Freedom of Information Act

Published date16 October 2020
Citation85 FR 65694
Record Number2020-20270
SectionRules and Regulations
CourtNational Drug Control Policy Office
Federal Register, Volume 85 Issue 201 (Friday, October 16, 2020)
[Federal Register Volume 85, Number 201 (Friday, October 16, 2020)]
                [Rules and Regulations]
                [Pages 65694-65704]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-20270]
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                OFFICE OF NATIONAL DRUG CONTROL POLICY
                21 CFR Part 1401
                RIN 3201-AA01
                Freedom of Information Act
                AGENCY: Office of National Drug Control Policy, Executive Office of the
                President.
                ACTION: Final rule.
                -----------------------------------------------------------------------
                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
                final 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 final rule also states ONDCP's Privacy Act Policies and Procedures.
                The final rule describes how individuals can learn if an ONDCP system
                of records contains information about them and, if so, how to access or
                amend a record.
                DATES: The final rule is effective on October 19, 2020.
                FOR FURTHER INFORMATION CONTACT: Questions concerning this notice
                should 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 and Regulatory History
                A. 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
                [[Page 65695]]
                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.
                B. Regulatory History
                 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 proposed updating the
                regulation by issuing a notice of proposed rulemaking (NPRM) on May 22,
                2020. See 85 FR 31087 (May 22, 2020). ONDCP's final 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. The final FOIA and Privacy Act regulation
                also substantially benefitted from public comments we received in
                response to our May 22, 2020 NPRM. The final regulation strives for
                consistency with FOIA and Privacy Act regulations among other agencies,
                particularly within 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: Final 1401.3 defines the key terms
                used in the regulation. It includes revisions and additions to the
                definitions. As suggested by commenters, the definitions of the terms
                duplicate, educational institution, noncommercial scientific
                institution, and representative of the media are revised for clarity.
                Fee waiver, FOIA public liaison, and requester category were added to
                the definitions. With respect to fees ONDCP charges for processing FOIA
                requests, a commenter stated that 116% for direct costs was not the
                correct percentage, but ONDCP does not agree. This percentage is
                accurate because the fee is 100% of the salary plus another 16% of the
                salary for benefits, which equals 116%.
                 Section 1401.4--Access to information: This section describes the
                types of information that ONDCP will make available under FOIA. Section
                1401.4 also describes information about ONDCP that 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 1401.5 (pertaining to Proactive Disclosures) from the NPRM
                is removed from the final regulation because some of its contents are
                duplicative of requirements specified in section 1401.4.
                 Section 1401.5--Records requiring consultation. Final section
                1401.5, which was section 1401.6 in the NPRM, has been revised to
                include the definitions for consultation, referral, and coordination as
                suggested by a commenter. This section describes how ONDCP will process
                records that originated with another agency but are in the custody of
                ONDCP. The standard referral procedure outlined in this subsection may
                not be appropriate for requests that implicate personal privacy or
                national security interests. For example, if a non-law enforcement
                agency responding to a request for records on a living third party
                locates within its files records originating with a law enforcement
                agency, and if the existence of that law enforcement interest in the
                third party was not publicly known, then to disclose that law
                enforcement interest could cause an unwarranted invasion of the
                personal privacy of the third party. Similarly, if ONDCP locates within
                its files material originating with an Intelligence Community agency,
                and the involvement of that agency in the matter is classified and not
                publicly acknowledged, then to disclose or give attribution to the
                involvement of that Intelligence Community agency could cause national
                security harms.
                 Section 1401.6--How to request records--Form and content: Final
                section 1401.6, which was section 1401.7 in the NPRM, is revised to
                include ONDCP's mailing address. The requirement to include ``FOIA
                REQUEST'' or ``REQUEST FOR RECORDS,'' is changed from must to should.
                The reference to section 1401.10 is corrected to reference section
                1401.8. 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 in the NPRM pertaining to initial determination is
                removed because its contents were duplicative of those specified in
                section 1401.11 of the NPRM, which are now sections 1409.8(c) and
                1401.10 in the final rule.
                 Section 1401.7--Response--form and content: Final section 1401.7,
                which was section 1401.9 in the NPRM, is updated to reflect the correct
                reference. Subsection (b)(2) is revised to include the different types
                of denials. One commenter noted that we should include several
                provisions from the DOJ FOIA template. Those provisions that were not
                already in the regulations were added. Section 1401.7 also 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 20
                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. ONDCP
                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 1401.08--Expedited Process: Final section 1401.08, which
                was section 1401.10 in the NPRM, is revised with respect to section
                (a)(1) where we added ``circumstances in which'' to the beginning for
                clearer phrasing. In addition, in subsection 1401.08(a)(2), ``primary
                profession'' in reference to a media requester has been removed. This
                section describes the circumstances under which expedited processing of
                a FOIA request may be granted.
                 Section 1401.11 referencing prompt response from the NPRM has been
                removed as it was duplicative of information contained in sections
                1409.8(c) and 1401.10.
                 Section 1401.09--Extension of Time: Final section 1401.09, which
                was section 1401.12 in the NPRM, describes and defines the ``unusual
                circumstances'' under which ONDCP may extend the time limit for making
                a determination on a FOIA request.
                 Section 1401.10--Appeal procedures: Final section 1401.10, which
                was section 1401.13 in the NPRM, among other more minor changes,
                strikes the word ``legal'' in the requirements for an appeal; strikes
                the term ``writing'' because it is duplicative; and adds FOIA
                [[Page 65696]]
                exemptions to the denial notice to requester. Further, the ``names of
                individuals who participated in the determination'' is changed to ``the
                name and title of the person responsible for the denial.'' 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 1401.11--Fees to be charged--general: Final section1401.11,
                which was section 1401.14 in the NPRM, is revised to consolidate
                subsections (a) and (b) relating to manual and computerized search. One
                commenter suggested that ONDCP restructure the fees section, but ONDCP
                believes that the structure is clear and covers all the information
                required under 5 U.S.C. 522. Using the commenter's suggested template
                would result in duplicative sections. 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 1401.12--Fees to be charged--miscellaneous provisions:
                Final section 1401.12, which was section 1401.15 in the NPRM, is
                revised to include the payment methods a requester can use to submit
                payment for fees. The number of requester types is changed from four to
                three to be consistent with 5 U.S.C. 522. Subsection (e) is updated to
                reference section 1401.16 aggregation of request. 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 1401.13--Fees to be charged--Categories of Requester: Final
                section 1401.13, which was section 1401.16 in the NPRM, changes the
                terminology from ``commercial use requester'' to ``commercial use
                request'' for consistency with applicable law. 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 1401.14--Restrictions on charging fees. Final section
                1401.14, which was section 1401.17 in the NPRM, 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 1401.15--Waiver or Reduction of Fees: Final section
                1401.15, which was section 1401.18 in the NPRM, is updated to reflect
                the correct references to sections 1401.17(1) and (2) to 1401.16(a).
                This section describes the factors that ONDCP may consider when
                deciding whether to waive or reduce the fees associated with processing
                FOIA requests.
                 Section 1401.16--Aggregation of requests: Final section 1401.16,
                which was section 1401.19 in the NPRM, describes the circumstances
                under which ONDCP may aggregate a series or group of requests for
                purposes of fee assessment.
                 Section 1401.17--Markings on released documents: Final section
                1401.17, which was section 1401.20 in the NPRM, changes the heading
                from ``Deletion of exempted information'' to ``Markings on released
                documents.'' 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 1401.18--Confidential commercial information: Final section
                1401.18, which was section 1401.21 in the NPRM, 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 1401.19--Definitions: Final section 1401.19, which was
                section 1401.22 in the NPRM, defines the key terms used in this
                Subpart.
                 Section 1401.20--Purpose and scope: Final section 1401.20, which
                was section 1401.23 in the NPRM, 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, and requesting an
                accounting of disclosures of records.
                 Section 1401.21--How do I make a Privacy Act request?: Final
                section 1401.21, which was section 1401.24 in the NPRM, 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 1401.22--How will ONDCP respond to a Privacy Act request?:
                Final section 1401.22, which was section 1401.25 in the NPRM, 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 1401.23-- What can I do if I am dissatisfied with ONDCP's
                response to my Privacy Act request?: Final section 1401.23, which was
                section 1401.26 in the NPRM, describes when and how an individual may
                appeal a determination on a Privacy Act request and how and within what
                time period ONDCP will make a determination on an appeal.
                 Section 1401.24-- What does it cost to get records under the
                Privacy Act?: Final section 1401.24, which was section 1401.27 in the
                NPRM, explains the fees that requesters are required to pay for the
                duplication of requested records.
                III. Regulatory Flexibility Act
                 ONDCP has considered the impact of the rule and determined that the
                final rule 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 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 revises 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 Records requiring consultation.
                1401.6 How to request records--form and content.
                1401.7 Responses-form and content.
                1401.8 Expedited process.
                1401.9 Extension of time.
                1401.10 Appeal procedures.
                1401.11 Fees to be charged--general.
                1401.12 Fees to be charged--miscellaneous provisions.
                [[Page 65697]]
                1401.13 Fees to be charged--categories of requesters.
                1401.14 Restrictions on charging fees.
                1401.15 Waiver or reduction of fees.
                1401.16 Aggregation of requests.
                1401.17 Markings on released documents.
                1401.18 Confidential commercial information.
                Subpart B--Privacy Act Policies and Procedures
                1401.19 Definitions.
                1401.20 Purpose and scope.
                1401.21 How do I make a Privacy Act request?
                1401.22 How will ONDCP respond to my Privacy Act request?
                1401.23 What can I do if I am dissatisfied with ONDCP's response to
                my Privacy Act request?
                1401.24 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 or Agency)
                was created by the Anti-Drug Abuse Act of 1988, 21 U.S.C. 1501 et seq.,
                and reauthorized under the SUPPORT for Patients and Communities Act, 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 is a request that asks for information for a
                use or a purpose that furthers a commercial, trade, or profit interest,
                which can include furthering those interests through litigation. An
                agency's decision to place a requester in the commercial use category
                will be made on a case-by-case basis based on the requester's intended
                use of the information. Agencies will notify requesters of their
                placement in this category.
                 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.
                 Educational institution is any school that operates a program of
                scholarly research. A requester in this fee category must show that the
                request is made in connection with his or her role at the educational
                institution. Agency may seek verification from the requester that the
                request furthers scholarly research, and agency will advise requesters
                of their placement in this category.
                 Fee waiver means the waiver or reduction of processing fees if a
                requester can demonstrate that certain statutory standards are
                satisfied, including that the information is in the public interest and
                is not requested for a commercial interest.
                 FOIA public liaison means a supervisory agency FOIA official who
                assists in reducing delays, increasing transparency and understanding
                of the status of requests, and resolving disputes between the requester
                and ONDCP.
                 Noncommercial scientific institution is an institution that is not
                operated on a ``commercial'' basis and that is operated solely for the
                purpose of conducting scientific research the results of which are not
                intended to promote any particular product or industry. A requester in
                this category must show that the request is authorized by and is made
                under the auspices of a qualifying institution and that the records are
                sought to further scientific research and are not for a commercial use.
                Agency will advise requesters of their placement in this category.
                 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 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 news media entities include
                television or radio stations that broadcast ``news'' to the public at
                large and publishers of periodicals that disseminate ``news'' and make
                their products available through a variety of means to the general
                public, including news organizations that disseminate solely on the
                internet. A request for records supporting the news-dissemination
                function of the requester will not be considered to be for a commercial
                use. ``Freelance'' journalists who demonstrate a solid basis for
                expecting publication through a news media entity will be considered as
                a representative of the news media. A publishing contract would provide
                the clearest evidence that publication is expected; however, the Agency
                can also consider a requester's past publication record in making this
                determination. The Agency will advise requesters of their placement in
                this category.
                 Request means a letter or other written communication seeking
                records or information under FOIA.
                 Requester category means one of the three categories that ONDCP
                will place requesters in for the purpose of determining whether a
                requester will be charged fees for search, review, and duplication. The
                categories are: commercial use requests; non-commercial scientific or
                educational institutions or news media requesters; and all other
                requesters.
                 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. Review
                time includes processing any record for disclosure, such as doing all
                that is necessary to prepare the record for disclosure, including the
                process of redacting the record and marking the appropriate
                [[Page 65698]]
                exemptions. Review costs are properly charged even if a record
                ultimately is not disclosed. Review time also includes time spent both
                obtaining and considering any formal objection to disclosure made by a
                confidential commercial information submitter under Sec. 1401.18, but
                it does not include time spent resolving general legal or policy issues
                regarding the application of exemptions.
                 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. Included in
                that information are ONDCP's proactive disclosures. Proactive
                disclosures are records that have been requested three or more times,
                or that have been released to a requester and that ONDCP determines
                have become, or are likely to become, the subject of subsequent
                requests for substantially the same records.
                Sec. 1401.5 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.
                 (a) Consultation. When records originated with ONDCP, but contain
                within them information of interest to another agency or other Federal
                government office, ONDCP will consult with that other entity prior to
                making a release determination.
                 (b) Referral--(1) Determination. When ONDCP believes that a
                different agency or component is best able to determine whether to
                disclose the record, ONDCP will refer the responsibility for responding
                to the request regarding that record to that agency. Ordinarily, the
                agency that originated the record is presumed to be the best agency to
                make the disclosure determination. However, if the agency processing
                the request and the originating agency jointly agree that the agency
                processing the request is in the best position to respond regarding the
                record, then the record may be handled as a consultation.
                 (2) Documentation. Whenever ONDCP refers any part of the
                responsibility for responding to a request to another agency, it must
                document the referral, maintain a copy of the record that it refers,
                and notify the requester of the referral, informing the requester of
                the name(s) of the agency to which the record was referred, including
                that agency's FOIA contact information.
                 (3) Coordination. The standard referral procedure is not
                appropriate where disclosure of the identity of the agency to which the
                referral would be made could harm an interest protected by an
                applicable exemption, such as the exemptions that protect personal
                privacy or national security interests. In order to avoid harm to an
                interest protected by an applicable exemption, the agency that received
                the request should coordinate with the originating agency to seek its
                views on the disclosability of the record. The release determination
                for the record that is the subject of the coordination should then be
                conveyed to the requester by the agency that originally received the
                request.
                 (c) Classified information. On receipt of any request involving
                classified information, ONDCP must determine whether the information is
                currently and properly classified in accordance with applicable
                classification rules. Whenever a request involves a record containing
                information that has been classified or may be appropriate for
                classification by another agency under any applicable executive order
                concerning the classification of records, the receiving agency must
                refer the responsibility for responding to the request regarding that
                information to the agency that classified the information, or that
                should consider the information for classification. Whenever an
                agency's record contains information that has been derivatively
                classified (for example, when it contains information classified by
                another agency), the agency must refer the responsibility for
                responding to that portion of the request to the agency that classified
                the underlying information.
                 (d) Timing of responses to consultations and referrals. All
                consultations and referrals received by ONDCP will be handled according
                to the date that the first agency received the perfected FOIA request.
                 (e) Agreements regarding consultations and referrals. ONDCP may
                establish agreements with other agencies to eliminate the need for
                consultations or referrals with respect to particular types of records.
                Sec. 1401.6 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. 1401.21(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) 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.
                 (d) 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.
                 (e) 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 at any time to
                [email protected] or mailed to SSDMD/RDS; ONDCP Office of General
                Counsel; Joint Base Anacostia-Bolling (JBAB) Bldg. 410/Door 123; 250
                Murray Lane SW, Washington, DC 20509. Email requests are strongly
                preferred.
                 (f) The words ``FOIA REQUEST'' or ``REQUEST FOR RECORDS'' should be
                [[Page 65699]]
                clearly marked on all FOIA request communications. The time limitations
                imposed by Sec. 1401.7(a) will not begin until ONDCP identifies a
                communication as a FOIA request.
                 (g) 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 20 calendar days
                to our request for clarification, we will close your request.
                 (h) To protect our computer systems, ONDCP reserves the right to
                not open attachments to emailed request. Please include your request
                within the body of your email.
                Sec. 1401.7 Responses--form and content.
                 (a) Determinations. 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. The notification shall also advise
                the person making the request of any fees assessed under Sec. 1401.11
                through 13. ONDCP will inform the requester of the availability of its
                FOIA Public Liaison.
                 (b) Tracking number. ONDCP will assign it an individualized
                tracking number if it will take longer than 10 working days to process
                and may assign such a tracking number for less than 10 working days at
                our discretion.
                 (c) Adverse determinations. If ONDCP makes an adverse determination
                denying a request in any respect, it must notify the requester of that
                determination in writing. Adverse determinations, or denials of
                requests, include decisions that: The requested record is exempt, in
                whole or in part; the request does not reasonably describe the records
                sought; the information requested is not a record subject to the FOIA;
                the requested record does not exist, cannot be located, or has been
                destroyed; or the requested record is not readily reproducible in the
                form or format sought by the requester. Adverse determinations also
                include denials involving fees or fee waiver matters or denials of
                requests for expedited processing.
                 (d) Content of denial. The denial must be signed by the head of the
                agency or designee and must include:
                 (1) The name and title or position of the person responsible for
                the denial;
                 (2) A brief statement of the reasons for the denial, including any
                FOIA exemption applied by the agency in denying the request;
                 (3) An estimate of the volume of any records or information
                withheld, such as the number of pages or some other reasonable form of
                estimation, although such an estimate is not required if the volume is
                otherwise indicated by deletions marked on records that are disclosed
                in part or if providing an estimate would harm an interest protected by
                an applicable exemption; and
                 (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. 1401.10.
                 (5) A statement notifying the requester of the assistance available
                from the agency's FOIA Public Liaison and the dispute resolution
                services offered by OGIS.
                Sec. 1401.8 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) Circumstances in which 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 who is
                primarily engaged in 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 10 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. 1401.9 Extension of time.
                 (a) In unusual circumstances, ONDCP may extend the time limit
                prescribed in Sec. 1401.7(a), (b) or Sec. 1401.8 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. 1401.10 Appeal procedures.
                 (a) An appeal to the ONDCP must explain the reasoning and factual
                basis
                [[Page 65700]]
                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 SSDMD/RDS; ONDCP Office of General Counsel; Joint Base
                Anacostia-Bolling (JBAB) Bldg. 410/Door 123; 250 Murray Lane SW,
                Washington, DC 20509. 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 name and
                title of the person responsible for the denial, any FOIA exemptions
                applied, 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 requester 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. 1401.11 Fees to be charged--general.
                 ONDCP will assess a fee to process FOIA requests in accordance with
                the provisions of this section and Uniform Freedom of Information Fee
                Schedule and Guidelines published by the Office of Management and
                Budget (``OMB Guidelines''). ONDCP 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
                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. 1401.15, or the total fee to be charged is less than $25.00.
                ONDCP will notify you if we estimate that charges will exceed $25.00
                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. ONDCP 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) 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) 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.
                 (c) 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.
                 (d) Other charges. ONDCP will recover the costs of providing other
                services such as certifying records or sending records by special
                methods.
                Sec. 1401.12 Fees to be charged--miscellaneous provisions.
                 (a) Payment for FOIA services may be made by check or money order
                made payable to the Treasury of the United States.
                 (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 for fee purposes in
                accordance with 1401.16.
                Sec. 1401.13 Fees to be charged--categories of requesters.
                 (a) There are three categories of FOIA requesters: Commercial use
                requests; educational, non-commercial scientific institutions or
                representatives of the news media; and all other requesters.
                 (b) The specific levels of fees for each of these categories are:
                 (1) Commercial use request. ONDCP will recover the full direct cost
                of providing search, review and duplication services. Commercial use
                requests will not receive free search-time or free reproduction of
                documents.
                 (2) Educational and non-commercial scientific institution request.
                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) Request from representative 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, 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. 1401.14 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. 1401.13(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. 1401.13(b)(2) of this section, may charge
                duplication fees if the following steps are taken. ONDCP must have
                [[Page 65701]]
                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. 1401.15 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 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. ONDCP 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,
                ONDCP will consider the following criteria:
                 (i) ONDCP 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. 1401.15(a) are satisfied and any commercial
                interest is not the primary interest furthered by the request. ONDCP
                ordinarily will presume that when a news media requester has satisfied
                the requirements of Sec. 1401.15(a), 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. 1401.16 Aggregation of requests.
                 When ONDCP 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. The Agency 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, ONDCP 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. 1401.17 Markings on released documents.
                 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. 1401.18 Confidential commercial information.
                 (a) Definitions. As used in this section:
                 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
                [[Page 65702]]
                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.
                 (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. 1401.19 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. 1401.20 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. 1401.21 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
                [[Page 65703]]
                delays mail delivery. To avoid mail delivery delays, we strongly
                suggest that you email your request to [email protected] Our mailing
                address is: SSDMD/RDS; ONDCP Office of General Counsel; Joint Base
                Anacostia-Bolling (JBAB); Bldg. 410/Door 123; 250 Murray Lane SW,
                Washington, DC 20509. 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 reserve
                the right not to open attachments to emailed requests. We request that
                you include your request within the body of the email.
                 (c) What should my request include? You must describe the record
                that you seek in enough detail to enable ONDCP 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 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. 1401.22 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 20 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.
                1401.24. 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 ONDCP 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. 1401.23.
                 (4) 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. 1401.23 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 90 calendar days after the
                date of our response. We provide a list of adverse determinations in
                Sec. 1401.22(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: SSDMD/RDS; ONDCP Office of General Counsel; Joint Base
                Anacostia-Bolling
                [[Page 65704]]
                (JBAB); Bldg. 410/Door 123; 250 Murray Lane SW, Washington, DC 220509.
                (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 30 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 will make the records, if any, available to yyou.
                (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: SSDMD/
                RDS; ONDCP Office of General Counsel; Joint Base Anacostia-Bolling
                (JBAB); Bldg. 410/Door 123; 250 Murray Lane SW, Washington, DC 20509.
                 (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. 1401.24 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. 1401.11(c). There are no
                fees to search for or review records requested under the Privacy Act.
                Michael J. Passante,
                Acting General Counsel.
                [FR Doc. 2020-20270 Filed 10-15-20; 8:45 am]
                BILLING CODE 3280-F5-P
                

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