Implementing the Freedom of Information Act
| Published date | 04 November 2020 |
| Citation | 85 FR 70054 |
| Record Number | 2020-22375 |
| Section | Rules and Regulations |
| Court | Science And Technology Policy Office |
Federal Register, Volume 85 Issue 214 (Wednesday, November 4, 2020)
[Federal Register Volume 85, Number 214 (Wednesday, November 4, 2020)]
[Rules and Regulations]
[Pages 70054-70062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22375]
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OFFICE OF SCIENCE AND TECHNOLOGY POLICY
32 CFR Part 2402
Implementing the Freedom of Information Act
AGENCY: Office of Science and Technology Policy.
ACTION: Final rule.
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SUMMARY: The White House Office of Science and Technology Policy
(OSTP), after consideration of the public comments submitted in
response to its Notice of Proposed Rulemaking published on October 31,
2018, is amending its regulations to implement the FOIA Improvement Act
of 2016. The regulations reflect OSTP's policy and practices and
reaffirm its commitment to providing the fullest possible disclosure of
records to the public.
DATES: Effective December 4, 2020.
FOR FURTHER INFORMATION CONTACT: Nick Wittenberg, Legal Counsel, OSTP,
(202) 456-4444. Questions about the content of this notice may also be
sent to [email protected].
SUPPLEMENTARY INFORMATION: OSTP is amending its regulations governing
its implementation of the Freedom of Information Act (FOIA). In 2013,
OSTP implemented its FOIA regulations, currently codified at 32 CFR
part 2402. The FOIA Improvement Act of 2016, Public Law 114-185,
requires each agency to review and update its FOIA regulations in
accordance with its provisions. Among other things, the FOIA
Improvement Act makes changes that require agencies to (1) withhold
information only when it is reasonably foreseeable that disclosure
would harm an interest protected by an exemption; (2) allow a minimum
of ninety (90) days to file an appeal following an adverse
determination; and (3) inform requestors of their right to seek dispute
resolution services.
In connection with OSTP's review of its FOIA regulations, OSTP is
updating these regulations to clarify OSTP's process for responding to
requests for information, incorporate new language on partial
disclosures of information, increase the period of time for a requestor
to appeal an adverse determination from thirty (30) days to ninety (90)
days, and require OSTP to notify requestors of their right to seek
dispute resolution services. Due to the scope of the proposed
revisions, the new rules will replace OSTP's current FOIA regulations
in their entirety. The new rules will reflect statutory changes to the
FOIA and improve FOIA-related service and performance, thereby
strengthening OSTP's compliance with the FOIA.
On October 31, 2018, OSTP issued a Notice of Proposed Rulemaking
seeking comments on the proposed changes to its FOIA regulations. In
response, OSTP received one public comment about the proposed rule. The
commenter did not suggest any changes to the rule. OSTP, however,
decided to make one minor additional change in order to clarify the
calculation of fees. In the definition of ``direct cost'' in Sec.
2402.3(c)(5), OSTP is changing the phrase, ``employee or
[[Page 70055]]
employees'' to ``personnel'' to more accurately reflect the fact that
paid, contract, and other staff are used to search for, duplicate, and
respond to FOIA requests. For this same reason, OSTP is revising Sec.
2402.9(b) regarding calculation of fees to change the use of the word,
``employee(s),'' to ``personnel.''
Statutory and Executive Order Reviews
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, Regulatory Planning and Review, section 1(b),
Principles of Regulation, and in accordance with Executive Order 13563,
Improving Regulation and Regulatory Review, section 1(b), General
Principles of Regulation. This regulation is not a significant
regulatory action under section 3(f) of Executive Order 12866;
accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB). Further, both Executive Orders 12866 and
13563 direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility. OSTP has assessed the
costs and benefits of this regulation and believes that the regulatory
approach selected maximizes net benefits.
Paperwork Reduction Act
OSTP has determined that the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., does not apply because these regulations do not contain
any information collection requirements subject to OMB's approval.
Executive Order 12988--Civil Justice Reform
These regulations meet the applicable standards set forth in
sections 3(a) and 3(b) of Executive Order 12988, Civil Justice Reform.
Executive Order 13132--Federalism
These regulations will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, OSTP has determined that this regulation does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Regulatory Flexibility Act
This regulation finalizes the amendments to OSTP's FOIA regulations
to incorporate certain changes made by the FOIA Improvement Act of
2016, to reflect developments in case law, and to streamline its
procedures. OSTP, in accordance with the Regulatory Flexibility Act, 5
U.S.C. 605(b), has reviewed this regulation and certifies that it will
not have a significant economic impact on a substantial number of small
entities because it pertains to administrative matters affecting the
agency.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions are necessary
under the provisions of the Unfunded Mandates Reform Act of 1995, 2
U.S.C. 1501, et seq.
Small Business Regulatory Enforcement Fairness Act of 1996
This regulation is not a major regulation as defined by section 251
of the Small Business Regulatory Enforcement Fairness Act of 1996, 5
U.S.C. 804. It will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
National Environmental Policy Act of 1969
OSTP has reviewed this regulation under the National Environmental
Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, and has determined that
it will not have a significant effect on the human environment.
List of Subjects in 32 CFR Part 2402
Freedom of information, Administrative practice and procedure.
0
For the reasons set forth in the preamble, OSTP revises 32 CFR part
2402 to read as follows:
PART 2402--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT
Sec.
2402.1 Purpose and scope.
2402.2 Delegation of authority and responsibilities.
2402.3 General policy and definitions.
2402.4 Procedure for requesting records.
2402.5 Responses to requests.
2402.6 Timing of responses to requests.
2402.7 Confidential commercial information.
2402.8 Appeal of denials.
2402.9 Fees.
2402.10 Waiver of fees.
2402.11 Maintenance of statistics.
2402.12 Disclaimer.
Authority: 5 U.S.C. 552; E.O. 13392, 70 FR 75373, 3 CFR, 2005
Comp., p. 216.
Sec. 2402.1 Purpose and scope.
The regulations in this part prescribe procedures by which
individuals may obtain access to the Office of Science and Technology
Policy's (OSTP) agency records under the Freedom of Information Act
(FOIA), 5 U.S.C. 552, as amended, as well as the procedures OSTP must
follow in response to requests for records under the FOIA. The
regulations should be read together with the FOIA and the Office of
Management and Budget's (OMB's) ``Uniform Freedom of Information Fee
Schedule and Guidelines,'' which provides information about access to
records. All requests for access to information contained within a
system of records pursuant to the Privacy Act of 1974, 5 U.S.C. 552a,
shall be processed in accordance with these regulations as well as
those contained in 32 CFR part 2403.
Sec. 2402.2 Delegation of authority and responsibilities.
(a) The Director of OSTP designates the OSTP General Counsel as the
Chief FOIA Officer and hereby delegates to the Chief FOIA Officer the
authority to act upon all requests for agency records and to re-
delegate such authority at his or her discretion.
(b) The Chief FOIA Officer shall designate a FOIA Public Liaison,
who shall serve as the supervisory official to whom a FOIA requester
can raise concerns about the service the FOIA requestor has received
following an initial request. The FOIA Public Liaison will be listed on
the OSTP website (https://www.whitehouse.gov/ostp/foia) and may re-
delegate the FOIA Public Liaison's authority at his or her discretion.
(c) The Director establishes a FOIA Requester Service Center that
shall be staffed by the Chief FOIA Officer and the FOIA Public Liaison.
The contact
[[Page 70056]]
information for the FOIA Requester Service Center is: Address: Office
of Science and Technology Policy, Eisenhower Executive Office Building,
1650 Pennsylvania Avenue NW, Washington, DC 20504; Telephone: (202)
456-4444; Fax: (202) 395-1224; Email: [email protected]. Updates to
this contact information will be made on the OSTP website.
Sec. 2402.3 General policy and definitions.
(a) Non-exempt records available to public. Except for records
exempt from disclosure by 5 U.S.C. 552(b) or published in the Federal
Register under 5 U.S.C. 552(a)(1), OSTP's agency records subject to the
FOIA are available to any requester who requests them in accordance
with these regulations.
(b) Record availability on the OSTP website. OSTP shall make
records available on its website in accordance with 5 U.S.C. 552(a)(2),
as amended, and other documents that, because of the nature of their
subject matter, are likely to be the subject of FOIA requests. To save
both time and money, OSTP strongly urges requesters to review documents
available on the OSTP website before submitting a request.
(c) Definitions. For purposes of this part:
(1) All of the terms defined in the FOIA and the definitions
included in OMB's ``Uniform Freedom of Information Act Fee Schedule and
Guidelines'' apply unless otherwise defined in this subpart.
(2) The term agency record means a record that is:
(i) Either created or obtained by OSTP; and
(ii) Under OSTP's control at the time the FOIA request is received.
(3) The term commercial use request means a request from or on
behalf of a person who seeks information for a use or purpose that
furthers his or her commercial, trade, or profit interests, which can
include furthering those interests through litigation. OSTP shall
determine, whenever reasonably possible, the use to which a requester
will put the requested records. When it appears that the requester will
put the records to a commercial use, either because of the nature of
the request itself or because OSTP has reasonable cause to doubt a
requester's stated use, OSTP shall provide the requester a reasonable
opportunity to submit further clarification.
(4) The terms disclose and disclosure refer to making records
available, upon request, for examination and copying, or furnishing a
copy of records.
(5) The term direct cost means those expenditures OSTP actually
incurred in searching for and duplicating (and, in the case of
commercial use requests, reviewing) records in response to a FOIA
request. Direct costs include the salary of the personnel performing
the work (i.e., the basic rate of pay for the employee plus 16 percent
of that rate to cover benefits) and the cost of operating computers and
other electronic equipment, such as photocopiers and scanners. Direct
costs do not include overhead expenses, such as the cost of space,
heating, or lighting of the facility in which the records are stored.
(6) The term duplication means the making of a copy of a record, or
of the information contained in it, necessary to respond to a FOIA
request. Copies can take the form of paper, microform, audiovisual
materials, or electronic records (e.g., magnetic tape or disk), among
others.
(7) The term educational institution means a 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 of scholarly research. To fall within
this category, a requester must show that the request is authorized by
and is made under the auspices of a qualifying institution and that the
records are not sought for a commercial use, but rather are sought to
further scholarly research.
(8) The term fee waiver means the waiver or reduction of processing
fees if a requester can demonstrate that certain statutory standards
are satisfied.
(9) The term FOIA Public Liaison means an agency official who is
responsible for assisting requesters in defining the scope of their
request to reduce processing time, increasing transparency and
understanding of the status of requests, and assisting in the
resolution of disputes.
(10) The term non-commercial scientific institution means an
institution that is not operated on a commercial basis, as that term is
defined in these regulations, 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. To fall within
this category, a requester must show that the request is authorized by
and is made under the auspices of a qualifying institution and that the
records are not sought for a commercial use, but rather are sought to
further scientific research.
(11) The term perfected request means a FOIA request for records
that reasonably describes the records sought and has been received by
OSTP in accordance with the requirements set forth in Sec. 2402.4.
(12) The terms representative of the news media and news media
requester mean any person or entity that gathers information of
potential interest to a segment of the public, uses its editorial
skills to turn the raw materials into a distinct work, and distributes
that work to an audience. In this clause, the term news means
information that is about current events or that would be of current
interest to the public. Examples of news media entities are television
or radio stations broadcasting to the public at large and publishers of
periodicals (but only if such entities qualify as disseminators of
news) who make their products available for purchase by, subscription
by, or through free distribution to the general public. These examples
are not all-inclusive. Moreover, as methods of news delivery evolve,
such as through electronic or digital means, such news sources shall be
considered to be news media entities. A freelance journalist shall be
regarded as working for a news media entity if the journalist can
demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by the
entity. A publication contract would present a solid basis for such an
expectation; the Government may also consider the past publication
record of the requester in making such a determination.
(13) The term requester means any person, including an individual,
partnership, corporation, association, Native American tribe, or other
public or private organization, other than a Federal agency that
requests access to records.
(14) The term review means the process of examining documents
located in response to a request that is for a commercial use to
determine whether any portion of any document located is permitted to
be withheld. It includes the processing of any documents for
disclosure--i.e., doing all that is necessary to excise exempt
information and otherwise prepare them for release. Review does not
include time spent resolving general legal or policy issues regarding
the application of exemptions.
(15) The term search refers to the process of looking for and
retrieving records or information responsive to a request. It includes
page-by-page or line-by-line identification of information within
records and also includes reasonable efforts to locate and retrieve
information from records maintained in electronic form or format.
(16) The term working day means a regular Federal working day
between
[[Page 70057]]
the hours of 9:00 a.m. and 5:00 p.m. It does not include Saturdays,
Sundays, or legal Federal holidays. Any requests received after 5:00
p.m. on any given working day will be considered received on the next
working day.
Sec. 2402.4 Procedure for requesting records.
(a) Format of requests.(1) In general. Requests for information
must be made in writing and may be delivered by mail, fax, or
electronic mail, as specified in Sec. 2402.2(c). All requests must be
made in English. Requests for information may specify the preferred
format (including electronic formats) of the response. When a requester
does not specify the preferred format of the response, OSTP shall
produce scanned records to be delivered electronically.
(2) Records in electronic formats. (i) OSTP shall provide
responsive records in the format requested if the record or records are
readily reproducible by OSTP in that format. OSTP shall make reasonable
efforts to maintain its records in formats that are reproducible for
the purposes of disclosure. For purposes of this paragraph, the term
readily reproducible means, with respect to electronic format, a record
that can be downloaded or transferred intact to an electronic medium
using equipment currently in use by the agency processing the request.
Even though some records may initially be readily reproducible, the
need to segregate exempt records from nonexempt records may cause the
releasable material to be not readily reproducible.
(ii) In responding to a request for records, OSTP shall make
reasonable efforts to search for the records in electronic format,
except where such efforts would interfere with the operation of the
agency's automated information system(s). For purposes of this
paragraph, the term search means to locate, manually or by automated
means, agency records for the purpose of identifying those records that
are responsive to a request.
(iii) Searches for records maintained in electronic format may
require the application of codes, queries, or other minor forms of
programming to retrieve the requested records.
(3) Attachment restrictions. To protect OSTP's computer systems,
OSTP will not accept files sent as email attachments or as web links. A
requester may submit a request by postal mail, by fax, or in the body
of the email text.
(b) Contents. A request must describe the records sought in
sufficient detail to enable OSTP personnel to locate the records with a
reasonable amount of effort. To the extent possible, a requester should
include specific information that may assist OSTP personnel in
identifying the requested records, such as the date, title or name,
author, recipient, and subject matter of the record. In general, a
requester should include as much detail as possible about the specific
records or the types of records sought. Before submitting a request, a
requester may contact the OSTP FOIA Public Liaison to discuss the
records sought and to receive assistance in describing the records. If,
after receiving a request, OSTP determines that it does not reasonably
describe the records sought or that the request will be unduly
burdensome to process, OSTP shall inform the requester of the
additional information that is needed or how the request may be
modified. A Requester attempting to reformulate or modify such a
request may discuss their requests with OSTP's FOIA Public Liaison.
(c) Date of receipt. A request that complies with paragraphs (a)
and (b) of this section is deemed a ``perfected request.'' A perfected
request is deemed received on the actual date it is received by OSTP. A
request that does not comply with paragraphs (a) and (b) of this
section is deemed received when information sufficient to perfect the
request is actually received by OSTP.
(d) Contact information. A request must contain contact
information, such as the requester's phone number, email address, or
mailing address, to enable OSTP to communicate with the requester about
the request and provide released records. If OSTP cannot contact the
requester, or the requester does not respond within 30 calendar days to
OSTP's requests for clarification, OSTP will administratively close the
request.
(e) Types of records not available. The FOIA does not require OSTP
to:
(1) Compile or create records solely for the purpose of satisfying
a request for records;
(2) Provide records not yet in existence, even if such records may
be expected to come into existence at some future time; or
(3) Restore records destroyed or otherwise disposed of, except that
OSTP must notify the requester of the destruction or disposal of the
requested records.
Sec. 2402.5 Responses to requests.
(a) In general. In determining which records are responsive to a
request, OSTP will ordinarily include only records in its possession as
of the date it begins its search for records. If any other date is
used, OSTP shall inform the requester of that date.
(b) Authority to grant or deny requests. OSTP shall make initial
determinations to grant or deny, in whole or in part, a request for
records.
(c) Granting of requests. When OSTP determines that any responsive
records shall be made available, OSTP shall notify the requester in
writing and provide copies of the requested records in whole or in
part. Records disclosed in part shall be marked or annotated to show
the exemption(s) applied to the withheld information and the amount of
information withheld unless doing so would harm the interest protected
by an applicable exemption. If a requested record contains exempted
material along with nonexempt material, all reasonably segregable
material shall be disclosed.
(d) Adverse determinations. If OSTP makes an adverse determination
denying a request in any respect, it must notify the requester of that
adverse determination in writing. Adverse determinations include
decisions that: The requested record is exempt from disclosure, in
whole or in part; the request does not reasonably describe the records
sought, but only if, after discussion with the FOIA Public Liaison, the
requester refuses to modify the terms of the request; 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; denials involving fees or fee waiver matters;
and denials of requests for expedited processing.
(e) Content of adverse determinations. Any adverse determination
issued by OSTP must include:
(1) A brief statement of the reason(s) for the adverse
determination, including any FOIA exemption applied by the agency in
denying access to a record unless such inclusion would harm the
interest protected by an applicable exemption;
(2) An estimate of the volume of any records or information
withheld, such as the number of pages or 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;
(3) A statement that the adverse determination may be appealed
under Sec. 2402.8 of this subpart and a description of the appeal
requirements; and
(4) A statement notifying the requester of the assistance available
from OSTP's FOIA Public Liaison and the dispute
[[Page 70058]]
resolution services offered by the Office of Government Information
Services.
(f) Consultations, referrals, and coordinations. When OSTP receives
a request for a record in its possession, it shall determine whether
another agency of the Federal Government is better able to determine
whether the record is exempt from disclosure under the FOIA and, if so,
whether it should be disclosed as a matter of administrative
discretion. If OSTP determines that it is best able to process the
record in response to the request, then it shall do so. If OSTP
determines that it is not best able to process the record, then it
shall proceed in one of the following ways:
(1) Consultation. When records originating with OSTP contain
information of interest to another Federal agency, OSTP should
typically consult with that Federal agency prior to making a release
determination.
(2) Referral. (i) When OSTP believes that a different Federal
agency is best able to determine whether to disclose the record, OSTP
should typically refer the responsibility for responding to the request
regarding that record to that agency. Ordinarily, the agency creating
the record is presumed to be the agency best able to determine whether
the record should be disclosed. If OSTP and another Federal 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.
(ii) Whenever OSTP refers any part of the responsibility for
responding to a request to another agency, OSTP must document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral.
(iii) After OSTP refers a record to another Federal agency, the
agency receiving the referral shall make a disclosure determination and
respond directly to the requester. The referral of a record is not an
adverse determination and no appeal rights accrue to the requester
therefrom.
(3) Coordination. The standard referral procedure is not
appropriate where disclosure of the identity of the Federal agency to
which a referral would be made could harm an interest protected by an
applicable exemption, such as an exemption that protects 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 is not publicly known, then to disclose
that law enforcement interest could cause an unwarranted invasion into
the personal privacy of the third party. Similarly, if an agency
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 harm national security interests. In such instances, in order to
avoid harm to an interest protected by an applicable exemption, OSTP
will coordinate with the agency that created the record to seek its
views on disclosure of the record. OSTP will then notify the requester
of the disclosure determination for the record that is the subject of
the coordination.
Sec. 2402.6 Timing of responses to requests.
(a) In general. OSTP shall ordinarily respond to requests in order
of their receipt.
(b) Initial determinations. OSTP will exercise all reasonable
efforts to make an initial determination acknowledging and granting,
partially granting, or denying a request for records within twenty (20)
working days after receiving a perfected request.
(c) Extensions of response time in ``unusual circumstances.'' (1)
The twenty (20)-working day period provided in paragraph (b) of this
section may be extended if unusual circumstances arise. If an extension
is necessary, OSTP shall promptly notify the requester of the
extension, briefly state the reasons for the extension, and estimate
when a response will be issued. Unusual circumstances warranting
extension are:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
(2) After OSTP notifies the requester of the reasons for the delay,
the requester will have an opportunity to modify the request or arrange
for an alternative time frame for completion of the request. To assist
in this process, OSTP shall advise the requester of the availability of
OSTP's FOIA Public Liaison to aid in the resolution of any disputes
between the requester and OSTP, and notify the requester of his or her
right to seek dispute resolution services from the Office of Government
Information Services.
(3) If no initial determination is made at the end of the twenty-
day period provided for in paragraph (b) of this section, including any
extension provided for in paragraph (c)(1) of this section, the
requester may appeal the action to the FOIA Appeals Officer.
(d) Expedited processing of request. (1) A requester may make a
request for expedited processing at any time.
(2) When a request for expedited processing is received, OSTP must
determine whether to grant the request for expedited processing within
ten (10) calendar days of its receipt. Requests will receive expedited
processing if one of the following compelling needs is met:
(i) The requester can establish that failure to receive the records
quickly could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual; or
(ii) The requester is primarily engaged in disseminating
information and can demonstrate that an urgency to inform the public
concerning actual or alleged Federal Government activity exists.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. As a matter of
administrative discretion, OSTP may waive the formal certification
requirement.
(4) Administrative appeals of denials of expedited processing will
be given expeditious consideration. If the FOIA Appeals Officer upholds
the denial of expedited processing, that decision is immediately
subject to judicial review in the appropriate Federal district court.
(e) Multi-track processing. (1) OSTP may use multi-track processing
in responding to requests. Multi-track processing means placing simple
requests that require limited review in one processing track and
placing more voluminous and complex requests in one or more other
processing tracks. Requests in each track are processed on a first-in,
first-out basis.
(i) Track one--expedited requests. Track one is made up of requests
that sought and received expedited processing as provided for in
paragraph (d)(2) of this section.
(ii) Track two--simple requests. Track two is for requests of
simple to moderate complexity that do not require
[[Page 70059]]
consultations with other entities and do not involve voluminous
records.
(iii) Track three--complex requests. Track three is for complex
requests that involve voluminous records, require lengthy or numerous
consultations, raise unique or novel legal questions, or require
submitter review under Sec. 2402.7.
(2) OSTP may provide requesters with requests in slower track(s)
the opportunity to limit the scope of their requests in order to
qualify for faster processing within the specified limits of faster
track(s). OSTP will do so by contacting the requester by letter,
telephone, email, or facsimile, whichever is more efficient in each
case. When providing a requester with the opportunity to limit the
scope of a request, OSTP shall also advise the requester of OSTP's FOIA
Public Liaison to aid in the resolution of any dispute arising between
the requester and OSTP as well as the requester's right to seek dispute
resolution services from the Office of Government Information Services.
(f) Aggregating requests. OSTP may aggregate requests if it
reasonably appears that multiple requests, submitted either by a single
requester or by a group of requesters acting in concert, involve
related matters and constitute a single request that otherwise would
involve unusual circumstances. For example, OSTP may aggregate multiple
requests for similar information filed by a single requester within a
short period of time.
Sec. 2402.7 Confidential commercial information.
(a) In general. Business information obtained by OSTP from a
submitter will be disclosed under the FOIA only under this section.
(b) Definitions. For purposes of this section:
(1) Confidential commercial information means records provided to
the government by a submitter that arguably contain material exempt
from release under 5 U.S.C. 552(b)(4).
(2) Submitter means any person or entity from whom OSTP directly or
indirectly obtains confidential commercial information. The term
includes corporations; State, local, and tribal governments;
universities; non-profit organizations; associations; and foreign
governments.
(c) Designation of business information. Either at the time of
submission or at a reasonable time thereafter, a submitter of business
information will use good-faith efforts to designate, by appropriate
markings, any portions of its submission that it considers to be
protected from disclosure under 5 U.S.C. 552(b)(4). These designations
will expire ten years after the date of submission unless the submitter
requests, and provides justification for, a longer designation period.
(d) Notice to submitters. OSTP shall provide a submitter with
prompt written notice of a FOIA request or administrative appeal that
seeks its business information in order to give the submitter an
opportunity to object to disclosure of any specified portion of that
information. The notice shall either describe the business information
requested or include copies of the requested records or record portions
containing the information. When notification of a voluminous number of
submitters is required, notification may be made by posting or
publishing the notice in a place reasonably likely to accomplish
notification.
(e) Where notice is required. Notice shall be given to a submitter
whenever:
(1) The information has been designated in good faith by the
submitter as information considered protected from disclosure under 5
U.S.C. 552(b)(4); or
(2) OSTP has reason to believe that the information may be
protected from disclosure under 5 U.S.C. 552(b)(4).
(f) Opportunity to object to disclosure. OSTP will allow a
submitter reasonable time to respond to the notice described in
paragraph (d) of this section and will specify that time period within
the notice. If a submitter has any objection to disclosure, the
submitter must provide a detailed written statement of objections. The
statement must specify all grounds for withholding any portion of the
information under any exemption of the FOIA and, in the case of
information withheld under 5 U.S.C. 552(b)(4), the submitter must
demonstrate the reasons the submitter believes the information is a
trade secret or commercial or financial information that is privileged
or confidential. In the event that a submitter fails to adequately
respond to the notice within the time specified, the submitter will be
considered to have no objection to disclosure of the information.
Information provided by the submitter that OSTP does not receive within
the time specified shall not be considered by OSTP. Information
provided by a submitter under this paragraph may itself be subject to
disclosure under the FOIA.
(g) Notice of intent to disclose. OSTP shall consider a submitter's
objections and specific grounds for nondisclosure in deciding whether
to disclose business information. Whenever OSTP determines that
disclosure is appropriate over the objection of a submitter, OSTP
shall, within a reasonable number of days prior to disclosure, provide
the submitter with written notice of the intent to disclose, which
shall include:
(1) A statement of the reason(s) why each of the submitter's
objections to disclosure was not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(h) Exceptions to notice requirements. The notice requirements of
paragraphs (d) and (g) of this section shall not apply if:
(1) OSTP determines that the information should 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 statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987;
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous. In such a case, OSTP shall,
within a reasonable time prior to a specified disclosure date, give the
submitter written notice of any final decision to disclose the
information, but no opportunity to object will be offered; or
(5) The information requested was not designated by the submitter
as exempt from disclosure in accordance with this part, when the
submitter had an opportunity to do so at the time of submission of the
information or a reasonable time thereafter, unless OSTP has
substantial reason to believe that disclosure of the information would
result in competitive harm.
(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of business information, OSTP shall
promptly notify the submitter.
(j) Notice to requesters. Whenever OSTP provides a submitter with
notice and an opportunity to object to disclosure under paragraph (d)
of this section, OSTP shall also notify the requester(s). Whenever OSTP
notifies a submitter of its intent to disclose requested information
under paragraph (g) of this section, OSTP shall also notify the
requester(s). Whenever a submitter files a lawsuit seeking to prevent
the disclosure of business information, OSTP shall notify the
requester(s).
[[Page 70060]]
Sec. 2402.8 Appeal of denials.
(a) Right to administrative appeal. A requester has the right to
appeal to the FOIA Appeals Officer any adverse determination.
(b) Notice of appeal. (1) Time for appeal. To be considered timely,
an appeal must be postmarked, or in the case of electronic submissions,
transmitted no later than ninety (90) calendar days after the date of
the initial adverse determination or after the time limit for response
by OSTP has expired. Prior to submitting an appeal, the requester must
pay in full any outstanding fees associated with the request.
(2) Form of appeal. An appeal shall be initiated by filing a
written notice of appeal. The notice shall specify the tracking number
assigned to the FOIA request by OSTP and be accompanied by copies of
the original request and adverse determination. To expedite the
appellate process and give the requester an opportunity to present his
or her arguments, the notice should contain a brief statement of the
reason(s) why the requester believes the adverse determination to be in
error. Requesters may submit appeals by mail or electronically. If sent
by regular mail, appeals shall be sent to: Chief FOIA Officer, Office
of Science and Technology Policy, Eisenhower Executive Office Building,
1650 Pennsylvania Avenue NW, Washington, DC 20504. Appeals sent via
electronic mail shall be submitted to [email protected]. Updates to
this contact information will be made on the OSTP website. To
facilitate handling, the requester should mark both the appeal letter
and envelope, if submitted by mail, or subject line of the
transmission, if submitted electronically, with ``Freedom of
Information Act Appeal.''
(c) Decisions on appeals. The FOIA Appeals Officer shall make a
determination in writing on the appeal under 5 U.S.C. 552(a)(6)(A)(ii)
within twenty (20) working days after the receipt of the appeal. If the
denial is wholly or partially upheld, the Chief FOIA Officer shall:
(1) Notify the requester that judicial review is available pursuant
to 5 U.S.C. 552(a)(4)(B)-(G); and
(2) Notify the requester that the Office of Government Information
Services (OGIS) offers mediation services to resolve disputes between
FOIA requesters and Federal agencies as a non-exclusive alternative to
litigation. Contact information for OGIS is: Office of Government
Information Services, National Archives and Records Administration,
8601 Adelphi Road-OGIS, College Park, MD 20740, Email: [email protected],
Telephone: 202-741-5770, Facsimile: 202-741-5769, Toll-free: 1-877-684-
6448.
(d) Dispute resolution services. Dispute resolution is a voluntary
process. If OSTP agrees to participate in the dispute resolution
services provided by the Office of Government Information Services, it
will actively engage as a partner to the process in an attempt to
resolve the dispute.
(e) When appeal is required. Before seeking judicial review of
OSTP's adverse determination in Federal district court, a requester
generally must first submit a timely administrative appeal.
Sec. 2402.9 Fees.
(a) Fees generally required. OSTP shall use the most efficient and
least costly methods to comply with requests for documents made under
the FOIA. OSTP shall charge fees in accordance with paragraph (b) of
this section unless fees are waived or reduced in accordance with Sec.
2402.10.
(b) Calculation of fees. In general, fees for searching, reviewing,
and duplication will be based on the direct costs of these services,
including the average hourly salary (basic pay plus 16% for benefits)
of the personnel conducting the search, reviewing the records for
exemption, or duplicating the records. Charges for time less than a
full hour will be in increments of quarter hours.
(1) Search fees. Search fees may be charged even if responsive
documents are not located or are located but withheld on the basis of
an exemption. However, search fees shall not be charged or shall be
limited as follows:
(i) Educational, scientific, or news media requests. No search fee
shall be charged if the request is not sought for a commercial use and
is made by an educational or non-commercial scientific institution,
whose purpose is scholarly or scientific research, or by a
representative of the news media.
(ii) Other non-commercial requests. No search fee shall be charged
for the first two hours of searching if the request is not for a
commercial use and is submitted by an entity that is not an educational
or scientific institution, whose purpose is scholarly or scientific
research, or a representative of the news media.
(iii) Requests for records about oneself. No search fee shall be
charged to search for records performed under the terms of the Privacy
Act, 5 U.S.C. 552a(f)(5).
(2) Review fees. Review fees shall be assessed only with respect to
those requesters who seek records for a commercial use. A review fee
shall be charged for the initial examination of documents located in
response to a request to determine whether the documents may be
withheld from disclosure and for the redaction of document portions
exempt from disclosure. Records or portions of records withheld under
an exemption that is subsequently determined not to apply may be
reviewed again to determine the applicability of other exemptions not
previously considered. The costs for such subsequent review are also
assessable.
(3) Duplication fees. Records will be photocopied at a rate of ten
cents ($0.10) per page. For other methods of reproduction or
duplication, OSTP will charge the actual direct costs of producing the
document(s). Duplication fees shall not be charged for the first 100
pages of copies unless the copies are requested for a commercial use.
(c) Aggregation of requests. When OSTP determines that a requester,
or a group of requesters acting in concert, is attempting to evade the
assessment of fees by submitting multiple requests in place of a
single, more complex request, OSTP may aggregate any such requests and
assess fees accordingly.
(d) Fees likely to exceed $25. If total fee charges are likely to
exceed $25, OSTP shall notify the requester of the estimated amount to
be charged. The notification shall offer the requester an opportunity
to confer with the FOIA Public Liaison to reformulate the request to
meet the requester's needs at a lower cost. OSTP may administratively
close a submitted FOIA request if the requester does not respond in
writing within thirty (30) calendar days after the date on which OSTP
notifies the requester of the fee estimate.
(e) Advance payments. Fees may be paid upon provision of the
requested records, except that payment may be required prior to that
time if the requester has previously failed to pay fees or if OSTP
determines that the total fees will exceed $250. When payment is
required in advance of the processing of a request, the time limits
prescribed in Sec. 2402.6 shall not be deemed to begin until OSTP has
received payment of the assessed fees. If the requester has previously
failed to pay fees or charges are likely to exceed $250, OSTP shall
notify the requester of the estimated cost and:
(1) Obtain satisfactory assurance from the requester, in writing,
of full payment; or
(2) OSTP may require the requester to pay the full amount of any
fees owed or make an advance payment of the full amount of OSTP's
estimated charges.
[[Page 70061]]
(3) If OSTP does not receive an adequate response, assurance, or
advance payment within thirty (30) calendar days of a fee determination
or notification issued under the authority of this section, OSTP will
administratively close the corresponding request.
(f) Other charges. OSTP will recover the full costs of providing
services, such as those enumerated below, when it elects to provide
them:
(1) Certifying that records are true copies; and
(2) Sending records by special methods, such as express mail.
(g) Remittances. Remittances shall be made either via personal
check or bank draft drawn on a bank in the United States, or by postal
money order. Remittances shall be made payable to the order of the
Treasury of the United States and mailed to the Chief FOIA Officer,
Office of Science and Technology Policy, Eisenhower Executive Office
Building, 1650 Pennsylvania Avenue NW, Washington, DC 20504. Updates to
this contact information will be made on the OSTP website.
(h) Receipts and refunds. OSTP will provide a receipt for fees paid
upon request. OSTP will not refund fees paid for services actually
rendered.
Sec. 2402.10 Waiver of fees.
(a) In general. OSTP shall waive part or all of the fees assessed
under Sec. 2402.9 if, based upon information provided by a requester
or otherwise made known to OSTP, the disclosure of the requested
information is in the public interest. Disclosure is in the public
interest if it is likely to contribute significantly to public
understanding of government operations or activities and is not
primarily for commercial purposes. Requests for a waiver or reduction
of fees shall be considered on a case-by-case basis. To determine
whether a fee waiver requirement is met, OSTP shall consider the
following factors:
(1) Disclosure of the requested information would shed light on the
operations or activities of the Federal 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 is 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 already in the public domain, in either the same or a
substantially similar 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. OSTP 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,
OSTP will consider the following criteria:
(i) OSTP will 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 are encouraged to provide explanatory information regarding
this consideration.
(ii) If there is an identified commercial interest, OSTP will
determine whether that is the primary interest furthered by the
request. OSTP will ordinarily presume that when a news media requester
has satisfied the conditions in paragraphs (a)(1) and (2) of this
section, the request is not primarily in the commercial interest of the
requester. Data brokers or others who merely compile and market
government information for direct economic return will not receive the
benefit of this presumption.
(b) Timing of fee waivers. A request for a waiver or reduction of
fees should be made when a request for records is first submitted to
the agency and should address the criteria referenced in paragraph (a)
of this section. 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 must pay any costs incurred up to the date of the fee
waiver request was received.
(c) Clarification. Where OSTP has reasonable cause to doubt the use
to which a requester will put the records sought, or where that use is
not clear from the request itself, OSTP may seek clarification from the
requester before assigning the request to a specific category for fee
assessment purposes.
(d) Restrictions on charging fees. Except as described in
paragraphs (c)(1) through (3) of this section, if OSTP fails to comply
with the FOIA's time limits for responding to a request, it may not
charge search fees. In addition, subject to the exceptions set forth in
paragraphs (c)(1) through (3) of this section, if OSTP does not comply
with the FOIA's time limits for responding to a request, it may not
charge duplication fees when records are not sought for a commercial
use and the request is made by an educational institution, non-
commercial scientific institution, or representative of the news media.
(1) If OSTP determines that unusual circumstances, as defined by
the FOIA, apply and provides timely written notice to the requester in
accordance with the FOIA, then a failure to comply with the statutory
time limit shall be excused for an additional ten (10) days.
(2) If OSTP determines that unusual circumstances, as defined by
the FOIA, apply and more than 5,000 pages are necessary to respond to
the request, then OSTP may charge search fees and duplication fees,
where applicable, if the following steps are taken. OSTP must:
(i) Provide timely written notice of unusual circumstances to the
requester in accordance with the FOIA; and
(ii) Discuss with the requester via postal 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).
(3) If a court determines that exceptional circumstances exist, as
defined by the FOIA, then a failure to comply with the statutory time
limits shall be excused for the length of time provided by the court
order.
Sec. 2402.11 Maintenance of statistics.
(a) OSTP shall maintain records sufficient to allow accurate
reporting of FOIA processing statistics, as required under 5 U.S.C.
552(e) and all guidelines for the preparation of annual FOIA reports
issued by the Department of Justice.
(b) OSTP shall annually, on or before February 1 of each year,
prepare and submit to the Attorney General an annual report compiling
the statistics maintained in accordance with paragraph (a) of this
section for the previous fiscal year. A copy of the report will be
available for public inspection on the OSTP website.
[[Page 70062]]
Sec. 2402.12 Disclaimer.
Nothing in this part shall be construed to entitle any person, as a
right, to any service or to the disclosure of any record to which such
person is not entitled under the FOIA.
Dated: October 5, 2020.
Stacy Lynn Murphy,
Operations Manager.
[FR Doc. 2020-22375 Filed 11-3-20; 8:45 am]
BILLING CODE 3270-F7-P
