Presidio management; general provisions, etc.,

[Federal Register: December 30, 1998 (Volume 63, Number 250)]

[Rules and Regulations]

[Page 71771-71785]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr30de98-14]

PRESIDIO TRUST

36 CFR Parts 1007, 1008 and 1009

RIN 3212-AA01

Management of the Presidio: Freedom of Information Act, Privacy Act, and Federal Tort Claims Act

AGENCY: The Presidio Trust.

ACTION: Final rule.

SUMMARY: The Presidio Trust (Trust) published proposed regulations in the Federal Register on September 18, 1998 (63 FR 50024-50055) concerning management of the area under the administrative jurisdiction of the Trust as well as various administrative matters. The public comment period on portions of these proposed regulations (proposed 36 CFR Parts 1007, 1008, and 1009) closed on November 17, 1998, while the public comment period on the remaining portions (proposed 36 CFR Parts 1001, 1002, 1003, 1004, 1005, and 1006) was extended until January 8, 1999. See 63 FR 64023 (November 18, 1998). In today's action, the Trust is promulgating final regulations concerning the Freedom of Information Act (Part 1007), the Privacy Act (Part 1008), and the Federal Tort Claims Act (Part 1009).

DATES: These regulations will be effective on January 29, 1999.

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FOR FURTHER INFORMATION CONTACT: Karen A. Cook, General Counsel, The Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA 94129-0052, Telephone: 415-561-5300.

SUPPLEMENTARY INFORMATION:

Background

The Presidio Trust is today promulgating final regulations concerning processing of requests under the Freedom of Information Act (FOIA), requests under the Privacy Act, and claims under the Federal Tort Claims Act. These regulations were proposed by the Trust by publication in the Federal Register on September 18, 1998 (63 FR 50024- 50055). Other background information concerning the Presidio Trust and this rulemaking was presented in the preamble to the proposed regulations.

Consideration of Comments Received and Discussion of Changes Made

The Trust solicited public comment on these regulations in their proposed form for a period of sixty days. In addition, the Trust consulted with the Secretary of the Interior, who serves on the Trust's Board of Directors pursuant to sec. 103(c)(1)(A) of the Trust Act, as well as with officials of the Department of the Interior and the National Park Service designated by the Secretary of the Interior to facilitate such consultation. Staff of the Trust also thoroughly reviewed the proposed regulations for grammar, punctuation, and readability.

One written comment was received from the public. This comment is available for public inspection and copying by contacting the Trust at the address noted above. The commenter objected to proposed Sec. 1007.8(c)(3), which provides for judicial review of adverse FOIA decisions by the Trust only in the U.S. District Court for the Northern District of California. The commenter believed that this restriction would have the potential to curtail the public's ability to appeal a decision by the Trust. This was not the Trust's intention in proposing this regulation; rather, the Trust proposed this regulation in order to adhere to the limitations established in the Trust's enabling statute, Title I of Public Law 104-333. Section 104(h) of that law limits suits against the Trust to the U.S. District Court for the Northern District of California. As a result, the final regulation on this point remains unchanged.

The one written comment received also objected to the elimination of language describing the factors likely to be used in reviewing requests for fee reduction or waiver. This language is found in the regulations of the Department of the Interior--on which the Trust based its FOIA regulations--at 43 CFR 2.21(a)(2) and (a)(3). These factors were not included in the Trust's proposed regulations because the Trust believes they are not a necessary part of the regulatory language, which the Trust wants to keep as simple and short as possible. This should not be read as an indication that the Trust will not look to these factors, among others, in making decisions on fee waiver requests. The commenter noted that these factors are intended to educate the individuals and organizations seeking information in the public interest as to the kinds of requests for information for which fee waivers or reductions may be granted. The Trust agrees that this is the intent behind publishing these factors and believes that this intent will best be served by publishing these factors in informal guidance to the public concerning FOIA requests of the Trust. The Trust anticipates that this guidance will be published on the Trust's internet website (http://www.presidiotrust.gov) in the near future.

As a result of informal consultations and internal review, the Trust made a number of minor modifications to the proposed version of these regulations. None of these modifications effects any substantive change in the intent of the proposed regulations; in fact, most are concerned with matters of format and punctuation. For ease of reference and public notice, they are enumerated below:

The authority citation for the FOIA regulations was amended to add a reference to Executive order 12,600, Predisclosure Notification Procedures for Confidential Commercial Information. In particular, Sec. 1007.4(c) relies on this authority.

The definitions of ``FOIA'' and ``FOIA Officer,'' which were contained in Sec. 1001.4 of the proposed regulations published on September 18, 1998 (63 FR 50033), have been incorporated into Sec. 1007.1(a) and (b) of these final regulations. This change was necessary because the comment period on Part 1001 of the proposed regulations has not yet closed, but these definitions are essential to understanding Part 1007.

For the sake of readability, the final regulations also revised the language in Parts 1007 and 1008 requiring prominent legends on both the envelope containing a request or appeal and the document itself. This revision was made to Sec. Sec. 1007.3(b)(5), 1008.11(b)(2), and 1008.14(b)(2) and conforms to the language used in Sec. 1007.7(c)(3), which reads: ``To expedite processing, both the envelope containing a notice of appeal and the face of the notice should bear the legend `FREEDOM OF INFORMATION APPEAL.' '' No substantive change is intended by this minor change in wording.

In Sec. 1007.5(d)(4), the proposed language was not as clear as possible concerning whether the decision due within ten calendar days of receiving a request for expedited processing was to be made concerning the request for expedited processing or the underlying FOIA request itself. The final regulation states more clearly that the decision due within ten calendar days is on the request for expedited processing, which, if granted, will result in priority being given to processing of the underlying FOIA request.

Proposed Sec. 1007.9(a)(1) referred to the ``current schedule of charges determined by the Board * * * .'' This provision has been revised, for the sake of administrative efficiency and consistent with Board resolution, to indicate that the schedule of charges will be determined by the Trust's Executive Director. A similar change has been made in Sec. 1008.15(d)(2), which refers to the same schedule of charges. In addition, each of these sections has been revised to incorporate into the regulatory language the requirement that these charges be set at the level necessary to recoup the full allowable direct costs to the Trust. This requirement was noted in the preamble to the proposed regulations (at 63 FR 50030) and has been set pursuant to 5 U.S.C. 552(a)(4)(A)(i) by sec. 7 of the Office of Management and Budget's Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR 10012 (Mar. 27, 1987). The current charges for services that are likely to be requested on a regular basis are as follows:

--For black and white copies of documents reproduced on a standard office photocopying machine in sizes of 8\1/2\ x 11 inches or 8\1/2\ x 14 inches, the charge is $0.20 per page for single-sided copies and $0.40 per page for double-sided copies. For copies of documents that require special handling because of their age, size, or color, the charge will be based on the direct costs of reproducing the materials. --Time for search and review of documents in response to requests will be charged at the rate of $6.25 per quarter hour (or portion thereof) when the search and review is performed by administrative staff and $10.00 per hour (or portion thereof) when the

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search and review is performed by professional staff. --Other materials or services provided in response to a request-- including but not limited to delivery by means other than regular mail; searching, reviewing, or providing records in microfiche or electronic form; or authenticating copies--will be charged at the full allowable direct cost to the Trust calculated on a case-by-case basis.

Proposed Sec. 1007.9(a)(2) referred to ``the costs of collecting'' a fee. In order to be consistent with the OMB Guidelines noted above, this provision has been revised to refer to ``the costs of routine collection and processing'' of a fee. The Trust has determined that this is currently $5.00.

Proposed Sec. 1007.9(h)(1) allowed the Trust to require advance payment of FOIA fees where the fees are anticipated ``to exceed $250.00 and the requester does not have a history of prompt payment of FOIA fees * * * .'' This language was taken directly from the FOIA regulations of the Department of the Interior at 43 CFR 2.20(h). FOIA itself provides that ``[n]o agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250.'' 5 U.S.C. 552(a)(4)(A)(v). The statute therefore authorizes the Trust to require advance payment of fees that will exceed $250 regardless of the requester's payment history. Accordingly, the Trust has revised Sec. 1007.9(h)(1) to be consistent with the statute by removing the phrase ``and the requester does not have a history of prompt payment of FOIA fees.''

The other criterion of the statutory provision concerning timely payment of fees is already covered by Sec. 1007.9(h)(2). In order to clarify that--consistent with common practice--processing of all new or pending FOIA requests by a requester, regardless of when they were received by the Trust, will ordinarily be suspended for non-payment of fees billed to that requester, these final regulations have deleted the word ``new'' in the two places where it appears in proposed Sec. 1007.9(h)(2). Also along these lines, the final regulations append the phrase ``at the requester's expense'' to proposed Sec. 1007.1(c)(1) in order to make clear that, consistent with the Trust Act's requirement that the Trust become self-sufficient, personal copies of documents that the Trust makes available for inspection are not ordinarily provided free of charge.

In Sec. 1008.2 of the proposed regulations, the term ``Privacy Act'' was defined as ``section 3 of the Privacy Act, 5 U.S.C. 552a.'' For the sake of clarity, this was revised to state that ``Privacy Act means 5 U.S.C. 552a.'' Other definitions in Sec. 1008.2 were placed in proper alphabetical order.

Several provisions of the proposed regulations referred to the ``compendium'' to be published under proposed Sec. 1001.7. Because the comment period on proposed Sec. 1001.7 has not yet closed, this reference has been changed to refer to the ``compilation'' required under Sec. 1001.7(b) of the Trust's final interim regulations, which are currently in effect. This change was made to Sec. Sec. 1007.9(a)(1), 1007.9(a)(2), and 1008.15(d)(2) of the proposed regulations.

Minor grammatical changes were made to enhance the readability of certain provisions, including Sec. Sec. 1007.3(b)(3)(i)(A), 1007.4(b)(1)(i), and 1008.9(d). In Sec. 1008.16(d)(1), the cross- reference to Sec. 1008.12 was corrected to Sec. 1008.11. In addition, semicolons, articles, and disjunctive or conjunctive prepositions were added in various locations to improve readability.

Regulatory Impact and Congressional Review

This rulemaking will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, prices, the environment, public health or safety, or State or local governments. This rule will not interfere with an action taken or planned by another agency or raise new legal or policy issues. In short, little or no effect on the national economy will result from adoption of this rule. Because this rule is not ``economically significant,'' it is not subject to review by the Office of Management and Budget under Executive Order 12866.

The Trust has determined and certifies pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that this rule will not have a significant economic effect on a substantial number of small entities.

The Trust has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rule will not impose a cost of $100 million or more in any given year on local, State, or tribal governments or private entities.

In accordance with the Congressional Review Act, 5 U.S.C. 801 et seq., the Trust has submitted a copy of this rule, together with other required information, to each House of Congress and to the Comptroller General of the United States prior to publication of this rule in the Federal Register. This rule is not a ``major rule'' within the meaning of the Congressional Review Act, 5 U.S.C. 801 et seq.

Environmental Impact

The Presidio Trust prepared an Environmental Assessment (EA) in connection with the proposed version of this rule. The EA determined that the proposed version of this rule would not have a significant effect on the quality of the human environment because it is neither intended nor expected to change the physical status quo of the Presidio in any significant manner. As a result, the Trust issued a Finding of No Significant Impact (FONSI) concerning the proposed rule and therefore did not prepare an Environmental Impact Statement concerning the proposed rule. The EA and the FONSI were prepared in accordance with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA), and regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA, 40 CFR parts 1500- 1508. Both the EA and the FONSI are available for public inspection at the offices of the Presidio Trust, 34 Graham Street, The Presidio, San Francisco, CA 94129, between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays.

In light of the non-substantive changes made to the proposed version of this rule before its consideration by the Trust as a final rule, the Trust has adopted the prior EA and issued a Finding of No Significant Impact with respect to this final rule.

Paperwork Reduction Act

This final rule contains no information collection requirements. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is not required.

Other Applicable Authorities

The Presidio Trust has determined that these regulations meet the applicable standards provided in secs. 3 (a) and (b) of Executive Order 12988.

List of Subjects

36 CFR Part 1007

Administrative practice and procedure, Freedom of information, Records.

36 CFR Part 1008

Administrative practice and procedure, Privacy, Records.

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36 CFR Part 1009

Administrative practice and procedure, Tort claims.

Dated: December 18, 1998. James E. Meadows, Executive Director.

Accordingly, the Presidio Trust adds 36 CFR Parts 1007, 1008, and 1009, as set forth below:

PART 1007--REQUESTS UNDER THE FREEDOM OF INFORMATION ACT

Sec.

1007.1 Purpose and scope. 1007.2 Records available. 1007.3 Requests for records. 1007.4 Preliminary processing of requests. 1007.5 Action on initial requests. 1007.6 Time limits for processing initial requests. 1007.7 Appeals. 1007.8 Action on appeals. 1007.9 Fees. 1007.10 Waiver of fees.

Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note); 5 U.S.C. 552; E.O. 12,600, 52 FR 23781, 3 CFR, 1988 Comp., p. 235.

Sec. 1007.1 Purpose and scope.

(a) This part contains the procedures for submission to and consideration by the Presidio Trust of requests for records under FOIA. As used in this part, the term ``FOIA'' means the Freedom of Information Act, 5 U.S.C. 552.

(b) Before invoking the formal procedures set out below, persons seeking records from the Presidio Trust may find it useful to consult with the Presidio Trust's FOIA Officer, who can be reached at The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052, Telephone: (415) 561-5300. As used in this part, the term ``FOIA Officer'' means the employee designated by the Executive Director to process FOIA requests and otherwise supervise the Presidio Trust's compliance with FOIA, or the alternate employee so designated to perform these duties in the absence of the FOIA Officer.

(c) The procedures in this part do not apply to:

(1) Records published in the Federal Register, the Bylaws of the Presidio Trust, statements of policy and interpretations, and other materials that have been published by the Presidio Trust on its internet website (http://www.presidiotrust.gov) or are routinely made available for inspection and copying at the requester's expense.

(2) Records or information compiled for law enforcement purposes and covered by the disclosure exemption described in Sec. 1007.2(c)(7) if:

(i) The investigation or proceeding involves a possible violation of criminal law; and

(ii) There is reason to believe that:

(A) The subject of the investigation or proceeding is not aware of its pendency, and

(B) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.

(3) Informant records maintained by the United States Park Police under an informant's name or personal identifier, if requested by a third party according to the informant's name or personal identifier, unless the informant's status as an informant has been officially confirmed.

Sec. 1007.2 Records available.

(a) Policy. It is the policy of the Presidio Trust to make its records available to the public to the greatest extent possible consistent with the purposes of the Presidio Trust Act and the Freedom of Information Act.

(b) Statutory disclosure requirement. FOIA requires that the Presidio Trust, on a request from a member of the public submitted in accordance with the procedures in this part, make requested records available for inspection and copying.

(c) Statutory exemptions. Exempted from FOIA's statutory disclosure requirement are matters that are:

(1)(i) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and

(ii) Are in fact properly classified pursuant to such Executive order;

(2) Related solely to the internal personnel rules and practices of an agency;

(3) Specifically exempted from disclosure by statute (other than the Privacy Act), provided that such statute:

(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or

(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

(i) Could reasonably be expected to interfere with enforcement proceedings,

(ii) Would deprive a person of a right to a fair or an impartial adjudication,

(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy,

(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,

(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or

(vi) Could reasonably be expected to endanger the life or physical safety of any individual;

(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) Geological and geophysical information and data, including maps, concerning wells.

(d) Decisions on requests. It is the policy of the Presidio Trust to withhold information falling within an exemption only if:

(1) Disclosure is prohibited by statute or Executive order or

(2) Sound grounds exist for invocation of the exemption.

(e) Disclosure of reasonably segregable nonexempt material. If a requested record contains material covered by an exemption and material that is not exempt, and it is determined under the procedures in this part to withhold the exempt material, any reasonably segregable nonexempt material shall be separated from the exempt material and released. In such circumstances, the records disclosed in part shall be marked or annotated to show both the amount and the location of the information deleted wherever practicable.

Sec. 1007.3 Requests for records.

(a) Submission of requests. A request to inspect or copy records shall be submitted to the Presidio Trust's FOIA

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Officer at P.O. Box 29052, San Francisco, CA 94129-0052.

(b) Form of requests. (1) Requests under this part shall be in writing and must specifically invoke FOIA.

(2) A request must reasonably describe the records requested. A request reasonably describes the records requested if it will enable an employee of the Presidio Trust familiar with the subject area of the request to locate the record with a reasonable amount of effort. If such information is available, the request should identify the subject matter of the record, the date when it was made, the place where it was made, the person or office that made it, the present custodian of the record, and any other information that will assist in locating the requested record. If the request involves a matter known by the requester to be in litigation, the request should also state the case name and court hearing the case.

(3)(i) A request shall:

(A) Specify the fee category (commercial use, educational institution, noncommercial scientific institution, news media, or other, as defined in Sec. 1007.9 of this chapter) in which the requester claims the request falls and the basis of this claim; and

(B) State the maximum amount of fees that the requester is willing to pay or include a request for a fee waiver.

(ii) Requesters are advised that, under Sec. 1007.9 (f), (g) and (h), the time for responding to requests may be delayed:

(A) If a requester has not sufficiently identified the fee category applicable to the request;

(B) If a requester has not stated a willingness to pay fees as high as anticipated by the Presidio Trust; or

(C) If a fee waiver request is denied and the requester has not included an alternative statement of willingness to pay fees as high as anticipated by the Presidio Trust.

(4) A request seeking a fee waiver shall, to the extent possible, address why the requester believes that the criteria for fee waivers set out in Sec. 1007.10 are met.

(5) To expedite processing, both the envelope containing a request and the face of the request should bear the legend ``FREEDOM OF INFORMATION REQUEST.''

(c) Creation of records. A request may seek only records that are in existence at the time the request is received. A request may not seek records that come into existence after the date on which it is received and may not require that new records be created in response to the request by, for example, combining or compiling selected items from manual files, preparing a new computer program, or calculating proportions, percentages, frequency distributions, trends or comparisons. In those instances where the Presidio Trust determines that creating a new record will be less burdensome than disclosing large volumes of unassembled material, the Presidio Trust may, in its discretion, agree to creation of a new record as an alternative to disclosing existing records.

Sec. 1007.4 Preliminary processing of requests.

(a) Scope of requests. Unless a request clearly specifies otherwise, requests to the Presidio Trust may be presumed to seek only records of the Presidio Trust.

(b) Records of other departments and agencies. (1) If a requested record in the possession of the Presidio Trust originated with another Federal department or agency, the request shall be referred to that agency unless:

(i) The record is of primary interest to the Presidio Trust, for example, because it was developed or prepared pursuant to the Presidio Trust's regulations or request,

(ii) The Presidio Trust is in a better position than the originating agency to assess whether the record is exempt from disclosure, or

(iii) The originating agency is not subject to FOIA.

(2) A request for documents that were classified by another agency shall be referred to that agency.

(c) Consultation with submitters of commercial and financial information. (1) If a request seeks a record containing trade secrets or commercial or financial information submitted by a person outside of the Federal government, the Presidio Trust shall provide the submitter with notice of the request whenever:

(i) The submitter has made a good faith designation of the information as commercially or financially sensitive, or

(ii) The Presidio Trust has reason to believe that disclosure of the information may result in commercial or financial injury to the submitter.

(2) Where notification of a voluminous number of submitters is required, such notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.

(3) The notice to the submitter shall afford the submitter a reasonable period within which to provide a detailed statement of any objection to disclosure. The submitter's statement shall explain the basis on which the information is claimed to be exempt under FOIA, including a specification of any claim of competitive or other business harm that would result from disclosure. The statement shall also include a certification that the information is confidential, has not been disclosed to the public by the submitter, and is not routinely available to the public from other sources.

(4) If a submitter's statement cannot be obtained within the time limit for processing the request under Sec. 1007.6, the requester shall be notified of the delay as provided in Sec. 1007.6(f).

(5) Notification to a submitter is not required if:

(i) The Presidio Trust determines, prior to giving notice, that the request for the record should be denied;

(ii) The information has previously been lawfully published or officially made available to the public;

(iii) Disclosure is required by a statute (other than FOIA) or regulation (other than this part);

(iv) Disclosure is clearly prohibited by a statute, as described in Sec. 1007.2(c)(3);

(v) The information was not designated by the submitter as confidential when it was submitted, or a reasonable time thereafter, if the submitter was specifically afforded an opportunity to make such a designation; however, a submitter will be notified of a request for information that was not designated as confidential at the time of submission, or a reasonable time thereafter, if there is substantial reason to believe that disclosure of the information would result in competitive harm;

(vi) The designation of confidentiality made by the submitter is obviously frivolous; or

(vii) The information was submitted to the Presidio Trust more than 10 years prior to the date of the request, unless the Presidio Trust has reason to believe that it continues to be confidential.

(6) If a requester brings suit to compel disclosure of information, the submitter of the information will be promptly notified.

Sec. 1007.5 Action on initial requests.

(a) Authority. (1) Requests shall be decided by the FOIA Officer.

(2) A decision to withhold a requested record, to release a record that is exempt from disclosure, or to deny a fee waiver shall be made only after consultation with the General Counsel.

(b) Form of grant. (1) When a requested record has been determined to be available, the FOIA Officer shall notify the requester as to when and where the record is available for inspection or, as the case may be, when and how copies will be provided. If fees are due, the FOIA Officer shall state the amount of fees due and the procedures for payment, as described in Sec. 1007.9.

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(2) The FOIA Officer shall honor a requester's specified preference of form or format of disclosure (e.g., paper, microform, audiovisual materials, or electronic records) if the record is readily available to the Presidio Trust in the requested form or format or if the record is reproducible by the Presidio Trust with reasonable efforts in the requested form or format.

(3) If a requested record (or portion thereof) is being made available over the objections of a submitter made in accordance with Sec. 1007.4(c), both the requester and the submitter shall be notified of the decision. The notice to the submitter (a copy of which shall be made available to the requester) shall be forwarded a reasonable number of days prior to the date on which disclosure is to be made and shall include:

(i) A statement of the reasons why the submitter's objections were not sustained;

(ii) A specification of the portions of the record to be disclosed, if the submitter's objections were sustained in part; and

(iii) A specified disclosure date.

(4) If a claim of confidentiality has been found frivolous in accordance with Sec. 1007.4(c)(5)(vi) and a determination is made to release the information without consultation with the submitter, the submitter of the information shall be notified of the decision and the reasons therefor a reasonable number of days prior to the date on which disclosure is to be made.

(c) Form of denial. (1) A decision withholding a requested record shall be in writing and shall include:

(i) A listing of the names and titles or positions of each person responsible for the denial;

(ii) A reference to the specific exemption or exemptions authorizing the withholding;

(iii) If neither a statute nor an Executive order requires withholding, the sound ground for withholding;

(iv) An estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption; and

(v) A statement that the denial may be appealed and a reference to the procedures in Sec. 1007.7 for appeal.

(2) A decision denying a request for failure to reasonably describe requested records or for other procedural deficiency or because requested records cannot be located shall be in writing and shall include:

(i) A description of the basis of the decision;

(ii) A list of the names and titles or positions of each person responsible; and

(iii) A statement that the matter may be appealed and a reference to the procedures in Sec. 1007.7 for appeal.

(d) Expedited processing. (1) Requests and appeals will be taken out of order and given expedited treatment whenever it is determined by the FOIA Officer that they involve:

(i) 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

(ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information.

(2) A request for expedited processing may be made at the time of the initial request for records or at any later time.

(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing.

(4) Within ten calendar days of receiving of a request for expedited processing, the FOIA Officer shall decide whether to grant the request for expedited processing and shall notify the requester of the decision. If a request for expedited processing is granted, the underlying FOIA request shall be given priority and shall be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously.

Sec. 1007.6 Time limits for processing initial requests.

(a) Basic limit. Requests for records shall be processed promptly. A determination whether to grant or deny a request shall be made within 20 working days after receipt of a request. This determination shall be communicated immediately to the requester.

(b) Running of basic time limit. (1) The 20 working day time limit begins to run when a request meeting the requirements of Sec. 1007.3(b) is received at the Presidio Trust.

(2) The running of the basic time limit may be delayed or tolled as explained in Sec. 1007.9 (f), (g) and (h) if a requester:

(i) Has not stated a willingness to pay fees as high as are anticipated and has not sought and been granted a full fee waiver, or

(ii) Has not made a required advance payment.

(c) Extensions of time. In the following unusual circumstances, the time limit for acting on an initial request may be extended to the extent reasonably necessary to the proper processing of the request, but in no case may the time limit be extended by more than 20 working days:

(1) The need to search for and collect the requested records from facilities or other establishments that are separate from the main office of the Presidio Trust;

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records demanded in a single request; or

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request.

(d) Notice of extension. A requester shall be notified in writing of an extension under paragraph (c) of this section. The notice shall state the reason for the extension and the date on which a determination on the request is expected to be made.

(e) Treatment of delay as denial. If no determination has been reached at the end of the 20 working day period for deciding an initial request, or an extension thereof under Sec. 1007.6(c), the requester may deem the request denied and may exercise a right of appeal in accordance with Sec. 1007.7.

(f) Notice of delay. When a determination cannot be reached within the time limit, or extension thereof, the requester shall be notified of the reason for the delay, of the date on which a determination may be expected, and of the right to treat the delay as a denial for purposes of appeal, including a reference to the procedures for filing an appeal in Sec. 1007.7.

Sec. 1007.7 Appeals.

(a) Right of appeal. A requester may appeal to the Executive Director when:

(1) Records have been withheld;

(2) A request has been denied for failure to describe requested records or for other procedural deficiency or because requested records cannot be located;

(3) A fee waiver has been denied;

(4) A request has not been decided within the time limits provided in Sec. 1007.6; or

(5) A request for expedited processing under Sec. 1007.5(d) has been denied.

(b) Time for appeal. An appeal must be received at the office of the Presidio Trust no later than 20 working days after the date of the initial denial, in the

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case of a denial of an entire request, or 20 working days after records have been made available, in the case of a partial denial.

(c) Form of appeal. (1) An appeal shall be initiated by filing a written notice of appeal. The notice shall be accompanied by copies of the original request and the initial denial and should, in order to expedite the appellate process and give the requester an opportunity to present his or her arguments, contain a brief statement of the reasons why the requester believes the initial denial to have been in error.

(2) The appeal shall be addressed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.

(3) To expedite processing, both the envelope containing a notice of appeal and the face of the notice should bear the legend ``FREEDOM OF INFORMATION APPEAL.''

Sec. 1007.8 Action on appeals.

(a) Authority. Appeals shall be decided by the Executive Director after consultation with the FOIA Officer and the General Counsel.

(b) Time limit. A final determination shall be made within 20 working days after receipt of an appeal meeting the requirements of Sec. 1007.7(c).

(c) Extensions of time. (1) If the time limit for responding to the initial request for a record was not extended under the provisions of Sec. 1007.6(c) or was extended for fewer than 10 working days, the time for processing of the appeal may be extended to the extent reasonably necessary to the proper processing of the appeal, but in no event may the extension, when taken together with any extension made during processing of the initial request, result in an aggregate extension with respect to any one request of more than 10 working days. The time for processing of an appeal may be extended only if one or more of the unusual circumstances listed in Sec. 1007.6(c) requires an extension.

(2) The appellant shall be advised in writing of the reasons for the extension and the date on which a final determination on the appeal is expected to be dispatched.

(3) If no determination on the appeal has been reached at the end of the 20 working day period, or the extension thereof, the requester is deemed to have exhausted his administrative remedies, giving rise to a right of review in the United States District Court for the Northern District of California, as specified in 5 U.S.C. 552(a)(4).

(4) When no determination can be reached within the applicable time limit, the appeal will nevertheless continue to be processed. On expiration of the time limit, the requester shall be informed of the reason for the delay, of the date on which a determination may be reached to be dispatched, and of the right to seek judicial review.

(d) Form of decision. (1) The final determination on an appeal shall be in writing and shall state the basis for the determination. If the determination is to release the requested records or portions thereof, the FOIA Officer shall immediately make the records available. If the determination upholds in whole or part the initial denial of a request for records, the determination shall advise the requester of the right to obtain judicial review in the U.S. District Court for the Northern District of California and shall set forth the names and titles or positions of each person responsible for the denial.

(2) If a requested record (or portion thereof) is being made available over the objections of a submitter made in accordance with Sec. 1007.4(c), the submitter shall be provided notice as described in Sec. 1007.5(b)(3).

Sec. 1007.9 Fees.

(a) Policy. (1) Unless waived pursuant to the provisions of Sec. 1007.10, fees for responding to FOIA requests shall be charged in accordance with the provisions of this section and the current schedule of charges determined by the Executive Director and published in the compilation provided under Sec. 1001.7(b) of this chapter. Such charges shall be set at the level necessary to recoup the full allowable direct costs to the Trust.

(2) Fees shall not be charged if the total amount chargeable does not exceed the costs of routine collection and processing of the fee. The Trust shall periodically determine the cost of routine collection and processing of a fee and publish such amount in the compilation provided under Sec. 1001.7(b) of this chapter.

(3) Where there is a reasonable basis to conclude that a requester or group of requesters acting in concert has divided a request into a series of requests on a single subject or related subjects to avoid assessment of fees, the requests may be aggregated and fees charged accordingly.

(4) Fees shall be charged to recover the full costs of providing such services as certifying that records are true copies or sending records by a method other than regular mail, when the Trust elects to provide such services.

(5) The following definitions shall apply to this part:

(i) The term search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents or databases. Searches shall be undertaken in the most efficient and least expensive manner possible, consistent with the Presidio Trust's obligations under FOIA and other applicable laws.

(ii) The term duplication refers to the process of making a copy of a record necessary to respond to a FOIA request. Such copies can take the form of paper copy, microform, audio-visual materials, or machine- readable documentation (e.g., magnetic tape or disk), among others. The copy provided shall be in a form that is reasonably usable by requesters.

(iii) A commercial use request is a request from or on behalf of a person who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. The intended use of records may be determined on the basis of information submitted by a requester and from reasonable inferences based on the identity of the requester and any other available information.

(iv) An educational institution is a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education, which operates a program or programs of scholarly research.

(v) A noncommercial scientific institution is an institution that is not operated for commerce, trade or profit 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.

(vi) A representative of the news media is any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term ``news'' means information that is about current events or that is (or would be) of current interest to the public. Examples of news media entities include, but are not limited to, television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of ``news'') who make their products available for purchase or subscription by the general public. As traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through

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telecommunications services), such alternative media would be included in this category. Free-lance journalists may be considered representatives of the news media if they demonstrate a solid basis for expecting publication through a news organization, even though not actually employed by it. A publication contract or past record of publication, or evidence of a specific free-lance assignment from a news organization may indicate a solid basis for expecting publication.

(b) Commercial use requests. (1) A requester seeking records for commercial use shall be charged fees for costs incurred in document search and review (even if the search and review fails to locate records that are not exempt from disclosure) and duplication.

(2) A commercial use requester may not be charged fees for time spent resolving legal and policy issues affecting access to requested records.

(c) Educational and noncommercial scientific institution requests. (1) A requester seeking records under the auspices of an educational institution in furtherance of scholarly research or a noncommercial scientific institution in furtherance of scientific research shall be charged for document duplication, except that the first 100 pages of paper copies (or the equivalent cost thereof if the records are in some other form) shall be provided without charge.

(2) Such requesters may not be charged fees for costs incurred in:

(i) Searching for requested records,

(ii) Examining requested records to determine whether they are exempt from mandatory disclosure,

(iii) Deleting reasonably segregable exempt matter,

(iv) Monitoring the requester's inspection of agency records, or

(v) Resolving legal and policy issues affecting access to requested records.

(d) News media requests. (1) A representative of the news media shall be charged for document duplication, except that the first 100 pages of paper copies (or the equivalent cost thereof if the records are in some other form) shall be provided without charge.

(2) Representatives of the news media may not be charged fees for costs incurred in:

(i) Searching for requested records,

(ii) Examining requested records to determine whether they are exempt from mandatory disclosure,

(iii) Deleting reasonably segregable exempt matter,

(iv) Monitoring the requester's inspection of agency records, or

(v) Resolving legal and policy issues affecting access to requested records.

(e) Other requests. (1) A requester not covered by paragraphs (b), (c), or (d) of this section shall be charged fees for document search (even if the search fails to locate records that are not exempt from disclosure) and duplication, except that the first two hours of search time and the first 100 pages of paper copies (or the equivalent cost thereof if the records are in some other form) shall be provided without charge.

(2) Such requesters may not be charged for costs incurred in:

(i) Examining requested records to determine whether they are exempt from disclosure,

(ii) Deleting reasonably segregable exempt matter,

(iii) Monitoring the requester's inspection of agency records, or

(iv) Resolving legal and policy issues affecting access to requested records.

(f) Requests for clarification. Where a request does not provide sufficient information to determine whether it is covered by paragraph (b), (c), (d), or (e) of this section, the requester should be asked to provide additional clarification. If it is necessary to seek such clarification, the request may be deemed to have not been received for purposes of the time limits established in Sec. 1007.6 until the clarification is received. Requests to requesters for clarification shall be made promptly.

(g) Notice of anticipated fees. Where a request does not state a willingness to pay fees as high as anticipated by the Presidio Trust, and the requester has not sought and been granted a full waiver of fees under Sec. 1007.10, the request may be deemed to have not been received for purposes of the time limits established in Sec. 1007.6 until the requester has been notified of and agrees to pay the anticipated fee. Advice to requesters with respect to anticipated fees shall be provided promptly.

(h) Advance payment. (1) Where it is anticipated that allowable fees are likely to exceed $250.00, the requester may be required to make an advance payment of the entire fee before processing of his or her request.

(2) Where a requester has previously failed to pay a fee within 30 days of the date of billing, processing of any request from that requester shall ordinarily be suspended until the requester pays any amount still owed, including applicable interest, and makes advance payment of allowable fees anticipated in connection with the request.

(3) Advance payment of fees may not be required except as described in paragraphs (h) (1) and (2) of this section.

(4) Issuance of a notice requiring payment of overdue fees or advance payment shall toll the time limit in Sec. 1007.6 until receipt of payment.

(i) Form of payment. Payment of fees should be made by check or money order payable to the Presidio Trust. Where appropriate, the official responsible for handling a request may require that payment by check be made in the form of a certified check.

(j) Billing procedures. A bill for collection shall be prepared for each request that requires collection of fees.

(k) Collection of fees. The bill for collection or an accompanying letter to the requester shall include a statement that interest will be charged in accordance with the Debt Collection Act of 1982, 31 U.S.C. 3717, and implementing regulations, 4 CFR 102.13, if the fees are not paid within 30 days of the date of the bill for collection is mailed or hand-delivered to the requester. This requirement does not apply if the requester is a unit of State or local government. Other authorities of the Debt Collection Act of 1982 shall be used, as appropriate, to collect the fees.

Sec. 1007.10 Waiver of fees.

(a) Statutory fee waiver. Documents shall be furnished without charge or at a charge reduced below the fees chargeable under Sec. 1007.9 if disclosure of the information is in the public interest because it:

(1) Is likely to contribute significantly to public understanding of the operations or activities of the government and

(2) Is not primarily in the commercial interest of the requester.

(b) Elimination or reduction of fees. Ordinarily, in the circumstances where the criteria of paragraph (a) of this section are met, fees will be reduced by twenty-five percent from the fees otherwise chargeable to the requester. In exceptional circumstances, and with the approval of the Executive Director, fees may be reduced below this level or waived entirely.

(c) Notice of denial. If a requested statutory fee waiver or reduction is denied, the requester shall be notified in writing. The notice shall include:

(1) A statement of the basis on which the waiver or reduction has been denied;

(2) A listing of the names and titles or positions of each person responsible for the denial; and

(3) A statement that the denial may be appealed to the Executive Director and a description of the procedures in Sec. 1007.7 for appeal.

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PART 1008--REQUESTS UNDER THE PRIVACY ACT

Sec. 1008.1 Purpose and scope. 1008.2 Definitions. 1008.3 Records subject to the Privacy Act. 1008.4 Standards for maintenance of records subject to the Privacy Act. 1008.5 Federal Register notices describing systems of records. 1008.6 Assuring integrity of records. 1008.7 Conduct of employees. 1008.8 Government contracts. 1008.9 Disclosure of records. 1008.10 Accounting for disclosures. 1008.11 Requests for notification of existence of records: Submission. 1008.12 Requests for notification of existence of records: Action on. 1008.13 Requests for access to records. 1008.14 Requests for access to records: Submission. 1008.15 Requests for access to records: Initial decision. 1008.16 Requests for notification of existence of records and for access to records: Appeals. 1008.17 Requests for access to records: Special situations. 1008.18 Amendment of records. 1008.19 Petitions for amendment: Submission and form. 1008.20 Petitions for amendment: Processing and initial decision. 1008.21 Petitions for amendment: Time limits for processing. 1008.22 Petitions for amendment: Appeals. 1008.23 Petitions for amendment: Action on appeals. 1008.24 Statements of disagreement.

Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note); 5 U.S.C. 552a.

Sec. 1008.1 Purpose and scope.

This part contains the regulations of the Presidio Trust implementing section 3 of the Privacy Act. Sections 1008.3 through 1008.10 describe the procedures and policies of the Presidio Trust concerning maintenance of records which are subject to the Privacy Act. Sections 1008.11 through 1008.17 describe the procedure under which individuals may determine whether systems of records subject to the Privacy Act contain records relating to them and the procedure under which they may seek access to existing records. Sections 1008.18 through 1008.24 describe the procedure under which individuals may petition for amendment of records subject to the Privacy Act relating to them.

Sec. 1008.2 Definitions.

The following terms have the following meanings as used in this part:

Individual means a citizen of the United States or an alien lawfully admitted for permanent residence.

Maintain means maintain, collect, use or disseminate.

Privacy Act means 5 U.S.C. 552a.

Privacy Act Officer means the Presidio Trust official charged with responsibility for carrying out the functions assigned in this part.

Record means any item, collection, or grouping of information about an individual that is maintained by the Presidio Trust, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and that 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 a photograph. Related definitions include:

(1) System of records means a group of any records under the control of the Presidio Trust from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

(2) Medical records means records which relate to the identification, prevention, cure or alleviation of any disease, illness or injury including psychological disorders, alcoholism and drug addiction.

(3) Personnel records means records used for personnel management programs or processes such as staffing, employee development, retirement, and grievances and appeals.

(4) Statistical records means records in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual.

Routine use means a use of a record for a purpose which is compatible with the purpose for which it was collected.

System manager means the official designated in a system notice as having administrative responsibility for a system of records.

System notice means the notice describing a system of records required by 5 U.S.C. 552a(e)(4) to be published in the Federal Register upon establishment or revision of the system of records.

Sec. 1008.3 Records subject to the Privacy Act.

The Privacy Act applies to all records which the Presidio Trust maintains in a system of records.

Sec. 1008.4 Standards for maintenance of records subject to the Privacy Act.

(a) Content of records. Records subject to the Privacy Act shall contain only such information about an individual as is relevant and necessary to accomplish a purpose of the Presidio Trust required to be accomplished by statute or Executive Order of the President.

(b) Standards of accuracy. Records subject to the Privacy Act which are used in making any determination about any individual shall be maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in making the determination.

(c) Collection of information. (1) Information which may be used in making determinations about an individual's rights, benefits, and privileges under Federal programs shall, to the greatest extent practicable, be collected directly from that individual.

(2) In deciding whether collection of information from an individual, as opposed to a third party source, is practicable, the following factors, among others, may be considered:

(i) Whether the nature of the information sought is such that it can only be obtained from a third party;

(ii) Whether the cost of collecting the information from the individual is unreasonable when compared with the cost of collecting it from a third party;

(iii) Whether there is a risk that information collected from third parties, if inaccurate, could result in an adverse determination to the individual concerned;

(iv) Whether the information, if supplied by the individual, would have to be verified by a third party; or (v) Whether provisions can be made for verification, by the individual, of information collected from third parties.

(d) Advice to individuals concerning uses of information. (1) Each individual who is asked to supply information about him or herself which will be added to a system of records shall be informed of the basis for requesting the information, how it may be used, and what the consequences, if any, are of not supplying the information.

(2) At a minimum, the notice to the individual must state:

(i) The authority (whether granted by statute or Executive Order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;

(ii) The principal purpose or purposes for which the information is intended to be used;

(iii) The routine uses which may be made of the information; and

(iv) The effects on the individual, if any, of not providing all or any part of the requested information.

(3)(i) When information is collected on a standard form, the notice to the individual shall be provided on the form, on a tear-off sheet attached to the form, or on a separate sheet, whichever is most practical.

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(ii) When information is collected by an interviewer, the interviewer shall provide the individual with a written notice which the individual may retain. If the interview is conducted by telephone, however, the interviewer may summarize the notice for the individual and need not provide a copy to the individual unless the individual requests a copy.

(iii) An individual may be asked to acknowledge, in writing, that the notice required by this section has been provided.

(e) Records concerning activity protected by the First Amendment. No record may be maintained describing how any individual exercises rights guaranteed by the First Amendment to the Constitution unless the maintenance of the record is:

(1) Expressly authorized by statute or by the individual about whom the record is maintained; or

(2) Pertinent to and within the scope of an authorized law enforcement activity.

Sec. 1008.5 Federal Register notices describing systems of records.

The Privacy Act requires publication of a notice in the Federal Register describing each system of records subject to the Privacy Act. Such notice will be published prior to the establishment or a revision of the system of records. 5 U.S.C. 552a(e)(4).

Sec. 1008.6 Assuring integrity of records.

(a) Statutory requirement. The Privacy Act requires that records subject to the Privacy Act be maintained with appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained, 5 U.S.C. 552a(e)(10).

(b) Records security. Whether maintained in physical or electronic form, records subject to the Privacy Act shall be maintained in a secure manner commensurate with the sensitivity of the information contained in the system of records. The Privacy Act Officer will periodically review these security measures to ensure their adequacy.

Sec. 1008.7 Conduct of employees.

(a) Handling of records subject to the Privacy Act. Employees whose duties require handling of records subject to the Privacy Act shall, at all times, take care to protect the integrity, security and confidentiality of these records.

(b) Disclosure of records. No employee of the Presidio Trust may disclose records subject to the Privacy Act unless disclosure is permitted under Sec. 1008.9 or is to the individual to whom the record pertains.

(c) Alteration of records. No employee of the Presidio Trust may alter or destroy a record subject to the Privacy Act unless such alteration or destruction is:

(1) Properly undertaken in the course of the employee's regular duties; or

(2) Required by a decision under Sec. Sec. 1008.18 through 1008.23 or the decision of a court of competent jurisdiction.

Sec. 1008.8 Government contracts.

(a) Required contract provisions. When a contract provides for the operation by or on behalf of the Presidio Trust of a system of records to accomplish a Presidio Trust function, the contract shall, consistent with the Presidio Trust's authority, cause the requirements of 5 U.S.C. 552a and the regulations contained in this part to be applied to such system.

(b) System manager. A regular employee of the Presidio Trust will be the manager for a system of records operated by a contractor.

Sec. 1008.9 Disclosure of records.

(a) Prohibition of disclosure. No record contained in a system of records may be disclosed by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.

(b) General exceptions. The prohibition contained in paragraph (a) of this section does not apply where disclosure of the record would be:

(1) To those officers or employees of the Presidio Trust who have a need for the record in the performance of their duties; or

(2) Required by the Freedom of Information Act, 5 U.S.C. 552.

(c) Specific exceptions. The prohibition contained in paragraph (a) of this section does not apply where disclosure of the record would be:

(1) For a routine use which has been described in a system notice published in the Federal Register;

(2) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13, U.S. Code.

(3) To a recipient who has provided the system manager responsible for the system in which the record is maintained with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;

(4) To the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;

(5) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the Presidio Trust specifying the particular portion desired and the law enforcement activity for which the record is sought;

(6) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;

(7) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;

(8) To the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office;

(9) Pursuant to the order of a court of competent jurisdiction; or

(10) To a consumer reporting agency in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(f)).

(d) Reviewing records prior to disclosure. (1) Prior to any disclosure of a record about an individual, unless disclosure is required by the Freedom of Information Act, reasonable efforts shall be made to ensure that the records are accurate, complete, timely and relevant for agency purposes.

(2) When a record is disclosed in connection with a Freedom of Information Act request made under this part and it is appropriate and administratively feasible to do so, the requester shall be informed of any information known to the Presidio Trust indicating that the record may not be fully accurate, complete, or timely.

Sec. 1008.10 Accounting for disclosures.

(a) Maintenance of an accounting. (1) Where a record is disclosed to any

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person, or to another agency, under any of the specific exceptions provided by Sec. 1008.9(c), an accounting shall be made.

(2) The accounting shall record:

(i) The date, nature, and purpose of each disclosure of a record to any person or to another agency; and

(ii) The name and address of the person or agency to whom the disclosure was made.

(3) Accountings prepared under this section shall be maintained for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made.

(b) Access to accountings. (1) Except for accountings of disclosures made under Sec. 1008.9(c)(5), accountings of all disclosures of a record shall be made available to the individual to whom the record relates at the individual's request.

(2) An individual desiring access to an accounting of disclosures of a record pertaining to the individual shall submit a request by following the procedures of Sec. 1008.13.

(c) Notification of disclosure. When a record is disclosed pursuant to Sec. 1008.9(c)(9) as the result of the order of a court of competent jurisdiction, reasonable efforts shall be made to notify the individual to whom the record pertains as soon as the order becomes a matter of public record.

Sec. 1008.11 Request for notification of existence of records: Submission.

(a) Submission of requests. (1) Individuals desiring to determine under the Privacy Act whether a system of records contains records pertaining to them shall address inquiries to the Privacy Act Officer, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052, unless the system notice describing the system prescribes or permits submission to some other official or officials.

(2) Individuals desiring to determine whether records pertaining to them are maintained in two or more systems shall make a separate inquiry concerning each system.

(b) Form of request. (1) An inquiry to determine whether a system of records contains records pertaining to an individual shall be in writing.

(2) To expedite processing, both the envelope containing a request and the face of the request should bear the legend ``PRIVACY ACT INQUIRY.''

(3) The request shall state that the individual is seeking information concerning records pertaining to him or herself and shall supply such additional identifying information, if any, as is called for in the system notice describing the system.

(4) Individuals who have reason to believe that information pertaining to them may be filedunder a name other than the name they are currently using (e.g., maiden name), shall include such information in the request.

Sec. 1008.12 Requests for notification of existence of records: Action on.

(a) Decisions on request. (1) Individuals inquiring to determine whether a system of records contains records pertaining to them shall be promptly advised whether the system contains records pertaining to them unless:

(i) The records were compiled in reasonable anticipation of a civil action or proceeding; or

(ii) The system of records is one which has been excepted from the notification provisions of the Privacy Act by rulemaking.

(2) If the records were compiled in reasonable anticipation of a civil action or proceeding or the system of records is one which has been excepted from the notification provisions of the Privacy Act by rulemaking, the individuals will be promptly notified that they are not entitled to notification of whether the system contains records pertaining to them.

(b) Authority to deny requests. A decision to deny a request for notification of the existence of records shall be made by the Privacy Act officer in consultation with the General Counsel.

(c) Form of decision. (1) No particular form is required for a decision informing individuals whether a system of records contains records pertaining to them.

(2) A decision declining to inform an individual whether or not a system of records contains records pertaining to him or her shall be in writing and shall:

(i) State the basis for denial of the request;

(ii) Advise the individual that an appeal of the declination may be made to the Executive Director pursuant to Sec. 1008.16 by writing to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052; and

(iii) State that the appeal must be received by the foregoing official within 20 working days of the date of the decision.

(3) If the decision declining a request for notification of the existence of records involves records which fall under the jurisdiction of another agency, the individual shall be informed in a written response which shall:

(i) State the reasons for the denial;

(ii) Include the name, position title, and address of the official responsible for the denial; and (iii) Advise the individual that an appeal of the declination may be made only to the appropriate official of the relevant agency, and include that official's name, position title, and address.

(4) Copies of decisions declining a request for notification of the existence of records made pursuant to paragraphs (c)(2) and (c)(3) of this section shall be provided to the Privacy Act Officer.

Sec. 1008.13 Requests for access to records.

The Privacy Act permits individuals, upon request, to gain access to their records or to any information pertaining to them which is contained in a system and to review the records and have a copy made of all or any portion thereof in a form comprehensive to them. 5 U.S.C. 552a(d)(1). A request for access shall be submitted in accordance with the procedures in this part.

Sec. 1008.14 Requests for access to records: Submission.

(a) Submission of requests. (1) Requests for access to records shall be submitted to the Privacy Act Officer unless the system notice describing the system prescribes or permits submission to some other official or officials.

(2) Individuals desiring access to records maintained in two or more separate systems shall submit a separate request for access to the records in each system.

(b) Form of request. (1) A request for access to records subject to the Privacy Act shall be in writing and addressed to Privacy Act Officer, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129- 0052.

(2) To expedite processing, both the envelope containing a request and the face of the request should bear the legend ``PRIVACY ACT REQUEST FOR ACCESS.''

(3) Requesters shall specify whether they seek all of the records contained in the system which relate to them or only some portion thereof. If only a portion of the records which relate to the individual are sought, the request shall reasonably describe the specific record or records sought.

(4) If the requester seeks to have copies of the requested records made, the request shall state the maximum amount of copying fees which the requester is willing to pay. A request which does not state the amount of fees the requester is willing to pay will be treated as a request to inspect the requested records. Requesters are further notified that under Sec. 1008.15(d) the failure to state willingness to pay fees as high as are anticipated by the

[[Page 71782]]

Presidio Trust will delay processing of a request.

(5) The request shall supply such identifying information, if any, as is called for in the system notice describing the system.

(6) Requests failing to meet the requirements of this paragraph shall be returned to the requester with a written notice advising the requester of the deficiency in the request.

Sec. 1008.15 Requests for access to records: Initial decision.

(a) Decisions on requests. A request made under this part for access to a record shall be granted promptly unless the record:

(1) Was compiled in reasonable anticipation of a civil action or proceeding; or

(2) Is contained in a system of records which has been excepted from the access provisions of the Privacy Act by rulemaking.

(b) Authority to deny requests. A decision to deny a request for access under this part shall be made by the Privacy Act Officer in consultation with the General Counsel.

(c) Form of decision. (1) No particular form is required for a decision granting access to a record. The decision shall, however, advise the individual requesting the record as to where and when the record is available for inspection or, as the case may be, where and when copies will be available. If fees are due under Sec. 1008.15(d), the individual requesting the record shall also be notified of the amount of fees due or, if the exact amount has not been determined, the approximate amount of fees due.

(2) A decision denying a request for access, in whole or part, shall be in writing and shall:

(i) State the basis for denial of the request;

(ii) Contain a statement that the denial may be appealed to the Executive Director pursuant to Sec. 1008.16 by writing to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129- 0052; and (iii) State that the appeal must be received by the foregoing official within 20 working days of the date of the decision.

(3) If the decision denying a request for access involves records which fall under the jurisdiction of another agency, the individual shall be informed in a written response which shall:

(i) State the reasons for the denial;

(ii) Include the name, position title, and address of the official responsible for the denial; and

(iii) Advise the individual that an appeal of the declination may be made only to the appropriate official of the relevant agency, and include that official's name, position title, and address.

(4) Copies of decisions denying requests for access made pursuant to paragraphs (c)(2) and (c)(3) of this section will be provided to the Privacy Act Officer.

(d) Fees. (1) No fees may be charged for the cost of searching for or reviewing a record in response to a request made under Sec. 1008.14.

(2) Unless the Privacy Act Officer determines that reduction or waiver of fees is appropriate, fees for copying a record in response to a request made under Sec. 1008.14 shall be charged in accordance with the provisions of this section and the current schedule of charges determined by the Executive Director and published in the compilation provided under Sec. 1001.7(b) of this chapter. Such charges shall be set at the level necessary to recoup the full allowable direct costs to the Trust.

(3) Where it is anticipated that fees chargeable in connection with a request will exceed the amount the person submitting the request has indicated a willingness to pay, the Privacy Act Officer shall notify the requester and shall not complete processing of the request until the requester has agreed, in writing, to pay fees as high as are anticipated.

Sec. 1008.16 Requests for notification of existence of records and for access to records: Appeals.

(a) Right of appeal. Except for appeals pertaining to records under the jurisdiction of another agency, individuals who have been notified that they are not entitled to notification of whether a system of records contains records pertaining to them or have been denied access, in whole or part, to a requested record may appeal to the Executive Director.

(b) Time for appeal. (1) An appeal must be received by the Executive Director no later than 20 working days after the date of the initial decision on a request.

(2) The Executive Director may, for good cause shown, extend the time for submission of an appeal if a written request for additional time is received within 20 working days of the date of the initial decision on the request.

(c) Form of appeal. (1) An appeal shall be in writing and shall attach copies of the initial request and the decision on the request.

(2) The appeal shall contain a brief statement of the reasons why the appellant believes the decision on the initial request to have been in error.

(3) The appeal shall be addressed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.

(d) Action on appeals. (1) Appeals from decisions on initial requests made pursuant to Sec. Sec. 1008.11 and 1008.14 shall be decided for the Presidio Trust by the Executive Director after consultation with the General Counsel.

(2) The decision on an appeal shall be in writing and shall state the basis for the decision.

Sec. 1008.17 Requests for access to records: Special situations.

(a) Medical records. (1) Medical records shall be disclosed to the individual to whom they pertain unless it is determined, in consultation with a medical doctor, that disclosure should be made to a medical doctor of the individual's choosing.

(2) If it is determined that disclosure of medical records directly to the individual to whom they pertain could have an adverse effect on that individual, the individual may designate a medical doctor to receive the records and the records will be disclosed to that doctor.

(b) Inspection in presence of third party. (1) Individuals wishing to inspect records pertaining to them which have been opened for their inspection may, during the inspection, be accompanied by a person of their own choosing.

(2) When such a procedure is deemed appropriate, individuals to whom the records pertain may be required to furnish a written statement authorizing discussion of their records in the accompanying person's presence.

Sec. 1008.18 Amendment of records.

The Privacy Act permits individuals to request amendment of records pertaining to them if they believe the records are not accurate, relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for amendment of a record shall be submitted in accordance with the procedures in this part.

Sec. 1008.19 Petitions for amendment: Submission and form.

(a) Submission of petitions for amendment. (1) A request for amendment of a record shall be submitted to the Privacy Act Officer unless the system notice describing the system prescribes or permits submission to a different official or officials. If an individual wishes to request amendment of records located in more than one system, a separate petition must be submitted with respect to each system.

(2) A petition for amendment of a record may be submitted only if the

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individual submitting the petition has previously requested and been granted access to the record and has inspected or been given a copy of the record.

(b) Form of petition. (1) A petition for amendment shall be in writing and shall specifically identify the record for which amendment is sought.

(2) The petition shall state, in detail, the reasons why the petitioner believes the record, or the objectionable portion thereof, is not accurate, relevant, timely or complete. Copies of documents or evidence relied upon in support of these reasons shall be submitted with the petition.

(3) The petition shall state, specifically and in detail, the changes sought in the record. If the changes involve rewriting the record or portions thereof or involve adding new language to the record, the petition shall propose specific language to implement the changes.

Sec. 1008.20 Petitions for amendment: Processing and initial decision.

(a) Decisions on petitions. In reviewing a record in response to a petition for amendment, the accuracy, relevance, timeliness and completeness of the record shall be assessed against the criteria set out in Sec. 1008.4.

(b) Authority to decide. A decision on a petition for amendment shall be made by the Privacy Act Officer in consultation with the General Counsel.

(c) Acknowledgment of receipt. Unless processing of a petition is completed within ten working days, the receipt of the petition for amendment shall be acknowledged in writing by the Privacy Act Officer.

(d) Inadequate petitions. (1) If a petition does not meet the requirements of Sec. 1008.19, the petitioner shall be so advised and shall be told what additional information must be submitted to meet the requirements of Sec. 1008.19.

(2) If the petitioner fails to submit the additional information within a reasonable time, the petition may be rejected. The rejection shall be in writing and shall meet the requirements of paragraph (e) of this section.

(e) Form of decision. (1) A decision on a petition for amendment shall be in writing and shall state concisely the basis for the decision.

(2) If the petition for amendment is rejected, in whole or part, the petitioner shall be informed in a written response which shall:

(i) State concisely the basis for the decision;

(ii) Advise the petitioner that the rejection may be appealed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052; and

(iii) State that the appeal must be received by the foregoing official within 20 working days of the decision.

(3) If the petition for amendment involves records which fall under the jurisdiction of another agency and is rejected, in whole or part, the petitioner shall be informed in a written response which shall:

(i) State concisely the basis for the decision;

(ii) Include the name, position title, and address of the official responsible for the denial; and

(iii) Advise the individual that an appeal of the rejection may be made only to the appropriate official of the relevant agency, and include that official's name, position title, and address.

(4) Copies of rejections of petitions for amendment made pursuant to paragraphs (e)(2) and (e)(3) of this section will be provided to the Privacy Act Officer.

(f) Implementation of initial decision. If a petition for amendment is accepted, in whole or part, the system manager maintaining the record shall:

(1) Correct the record accordingly and,

(2) Where an accounting of disclosures has been made pursuant to Sec. 1008.10, advise all previous recipients of the record that the correction was made and the substance of the correction.

Sec. 1008.21 Petitions for amendment: Time limits for processing.

(a) Acknowledgment of receipt. The acknowledgment of receipt of a petition required by Sec. 1008.20(c) shall be dispatched not later than ten working days after receipt of the petition by the Privacy Act Officer, unless a decision on the petition has been previously dispatched.

(b) Decision on petition. A petition for amendment shall be processed promptly. A determination whether to accept or reject the petition for amendment shall be made within 30 working days after receipt of the petition by the system manager responsible for the system containing the challenged record.

(c) Suspension of time limit. The 30 working day time limit for a decision on a petition shall be suspended if it is necessary to notify the petitioner, pursuant to Sec. 1008.20(d), that additional information in support of the petition is required. Running of the 30 working day time limit shall resume on receipt of the additional information by the system manager responsible for the system containing the challenged record.

(d) Extensions of time. (1) The 30 working day time limit for a decision on a petition may be extended if the Privacy Act Officer determines that an extension is necessary for one of the following reasons:

(i) A decision on the petition requires analysis of voluminous record or records;

(ii) Some or all of the challenged records must be collected from facilities other than the facility at which the Privacy Act Officer is located; or

(iii) Some or all of the challenged records are of concern to another agency of the Federal Government whose assistance and views are being sought in processing the request.

(2) If the official responsible for making a decision on the petition determines that an extension is necessary, the official shall promptly inform the petitioner of the extension and the date on which a decision is expected to be dispatched.

Sec. 1008.22 Petitions for amendment: Appeals.

(a) Right of appeal. Except for appeals pertaining to records under the jurisdiction of another agency, where a petition for amendment has been rejected in whole or in part, the individual submitting the petition may appeal the denial to the Executive Director.

(b) Time for appeal. (1) An appeal must be received no later than 20 working days after the date of the decision on a petition.

(2) The Executive Director may, for good cause shown, extend the time for submission of an appeal if a written request for additional time is received within 20 working days of the date of the decision on a petition.

(c) Form of appeal. (1) An appeal shall be in writing and shall attach copies of the initial petition and the decision on that petition.

(2) The appeal shall contain a brief statement of the reasons why the appellant believes the decision on the petition to have been in error.

(3) The appeal shall be addressed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.

Sec. 1008.23 Petitions for amendment: Action on appeals.

(a) Authority. Appeals from decisions on initial petitions for amendment shall be decided by the Executive Director, in consultation with the General Counsel.

(b) Time limit. (1) A final determination on any appeal shall be made within 30 working days after receipt of the appeal.

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(2) The 30 working day period for decision on an appeal may be extended, for good cause shown, by the Executive Director. If the 30 working day period is extended, the individual submitting the appeal shall be notified of the extension and of the date on which a determination on the appeal is expected to be dispatched.

(c) Form of decision. (1) The final determination on an appeal shall be in writing and shall state the basis for the determination.

(2) If the determination upholds, in whole or part, the initial decision rejecting the petition for amendment, the determination shall also advise the individual submitting the appeal:

(i) Of his or her right to file a concise statement of the reasons for disagreeing with the decision of the Presidio Trust;

(ii) Of the procedure established by Sec. 1008.24 for the filing of the statement of disagreement;

(iii) That the statement which is filedwill be made available to anyone to whom the record is subsequently disclosed together with, at the discretion of the Presidio Trust, a brief statement by the Presidio Trust summarizing its reasons for refusing to amend the record;

(iv) That prior recipients of the challenged record will be provided a copy of any statement of dispute to the extent that an accounting of disclosure was maintained; and

(v) Of his or her right to seek judicial review of the Presidio Trust's refusal to amend the record.

(3) If the determination reverses, in whole or in part, the initial decision rejecting the petition for amendment, the system manager responsible for the system containing the challenged record shall be directed to:

(i) Amend the challenged record accordingly; and

(ii) If an accounting of disclosures has been made, advise all previous recipients of the record of the amendment and its substance.

Sec. 1008.24 Statements of disagreement.

(a) Filing of statement. If the determination of the Executive Director under Sec. 1008.23 rejects in whole or part, a petition for amendment, the individual submitting the petition may file with the Privacy Act Officer a concise written statement setting forth the reasons for disagreement with the determination of the Presidio Trust.

(b) Disclosure of statements. In any disclosure of a record containing information about which an individual has fileda statement of disagreement under this section which occurs after the filing of the statement, the disputed portion of the record will be clearly noted and the recipient shall be provided copies of the statement of disagreement. If appropriate, a concise statement of the reasons of the Presidio Trust for not making the requested amendments may also be provided to the recipient.

(c) Maintenance of statements. System managers shall develop procedures to assure that statements of disagreement filedwith them shall be maintained in such a way as to assure dissemination of the statements to recipients of the records to which the statements pertain.

PART 1009--ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT

Sec.

1009.1 Purpose. 1009.2 Procedure for filing claims. 1009.3 Denial of claims. 1009.4 Payment of claims. 1009.5 Indemnification of Presidio Trust directors and employees.

Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note); 28 U.S.C. 2672.

Sec. 1009.1 Purpose.

The purpose of this part is to establish procedures for the filing and settlement of claims under the Federal Tort Claims Act (in part, 28 U.S.C. secs. 2401(b), 2671-2680, as amended by Pub. L. 89-506, 80 Stat. 306). The officers to whom authority is delegated to settle tort claims shall follow and be guided by the regulations issued by the Attorney General prescribing standards and procedures for settlement of tort claims (28 CFR part 14).

Sec. 1009.2 Procedure for filing claims.

(a) The procedure for filing and the contents of claims shall be pursuant to 28 CFR 14.2, 14.3 and 14.4.

(b) Claims shall be fileddirectly with the Presidio Trust.

(c) Upon receipt of a claim, the time and date of receipt shall be recorded. The claim shall be forwarded with the investigative file immediately to the General Counsel for determination.

Sec. 1009.3 Denial of claims.

Denial of a claim shall be communicated as provided by 28 CFR 14.9.

Sec. 1009.4 Payment of claims.

(a) When an award of $2,500 or less is made, the voucher signed by the claimant shall be transmitted for payment to the Presidio Trust. When an award over $2,500 is made, transmittal for payment will be made as prescribed by 28 CFR 14.10.

(b) Prior to payment, appropriate releases shall be obtained as provided in 28 CFR 14.10.

Sec. 1009.5 Indemnification of Presidio Trust directors and employees.

(a) The Presidio Trust may indemnify a Presidio Trust director or employee who is personally named as a defendant in any civil suit in state or federal court or an arbitration proceeding or other proceeding seeking damages against a Presidio Trust director or employee personally, for any verdict, judgment, or other monetary award which is rendered against such director or employee, provided that the conduct giving rise to the verdict, judgment, or award was taken within the scope of his or her duties or employment and that such indemnification is in the interest of the Presidio Trust as determined by

(1) the Board, with respect to claims against an employee; or

(2) a majority of the Board, exclusive of the director against whom claims have been made, with respect to claims against a director.

(b) The Presidio Trust may settle or compromise a personal damage claim against a Presidio Trust director or employee by the payment of available funds, at any time, provided the alleged conduct giving rise to the personal damage claim was taken within the scope of the duties or employment of the director or employee and that such settlement or compromise is in the interest of the Presidio Trust as determined by:

(1) the Board, with respect to claims against an employee; or

(2) a majority of the Board, exclusive of the director against whom claims have been made, with respect to claims against a director.

(c) The Presidio Trust will not entertain a request either to agree to indemnify or to settle a personal damage claim before entry of an adverse verdict, judgment, or award, unless exceptional circumstances exist as determined by:

(1) the Board, with respect to claims against an employee; or

(2) a majority of the Board, exclusive of the director against whom claims have been made, with respect to claims against a director.

(d) A Presidio Trust director or employee may request indemnification to satisfy a verdict, judgment, or award entered against the director or employee. The director or employee shall submit a written request, with appropriate documentation including copies of the verdict, judgment, award, or settlement proposal, in a timely manner to the General Counsel, who shall make a recommended disposition

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of the request. Where appropriate, the Presidio Trust shall seek the views of the Department of Justice. The General Counsel shall forward the request, the accompanying documentation, and the General Counsel's recommendation to the Board for decision. In the event that a claim is made against the General Counsel, the Chair shall designate a director or employee of the Trust to fulfill the duties otherwise assigned to the General Counsel under this section.

(e) Any payment under this section either to indemnify a Presidio Trust director or employee or to settle a personal damage claim shall be contingent upon the availability of funds.

[FR Doc. 98-34099Filed12-29-98; 8:45 am]

BILLING CODE 4310-04-RU