Freedom of Information Act
| Citation | 85 FR 31087 |
| Record Number | 2020-09826 |
| Published date | 22 May 2020 |
| Court | National Drug Control Policy Office |
Federal Register, Volume 85 Issue 100 (Friday, May 22, 2020)
[Federal Register Volume 85, Number 100 (Friday, May 22, 2020)]
[Proposed Rules]
[Pages 31087-31096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09826]
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EXECUTIVE OFFICE OF THE PRESIDENT
Office of National Drug Control Policy
21 CFR Part 1401
RIN 3201-AA01
Freedom of Information Act
AGENCY: Office of National Drug Control Policy.
ACTION: Proposed rule.
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SUMMARY: The Office of National Drug Control Policy (ONDCP) is updating
its Freedom of Information Act (FOIA) implementing regulation to
comport with the FOIA Improvement Act of 2016 and best practices. The
proposed rule describes how to make a FOIA request with ONDCP and how
the Office of General Counsel, which includes the ONDCP officials
authorized to evaluate FOIA requests, processes requests for records.
The proposed rule also states ONDCP's Privacy Act Policies and
Procedures. The proposed rule describes how individuals can find out if
an ONDCP system of records contains information about them and, if so,
how to access or amend a record. ONDCP seeks comments on all aspects of
the proposed rule and will thoroughly consider all comments that are
submitted on time.
DATES: Send comments on or before June 30, 2020.
ADDRESSES: You may send comments, identified by RIN number 3201-AA01
and/or docket number ONDCP-2020-002, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include docket number ONDCP-
2020-002 and/or RIN number 3201-AA01 in the subject line of the
message.
Mail: Executive Office of the President, Office of
National Drug Control Policy, 1800 G Street NW, 9th Floor, Washington,
DC 20006.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
http://www.regulations.gov including any personal information provided.
ONDCP strongly recommends using electronic means for submitting
comments. Due to COVID-19, comments submitted through conventional mail
delivery services may not be received in a timely manner.
FOR FURTHER INFORMATION CONTACT: Questions concerning this notice
should
[[Page 31088]]
be directed to Michael J. Passante, Acting General Counsel, Office of
General Counsel, Office of National Drug Control Policy, Executive
Office of the President, at (202) 395-6622 or [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
ONDCP has undertaken a review of agency practices related to the
collection, use, protection and disclosure of ONDCP records and
information in light of the FOIA Improvement Act of 2016 and the
Privacy Act. As a result of that review, ONDCP is updating its
regulation on FOIA and the Privacy Act. The FOIA, 5 U.S.C. 552 et seq.,
provides a right of access to certain records and information Federal
agencies maintain and control. The FOIA requires each Federal agency to
publish regulations describing how to submit a FOIA request and how
people responsible for FOIA will process these requests. ONDCP's
current FOIA regulation, codified at 21 CFR part 1401, was last revised
in 1999. See 64 FR 69901 (Dec. 15, 1999). Due to the passage of time
and amendments to the FOIA, we are updating the regulation. ONDCP's
proposed regulation on FOIA and the Privacy Act incorporates the
practical experience of the agency's staff who handle FOIA and privacy
issues and guidance from the Office of Management and Budget and the
U.S. Department of Justice, Office of Information Policy. It also
strives for consistency with FOIA and Privacy Act regulations among
other agencies of the Executive Office of the President.
II. Section-by-Section Analysis
Subpart A--Freedom of Information Act Policies and Procedures
Section 1401.1--Purpose: This section describes the purpose of the
regulation, which is to implement the FOIA.
Section 1401.2--ONDCP: Organization and functions: This section
describes the mission and leadership structure of the agency. It
specifies where media inquiries may be submitted and notes that oral
requests for information under FOIA will be rejected.
Section 1401.3--Definitions: This section defines the key terms
used in the regulation.
Section 1401.4--Access to information: This section describes the
types of information that ONDCP will make available under FOIA.
Section 1401.5--Proactive disclosures: This section describes
information about ONDCP the public can access without filing a FOIA
request. Pursuant to the FOIA Improvement Act of 2016, ONDCP will make
records available that have been requested three or more times in an
electronic format.
Section 1401.6--Records requiring consultation. This section
describes how ONDCP will process records that originated with another
agency but are in the custody of ONDCP.
Section 1401.7--How to request records--Form and content: This
section explains what an individual must do to submit a valid FOIA
request to ONDCP and where a request should be sent. It also describes
the information requesters must provide so ONDCP can identify the
records sought and process their requests.
Section 1401.8--Initial determination: This section provides that
the ONDCP General Counsel has the authority to approve or deny FOIA
requests and describes how to appeal FOIA decisions made by the General
Counsel.
Section 1401.9--Response--form and content: This section explains
that ONDCP will respond to your request in writing either with the
requested records or an explanation of the reasons why all or portions
of the requested records were not disclosed. We also will provide
information about the right of appeal and the mediation services
offered by the Office of Government Information Services of the
National Archives and Records Administration. The response will include
any fees associated with the FOIA request.
Section 1401.10--Expedited Process: This section describes the
circumstances under which expedited processing of a FOIA request may be
granted.
Section 1401.11--Prompt response: This section describes the period
of time within which ONDCP will determine whether it is appropriate to
grant or deny a FOIA request, i.e., ordinarily within twenty working
days after the date the request is received. If ONDCP determines that a
request is denied or that additional time is required to process the
request, it will provide written notification to the requestor with an
explanation of the reasons for denial or delay.
Section 1401.12--Extension of Time: This section describes and
defines the ``unusual circumstances'' under which ONDCP may extend the
time limit for making a determination on a FOIA request.
Section 1401.13--Appeal procedures: This section describes when and
how a requester may appeal a determination on a FOIA request and how
and within what period of time ONDCP will make a determination on an
appeal.
Section 1401.14--Fees to be charged--general: This section
describes the general FOIA processing activities performed by ONDCP
personnel and the rates charged by ONDCP to recoup the employee costs
associated with responding to FOIA requests.
Section 1401.15--Fees to be charged--Miscellaneous provisions: This
section contains miscellaneous FOIA fee provisions such as where
payment should be sent, when advance payment is required, and rates of
interest charged on late payments, etc.
Section 1401.16--Fees to be charged--Categories of Requester: This
section describes the different categories of requesters and the types
and amounts of fees ONDCP may assess to process and respond to a FOIA
request.
Section 1401.17--Restrictions on charging fees. This provision
describes the circumstances under which ONDCP is restricted in charging
fees normally associated with processing FOIA request such as when
ONDCP does not meet time limits mandated by the FOIA.
Section 1401.18--Waiver or Reduction of Fees: This section
describes the factors that ONDCP may consider when deciding whether to
waive or reduce the fees associated with processing FOIA requests.
Section 1401.19--Aggregation of requests: This section describes
the circumstances under which ONDCP may aggregate a series or group of
requests for purposes of fee assessment.
Section 1401.20--Deletion of exempted information: This section
provides that ONDCP will redact exempt information from its FOIA
disclosures to the extent that exempt information can be segregated
from other information subject to disclosure.
Section 1401.21--Confidential commercial information: This section
explains when and how a person or entity that submits information to
ONDCP must identify confidential commercial information. It also
describes how ONDCP staff will handle such information.
Subpart B--Privacy Act Policies and Procedures
Section 1401.22--Definitions: This section defines the key terms
used in this Subpart.
Section 1401.23--Purpose and scope: This section describes the
purpose of the regulation, which is to implement the Privacy Act, and
explains general policies and procedures for individuals requesting
access to records, requesting amendments or corrections to records,
[[Page 31089]]
and requesting an accounting of disclosures of records.
Section 1401.24--How do I make a Privacy Act request?: This section
explains what an individual must do to submit a request to ONDCP for
access to records, to amend or correct records, or for an accounting of
disclosures of records. It also describes the information an individual
must provide so ONDCP can identify the records sought and determine
whether the request can be granted.
Section 1401.25--How will ONDCP respond to a Privacy Act request?:
This section describes the period of time within which ONDCP will
respond to requests. It also explains that ONDCP will grant or deny
requests in writing, provide reasons if a request is denied in whole or
in part, and explain the right of appeal.
Section 1401.26--What can I do if I am dissatisfied with ONDCP's
response to my Privacy Act request?: This section describes when and
how an individual may appeal a determination on a Privacy Act request
and how and within time period ONDCP will make a determination on an
appeal.
Section 1401.27--What does it cost to get records under the Privacy
Act?: This section explains that requesters are required to pay fees
for the duplication of requested records.
III. Regulatory Flexibility Act
ONDCP has considered the impact of the proposed rule and determined
that if adopted as a final rule it is not likely to have a significant
economic impact on a substantial number of small business entities
because it only applies to ONDCP's internal operations and legal
obligations. See 5 U.S.C. 601 et seq.
IV. Paperwork Reduction Act
The proposed rule does not contain any information collection
requirement that requires approval from the Office of Management and
Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects in CFR 21 Part 1401
Freedom of information, Privacy.
0
For the reasons stated in the preamble, the Office of National Drug
Control Policy is proposing to revise part 1401 of title 21 of the Code
of Federal Regulations to read as follows:
PART 1401--PUBLIC AVAILABILITY OF INFORMATION
Subpart A--Freedom of Information Act Policies and Procedures
Sec.
1401.1 Purpose.
1401.2 The Office of National Drug Control Policy--organization and
functions.
1401.3 Definitions.
1401.4 Access to information.
1401.5 Proactive disclosures.
1401.6 Records requiring consultation.
1401.7 How to request records--form and content.
1401.8 Initial determination.
1401.9 Responses-form and content.
1401.10 Expedited process.
1401.11 Prompt response.
1401.12 Extension of time.
1401.13 Appeal procedures.
1401.14 Fees to be charged--general.
1401.15 Fees to be charged--miscellaneous provisions.
1401.16 Fees to be charged--categories of requesters.
1401.17 Restrictions on charging fees.
1401.18 Waiver or reduction of fees
1401.19 Aggregation of requests.
1401.20 Deletion of exempted information.
1401.21 Confidential commercial information.
Subpart B--Privacy Act Policies and Procedures
1401.22 Definitions.
1401.23 Purpose and scope.
1401.24 How do I make a Privacy Act request?
1401.25 How will ONDCP respond to my Privacy Act request?
1401.26 What can I do if I am dissatisfied with ONDCP's response to
my Privacy Act request?
1401.27 What does it cost to get records under the Privacy Act?
Authority: 5 U.S.C. 552.
Subpart A--Freedom of Information Act Policies and Procedures
Sec. 1401.1 Purpose.
The purpose of this part is to prescribe rules, guidelines and
procedures to implement the Freedom of Information Act (FOIA), as
amended, 5 U.S.C. 552.
Sec. 1401.2 The Office of National Drug Control Policy--organization
and functions.
(a) The Office of National Drug Control Policy (ONDCP) was created
by the Anti-Drug Abuse Act of 1988, 21 U.S.C. 1501 et seq., and
reauthorized under 21 U.S.C. 1701 et seq. and several appropriations
acts. The mission of ONDCP is to coordinate the anti-drug efforts of
the various agencies and departments of the Federal Government, to
consult with States and localities and assist their anti-drug efforts,
and to annually promulgate the National Drug Control Strategy. ONDCP is
headed by the Director of National Drug Control Policy.
(b) ONDCP's Office of External and Legislative Affairs is
responsible for providing information to the press and to the general
public. If members of the public have general questions about ONDCP,
they may email the Office of External and Legislative Affairs at
[email protected]. This email address should not be used to
make FOIA requests. All oral requests for information under FOIA will
be rejected.
Sec. 1401.3 Definitions.
For the purpose of this part, all the terms defined in the Freedom
of Information Act apply.
Commercial-use request means a request from or on behalf of one who
seeks information for a cause or purpose that furthers the commercial,
trade or profit interests of the requester or the person or institution
on whose behalf the request is made. In determining whether a requester
properly belongs in this category, ONDCP will consider the intended use
of the information.
Direct costs means the expense actually expended to search, review,
or duplicate in response to a FOIA request. For example, direct costs
include 116% of the salary of the employee performing work (i.e., the
basic rate of pay for the employee plus 16 percent of that rate to
cover benefits) and the actual costs incurred while operating
equipment.
Duplicate means the process of making a copy of a document. Such
copies may take the form of paper, microform, audio-visual materials,
or machine-readable documentation. Requesters may specify the preferred
form or format (including electronic formats) for the records they
seek. ONDCP will try to accommodate formatting requests if the record
is readily reproducible in that form or format.
Educational institution means preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education
that operates a program or programs of scholarly research.
Noncommercial scientific institution means an institution that is
not operated on a commercial basis as that term is defined in 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.
OGIS means the Office of Government Information Services of the
National Archives and Records Administration. OGIS offers FOIA dispute
resolution services, which is a voluntary process. If ONDCP agrees to
participate in the
[[Page 31090]]
dispute resolution services provided by OGIS, ONDCP will actively
engage as a partner to the process in an attempt to resolve the
dispute.
Records and any other terms used in this part in reference to
information includes any information that would be an agency record
subject to the requirements of this part when maintained in any format,
including electronic format.
Representative of the news media is any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw materials into distinct work,
and distributes that work to an audience. The term ``news'' means
information that is about current events or information that would be
of interest to the public. Examples of the news media include
television or radio stations that broadcast to the public at large and
publishers of news periodicals that make their products available to
the general public for purchase or subscription. Freelance journalists
may be regarded as working for the news media where they demonstrate a
reasonable basis for expecting publication through that organization,
even though not actually employed by it.
Request means a letter or other written communication seeking
records or information under FOIA.
Review means the process of examining documents that are located
during a search to determine if any portion should lawfully be
withheld. It is the processing of determining disclosability.
Search means to review, manually or by automated means, agency
records for the purpose of locating those records responsive to a
request.
Sec. 1401.4 Access to information.
The Office of National Drug Control Policy makes available
information pertaining to matters issued, adopted, or promulgated by
ONDCP, that are within the scope of 5 U.S.C. 552(a)(2). Such
information is located at https://www.whitehouse.gov/ondcp.
Sec. 1401.5 Proactive disclosures.
ONDCP will make records that the FOIA requires us to make available
for public inspection and copying in an electronic format (with
appropriate exemptions applied), through our website: http://www.whitehouse.gov/ondcp. These records consist of information that has
been requested three or more times or that has been released to a
requester and that ONDCP determines has become, or are likely to
become, the subject of subsequent requests for substantially the same
records.
Sec. 1401.6 Records requiring consultation.
Requests for records that are in ONDCP's custody but in which other
agencies have equities shall be reviewed by ONDCP and then ONDCP will
either consult with or refer the records to the other agency or
agencies for further processing.
Sec. 1401.7 How to request records--form and content.
(a) You must describe the records you seek in sufficient detail and
in writing to enable ONDCP personnel to locate them with a reasonable
amount of effort. To satisfy this requirement, you should be as
detailed as possible when describing the records you seek. To the
extent possible, each request must reasonably describe the record(s)
sought including the type of document, specific event or action, title
or name, author, recipient, subject matter of the record, date or time
period, location, and all other pertinent data. Before or after
submitting their requests, requesters may contact ONDCP's FOIA Public
Liaison to discuss the records they seek and for assistance in
describing the records. A list of Agency FOIA Public Liaisons is
available at https://www.foia.gov/#agency-search (b)(1) If you are
making a request for records about yourself, you must comply with the
verification of identity provision set forth in Sec. 1401.24(f) of
this part.
(2) If a request for records pertains to a third party, you may
receive greater access by submitting either a notarized authorization
signed by that individual or an unsworn declaration under 26 U.S.C.
1746 by that individual authorizing disclosure of the records to you.
If the other individual is deceased, you should submit proof of death
such as a copy of the death certificate or an obituary. As an exercise
of administrative discretion, ONDCP may require you to provide
additional information if necessary in order to verify that a
particular individual has consented to disclosure.
(c) Whenever it is appropriate to do so, ONDCP automatically
processes a Privacy Act request for access to records under both the
Privacy Act and the FOIA, following the rules contained in this part.
ONDCP processes a request under both the FOIA and Privacy Act so you
will receive the maximum amount of information available to you by law.
(d) Requests must be received by ONDCP through methods specified on
the FOIA page of ONDCP's website: https://www.whitehouse.gov/ondcp/about/foia-and-legal/. Requests may be emailed to [email protected].
(e) The words ``FOIA REQUEST'' or ``REQUEST FOR RECORDS'' must be
clearly marked on all FOIA request communications. The time limitations
imposed by Sec. 1401.10 will not begin until the Office of General
Counsel identifies a communication as a FOIA request.
(f) You must provide contact information, such as your phone
number, email address and mailing address, so we will be able to
communicate with you about your request and provide released records.
If we cannot contact you, or you do not respond within twenty calendar
days to our request for clarification, we will close your request.
(g) To protect our computer systems, we will not open attachments
to emailed requests--you must include your request within the body of
the email. We will not process email attachments.
Sec. 1401.8 Initial determination.
The General Counsel or his or her designee shall have the authority
to approve or deny requests received pursuant to these regulations.
Sec. 1401.9 Responses-form and content.
(a) When a requested record has been identified and is available,
the General Counsel or his or her designee shall send the record to the
person making the request or notify the person making the request as to
where and when the record will be available. The notification shall
also advise the person making the request of any fees assessed under
Sec. 1401.10 of this part. ONDCP will inform the requester of the
availability of its FOIA Public Liaison.
(b) A denial or partial denial of a request for a record shall be
in writing signed by the General Counsel or his or her designee and
shall include:
(1) The name and title of the person making the determination;
(2) Either a reference to the specific exemption under FOIA
authorizing the withholding of the record or a statement that, after
diligent effort, the requested records have not been found.
(3) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the volume is
otherwise indicated by deletions marked on records that are disclosed
in part or if providing an estimate would harm an interest protected by
an applicable exemption. See 5 U.S.C. 552(a)(6)(F).
[[Page 31091]]
(4) A statement that the denial may be appealed to the Director or
his/her designee within 90 days of the date of the response. The
requirements for making an appeal are specified in Sec. 1401.13.
(5) A statement notifying the requester of the assistance available
from the ONDCP's FOIA Public Liaison and the dispute resolution
services offered by OGIS.
Sec. 1401.10 Expedited process.
(a) A request for expedited processing may be made at any time.
ONDCP must process requests and appeals on an expedited basis whenever
it is determined that they involve:
(1) The lack of expedited treatment could reasonably be expected to
pose an imminent threat to the life or physical safety of an
individual; or
(2) An urgency to inform the public about an actual or alleged
Federal Government activity, beyond the public's right to know about
government activity generally, and the request is made by a person
primarily engaged in disseminating information.
(b) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for requesting expedited processing. For example, under paragraph
(a)(2) of this section, a requester who is not a full-time member of
the news media must establish that the requester is a person whose
primary professional activity or occupation is information
dissemination, though it need not be the requester's sole occupation.
Such a requester also must establish a particular urgency to inform the
public about the government activity involved in the request, beyond
the public's right to know about government activity generally. The
existence of numerous articles published on a given subject can be
helpful in establishing the requirement that there be an ``urgency to
inform'' the public on the topic. The formality of certification may be
waived as a matter of administrative discretion.
(c) Within ten days of receipt of a request for expedited
processing, ONDCP will decide whether to grant it and will notify the
requester of the decision. If a request for expedited treatment is
granted, the request will be given priority and will be processed as
soon as practicable. If a request for expedited processing is denied,
any appeal of that decision will be acted on expeditiously.
Sec. 1401.11 Prompt response.
(a) The General Counsel, or designee, will determine within 20 days
(excepting Saturdays, Sundays, and legal public holidays) after the
receipt of a FOIA request whether it is appropriate to grant the
request and will provide written notification to the person making the
request. If the request is denied, the written notification will
include the names of the individuals who participated in the
determination, the reasons for the denial, and that an appeal may be
filed with the Office of National Drug Control Policy under Sec.
1401.13.
(b) When additional time is required, the General Counsel or his or
her designee shall acknowledge receipt of the request within the 20
working day period and shall assign the request an individualized
tracking number. The acknowledgment will include the tracking number
and a brief explanation of the reason(s) for delay. Where the extension
exceeds 10 working days, ONDCP must provide the requester with an
opportunity to modify the request or arrange an alternative time period
for processing the original or modified request. ONDCP will make
available its designated FOIA contact or its FOIA Public Liaison for
this purpose, and will alert requesters to the availability of the OGIS
to provide dispute resolution services.
Sec. 1401.12 Extension of time.
(a) In unusual circumstances, the Office of General Counsel may
extend the time limit prescribed in Sec. 1401.7 or Sec. 1401.9 by
written notice to the FOIA requester. The notice will state the reasons
for the extension.
(b) The phrase ``unusual circumstances'' means:
(1) The requested records are located in establishments that are
separated from the office processing the request;
(2) A voluminous amount of separate and distinct records are
demanded in a single request; or
(3) Another agency or two or more components in the same agency
have substantial interest in the determination of the request.
(c) Whenever ONDCP cannot meet the statutory time limit for
processing a request because of ``unusual circumstances,'' as defined
by 5 U.S.C. 552(a)(b)(B), and ONDCP extends the time limit on that
basis, the agency must, before expiration of the 20-day period to
respond, notify the requester in writing of the unusual circumstances
involved and of the date by which ONDCP estimates processing of the
request will be completed. Where the extension exceeds 10 working days,
ONDCP must, as described by the FOIA, provide the requester with an
opportunity to modify the request or arrange an alternative time period
for processing the original or modified request. The agency must make
available its designated FOIA contact or its FOIA Public Liaison for
this purpose. The agency must also alert requesters to the availability
of the Office of Government Information Services (OGIS) to provide
dispute resolution services.
(d) To satisfy unusual circumstances under the FOIA, ONDCP may
aggregate requests in cases where it reasonably appears that multiple
requests, submitted either by a requester or by a group of requesters
acting in concert, constitute a single request that would otherwise
involve unusual circumstances. ONDCP cannot aggregate multiple requests
that involve unrelated matters.
Sec. 1401.13 Appeal procedures.
(a) An appeal to the ONDCP must explain in writing the legal and
factual basis for the appeal. It must be received by email at
[email protected] or another method specified on the FOIA page of
ONDCP's website within 90 days of the date of the response. The appeal
must be in writing, addressed to the Director, Executive Office of the
President, Office of National Drug Control Policy, 1800 G Street NW,
9th Floor, Washington, DC 20006, ATTN: Office of General Counsel. The
communication should clearly be labeled as a ``Freedom of Information
Act Appeal.''
(b) The Director or designee will decide the appeal within 20 days
(excepting Saturdays, Sundays, and legal public holidays). If the
Director or designee deny an appeal in whole or in part, the written
determination will contain the reason for the denial, the names of the
individuals who participated in the determination, and the provisions
for judicial review of the denial and ruling on appeal provided in 5
U.S.C. 552(a)(4). The denial will also inform the requestor of the
dispute resolution services offered by OGIS as a non-exclusive
alternate to litigation. If ONDCP agrees to participate in voluntary
dispute resolution services provided by OGIS, it will actively engage
in an attempt to resolve the dispute.
Sec. 1401.14 Fees to be charged--general.
ONDCP will assess a fee to process FOIA requests in accordance with
the provisions of this section and OMB Guidelines. We shall ensure that
searches, review and duplication are conducted in the most efficient
and the least expensive manner. ONDCP will ordinarily collect all
applicable fees
[[Page 31092]]
before sending copies of records to a requester. ONDCP will charge the
following fees unless a waiver or reduction of fees is granted under
Sec. 1401.18, or the total fee to be charged is less than $25.00. We
will notify you if we estimate that charges will exceed $25 including a
breakdown of the fees for search, review or duplication and whether
applicable entitlements to duplication and search at no charge have
been provided. We will not process your request until you either commit
in writing to pay the actual or estimated total fee, or designate some
amount of fees you are willing to pay.
(a) Manual search for records. ONDCP will charge $77.00 per hour,
which is a blended hourly rate for all personnel that respond to FOIA
requests, plus 16 percent of that rate to cover benefits.
(b) Computerized search for records. ONDCP will charge $77.00 per
hour, which is a blended hourly rate for all personnel that respond to
FOIA requests, plus 16 percent of that rate to cover benefits.
(c) Review of records. ONDCP will charge $77.00 per hour, which is
a blended hourly rate for all personnel that responded to FOIA
requests, plus 16 percent of that rate to cover benefits. Records or
portions of records withheld under an exemption subsequently determined
not to apply may be reviewed to determine the applicability of
exemptions not considered. The cost for a subsequent review is
assessable.
(d) Duplication of records. We will charge duplication fees to all
requesters. We will honor your preference for receiving a record in a
particular format if we can readily reproduce it in the form or format
requested. If we provide photocopies, we will make one copy per request
at the cost of $.10 per page. For copies of records produced on tapes,
disks or other media, we will charge the direct costs of producing the
copy, including operator time. Where we must scan paper documents in
order to comply with your preference to receive the records in an
electronic format, we will charge you the direct costs associated with
scanning those materials. For other forms of duplication, we will
charge the direct costs. We will provide the first 100 pages of
duplication (or the cost equivalent for other media) without charge
except for requesters seeking records for a commercial use.
(e) Other charges. ONDCP will recover the costs of providing other
services such as certifying records or sending records by special
methods.
Sec. 1401.15 Fees to be charged--miscellaneous provisions.
(a) Payment for FOIA services may be made through the methods
specified on the FOIA page of ONDCP's website.
(b) ONDCP may require advance payment where the estimated fee
exceeds $250, or a requester previously failed to pay within 30 days of
the billing date.
(c) ONDCP may assess interest charges beginning the 31st day of
billing. Interest will be at the rate prescribed in section 3717 of
title 31 of the United States Code and will accrue from the date of the
billing.
(d) ONDCP may assess search charges where records are not located
or where records are exempt from disclosure.
(e) ONDCP may aggregate individual requests and charge accordingly
for requests seeking portions of a document or documents.
Sec. 1401.16 Fees to be charged--categories of requesters.
(a) There are four categories of FOIA requesters: Commercial use
requesters; educational and non-commercial scientific institutions;
representatives of the news media; and all other requesters.
(b) The specific levels of fees for each of these categories are:
(1) Commercial use requesters. ONDCP will recover the full direct
cost of providing search, review and duplication services. Commercial
use requesters will not receive free search-time or free reproduction
of documents.
(2) Educational and non-commercial scientific institution
requesters. ONDCP will charge the cost of reproduction, excluding
charges for the first 100 pages. Requesters must demonstrate the
request is authorized by and under the auspices of a qualifying
institution and that the records are sought for scholarly or scientific
research not a commercial use.
(3) Requesters who are representatives of the news media. ONDCP
will charge the cost of reproduction, excluding charges for the first
100 pages. Requesters must meet the criteria in Sec. 1401.3(h), and
the request must not be made for a commercial use. A request that
supports the news dissemination function of the requester shall not be
considered a commercial use.
(4) All other requesters. ONDCP will recover the full direct cost
of the search and the reproduction of records, excluding the first 100
pages of reproduction and the first two hours of search time.
Sec. 1401.17 Restrictions on charging fees.
(a) No search fees will be charged for requests by educational
institutions (unless the records are sought for a commercial use),
noncommercial scientific institutions, or representatives of the news
media.
(b) If ONDCP fails to comply with the FOIA's time limits in which
to respond to a request, it may not charge search fees, or, in the
instances of requests from requesters described in Sec. 1401.16(b)(2),
may not charge duplication fees, except as described in paragraphs (c),
(d), and (e) of this section.
(c) If ONDCP determines that unusual circumstances as defined by
the FOIA apply and the agency provided timely written notice to the
requester in accordance with the FOIA, a failure to comply with the
time limit shall be excused for an additional 10 days.
(d) If ONDCP determines that unusual circumstances as defined by
the FOIA apply, and more than 5,000 pages are necessary to respond to
the request, the agency may charge search fees, or, in the case of
requesters described in Sec. 1401.16(b)(2) of this section, may charge
duplication fees if the following steps are taken. ONDCP must have
provided timely written notice of unusual circumstances to the
requester in accordance with the FOIA and the agency must have
discussed with the requester via written mail, email, or telephone (or
made not less than three good-faith attempts to do so) how the
requester could effectively limit the scope of the request in
accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is
satisfied, ONDCP may charge all applicable fees incurred in the
processing of the request.
(e) If a court has determined that exceptional circumstances exist
as defined by the FOIA, a failure to comply with the time limits shall
be excused for the length of time provided by the court order.
(f) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(g) When, after first deducting the 100 free pages (or its cost
equivalent) and the first two hours of search, a total fee calculated
under paragraph (c) of this section is $25.00 or less for any request,
no fee will be charged.
Sec. 1401.18 Waiver or reduction of fees.
Requirements for waiver or reduction of fees:
(a) Requesters may seek a waiver of fees by submitting a written
application demonstrating how disclosure of the requested information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities
of the
[[Page 31093]]
government and is not primarily in the commercial interest of the
requester.
(b) ONDCP must furnish records responsive to a request without
charge or at a reduced rate when it determines, based on all available
information, that disclosure of the requested information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester. In
deciding whether this standard is satisfied the agency must consider
the factors described in paragraphs (b)(1) through (3) of this section:
(1) Disclosure of the requested information would shed light on the
operations or activities of the government. The subject of the request
must concern identifiable operations or activities of the Federal
Government with a connection that is direct and clear, not remote or
attenuated.
(2) Disclosure of the requested information would be likely to
contribute significantly to public understanding of those operations or
activities. This factor is satisfied when the following criteria are
met:
(i) Disclosure of the requested records must be meaningfully
informative about government operations or activities. The disclosure
of information that already is in the public domain, in either the same
or a substantially identical form, would not be meaningfully
informative if nothing new would be added to the public's
understanding.
(ii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public must be
considered. Components will presume that a representative of the news
media will satisfy this consideration.
(3) The disclosure must not be primarily in the commercial interest
of the requester. To determine whether disclosure of the requested
information is primarily in the commercial interest of the requester,
components will consider the following criteria:
(i) Components must identify whether the requester has any
commercial interest that would be furthered by the requested
disclosure. A commercial interest includes any commercial, trade, or
profit interest. Requesters must be given an opportunity to provide
explanatory information regarding this consideration.
(ii) If there is an identified commercial interest, the component
must determine whether that is the primary interest furthered by the
request. A waiver or reduction of fees is justified when the
requirements of Sec. 1401.17(b)(1) and (2) are satisfied and any
commercial interest is not the primary interest furthered by the
request. Components ordinarily will presume that when a news media
requester has satisfied the requirements of Sec. 1401.17(b)(1) and
(2), the request is not primarily in the commercial interest of the
requester. Disclosure to data brokers or others who merely compile and
market government information for direct economic return will not be
presumed to primarily serve the public interest.
(c) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(d) Requests for a waiver or reduction of fees should be made when
the request is first submitted to ONDCP and should address the criteria
referenced above. A requester may submit a fee waiver request at a
later time so long as the underlying record request is pending or on
administrative appeal. When a requester who has committed to pay fees
subsequently asks for a waiver of those fees and that waiver is denied,
the requester shall be required to pay any costs incurred up to the
date the fee waiver request was received.
Sec. 1401.19 Aggregation of requests.
When an agency reasonably believes that a requester or a group of
requesters acting in concert is attempting to divide a single request
into a series of requests for the purpose of avoiding fees, the agency
may aggregate those requests and charge accordingly. Agencies may
presume that multiple requests of this type made within a 30-day period
have been made in order to avoid fees. For requests separated by a
longer period, agencies will aggregate them only where there is a
reasonable basis for determining that aggregation is warranted in view
of all the circumstances involved. Multiple requests involving
unrelated matters cannot be aggregated.
Sec. 1401.20 Deletion of exempted information.
When requested records contain matters that are exempted under 5
U.S.C. 552(b), but such exempted matters can be reasonably segregated
from the remainder of the records, the records shall be disclosed by
ONDCP with the necessary redactions. If records are disclosed in part,
ONDCP will mark them to show the amount and location of information
redacted and the exemption(s) under which the redactions were made
unless doing so would harm an interest protected by an applicable
exemption.
Sec. 1401.21 Confidential commercial information.
(a) Definitions--
Confidential commercial information means commercial or financial
information obtained by ONDCP from a submitter that may be protected
from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides confidential commercial information,
either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, at the time of submission, any
portion of its submission that it considers to be protected from
disclosure under Exemption 4. These designations expire 10 years after
the date of the submission unless the submitter requests and provides
justification for a longer designation period.
(c) When notice to submitters is required. (1) ONDCP must promptly
provide written notice to the submitter of confidential commercial
information whenever records containing such information are requested
under the FOIA if ONDCP determines that it may be required to disclose
the records, provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) ONDCP has a reason to believe that the requested information
may be protected from disclosure under Exemption 4, but has not yet
determined whether the information is protected from disclosure.
(2) The notice must either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information. In cases involving a voluminous
number of submitters, ONDCP may post or publish a notice in a place or
manner reasonably likely to inform the submitters of the proposed
disclosure, instead of sending individual notifications.
[[Page 31094]]
(d) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) ONDCP determines that the information is exempt under the FOIA,
and therefore will not be disclosed;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous. In such case, ONDCP must give
the submitter written notice of any final decision to disclose the
information within a reasonable number of days prior to a specified
disclosure date.
(e) Opportunity to object to disclosure. (1) ONDCP must specify a
reasonable time period within which the submitter must respond to the
notice referenced above.
(2) If a submitter has any objections to disclosure, it should
provide ONDCP a detailed written statement that specifies all grounds
for withholding the particular information under any exemption of the
FOIA. In order to rely on Exemption 4 as the basis for nondisclosure,
the submitter must explain why the information constitutes a trade
secret or commercial or financial information that is confidential.
(3) A submitter who fails to respond within the time period
specified in the notice will be considered to have no objection to
disclosure of the information. ONDCP is not required to consider any
information received after the date of any disclosure decision. Any
information provided by a submitter under this subpart may itself be
subject to disclosure under the FOIA.
(f) Analysis of objections. ONDCP must consider a submitter's
objections and specific grounds for nondisclosure in deciding whether
to disclose the requested information.
(g) Notice of intent to disclose. Whenever ONDCP decides to
disclose information over the objection of a submitter, ONDCP must
provide the submitter written notice, which must include:
(1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of
the records as ONDCP intends to release them; and
(3) A specified disclosure date, which must be a reasonable time
after the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, ONDCP must promptly notify the submitter.
(i) Requester notification. ONDCP must notify the requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
(j) No right or benefit. The requirements of this section such as
notification do not create any right or benefit, substantive or
procedural, enforceable at law or in equity by a party against the
United States, its agencies, its officers, or any person.
Subpart B--Privacy Act Policies and Procedures
Sec. 1401.22 Definitions.
For purposes of this subpart:
Access means making a record available to a subject individual.
Amendment means any correction, addition to or deletion of
information in a record.
Individual means a natural person who either is a citizen of the
United States or an alien lawfully admitted to the United States for
permanent residence.
Maintain includes the term ``maintain'', collect, use, or
disseminate.
Privacy Act Office means the ONDCP officials who are authorized to
respond to requests and to process requests for amendment of records
ONDCP maintains under the Privacy Act.
Record means any item, collection or grouping of information about
an individual that ONDCP maintains within a system of records and
contains the individual's name or the identifying number, symbol or
other identifying particular assigned to the individual, such as a
finger or voice print or photograph.
System of records means a group of records ONDCP maintains or
controls from which information is retrieved by the name of an
individual or by some identifying number, symbol or other identifying
particular assigned to the individual.
Sec. 1401.23 Purpose and scope.
This subpart implements the Privacy Act, 5 U.S.C. 552a, a Federal
law that requires Federal agencies to protect private information about
individuals that the agencies collect or maintain. It establishes
ONDCP's rules for access to records in systems of records we maintain
that are retrieved by an individual's name or another personal
identifier. It describes the procedures by which individuals may
request access to records, request amendment or correction of those
records, and request an accounting of disclosures of those records by
ONDCP. Whenever it is appropriate to do so, ONDCP automatically
processes a Privacy Act request for access to records under both the
Privacy Act and the FOIA, following the rules contained in this part.
ONDCP processes a request under both the Privacy Act and the FOIA so
you will receive the maximum amount of information available to you by
law.
Sec. 1401.24 How do I make a Privacy Act request?
(a) In general. You can make a Privacy Act request for records
about yourself. You also can make a request on behalf of another
individual as the parent or legal guardian of a minor, or as the legal
guardian of someone determined by a court to be incompetent.
(b) How do I make a request?--(1) Where do I send my written
request? To make a request for access to a record, you should write
directly to our Office of General Counsel. Heightened security delays
mail delivery. To avoid mail delivery delays, we strongly suggest that
you email your request to [email protected] Our mailing address is:
Executive Office of the President, Office of National Drug Control
Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006, Attn: Office
of General Counsel. To make sure that the Office of General Counsel
receives your request without delay, you should include the notation
``Privacy Act Request'' in the subject line of your email or on the
front of your envelope and also at the beginning of your request.
(2) Security concerns. To protect our computer systems, we will not
open attachments to emailed requests--you must include your request
within the body of the email. We will not process email attachments.
(c) What should my request include? You must describe the record
that you seek in enough detail to enable the Office of General Counsel
to locate the system of records containing the record with a reasonable
amount of effort. Include specific information about each record
sought, such as the time period in which you believe it was compiled,
the name or identifying number of each system of records in which you
believe it is kept, and the date, title or name, author, recipient, or
subject matter of the record. As a general rule, the more specific you
are about the record that you seek, the more likely we will be
[[Page 31095]]
able to locate it in response to your request.
(d) How do I request amendment of a record? If you are requesting
an amendment of an ONDCP record, you must identify each particular
record in question and the system of records in which the record is
located, describe the amendment that you seek, and state why you
believe that the record is not accurate, relevant, timely or complete.
You may submit any documentation that you think would be helpful,
including an annotated copy of the record.
(e) How do I request an accounting of record disclosures? If you
are requesting an accounting of disclosures made by ONDCP to another
person, organization or Federal agency, you must identify each system
of records in question. An accounting generally includes the date,
nature and purpose of each disclosure, as well as the name and address
of the person, organization, or Federal agency to which the disclosure
was made.
(f) Verification of identity. When making a Privacy Act request,
you must verify your identity in accordance with these procedures to
protect your privacy or the privacy of the individual on whose behalf
you are acting. If you make a Privacy Act request and you do not follow
these identity verification procedures, ONDCP cannot process your
request.
(1) How do I verify my own identity? You must include in your
request your full name, citizenship status, current address, and date
and place of birth. We may request additional information to verify
your identity. To verify your own identity, you must provide an unsworn
declaration under 28 U.S.C. 1746, a law that permits statements to be
made under penalty of perjury. To fulfill this requirement, you must
include the following statement just before the signature on your
request:
I declare under penalty of perjury that the foregoing is true and
correct. Executed on [date].
(2) How do I verify parentage or guardianship? If you make a
request as the parent or legal guardian of a minor, or as the legal
guardian of someone determined by a court to be incompetent, for access
to records or information about that individual, you must establish:
(i) The identity of the individual who is the subject of the
record, by stating the individual's name, citizenship status, current
address, and date and place of birth;
(ii) Your own identity, as required in paragraph (f)(1) of this
section;
(iii) That you are the parent or legal guardian of the individual,
which you may prove by providing a copy of the individual's birth
certificate showing your parentage or a court order establishing your
guardianship; and
(iv) That you are acting on behalf of the individual in making the
request.
Sec. 1401.25 How will ONDCP respond to my Privacy Act request?
(a) When will we respond to your request? We will search to
determine if the requested records exist in a system of records ONDCP
owns or controls. The Office of General Counsel will respond to you in
writing within twenty days after we receive your request and/or within
ten working days after we receive your request for an amendment, if it
meets the requirements of this subpart. We may extend the response time
in unusual circumstances, such as the need to consult with another
agency about a record or to retrieve a record that is in storage.
(b) What will our response include? (1) Our written response will
include our determination whether to grant or deny your request in
whole or in part, a brief explanation of the reasons for the
determination, and the amount of the fee charged, if any, under Sec.
1401.27. If you requested access to records, we will make the records,
if any, available to you. If you requested amendment of a record, the
response will describe any amendments made and advise you of your right
to obtain a copy of the amended record.
(2) We will also notify the individual who is subject to the record
in writing, if, based on your request, any system of records contains a
record pertaining to him or her.
(3) If the Office of General Counsel makes an adverse determination
with respect to your request, our written response will identify the
name and address of the person responsible for the adverse
determination, that the adverse determination is not a final agency
action, and describe the procedures by which you may appeal the adverse
determination under Sec. 1401.26.
An adverse determination is a response to a Privacy Act request
that:
(i) Withholds any requested record in whole or in part;
(ii) Denies a request to amend a record in whole or in part;
(iii) Declines to provide an accounting of disclosures;
(iv) Advises that a requested record does not exist or cannot be
located;
(v) Finds that what you requested is not a record subject to the
Privacy Act; or
(vi) Advises on any disputed fee matter.
Sec. 1401.26 What can I do if I am dissatisfied with ONDCP's
response to my Privacy Act request?
(a) What can I appeal? You can appeal any adverse determination in
writing to our Director or designee within ninety calendar days after
the date of our response. We provide a list of adverse determinations
in Sec. 1401.25(b)(3).
(b) How do I make an appeal?--(1) What should I include? You may
appeal by submitting a written statement giving the reasons why you
believe the Director or designee should overturn the adverse
determination. Your written appeal may include as much or as little
related information as you wish to provide, as long as it clearly
identifies the determination (including the request number, if known)
that you are appealing.
(2) Where do I send my appeal? You should mark both your letter and
the envelope, or the subject of your email, ``Privacy Act Appeal.'' To
avoid mail delivery delays caused by heightened security, we strongly
suggest that you email any appeal to [email protected] Our mailing
address is: Executive Office of the President, Office of National Drug
Control Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006,
Attn: Office of General Counsel.
(c) Who will decide your appeal? (1) The Director or designee will
act on all appeals under this section.
(2) We ordinarily will not adjudicate an appeal if the request
becomes a matter of litigation.
(3) On receipt of any appeal involving classified information, the
Director or designee must take appropriate action to ensure compliance
with applicable classification rules.
(d) When will we respond to your appeal? The Director or designee
will notify you of its appeal decision in writing within thirty days
from the date it receives an appeal that meets the requirements of
paragraph (b) of this section. We may extend the response time in
unusual circumstances, such as the need to consult with another agency
about a record or to retrieve a record shipped offsite for storage.
(e) What will our response include? The written response will
include the Director or designee's determination whether to grant or
deny your appeal in whole or in part, a brief explanation of the
reasons for the determination, and information about the Privacy Act
provisions for court review of the determination.
(1) Appeals concerning access to records. If your appeal concerns a
request for access to records and the appeal is granted in whole or in
part, we
[[Page 31096]]
will make the records, if any, available to you.
(2) Appeals concerning amendments. If your appeal concerns
amendment of a record, the response will describe any amendment made
and advise you of your right to obtain a copy of the amended record. We
will notify all persons, organizations or Federal agencies to which we
previously disclosed the record, if an accounting of that disclosure
was made, that the record has been amended. Whenever the record is
subsequently disclosed, the record will be disclosed as amended. If our
response denies your request for an amendment to a record, we will
advise you of your right to file a statement of disagreement under
paragraph (f) of this section.
(f) Statements of disagreement--(1) What is a statement of
disagreement? A statement of disagreement is a concise written
statement in which you clearly identify each part of any record that
you dispute and explain your reason(s) for disagreeing with our denial
in whole or in part of your appeal requesting amendment.
(2) How do I file a statement of disagreement? You should mark both
your letter and the envelope, or the subject of your email, ``Privacy
Act Statement of Disagreement.'' To avoid mail delivery delays caused
by heightened security, we strongly suggest that you email a statement
of disagreement to [email protected] Our mailing address is:
Executive Office of the President, Office of National Drug Control
Policy, 1800 G Street NW, 9th Floor, Washington, DC 20006, Attn: Office
of General Counsel.
(3) What will we do with your statement of disagreement? We shall
clearly note any portion of the record that is disputed and provide
copies of the statement and, if we deem appropriate, copies of our
statement that denied your request for an appeal for amendment, to
persons or other agencies to whom the disputed record has been
disclosed.
(g) When appeal is required. Under this section, you generally
first must submit a timely administrative appeal, before seeking review
of an adverse determination or denial request by a court.
Sec. 1401.27 What does it cost to get records under the Privacy Act?
(a) Agreement to pay fees. Your request is an agreement to pay
fees. We consider your Privacy Act request as your agreement to pay all
applicable fees unless you specify a limit on the amount of fees you
agree to pay. We will not exceed the specified limit without your
written agreement.
(b) How do we calculate fees? We will charge a fee for duplication
of a record under the Privacy Act in the same way we charge for
duplication of records under the FOIA in Sec. 1401.14(d). There are no
fees to search for or review records requested under the Privacy Act.
Michael J. Passante,
Acting General Counsel.
[FR Doc. 2020-09826 Filed 5-20-20; 8:45 am]
BILLING CODE 3280-F5-P
