paragraphs (g)(1) and (2) of this section.)
(d) Aggregating requests. When the custodian reasonably believes that a requester is attempting to break a request down into a series of requests in order to evade the assessment of fees, the custodian may aggregate the requests and charge accordingly. The custodian shall not aggregate multiple requests when the requests pertain to unrelated subject matter. Requests made by more than one requester may be aggregated only when the custodian has a concrete basis on which to conclude that the requesters are acting in concert specifically to avoid payment of fees.
(e) Other costs--(1) Publications. Publications and other printed materials may, to the extent that they are available in sufficient quantity, be made available at the established price, if any, or at cost to the Postal Service. Fees established for printed materials pursuant to laws, other than the Freedom of Information Act, that specifically provide for the setting of fees for particular types of records are not subject to waiver or reduction under this section.
(2) Other charges. When a response to a request requires services or materials other than the common one listed in paragraph (b) of this section, the direct cost of such services or materials to the Postal
Service may be charged, but only if the requester has been notified of the nature and estimated amount of such cost before it is incurred.
(f) Advance notice and payment of fees--(1) Liability and payment.
The requester is responsible, subject to limitations on liability provided by this section, for the payment of all fees for services resulting from his request, even if responsive records are not located or are determined to be exempt from disclosure. Checks in payment of fees should be made payable to ``U.S. Postal Service.''
(2) Advance notice. To protect members of the public from unwittingly incurring liability for unexpectedly large fees, the custodian shall notify the requester if the estimated cost is expected to exceed $25. When search fees are expected to exceed $25, but it cannot be determined in advance whether any records will be located or made available, the custodian shall notify the requester of the estimated amount and of the responsibility to pay search fees even though records are not located or are determined to be exempt from disclosure. The notification shall be transmitted as soon as possible after physical receipt of the request, giving the best estimate then available. It shall include a brief explanatory statement of the nature and extent of the services upon which the estimate is based and shall offer the requester an opportunity to confer with the custodian or his representative in an attempt to
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reformulate the request so as to meet his needs at lower cost. The time period for responding to the request shall not run during the interval between the date such notification is transmitted and the date of receipt of the requester's agreement to bear the cost. No notification is required if the request specifically states that whatever cost is involved is acceptable or is acceptable up to a specified amount that covers estimated costs or if payment of all fees in excess of $25 has been waived.
(3) Advance payment. Advance payment of fees shall not be required, except:
(i) When it is estimated that the fees chargeable under this section are likely to exceed $250. If the requester has a history of prompt payment of FOIA fees, the custodian shall notify the requester of the likely cost and obtain satisfactory assurance of full payment before commencing work on the request. If the requester has no history of payment, the custodian may require an advance payment of an amount up to the full estimated charge before commencing work on the request.
(ii) When a requester has previously failed to pay a fee in a timely fashion (i.e., within 30 days of the date of the billing), the requester shall be required to pay the full amount owed, and to make an advance payment of the full amount of the estimated fee before processing will begin on a new or pending request.
(iii) When advance payment is required under paragraphs (f)(3)(i) or (ii) of this section, the time periods for responding to the initial request or to an appeal shall not run during the interval between the date that notice of the requirement is transmitted and the date that the required payment or assurance of payment is received.
(g) Restrictions on assessing fees--(1) General waiver. No fees shall be charged to any requester if they would amount, in the aggregate, for a request or a series of related requests, to $10 or less. When the fees for the first 100 pages or the first 2 hours of search time are excludable under paragraph (c) of this section, additional costs will not be assessed unless they exceed $10.
(2) Certain fees not charged--(i) All requests except those for commercial use. Fees shall not be charged for the first 100 pages of duplication, and the first 2 hours of search time except when the request is for a commercial use as defined in paragraph (h)(5) of this section. When search is done by computer, the fees to be excluded for the first 2 hours of search time shall be determined on the basis of fee for computer searches then in effect. (See appendix A.) Assessment of search fees will begin at the point when the cost of the search
(including the cost of personnel and computer processing time) reaches the equivalent dollar amount of personnel fees for 2 hours.
(ii) Requests of educational and noncommercial scientific institutions and representatives of the news media. Fees shall not be charged for time spent searching for records in response to requests submitted by educational and noncommercial scientific institutions or representatives of the news media.
(3) Public interest waiver. The custodian shall waive a fee, in whole or in part, and any requirement for advance payment of such a fee, when he determines that furnishing the records is deemed to be in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Federal government, and is not primarily in the commercial interest of the requester. This waiver may be granted notwithstanding the applicability of other fee reductions prescribed by this section for requesters in certain categories. In determining whether disclosure is in the public interest for the purposes of this waiver, the following factors may be considered:
(i) The relation of the records to the operations or activities of the Postal Service.
(ii) The informative value of the information to be disclosed.
(iii) Any contribution to an understanding of the subject by the general public likely to result from disclosure.
(iv) The significance of that contribution to the public understanding of the subject.
(v) The nature of the requester's personal interest, if any, in the disclosure requested.
(vi) Whether the disclosure would be primarily in the requester's commercial interest.
(4) Waiver by officer. Any officer of the Postal Service, as defined in Sec. 221.4, his designee, or the Manager, Records Office may waive in whole or in part any fee required by this part or the requirement for advance payment of any fee.
(5) Fee for other services. Waivers do not apply for fees for address correction services performed in accordance with R900 of the
DMM.
(h) Definitions. As used in this section, the term:
(1) Direct costs include expenditures actually incurred in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing work
(the basic rate of pay for the employee plus a factor to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space and heating or lighting the facility in which the records are stored.
(2) Search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents. Searches may be done manually or by computer using existing programming. A line-by-line search will be conducted only when necessary to determine whether the document contains responsive information and will not be employed in those instances in which duplication of the entire document would be the less expensive and quicker method of complying with a request.
Search does not include review of material to determine whether the material is exempt from disclosure (see paragraph (h)(4) of this section).
(3) Duplication refers to the process of making a copy of a document necessary to respond to a FOIA request. Such copies can take the form of paper copy, microform, audio-visual materials, or machine readable documentation (e.g., magnetic tape or disk), among others. The copy provided must be in a form that is reasonably usable by requesters.
(4) Review refers to the process of examining documents located in response to a request that is for a commercial use (see paragraph
(h)(5) of this section) to determine whether any portion of any document located is exempt from mandatory disclosure. It also includes processing any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions. Charges may be assessed only for the initial review, i.e., the first time the applicability of a specific exemption is analyzed. Costs for a subsequent review are properly assessable only when a record or portion of a record withheld solely on the basis of an exemption later determined not to apply must be reviewed again to determine the applicability of other exemptions not previously considered.
(5) Commercial use request refers to 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 the person on whose behalf the request is
Page 79749
made. In determining whether a request properly belongs in this category, the Postal Service will look to the use to which the requester will put the documents requested. If the use is not clear from the request itself, or if there is reasonable cause to doubt the requester's stated use, the custodian shall seek additional clarification from the requester before assigning the request to this category.
(6) Educational institution refers to a pre-school, 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, and an institution of vocational education, which operates a program or programs of scholarly research.
(7) Noncommercial scientific institution refers to an institution that is not operated on a ``commercial'' basis as that term is defined in paragraph (h)(5) 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.
(8) Representative of the news media refers to 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. Requests by news organizations for information that will be used for the furtherance of the organization's commercial interests, rather than for the dissemination of news to the public, shall be considered commercial use requests. Examples of news media entities 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. These examples are not intended to be all-inclusive. A ``freelance'' journalist will be regarded as a representative of the news media if he can demonstrate a solid basis for expecting publication through a news organization, even though not actually employed by it. This may be demonstrated either by a publication contract with the news organization or by the past publication record of the requester.
Sec. 265.10 Annual report.
A report concerning the administration of the Freedom of
Information Act and this part will be submitted to the Attorney General of the United States on or before February 1 of each year. Data for the report will be collected on the basis of fiscal year that begins on
October 1 of each year. The attorney general, in consultation with the director, Office of Management and Budget, will prescribe the form and content of the report. The report will be made available to the public at the Headquarters library and on the Postal Service's Web site at http://www.usps.com/foia.
Sec. 265.11 Compliance with subpoena duces tecum, court orders, and summonses.
(a) Compliance with subpoena duces tecum. (1) Except as required by part 262, produce other records of the Postal Service only in compliance with a subpoena duces tecum or appropriate court order.
(2) Time, leave, and payroll records of postal employees are subject to production when a subpoena duces tecum or appropriate court order has been properly served. The custodian of the records may designate a postal employee to present the records. The presentation by a designee rather than the employee named in the subpoena or court order must meet with the approval of the attorneys for each side. In addition, such records may be released if authorized in writing by the employee.
(3) If the subpoena involves a job-connected injury, the records are under the exclusive jurisdiction of the Office of Workers'
Compensation Programs, Department of Labor. Requests for authorization to produce these records shall be addressed to: Office of Workers'
Compensation Programs, U.S. Department of Labor, Washington, DC 20210.
Also notify the attorney responsible for the issuance of the subpoena or court order.
(4) Employee medical records are primarily under the exclusive jurisdiction of the U.S. Civil Service Commission. The Commission has delegated authority to the Postal Service and to the Commission's
Regional Directors to release medical information, in response to proper requests and upon competent medical advice, in accordance with the following criteria:
(i) Except in response to a subpoena or court order, do not release any medical information about an employee to any non-Federal entity or individual without authorization from the employee.
(ii) With authorization from the employee, the responding official will respond as follows to a request from a non-Federal source for medical information:
(A) If, in the opinion of a Federal medical officer, the medical information indicates the existence of a malignancy, a mental condition, or other condition about which a prudent physician would hesitate to inform a person suffering from such a condition as to its exact nature and probable outcome, do not release the medical information to the employee or to any individual designated by him, except to a physician, designated by the employee in writing. If a subpoena or court order was issued, the responding official shall caution the moving party as to the possible dangers involved if the medical information is divulged.
(B) If, in the opinion of a Federal medical officer, the medical information does not indicate the presence of any condition which would cause a prudent physician to hesitate to inform a person of the exact nature and probable outcome of his condition, release it in response to a subpoena or court order, or to the employee or to any person, firm, or organization he authorizes in writing.
(C) If a Federal medical officer is not available, refer the request to the Civil Service Commission regional office with the medical certificates or other medical reports concerned.
(5) Do not release any records containing information as to the employee's security or loyalty.
(6) Honor subpoenas or court orders only when disclosure is authorized.
(7) When authorized to comply with a subpoena duces tecum, do not leave the original records with the court.
(b) [Reserved]
Sec. 265.12 Demands for testimony or records in certain legal proceedings.
(a) Scope and applicability of this section. (1) This section establishes procedures to be followed if the Postal Service or any
Postal Service employee receives a demand for testimony concerning or disclosure of:
(i) Records contained in the files of the Postal Service;
(ii) Information relating to records contained in the files of the
Postal Service; or
(iii) Information or records acquired or produced by the employee in the course of his or her official duties or because of the employee's official status.
(2) This section does not create any right or benefit, substantive or procedural, enforceable by any person against the Postal Service.
(3) This section does not apply to any of the following:
(i) Any legal proceeding in which the United States is a party;
(ii) A demand for testimony or records made by either House of
Congress or, to
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the extent of matter within its jurisdiction, any committee or subcommittee of Congress;
(iii) An appearance by an employee in his or her private capacity in a legal proceeding in which the employee's testimony does not relate to the employee's official duties or the functions of the Postal
Service; or
(iv) A demand for testimony or records submitted to the Postal
Inspection Service (a demand for Inspection Service records or testimony will be handled in accordance with rules in Sec. 265.11).
(4) This section does not exempt a request from applicable confidentiality requirements, including the requirements of the Privacy
Act. 5 U.S.C. 552a.
(b) Definitions. The following definitions apply to this section:
(1) Adjudicative authority includes, but is not limited to, the following:
(i) A court of law or other judicial forums, whether local, state, or Federal; and
(ii) Mediation, arbitration, or other forums for dispute resolution.
(2) Demand includes a subpoena, subpoena duces tecum, request, order, or other notice for testimony or records arising in a legal proceeding.
(3) Employee means a current employee or official of the Postal
Service.
(4) General Counsel means the General Counsel of the U.S. Postal
Service, the Chief Field Counsels, the Field Managing Counsels, or an employee of the Postal Service acting for the General Counsel under a delegation of authority.
(5) Legal proceeding means:
(i) A proceeding before an adjudicative authority;
(ii) A legislative proceeding, except for a proceeding before either House of Congress or before any committee or subcommittee of
Congress; or
(iii) An administrative proceeding.
(6) Private litigation means a legal proceeding to which the United
States is not a party.
(7) Records custodian means the employee who maintains a requested record. For assistance in identifying the custodian of a specific record, contact the Manager, Records Office, U.S. Postal Service, 475
L'Enfant Plaza, S.W., Washington, DC 20260, telephone (202) 268-2608.
(8) Testimony means statements made in connection with a legal proceeding, including but not limited to statements in court or other forums, depositions, declarations, affidavits, or responses to interrogatories.
(9) United States means the Federal government of the United States and any of its agencies, establishments, or instrumentalities, including the United States Postal Service.
(c) Requirements for submitting a demand for testimony or records.
(1) Ordinarily, a party seeking to obtain records from the Postal
Service should submit a request in accordance with the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Postal
Service's regulations implementing the FOIA at 39 CFR 265.1 through 265.9 or the Privacy Act, 5 U.S.C. 552a and the Postal Service's regulations implementing the Privacy Act at 39 CFR 266.1 through 266.9.
(2) A demand for testimony or records issued pursuant to the rules governing the legal proceeding in which the demand arises must:
(i) Be in writing;
(ii) Identify the requested record and/or state the nature of the requested testimony, describe the relevance of the record or testimony to the proceeding, and why the information sought is unavailable by any other means; and
(iii) If testimony is requested, contain a summary of the requested testimony and a showing that no document could be provided and used in lieu of testimony.
(3) Procedures for service of demand are made as follows:
(i) Service of a demand for testimony or records (including, but not limited to, personnel or payroll information) relating to a current or former employee must be made in accordance with the applicable rules of civil procedure on the employee whose testimony is requested or the records custodian. The requester also shall deliver a copy of the demand to the District Manager, Customer Services and Sales, for all current employees whose work location is within the geographic boundaries of the manager's district, and any former employee whose last position was within the geographic boundaries of the manager's district. A demand for testimony or records must be received by the employee whose testimony is requested and the appropriate District
Manager, Customer Services and Sales, at least ten (10) working days before the date the testimony or records are needed.
(ii) Service of a demand for testimony or records other than those described in paragraph (c)(3)(i) of this section must be made in accordance with the applicable rules of civil procedure on the employee whose testimony is requested or the records custodian. The requester also shall deliver a copy of the demand to the General Counsel, U.S.
Postal Service, 475 L'Enfant Plaza, SW., Washington DC 20260, or the
Field Managing Counsel. A demand for testimony or records must be received by the employee and the General Counsel or Field Managing
Counsel at least ten (10) working days before the date testimony or records are needed.
(d) Procedures followed in response to a demand for testimony or records. (1) After an employee receives a demand for testimony or records, the employee shall immediately notify the General Counsel or
Field Managing Counsel and request instructions.
(2) An employee may not give testimony or produce records without the prior authorization of the General Counsel.
(3)(i) The General Counsel may allow an employee to testify or produce records if the General Counsel determines that granting permission:
(A) Would be appropriate under the rules of procedure governing the matter in which the demand arises and other applicable laws, privileges, rules, authority, and regulations; and
(B) Would not be contrary to the interest of the United States. The interest of the United States includes, but is not limited to, furthering a public interest of the Postal Service and protecting the human and financial resources of the United States.
(ii) An employee's testimony shall be limited to the information set forth in the statement described at paragraph (c)(2) of this section or to such portions thereof as the General Counsel determines are not subject to objection. An employee's testimony shall be limited to facts within the personal knowledge of the employee. A Postal
Service employee authorized to give testimony under this rule is prohibited from giving expert or opinion testimony, answering hypothetical or speculative questions, or giving testimony with respect to privileged subject matter. The General Counsel may waive the prohibition of expert testimony under this paragraph only upon application and showing of exceptional circumstances and the request substantially meets the requirements of this section.
(4) The General Counsel may establish conditions under which the employee may testify. If the General Counsel authorizes the testimony of an employee, the party seeking testimony shall make arrangements for the taking of testimony by those methods that, in the General Counsel's view, will least disrupt the employee's official duties. For example, at the General Counsel's discretion, testimony may be provided by affidavits, answers to interrogatories, written depositions, or depositions
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transcribed, recorded, or preserved by any other means allowable by law.
(5) If a response to a demand for testimony or records is required before the General Counsel determines whether to allow an employee to testify, the employee or counsel for the employee shall do the following:
(i) Inform the court or other authority of the regulations in this section; and
(ii) Request that the demand be stayed pending the employee's receipt of the General Counsel's instructions.
(6) If the court or other authority declines the request for a stay, or rules that the employee must comply with the demand regardless of the General Counsel's instructions, the employee or counsel for the employee shall respectfully decline to comply with the demand, citing
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in this section.
(7) The General Counsel may request the assistance of the
Department of Justice or a U.S. Attorney where necessary to represent the interests of the Postal Service and the employee.
(8) At his or her discretion, the General Counsel may grant a waiver of any procedure described by this section, where waiver is considered necessary to promote a significant interest of the United
States or for other good cause.
(9) If it otherwise is permissible, the records custodian may authenticate, upon the request of the party seeking disclosure, copies of the records. No employee of the Postal Service shall respond in strict compliance with the terms of a subpoena duces tecum unless specifically authorized by the General Counsel.
(e) Postal Service employees as expert witnesses. No Postal Service employee may testify as an expert or opinion witness, with regard to any matter arising out of the employee's official duties or the functions of the Postal Service, for any party other than the United
States, except that in extraordinary circumstances, the General Counsel may approve such expert testimony in private litigation. A Postal
Service employee may not testify as such an expert witness without the express authorization of the General Counsel. A litigant must obtain authorization of the General Counsel before designating a Postal
Service employee as an expert witness.
(f) Substitution of Postal Service employees. Although a demand for testimony may be directed to a named Postal Service employee, the
General Counsel, where appropriate, may designate another Postal
Service employee to give testimony. Upon request and for good cause shown (for example, when a particular Postal Service employee has direct knowledge of a material fact not known to the substitute employee designated by the Postal Service), the General Counsel may permit testimony by a named Postal Service employee.
(g) Fees and costs. (1) The Postal Service may charge fees, not to exceed actual costs, to private litigants seeking testimony or records by request or demand. The fees, which are to be calculated to reimburse fully the Postal Service for processing the demand and providing the witness or records, may include, among others:
(i) Costs of time spent by employees, including attorneys, of the
Postal Service to process and respond to the demand;
(ii) Costs of attendance of the employee and agency attorney at any deposition, hearing, or trial;
(iii) Travel costs of the employee and agency attorney;
(iv) Costs of materials and equipment used to search for, process, and make available information.
(2) All costs for employee time shall be calculated on the hourly pay of the employee (including all pay, allowance, and benefits) and shall include the hourly fee for each hour, or portion of each hour, when the employee is in travel, in attendance at a deposition, hearing, or trial, or is processing or responding to a request or demand.
(3) At the discretion of the Postal Service, where appropriate, costs may be estimated and collected before testimony is given.
(h) Acceptance of service. This section does not in any way abrogate or modify the requirements of the Federal Rules of Civil
Procedure (28 U.S.C. Appendix) regarding service of process.
Sec. 265.13 Compliance with subpoenas, summonses, and court orders by postal employees within the Inspection Service where the Postal
Service, the United States, or any other Federal agency is not a party.
(a) Applicability of this section. The rules in this section apply to all Federal, state, and local court proceedings, as well as administrative and legislative proceedings, other than:
(1) Proceedings where the United States, the Postal Service, or any other Federal agency is a party;
(2) Congressional requests or subpoenas for testimony or documents;
(3) Consultative services and technical assistance rendered by the
Inspection Service in executing its normal functions;
(4) Employees serving as expert witnesses in connection with professional and consultative services under 5 CFR part 7001, provided that employees acting in this capacity must state for the record that their testimony reflects their personal opinions and should not be viewed as the official position of the Postal Service;
(5) Employees making appearances in their private capacities in proceedings that do not relate to the Postal Service (e.g., cases arising from traffic accidents, domestic relations) and do not involve professional or consultative services; and
(6) When in the opinion of the Counsel or the Counsel's designee,
Office of the Chief Postal Inspector, it has been determined that it is in the best interest of the Inspection Service or in the public interest.
(b) Purpose and scope. The provisions in this section limit the participation of postal employees within or assigned to the Inspection
Service, in private litigation, and other proceedings in which the
Postal Service, the United States, or any other Federal agency is not a party. The rules are intended to promote the careful supervision of
Inspection Service resources and to reduce the risk of inappropriate disclosures that might affect postal operations.
(c) Definitions. For the purposes of this section:
(1) Authorizing official is the person responsible for giving the authorization for release of documents or permission to testify.
(2) Case or matter means any civil proceeding before a court of law, administrative board, hearing officer, or other body conducting a judicial or administrative proceeding in which the United States, the
Postal Service, or another Federal agency is not a named party.
(3) Demand includes any request, order, or subpoena for testimony or the production of documents.
(4) Document means all records, papers, or official files, including, but not limited to, official letters, telegrams, memoranda, reports, studies, calendar and diary entries, graphs, notes, charts, tabulations, data analyses, statistical or information accumulations, records of meetings and conversations, film impressions, magnetic tapes, computer discs, and sound or mechanical reproductions.
(5) Employee or Inspection Service employee, for the purpose of this section only, refers to a Postal Service employee currently or formerly assigned to the Postal Inspection Service, student interns, contractors and employees of contractors who have access to Inspection
Service information and records.
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(6) Inspection Service means the organizational unit within the
Postal Service as outlined in Sec. 221.4 of this chapter.
(7) Inspection Service Legal Counsel is an attorney authorized by the Chief Postal Inspector to give legal advice to members of the
Inspection Service.
(8) Inspection Service Manual is the directive containing the standard operating procedures for Postal Inspectors and certain
Inspection Service employees.
(9) Nonpublic includes any material or information not subject to mandatory public disclosure under Sec. 265.6(b).
(10) Official case file means official documents that relate to a particular case or investigation. These documents may be kept at any location and do not necessarily have to be in the same location in order to constitute the file.
(11) Postal Inspector reports include all written reports, letters, recordings, or other memorializations made in conjunction with the duties of a Postal Inspector.
(12) Testify or testimony includes both in-person oral statements before any body conducting a judicial or administrative proceeding and statements made in depositions, answers to interrogatories, declarations, affidavits, or other similar documents.
(13) Third-party action means an action, judicial, or administrative, in which the United States, the Postal Service, or any other Federal agency is not a named party.
(d) Policy. (1) No current or former employee within the Inspection
Service may testify or produce documents concerning information acquired in the course of employment or as a result of his or her relationship with the Postal Service in any proceeding to which this section applies (see paragraph (a) of this section), unless authorized to do so.
Authorization will be provided by:
(i) The Postal Inspector in Charge of the affected field Division, or designee, for Division personnel and records, after that official has determined through consultation with Inspection Service legal counsel that no legal objection, privilege, or exemption applies to such testimony or production of documents.
(ii) The Chief Postal Inspector or designee for Headquarters employees and records, after that official has determined through consultation with Inspection Service legal counsel, that no legal objection, privilege, or exemption applies to such testimony or production of documents.
(2) Consideration shall be given to:
(i) Statutory restrictions, as well as any legal objection, exemption, or privilege that may apply;
(ii) Relevant legal standards for disclosure of nonpublic information and documents;
(iii) Inspection Service rules and regulations and the public interest;
(iv) Conservation of employee time; and
(v) Prevention of the expenditure of Postal Service resources for private purposes.
(3) If additional information is necessary before a determination can be made, the authorizing official may, in coordination with
Inspection Service legal counsel, request assistance from the
Department of Justice.
(e) Compliance with subpoena duces tecum. (1) Except as required by part 262 of this chapter, produce any other record of the Postal
Service only in compliance with a subpoena duces tecum or appropriate court order.
(2) Do not release any record containing information relating to an employee's security or loyalty.
(3) Honor subpoenas and court orders only when disclosure is authorized.
(4) When authorized to comply with a subpoena duces tecum or court order, do not leave the originals with the court.
(5) Postal Inspector reports are considered to be confidential internal documents and shall not be released unless there is specific authorization by the Chief Postal Inspector or the Inspector in Charge of the affected field Division, after consulting with Inspection
Service legal counsel.
(6) The Inspection Service Manual and other operating instructions issued to Inspection Service employees are considered to be confidential and shall not be released unless there is specific authorization, after consultation with Inspection Service legal counsel. If the requested information relates to confidential investigative techniques, or release of the information would adversely affect the law enforcement mission of the Inspection Service, the subpoenaed official, through Inspection Service legal counsel, may request an in camera, ex parte conference to determine the necessity for the release of the information. The entire manual should not be given to any party.
(7) Notes, memoranda, reports, transcriptions, whether written or recorded and made pursuant to an official investigation conducted by a member of the Inspection Service, are the property of the Inspection
Service and are part of the official case file, whether stored with the official file.
(f) Compliance with summonses and subpoenas ad testificandum. (1)
If an Inspection Service employee is served with a third-party summons or a subpoena requiring an appearance in court, contact should be made with Inspection Service legal counsel to determine whether and which exemptions or restrictions apply to proposed testimony. Inspection
Service employees are directed to comply with summonses, subpoenas, and court orders, as to appearance, but may not testify without authorization.
(2) Postal Inspector reports or records will not be presented during testimony, in either state or Federal courts in which the United
States, the Postal Service, or another Federal agency is not a party in interest, unless authorized by the Chief Postal Inspector or the Postal
Inspector in Charge of the affected field Division, who will make the decision after consulting with Inspection Service legal counsel. If an attempt is made to compel production, through testimony, the employee is directed to decline to produce the information or matter and to state that it may be exempted and may not be disclosed or produced without the specific approval of the Chief Postal Inspector or the
Postal Inspector in Charge of the affected field Division. The Postal
Service will offer all possible assistance to the courts, but the question of disclosing information for which an exemption may be claimed is a matter of discretion that rests with the appropriate official. Paragraph (e) of this section covers the release of
Inspection Service documents in cases where the Postal Service or the
United States is not a party.
(g) General procedures for obtaining Inspection Service documents and testimony from Inspection Service employees. (1) To facilitate the orderly response to demands for the testimony of Inspection Service employees and production of documents in cases where the United States, the Postal Service, or another Federal agency is not a party, all demands for the production of nonpublic documents or testimony of
Inspection Service employees concerning matters relating to their official duties and not subject to the exemptions set forth in paragraph (a) of this section shall be in writing and conform to the requirements outlined in paragraphs (g)(2) and (3) of this section.
(2) Before or simultaneously with service of a demand described in paragraph (g)(1) of this section, the requesting party shall serve on the Counsel, Office of the Chief Postal Inspector, 475 L'Enfant Plaza
SW., Washington, DC 20260-2181, an affidavit or declaration containing the following information:
(i) The title of the case and the forum where it will be heard;
(ii) The party's interest in the case;
(iii) The reasons for the demand;
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(iv) A showing that the requested information is available, by law, to a party outside the Postal Service;
(v) If testimony is sought, a summary of the anticipated testimony;
(vi) If testimony is sought, a showing that Inspection Service records could not be provided and used in place of the requested testimony;
(vii) The intended use of the documents or testimony; and
(viii) An affirmative statement that the documents or testimony is necessary for defending or prosecuting the case at issue.
(3) The Counsel, Office of the Chief Postal Inspector, shall act as agent for the receipt of legal process for demands for production of records or testimony of Inspection Service employees where the United
States, the Postal Service, or any other Federal agency is not a party.
A subpoena for testimony or for the production of documents from an
Inspection Service employee concerning official matters shall be served in accordance with the applicable rules of civil procedure. A copy of the subpoena and affidavit or declaration, if not previously furnished, shall also be sent to the Chief Postal Inspector or the appropriate
Postal Inspector in Charge.
(4) Any Inspection Service employee who is served with a demand shall promptly inform the Chief Postal Inspector, or the appropriate
Postal Inspector in Charge, of the nature of the documents or testimony sought and all relevant facts and circumstances.
(h) Authorization of testimony or production of documents. (1) The
Chief Postal Inspector or the Postal Inspector in Charge of the affected field Division, after consulting with Inspection Service legal counsel, shall determine whether testimony or the production of documents will be authorized.
(2) Before authorizing the requested testimony or the production of documents, the Chief Postal Inspector or the Postal Inspector in Charge of the affected field Division shall consider the following factors:
(i) Statutory restrictions, as well as any legal objection, exemption, or privilege that may apply;
(ii) Relevant legal standards for disclosure of nonpublic information and documents;
(iii) Inspection Service rules and regulations and the public interest;
(iv) Conservation of employee time; and
(v) Prevention of expenditures of government time and resources solely for private purposes.
(3) If, in the opinion of the authorizing official, the documents should not be released or testimony should not be furnished, that official's decision is final.
(4) Inspection Service legal counsel may consult or negotiate with the party or the party's counsel seeking testimony or documents to refine and limit the demand, so that compliance is less burdensome, or obtain information necessary to make the determination whether the documents or testimony will be authorized. If the party or party's counsel seeking the documents or testimony fails to cooperate in good faith, preventing Inspection Service legal counsel from making an informed recommendation to the authorizing official, that failure may be presented to the court or other body conducting the proceeding as a basis for objection.
(5) Permission to testify or to release documents in all cases will be limited to matters outlined in the affidavit or declaration described in paragraph (g)(2) of this section or to such parts as deemed appropriate by the authorizing official.
(6) If the authorizing official allows the release of documents or testimony to be given by an employee, arrangements shall be made for the taking of testimony or receipt of documents by the least disruptive methods to the employee's official duties. Testimony may, for example, be provided by affidavits, answers to interrogatories, written depositions, or depositions transcribed, recorded, or preserved by any other means allowable by law.
(i) While giving a deposition, the employee may, at the option of the authorizing official, be represented by Inspection Service legal counsel.
(ii) While completing affidavits, or other written reports or at any time during the process of preparing for testimony or releasing documents, the employee may seek the assistance of Inspection Service legal counsel.
(7) Absent written authorization from the authorizing official, the employee shall respectfully decline to produce the requested documents, testify, or, otherwise, disclose the requested information.
(8) If the authorization is denied or not received by the return date, the employee, together with counsel, where appropriate, shall appear at the stated time and place, produce a copy of this section, and respectfully decline to testify or produce any document on the basis of the regulations in this section.
(9) The employee shall appear as ordered by the subpoena, summons, or other appropriate court order, unless:
(i) Legal counsel has advised the employee that an appearance is inappropriate, as in cases where the subpoena, summons, or other court order was not properly issued or served, has been withdrawn, discovery has been stayed; or
(ii) Where the Postal Service will present a legal objection to furnishing the requested information or testimony.
(i) Inspection Service employees as expert or opinion witnesses. No
Inspection Service employee may testify as an expert or opinion witness, with regard to any matter arising out of the employee's duties or functions at the Postal Service, for any party other than the United
States, except that in extraordinary circumstances, the Counsel, Office of the Chief Postal Inspector, may approve such testimony in private litigation. An Inspection Service employee may not testify as such an expert or opinion witness without the express authorization of the
Counsel, Office of the Chief Postal Inspector. A litigant must first obtain authorization of the Counsel, Office of the Chief Postal
Inspector, before designating an Inspection Service employee as an expert or opinion witness.
(j) Postal liability. This section is intended to provide instructions to Inspection Service employees and does not create any right or benefit, substantive or procedural, enforceable by any party against the Postal Service.
(k) Fees. (1) Unless determined by 28 U.S.C. 1821 or other applicable statute, the costs of providing testimony, including transcripts, shall be borne by the requesting party.
(2) Unless limited by statute, such costs shall also include reimbursement to the Postal Service for the usual and ordinary expenses attendant upon the employee's absence from his or her official duties in connection with the case or matter, including the employee's salary and applicable overhead charges, and any necessary travel expenses as follows:
(i) The Inspection Service is authorized to charge reasonable fees to parties demanding documents or information. Such fees, calculated to reimburse the Postal Service for the cost of responding to a demand, may include the costs of time expended by Inspection Service employees, including attorneys, to process and respond to the demand; attorney time for reviewing the demand and for legal work in connection with the demand; expenses generated by equipment used to search for, produce, and copy the requested information; travel costs of the employee and the agency attorney, including lodging and per diem where appropriate.
Such fees shall be assessed at the rates and in the manner specified in
Sec. 265.9.
Page 79754
(ii) At the discretion of the Inspection Service where appropriate, fees and costs may be estimated and collected before testimony is given.
(iii) The provisions in this section do not affect rights and procedures governing public access to official documents pursuant to the Freedom of Information Act, 5 U.S.C. 552a.
(l) Acceptance of service. The rules in this section in no way modify the requirements of the Federal Rules of Civil Procedure (28
U.S.C. Appendix) regarding service of process.
Appendix A to Part 265--Fees for Computer Searches
When requested information must be retrieved by computer, fees charged to the requester are based on rates for personnel and computer time. Estimates are provided to the requester in advance and are based on the following rates:
Price
Unit
Computer Personnel:
Operator time....................
$60 Per hour.
System or Database Administrator
100 Per hour. time.
IT Specialist time...............
200 Per hour.
Computer Processing:
Mainframe usage..................
.39 Per CPU second.
Open system usage................
1.00 Per hour.
PC usage.........................
7.00 Per 15 minutes.
Printing computer output.........
.14 Per page.
Electronic data delivery.........
100 Setup, plus $1 per gigabyte.
8. Revise part 266 to read as follows:
PART 266--PRIVACY OF INFORMATION
Sec. 266.1 Purpose and scope. 266.2 Policy. 266.3 Responsibility. 266.4 Collection and disclosure of information about individuals. 266.5 Notification. 266.6 Procedures for requesting inspection, copying, or amendment of records. 266.7 Appeal procedure. 266.8 Schedule of fees. 266.9 Exemptions. 266.10 Computer matching.
Authority: 39 U.S.C. 401; 5 U.S.C. 552a.
Sec. 266.1 Purpose and scope.
This part is intended to protect individual privacy and affects all personal information collection and usage activities of the entire
Postal Service. This includes the information interface of Postal
Service employees to other employees, to individuals from the public at large, and to any private organization or governmental agency.
Sec. 266.2 Policy.
It is the policy of the Postal Service to ensure that any record within its custody that identifies or describes any characteristic or provides historical information about an individual or that affords a basis for inferring personal characteristics, or things done by or to such individual, including the record of any affiliation with an organization or activity, or admission to an institution, is accurate, complete, timely, relevant, and reasonably secure from unauthorized access. Additionally, it is the policy to provide the means for individuals to know:
(a) Of the existence of all Postal Service Privacy Act systems of records;
(b) The recipients and usage made of such information;
(c) What information is optional or mandatory to provide to the
Postal Service;
(d) The procedures for individuals to review and request update to all information maintained about themselves;
(e) The reproduction fees for releasing records;
(f) The procedures for individual legal appeal in cases of dissatisfaction; and
(g) Of the establishment or revision of a computer matching program.
Sec. 266.3 Responsibility.
(a) Records Office. The Records Office, within the Privacy Office, will ensure Postal Service-wide compliance with this policy.
(b) Records Custodian. Record Custodians are responsible for adherence to this part within their respective units and in particular for affording individuals their rights to inspect and obtain copies of records concerning them.
(c) Manager, Corporate Information Security Office. This manager is responsible for ensuring compliance with information security policies, including protection of information resources containing customer, employee, or other individuals' information; safeguarding and disposing of electronic records (including emails) that are maintained in information systems, including those that are subject to legal holds; and serving as the central contact for information security issues and providing security consultation as requested.
(d) Data Integrity Board--(1) Responsibilities. The Data Integrity
Board oversees Postal Service computer matching activities. Its principal function is to review, approve, and maintain all written agreements for use of Postal Service records in matching programs to ensure compliance with the Privacy Act and all relevant statutes, regulations, and guidelines. In addition, the Board annually reviews matching programs and other matching activities in which the Postal
Service has participated during the preceding year to determine compliance with applicable laws, regulations, and agreements; compiles a biennial matching report of matching activities; and performs review and advisement functions relating to records accuracy, recordkeeping and disposal practices, and other computer matching activities.
(2) Composition. The Privacy Act requires that the senior official responsible for implementation of agency Privacy Act policy and the
Inspector General serve on the Board. The Chief Privacy Officer, as administrator of Postal Service Privacy Act policy, serves as Secretary of the Board and performs the administrative functions of the Board.
The Board is composed of these and other members designated by the
Postmaster General, as follows:
(i) Vice President and Consumer Advocate (Chairman).
(ii) Chief Postal Inspector.
(iii) Inspector General.
(iv) Chief Human Resources Officer and Executive Vice President.
(v) Sr. Vice President, General Counsel.
(vi) Chief Privacy Officer.
Sec. 266.4 Collection and disclosure of information about individuals.
(a) The following rules govern the collection of information about individuals throughout Postal Service operations;
(1) The Postal Service will:
(i) Collect, solicit and maintain only such information about an individual as is relevant and necessary to accomplish a purpose authorized by statute or Executive Order.
(ii) Collect information, to the greatest extent practicable, directly from the subject individual when such information may result in adverse determinations about an individual's rights, benefits or privileges.
(iii) Inform any individual who has been asked to furnish information about himself whether that disclosure is mandatory or voluntary, by what authority it is being solicited, the principal purposes for which it is intended to be used, the routine uses which may be made of it, and any penalties and specific consequences for the individual, which are known to the Postal Service, which will result from refusal to furnish it.
Page 79755
(2) The Postal Service will not discriminate against any individual who fails to provide information about himself unless that information is required or necessary for the conduct of the system or program in which the individual desires to participate.
(3) No information will be collected (or maintained) describing how individuals exercise rights guaranteed by the First Amendment unless the Postmaster General specifically determines that such information is relevant and necessary to carry out a statutory purpose of the Postal
Service.
(4) The Postal Service will not require individuals to furnish their Social Security account number or deny a right, privilege or benefit because of an individual's refusal to furnish the number unless it must be provided by Federal law.
(b) Disclosures--(1) Disclosure: Limitations On. The Postal Service will not disseminate information about an individual unless reasonable efforts have been made to assure that the information is accurate, complete, timely and relevant and unless:
(i) The individual to whom the record pertains has requested in writing that the information be disseminated, or
(ii) It has obtained the prior written consent of the individual to whom the record pertains, or
(iii) The dissemination is in accordance with paragraph (b)(2) of this section.
(2) Dissemination of personal information may be made:
(i) To a person pursuant to a requirement of the Freedom of
Information Act (5 U.S.C. 552);
(ii) To those officers and employees of the Postal Service who have a need for such information in the performance of their duties;
(iii) For a routine use as contained in the system notices published in the Federal Register;
(iv) To a recipient who has provided advance adequate written assurance that the information will be used solely as a statistical reporting or research record, and to whom the information is transferred in a form that is not individually identifiable;
(v) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13, U.S.C.;
(vi) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or for evaluation by the
Administrator of General Services or his designee to determine whether the record has such value;
(vii) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual, if upon such disclosure notification is transmitted to the last known address of such individual;
(viii) To a Federal agency or to an instrumentality of any governmental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity, if such activity is authorized by law and if the head of the agency or instrumentality has made a written request to the Postal Service specifying the particular portion of the record desired and the law enforcement activity for which the record is sought;
(ix) To either House of Congress or its committees or subcommittees to the extent of matter within their jurisdiction;
(x) To the Comptroller General or any of his authorized representatives in the course of the performance of the duties of the
General Accounting Office;
(xi) Pursuant to the order of a court of competent jurisdiction.
(3) Names and Addresses of Postal Customers. The disclosure of lists of names or addresses of Postal customers or other persons to the public is prohibited (39 U.S.C. 412). Names or addresses will be disclosed only in those cases permitted by 39 CFR 265.6(d) relating to the Release of Information.
(4) Employee Credit References. A credit bureau or commercial firm from which an employee is seeking credit may be given the following information upon request: Grade, duty status, length of service, job title, and salary.
(5) Employee Job References. Prospective employers of a postal employee or a former postal employee may be furnished with the information in paragraph (b)(4) of this section, in addition to the date and the reason for separation, if applicable. The reason for separation must be limited to one of the following terms: retired, resigned, or separated. Other terms or variations of these terms (e.g., retired, disability) may not be used. If additional information is desired, the requester must submit the written consent of the employee, and an accounting of the disclosure must be kept.
(6) Computer matching purposes. Records from a Postal Service system of records may be disclosed to another agency for the purpose of conducting a computer matching program or other matching activity as defined in paragraphs (c) and (d) of Sec. 262.5, but only after a determination by the Data Integrity Board that the procedural requirements of the Privacy Act, the guidelines issued by the Office of
Management and Budget, and these regulations as may be applicable are met. These requirements include:
(i) Routine use. Disclosure is made only when permitted as a routine use of the system of records. The Manager, Records Office, determines the applicability of a particular routine use and the necessity for adoption of a new routine use.
(ii) Notice. Publication of new or revised matching programs in the
Federal Register and advance notice to Congress and the Office of
Management and Budget must be made pursuant to paragraph (f) of Sec. 266.5.
(iii) Computer matching agreement. The participants in a computer matching program must enter into a written agreement specifying the terms under which the matching program is to be conducted (see Sec. 266.10). The Manager, Records Office, may require that other matching activities be conducted in accordance with a written agreement.
(iv) Data Integrity Board approval. No record from a Postal Service system of records may be disclosed for use in a computer matching program unless the matching agreement has received approval by the
Postal Service Data Integrity Board (see Sec. 266.10). Other matching activities may, at the discretion of the Manager, Records Office, be submitted for Board approval.
(c) Correction Disclosure. Any person or other agency to which a personal record has been or is to be disclosed shall be informed of any corrections or notations of dispute relating thereto affecting the accuracy, timeliness or relevance of that personal record.
(d) Recording of Disclosure. (1) An accurate accounting of each disclosure will be kept in all instances except those in which disclosure is made to the subject of the record, or to Postal Service employees in the performance of their duties or is required by the
Freedom of Information Act (5 U.S.C. 552).
(2) The accounting will be maintained for at least five (5) years or the life of the record, whichever is longer.
(3) The accounting will be made available to the individual named in the record upon inquiry, except for disclosures made pursuant to provision paragraph (b)(2)(viii) of this section relating to law enforcement activities.
Sec. 266.5 Notification.
(a) Notification of Systems. Upon written request, the Postal
Service will notify any individual whether a specific
Page 79756
system named by the individual contains a record pertaining to him or her. See Sec. 266.6 for suggested form of request.
(b) Notification of Disclosure. The Postal Service shall make reasonable efforts to serve notice on an individual before any personal information on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record.
(c) Notification of Amendment. (See Sec. 266.6(c)(1) relating to amendment of records upon request.)
(d) Notification of New Use. Any newly intended use of personal information maintained by the Postal Service will be published in the
Federal Register thirty (30) days before such use becomes effective.
Public views on the notice may be submitted to the Records Office.
(e) Notification of Exemptions. The Postal Service will publish within the Federal Register its intent to exempt any system of records and shall specify the nature and purpose of that system.
(f) Notification of computer matching program. The Postal Service publishes in the Federal Register and forwards to Congress and the
Office of Management and Budget advance notice of its intent to establish, substantially revise, or renew a matching program, unless such notice is published by another participant agency. In those instances in which the Postal Service is the ``recipient'' agency, as defined in the Act, but another participant agency sponsors and derives the principal benefit from the matching program, the other agency is expected to publish the notice. The notice must be sent to Congress and
OMB, and published at least thirty (30) days, prior to:
(1) Initiation of any matching activity under a new or substantially revised program; or
(2) Expiration of the existing matching agreement in the case of a renewal of a continuing program.
Sec. 266.6 Procedures for requesting inspection, copying, or amendment of records.
The purpose of this section is to provide procedures by which an individual may have access and request amendment to personal information within a Privacy Act System of Records.
(a) Submission of Requests--(1) Manner of submission. Inquiries regarding the contents of records systems or access or amendment to personal information should be submitted in writing to the custodian of the official record, if known, or to the Manager, Records Office, U.S.
Postal Service, 475 L'Enfant Plaza, SW., Washington, DC 20260, telephone (202) 268-2608. Requests to the U.S. Postal Inspection
Service should be submitted to the Information Disclosure Specialist, 1735 North Lynn Street, Arlington, VA 22209. Requests submitted to the
Office of Inspector General should be submitted to the Freedom of
Information Act/Privacy Officer, Office of Inspector General, 1735
North Lynn Street, Arlington, Virginia, 22209. Inquiries should be clearly marked, ``Privacy Act Request''. Any inquiry concerning a specific system of records should provide the Postal Service with the information contained under ``Notification'' for that system as published in the Federal Register. If the information supplied is insufficient to locate or identify the record, the requester will be notified promptly and, if possible, informed of additional information required. If the requester is not a Postal Service employee, he should designate the post office at which he wishes to review or obtain copies of records. Amendment requests contest the relevance, accuracy, timeliness or completeness of the record and will include a statement of the amendment requested.
(2) Third party inquiries. Anyone desiring to review or copy records pertaining to another person must have the written consent of that person.
(3) Period for response by custodian. Upon receipt of an inquiry, the custodian will respond with an acknowledgement of receipt within ten (10) days. If the inquiry requires the custodian to determine whether a particular record exists, the inquirer shall be informed of this determination as a part of the acknowledgement letter.
(b) Compliance with Request for Access--(1) Notification of time and place for inspection. When a requested record has been identified and is to be disclosed, the custodian shall ensure that the record is made available promptly and shall immediately notify the requester where and when the record will be available for inspection or copying.
Postal Service records will normally be available for inspection and copying during regular business hours at the postal facilities at which they are maintained. The custodian may, however, designate other reasonable locations and times for inspection and copying of some or all of the records within his custody.
(2) Identification of requester. The requester must present personal identification sufficient to satisfy the custodian as to his identity prior to record review. Examples of sufficient identification are a valid driver's license, Medicare card, and employee identification cards.
(3) Responsibilities of requester. The requester shall assume the following responsibilities regarding the review of official personal records:
(i) Requester must agree not to leave Postal Services premises with official records unless specifically given a copy for that purpose by the custodian or his representative.
(ii) Requester must sign a statement indicating he has reviewed a specific record(s) or category of record.
(iii) Requester may be accompanied by a person he so chooses to aid in the inspection of information; however, requester must furnish the
Postal Service with written authorization for such review in that person's presence.
(4) Special rules for medical records. A medical record shall be disclosed to the requester to whom it pertains unless, in the judgment of the medical officer, access to such record could have an adverse effect upon such individual. When the medical officer determines that the disclosure of medical information could have an adverse effect upon the individual to whom it pertains, the medical officer will transmit such information to a medical doctor named by the requesting individual.
(5) Limitations on access. Nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding. Other limitations on access are those specifically addressed in Sec. Sec. 266.6(b)(4) and 266.9.
(6) Response when compliance is not possible. A reply denying a written request to review a record shall be in writing signed by the custodian or other appropriate official and shall be made only if such a record does not exist or does not contain personal information relating to the requester, or is exempt from disclosure. This reply shall include a statement regarding the determining factors of denial, and the right to appeal the denial to the General Counsel.
(c) Compliance with Request for Amendment. (1) Correct or eliminate any information that is found to be incomplete, inaccurate, not relevant to a statutory purpose of the Postal Service, or not timely and notify the requester when this action is complete, or
(2) Not later than thirty (30) working days after receipt of a request to amend, notify the requester of a determination not to amend and of the requester's right to appeal, or to submit, in lieu of an appeal, a statement of reasonable length setting forth a position regarding the
Page 79757
disputed information to be attached to the contested personal record.
(d) Availability of Assistance in Exercising Rights. The Manager,
Records Office is available to provide an individual with assistance in exercising rights pursuant to this part.
Sec. 266.7 Appeal procedure.
(a) Appeal Procedure. (1) If a request to inspect, copy, or amend a record is denied, in whole or in part, or if no determination is made within the period prescribed by this part, the requester shall appeal to the General Counsel, U.S. Postal Service, 475 L'Enfant Plaza, SW.,
Washington, DC 20260.
(2) The requester should submit his appeal in writing within thirty
(30) days of the date of denial, or within ninety (90) days of such request if the appeal is from a failure of the custodian to make a determination. The letter of appeal should include, as applicable:
(i) Reasonable identification of the record access to which or the amendment of which was requested.
(ii) A statement of the Postal Service action or failure to act and of the relief sought.
(iii) A copy of the request, of the notification of denial and of any other related correspondence.
(3) Any record found on appeal to be incomplete, inaccurate, not relevant, or not timely, shall within thirty (30) working days of the date of such findings be appropriately amended.
(4) The decision of the General Counsel, constitutes the final decision of the Postal Service on the right of the requester to inspect, copy, change, or update a record. The decision on the appeal shall be in writing and in the event of a denial shall set forth the reasons for such denial and state the individual's right to obtain judicial review in a district court. An indexed file of decisions on appeals shall be maintained by the General Counsel.
(b) Submission of Statement of Disagreement. If the final decision concerning a request for the amendment of a record does not satisfy the requester, any statement of reasonable length provided by that individual setting forth a position regarding the disputed information will be accepted and attached to the relevant personal record.
Sec. 266.8 Schedule of fees.
(a) Policy. The purpose of this section is to establish fair and equitable fees to permit duplication of records for subject individuals
(or authorized representatives) while recovering the full allowable direct costs incurred by the Postal Service.
(b) Duplication. (1) For duplicating any paper or micrographic record or publication or computer report, the fee is $.15 per page, except that the first 100 pages furnished in response to a particular request shall be furnished without charge. See paragraph (d) of this section for fee limitations.
(2) The Postal Service may at its discretion make coin-operated copy machines available at any location. In that event, requesters will be given the opportunity to make copies at their own expense.
(3) The Postal Service normally will not furnish more than one copy of any record. If duplicate copies are furnished at the request of the requester, $.15 per page fee is charged for each copy of each duplicate page without regard to whether the requester is eligible for free copies pursuant to Sec. 266.8(b)(1).
(c) Aggregating requests. When the custodian reasonably believes that a requester is attempting to break a request for similar types of records down into a series of requests in order to evade the assessment of fees, the custodian may aggregate the requests and charge accordingly.
(d) Limitations. No fee will be charged an individual for the process of retrieving, reviewing, or amending a record pertaining to that individual.
(e) Reimbursements. The Postal Service may, at its discretion, require reimbursement of its costs as a condition of participation in a computer matching program or activity with another agency. The agency to be charged is notified in writing of the approximate costs before they are incurred. Costs are calculated in accordance with the schedule of fees at Sec. 265.9.
Sec. 266.9 Exemptions.
(a) Subsections 552a(j) and (k) of 5 U.S.C. 552a authorize the
Postmaster General to exempt systems of records meeting certain criteria from various other subsections of 5 U.S.C. 552a. With respect to systems of records so exempted, nothing in this part shall require compliance with provisions hereof implementing any subsections of 5
U.S.C. 552a from which those systems have been exempted.
(b) Paragraph (b)(1) of this section contains a summary of provisions of 5 U.S.C. 552a for which exemption is claimed for some systems of records pursuant to, and to the extent permitted by, subsections 552a(j) and (k) of 5 U.S.C. 552a. Paragraphs (b)(2) through
(5) of this section identify the exempted systems of records, the exemptions applied to each, and the reasons for the exemptions:
(1) Explanation of provisions under 5 U.S.C. 552a for which an exemption is claimed. The following paragraphs (b)(1)(i) through (xii) pertain to an exemption claimed.
(i) Subsection (c)(3) requires an agency to make available to the individual named in the records an accounting of each disclosure of records.
(ii) Subsection (c)(4) requires an agency to inform any person or other agency to which a record has been disclosed of any correction or notation of dispute the agency has made to the record in accordance with 5 U.S.C. 552a(d).
(iii) Subsections (d)(1) through (4) require an agency to permit an individual to gain access to records about the individual, to request amendment of such records, to request a review of an agency decision not to amend such records, and to provide a statement of disagreement about a disputed record to be filed and disclosed with the disputed record.
(iv) Subsection (e)(1) requires an agency to maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose required by statute or executive order of the President.
(v) Subsection (e)(2) requires an agency to collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs.
(vi) Subsection (e)(3) requires an agency to inform each person whom it asks to supply information of the authority under which the information is sought, the purposes for which the information will be used, the routine uses that may be made of the information, whether disclosure is mandatory or voluntary, and the effects of not providing the information.
(vii) Subsection (e)(4)(G) and (H) requires an agency to publish a
Federal Register notice of its procedures whereby an individual can be notified upon request whether the system of records contains information about the individual, how to gain access to any record about the individual contained in the system, and how to contest its content.
(viii) Subsection (e)(5) requires an agency to maintain its records with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to ensure fairness to the individual in making any determination about the individual.
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(ix) Subsection (e)(8) requires an agency to make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record.
(x) Subsection (f) requires an agency to establish procedures whereby an individual can be notified upon request if any system of records named by the individual contains a record pertaining to the individual, obtain access to the record, and request amendment.
(xi) Subsection (g) provides for civil remedies if an agency fails to comply with the access and amendment provisions of subsections
(d)(1) and (d)(3), and with other provisions of 5 U.S.C. 552a, or any rule promulgated there under, in such a way as to have an adverse effect on an individual.
(xii) Subsection (m) requires an agency to cause the requirements of 5 U.S.C. 552a to be applied to a contractor operating a system of records to accomplish an agency function.
(2) Pursuant to subsection 552a(j)(2), Emergency Management
Records, USPS 500.300; Inspection Service Investigative File System,
USPS 700.000; Mail Cover Program Records, USPS 700.100; and Inspector
General Investigative Records, USPS 700.300, are exempt from subsections 552a (c)(3), (c)(4), (d)(1) through (4), (e)(1) through
(3), (e)(4) (G) and (H), (e)(5), (e)(8), (f), (g), and (m) because the systems contain information pertaining to the enforcement of criminal laws. The reasons for exemption follow:
(i) Disclosure to the record subject pursuant to subsections
(c)(3), (c)(4), or (d)(1) through (4) could:
(A) Alert subjects that they are targets of an investigation or mail cover by the Postal Inspection Service or an investigation by the
Office of Inspector General;
(B) Alert subjects of the nature and scope of the investigation and of evidence obtained;
(C) Enable the subject of an investigation to avoid detection or apprehension;
(D) Subject confidential sources, witnesses, and law enforcement personnel to harassment or intimidation if their identities were released to the target of an investigation;
(E) Constitute unwarranted invasions of the personal privacy of third parties who are involved in a certain investigation;
(F) Intimidate potential witnesses and cause them to be reluctant to offer information;
(G) Lead to the improper influencing of witnesses, the destruction or alteration of evidence yet to be discovered, the fabrication of testimony, or the compromising of classified material; and
(H) Seriously impede or compromise law enforcement, mail cover, or background investigations that might involve law enforcement aspects as a result of the above.
(ii) Application of subsections (e)(1) and (e)(5) is impractical because the relevance, necessity, or correctness of specific information might be established only after considerable analysis and as the investigation progresses. As to relevance (subsection (e)(1)), effective law enforcement requires the keeping of information not relevant to a specific Postal Inspection Service investigation or
Office of Inspector General investigation. Such information may be kept to provide leads for appropriate law enforcement and to establish patterns of activity that might relate to the jurisdiction of the
Office of Inspector General, Postal Inspection Service, and/or other agencies. As to accuracy (subsection (e)(5)), the correctness of records sometimes can be established only in a court of law.
(iii) Application of subsections (e)(2) and (e)(3) would require collection of information directly from the subject of a potential or ongoing investigation. The subject would be put on alert that he or she is a target of an investigation by the Office of Inspector General, or an investigation or mail cover by the Postal Inspection Service, enabling avoidance of detection or apprehension, thereby seriously compromising law enforcement, mail cover, or background investigations involving law enforcement aspects. Moreover, in certain circumstances the subject of an investigation is not required to provide information to investigators, and information must be collected from other sources.
(iv) The requirements of subsections (e)(4)(G) and (H), and (f) do not apply because this system is exempt from the provisions of subsection (d). Nevertheless, the Postal Service has published notice of its notification, access, and contest procedures because access is appropriate in some cases.
(v) Application of subsection (e)(8) could prematurely reveal an ongoing criminal investigation to the subject of the investigation.
(vi) The provisions of subsection (g) do not apply because exemption from the provisions of subsection (d) renders the provisions on suits to enforce subsection (d) inapplicable.
(vii) If one of these systems of records is operated in whole or in part by a contractor, the exemptions claimed herein shall remain applicable to it (subsection (m)).
(3) Pursuant to subsection 552a(k)(2), Labor Relations Records,
USPS 200.000; Emergency Management Records, USPS 500.300; Inspection
Service Investigative File System, USPS 700.000; Mail Cover Program
Records, USPS 700.100; Inspector General Investigative Records, USPS 700.300; and Financial Transactions, USPS 860.000, are exempt from certain subsections of 5 U.S.C. 552a because the systems contain investigatory material compiled for law enforcement purposes other than material within the scope of subsection 552a(j)(2).
(i) Emergency Management Records, USPS 500.300; Inspection Service
Investigative File System, USPS 700.000; Mail Cover Program Records,
USPS 700.100; and Inspector General Investigative Records, USPS 700.300, are exempt from subsections 552a(c)(3), (d)(1)-(4), (e)(1),
(e)(4)(G) and (H), and (f) for the same reasons as stated in paragraph
(b)(2) of this section.
(ii) Labor Relations Records, USPS 200.000, is exempt from subsections 552a(d)(1) through (4), (e)(4)(G) and (H), and (f) for the following reasons:
(A) Application of the requirements at subsections (d)(1) through
(4) would cause disruption of enforcement of the laws relating to equal employment opportunity (EEO). It is essential to the integrity of the
EEO complaint system that information collected in the investigative process not be prematurely disclosed and that witnesses be free from restraint, interference, coercion, or reprisal.
(B) The requirements of subsections (e)(4)(G) and (H), and (f) do not apply for the same reasons described in paragraph (b)(2)(iv) of this section.
(iii) Financial Transactions, USPS 860.000, is exempt from subsections 552a(c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) and (H), and (f) for the following reasons:
(A) Disclosure to the record subject pursuant to subsections (c)(3) and (d)(1) through (4) would violate the non-notification provision of the Bank Secrecy Act, 31 U.S.C. 5318(g)(2), under which the Postal
Service is prohibited from notifying a transaction participant that a suspicious transaction report has been made. In addition, the access provisions of subsections (c)(3) and (d)(1) through (4) would alert individuals that they have been identified as suspects or possible subjects of investigation and thus seriously hinder the law enforcement
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purposes underlying the suspicious transaction reports.
(B) This system is in compliance with subsection (e)(1) because maintenance of the records is required by law. Strict application of the relevance and necessity requirements of subsection (e)(1) to suspicious transactions would be impractical, however, because the relevance or necessity of specific information can often be established only after considerable analysis and as an investigation progresses.
(C) The requirements of subsections (e)(4)(G) and (H), and (f) do not apply because this system is exempt from the provisions of subsection (d). Nevertheless, the Postal Service has published notice of its notification, access, and contest procedures because access is appropriate in some cases.
(4) Pursuant to subsection 552a(k)(5), Recruiting, Examining, and
Placement Records, USPS 100.100; Labor Relations Records, USPS 200.000;
Inspection Service Investigative File System, USPS 700.000; and
Inspector General Investigative Records, USPS 700.300 are exempt from certain subsections of 5 U.S.C. 552a because the systems contain investigatory material compiled for the purpose of determining suitability, eligibility, or qualifications for employment, contracts, or access to classified information.
(i) Recruiting, Examining, and Placement Records, USPS 100.100, is exempt from subsections 552a(d)(1) through (4) and (e)(1) for the following reasons:
(A) During its investigation and evaluation of an applicant for a position, the Postal Service contacts individuals who, without an assurance of anonymity, would refuse to provide information concerning the subject of the investigation. If a record subject were given access pursuant to subsection (d)(1) through (4), the promised confidentiality would be breached and the confidential source would be identified. The result would be restriction of the free flow of information vital to a determination of an individual's qualifications and suitability for appointment to or continued occupancy of his or her position.
(B) In collecting information for investigative and evaluative purposes, it is impossible to determine in advance what information might be of assistance in determining the qualifications and suitability of an individual for appointment. Information that seems irrelevant, when linked with other information, can sometimes provide a composite picture of an individual that assists in determining whether that individual should be appointed to or retained in a position. For this reason, exemption from subsection (e)(1) is claimed.
(C) The requirements of subsections (e)(4)(G) and (H), and (f) do not apply because this system is exempt from the provisions of subsection (d). Nevertheless, the Postal Service has published notice of its notification, access, and contest procedures because access is appropriate in some cases.
(ii) Labor Relations Records, USPS 200.000, is exempt from subsections 552a(d)(1) through (4), (e)(4)(G) and (H), and (f) for the following reasons:
(A) Application of the provisions at subsection (d)(1) through (4) would reveal to the EEO complainant the identity of individuals who supplied information under a promise of anonymity. It is essential to the integrity of the EEO complaint system that information collected in the investigative process not be prematurely disclosed and that witnesses be free from restraint, interference, coercion, or reprisal.
(B) The requirements of subsections (e)(4)(G) and (H), and (f) do not apply because this system is exempt from the provisions of subsection (d). Nevertheless, the Postal Service has published notice of its notification, access, and contest procedures because access is appropriate in some cases.
(iii) Inspection Service Investigative File System, USPS 700.000; and Inspector General Investigative Records, USPS 700.300, are exempt from subsections 552a(c)(3), (d)(1) through (4), (e)(1), (e)(4) (G) and
(H), and (f) for the same reasons as stated in paragraph (b)(2) of this section.
(5) Pursuant to subsection 552a(k)(6), Employee Development and
Training Records, USPS 100.300; Personnel Research Records, 100.600; and Emergency Management Records, USPS 500.300 are exempt from subsections 552a(d)(1) through (4), (e)(4)(G) and (H), and (f) because the systems contain testing or examination material the disclosure of which would compromise the objectivity or fairness of the material. The reasons for exemption follow:
(i) These systems contain questions and answers to standard testing materials, the disclosure of which would compromise the fairness of the future use of these materials. It is not feasible to develop entirely new examinations after each administration as would be necessary if questions or answers were available for inspection and copying.
Consequently, exemption from subsection (d) is claimed.
(ii) The requirements of subsections (e)(4)(G) and (H), and (f) do not apply because this system is exempt from the provisions of subsection (d). Nevertheless, the Postal Service has published notice of its notification, access, and contest procedures because access is appropriate in some cases.
Sec. 266.10 Computer matching.
(a) General. Any agency or Postal Service component that wishes to use records from a Postal Service automated system of records in a computerized comparison with other postal or non-postal records must submit its proposal to the Postal Service, Manager, Records Office.
Computer matching programs as defined in paragraph (c) of Sec. 265 must be conducted in accordance with the Privacy Act, as amended by the
Computer Matching and Privacy Protection Act of 1988. Records may not be exchanged for a matching program until all procedural requirements of the Act and these regulations have been met. Other matching activities must be conducted in accordance with the Privacy Act and with the approval of the Manager, Records Office. See paragraph (b)(6) of Sec. 266.4.
(b) Procedure for submission of matching proposals. A proposal must include information required for the matching agreement discussed in paragraph (d)(1) of this section. The Inspection Service must submit its proposals for matching programs and other matching activities to the Postal Service Manager Records Office through: Counsel, Inspection
Service, U.S. Postal Service, 475 L'Enfant Plaza, SW., Washington, DC 20260. All other matching proposals, whether from postal organizations or other government agencies, must be mailed directly to: Manager,
Records Office, U.S. Postal Service, 475 L'Enfant Plaza, SW.,
Washington, DC 20260.
(c) Lead time. Proposals must be submitted to the Postal Service
Manager Records Office at least 3 months in advance of the anticipated starting date to allow time to meet Privacy Act publication and review requirements.
(d) Matching agreements. The participants in a computer matching program must enter into a written agreement specifying the terms under which the matching program is to be conducted. The Manager, Records
Office may require similar written agreements for other matching activities.
(1) Content. Agreements must specify:
(i) The purpose and legal authority for conducting the matching program;
(ii) The justification for the program and the anticipated results, including, when appropriate, a specific estimate of
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any savings in terms of expected costs and benefits, in sufficient detail for the Data Integrity Board to make an informed decision;
(iii) A description of the records that are to be matched, including the data elements to be used, the number of records, and the approximate dates of the matching program;
(iv) Procedures for providing notice to individuals who supply information that the information may be subject to verification through computer matching programs;
(v) Procedures for verifying information produced in a matching program and for providing individuals an opportunity to contest the findings in accordance with the requirement that an agency may not take adverse action against an individual as a result of information produced by a matching program until the agency has independently verified the information and provided the individual with due process;
(vi) Procedures for ensuring the administrative, technical, and physical security of the records matched; for the retention and timely destruction of records created by the matching program; and for the use and return or destruction of records used in the program;
(vii) Prohibitions concerning duplication and redisclosure of records exchanged, except where required by law or essential to the conduct of the matching program;
(viii) Assessments of the accuracy of the records to be used in the matching program; and
(ix) A statement that the Comptroller General may have access to all records of the participant agencies in order to monitor compliance with the agreement.
(2) Approval. Before the Postal Service may participate in a computer matching program or other computer matching activity that involves both USPS and non-USPS records, the Data Integrity Board must have evaluated the proposed match and unanimously approved the terms of the matching agreement. Agreements are executed by the Chairman of the
Board. If a matching agreement is disapproved by the Board, any party may appeal the disapproval in writing to the Director, Office of
Management and Budget, Washington, DC 20503, within 30 days following the Board's written disapproval.
(3) Effective dates. The agreement will become effective in accordance with the date in the matching agreement and as provided to
Congress and OMB and published in the Federal Register. The agreement remains in effect only as long as necessary to accomplish the specific matching purpose, but no longer than 18 months, at which time the agreement expires unless extended. The Data Integrity Board may extend an agreement for one additional year, without further review, if within 3 months prior to expiration of the 18-month period it finds that the matching program is to be conducted without change, and each party to the agreement certifies that the program has been conducted in compliance with the matching agreement. Renewal of a continuing matching program that has run for the full 30-month period requires a new agreement that has received Data Integrity Board approval.
Neva R. Watson,
Attorney, Legislative.
FR Doc. E8-28386 Filed 12-29-08; 8:45 am
BILLING CODE 7710-12-P
