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§1001.0 Demystifying FOIA: A Comprehensive Guide to Accessing Government Information.
§1001.1 Purpose and scope.
§1001.3 Availability of records.
§1001.4 Categories of exemptions.
§1001.5 Request for records.
§1001.6 Responsibility for responding to requests.
§1001.7 Administrative appeals.
§1001.8 Time frame for Agency response.
§1001.9 Business information.
§1001.1 Purpose and scope.
The regulations in this part implement the provisions of the FOIA.
The following definitions apply to this part:
Chief FOIA Officer means the senior official to whom we, the agency, delegated responsibility for efficient and appropriate compliance with the FOIA.
Commercial use request means a FOIA request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade, or profit interests, including pursuit of those interests through litigation.
Confidential business information means trade secrets and confidential, privileged, or proprietary business or financial information provided to the government by a submitter that would be exempt from release under Exemption 4 of the Freedom of Information Act because disclosure could reasonably be expected to cause substantial competitive harm.
Direct costs mean in the case of commercial use requesters those expenses we, the agency, have actually incurred to search for, duplicate, and review records in response to a FOIA request. Direct costs include, but are not limited to, the salary of the employee performing the work and costs associated with duplication.
Educational institution means a preschool, a public or private elementary or secondary school, an institution of undergraduate or graduate higher education, an institution of professional education, or an institution of vocational education, which operates a program or programs of scholarly research.
Fee waiver means the waiver or reduction of processing fees if a requester can demonstrate that OMB guidance and standards contained in the FOIA statute (5 U.S.C. 552) are satisfied, including that the information is in the public interest and not for a commercial interest.
FOIA means the Freedom of Information Act, 5 U.S.C. 552, as amended. The FOIA applies to third-party requests for records concerning the general activities of the government and our agency in particular. A request by a U.S. citizen or an individual lawfully admitted for permanent residence for access to his or her own records is considered a Privacy Act request, under the Privacy Act of 1974, 5 U.S.C. 552a, as amended. See 6 CFR 1002.3.
FOIA Officer means the individual to whom we, the agency, have delegated authority to carry out our day-to-day FOIA administration.
FOIA Public Liaison means the individual that we, the agency, designated to assist FOIA requesters in obtaining agency records, including assistance in resolving disputes.
Non-commercial scientific institution means an organization operated for the purpose of conducting scientific research, the results of which are not intended to promote any product or industry, and is not operated on a commercial basis.
Person includes an individual, partnership, corporation, association, or public or private organization other than an agency.
Record means any writing, drawing, map, recording, diskette, DVD, CD-ROM, tape, film, photograph, machine readable database file, or other documentary material, regardless of medium, by which information is preserved, including electronic records.
Redact means delete or mark over.
Representative of the news media means any person or entity that gathers information of potential public interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. Examples of news media entities include television or radio stations that broadcast ‘‘news’’ to the public at large and publishers of periodicals that disseminate ‘‘news’’ and make their products available through a variety of means to the general public, as well as news organizations that operate solely on the internet. Alternative media will be considered to be news-media entities.
Requester category means one of the three categories in which requesters will be placed for the purpose of determining whether they will be charged fees for search, review, or duplication. They are:
(2) Non-commercial scientific or educational institutions or news media requestors, and
(3) All other requestors.
Submitter means any person or entity from whom we, the agency, obtain confidential business information, directly or indirectly.
Unusual circumstances means, to the extent reasonably necessary for the proper processing of a FOIA request:
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; or
(3) The need for consultation, which will be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request.
§1001.3 Availability of records.
(a) In accordance with 5 U.S.C. 552(a)(1), we publish the following records in the Federal Register and makes an index of the records publicly available:
(2) Statements of the general course and method by which our functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted by us as authorized by law and statements of general policy or interpretations of general applicability formulated and adopted by us; and
(5) Each amendment, revision, or repeal of any material listed in paragraphs (a)(1) through (4) of this section.
(b) In accordance with 5 U.S.C. 552(a)(2), we will make the following materials available for public inspection and copying:
(2) Administrative staff manuals and instructions to staff that affect a member of the public;
(3) Copies of all records, whenever practicable, which have been released to any person under paragraph (c) of this section; and
(4) A general index of the records referred to in paragraph (b)(3) of this section.
(c) In accordance with 5 U.S.C. 552(a)(3), we will make available, upon proper request, as described in section 5 of this part, all non-exempt agency records, or portions of records, not previously made public under paragraphs (a) and (b) of this section.
(d) The FOIA applies only to agency records in existence at the time of the request; the FOIA does not require that we create new records in order to respond to FOIA requests. When responsive records are located, we adopt a presumption of disclosure and openness. This means we evaluate records with a view toward what can be disclosed, rather than what can be withheld, and we will not withhold information simply because we can do so legally.
(e) We will make records and materials under paragraphs (a) – (c) of this section publically available through our website.
§1001.4 Categories of exemptions.
(a) The FOIA does not require disclosure of matters that are:
(2) Related solely to our internal personnel rules and practices;
(3) Specifically exempted from disclosure by statute (other than the Government in the Sunshine Act, 5 U.S.C. 552b, as amended), provided that such statute:
(ii) If enacted after October 28, 2009, specifically cites to Exemption 3 of the FOIA, 5 U.S.C. 552(b)(3);
(5) Inter-agency or intra-agency memoranda or letters that would not be available at law to a party other than an agency in litigation with us, but only to the extent our interest in protecting such records or information from disclosure outweighs the public interest in disclosure. Further, any information more than 12 years old is presumptively subject to disclosure, absent specific and documented evidence of harm from disclosure.
(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 the production of such law enforcement records or information:
(ii) Would deprive a person of a right to a fair trial or 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 that furnished information on a confidential basis, and, in the case of a record or information compiled by 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.
(9) Geological and geophysical information and data, including maps, concerning wells.
(b) Before relying on any of the above enumerated exemptions to withhold information, we will apply a presumption of openness and only withhold requested information if we reasonably foresee disclosure:
(2) Disclosure is prohibited by law.
(c) In conducting this foreseeable harm analysis, we will clearly identify and document the harm that would occur with disclosure.
(d) Before withholding requested records based in whole or in part under Exemption 1, we will review the records to determine if they should continue to be classified. If we determine the records should continue to be classified and must be withheld, we will explain in our response letter to you, the requester, that the records are properly classified, that this determination is based on a declassification review, and which provisions of the executive order require the continued classification.
§1001.5 Request for records.
(a) You may request copies of records under this part by email to [address], in writing addressed to [address], via facsimile to [number], or using the web-based portal located at . Requests should be marked “Freedom of Information Act request.” If you are seeking records from an agency component, you may make the request directly of that component. If you do not know which component has the records you seek, you may direct the request to [address].
(b) Your request should reasonably describe the records sought with sufficient specificity, and when possible, include names, dates, and subject matter, in order to permit the FOIA Officer to locate the records with a reasonable amount of effort.
(c) If the FOIA Officer cannot locate responsive records based on your written description, you will be notified and advised that further identifying information is necessary before the request can be fulfilled. We will provide you at least 30 days to respond to a request for clarification or additional information. If you have not responded to this request after 30 days have passed, we may deny your request for not reasonably describing the records sought and we will provide you the opportunity to appeal that denial under the procedures in [section 1001.7].
(d) Although requests are considered either FOIA or Privacy Act requests, we process requests for records in accordance with both laws so as to provide the greatest degree of lawful access while safeguarding an individual's personal privacy.
(e) Your request should specify the preferred form or format (including electronic formats) for the records you seek. We will accommodate your request if the record is readily available in that form or format. When you do not specify the form or format of the response, we will provide responsive records in the form or format most convenient to us.
§1001.6 Responsibility for responding to requests.
(a) In general, the component that receives a request for a record, either directly from you or through a referral from another component, and has possession of that record is responsible for responding to the request and is authorized to grant or deny your request in whole or in part. Upon receiving the request, the component will immediately provide an acknowledgment of receipt to you, using an automated acknowledgment when your request is made through the agency website, by email, or a web-based system.
(b) For those requests expected to take more than ten days to process, we also will provide you with an individualized tracking number in our acknowledgment letter to you.
(c) When conducting a search for responsive records, the component generally will search for records in existence on the date of the search. If another date is used, the component will inform you of the date used.
(d) Responses. The responsible component will notify you of its determination to grant or deny your FOIA request within 20 working days. The component’s determination will include the number of records being withheld, if any, and the basis for each withholding. The component will release reasonably segregable non-exempt information promptly. For any adverse determination—including (i) those regarding any disputed fee matter; (ii) a denial of a request for a fee waiver; (iii) a determination to withhold a record, in whole or in part; (iv) a determination that a record does not exist or cannot be located; (v) a refusal by us, the agency, to process the request for any other reason; or (vi) a denial of a request for expedited processing—the notice will include the following information:
(2) A brief statement of the reason(s) for the denial, including any FOIA exemption applied in denying the request. The component will indicate the amount of information withheld and the exemption under which a withholding, whether in whole or part, is made on the released portion of the record, unless including that indication would harm an interest protected by the exemption;
(3) An estimate of the volume of information withheld, if applicable. This estimate does not need to be provided if it is ascertainable based on redactions in partially disclosed records or if the disclosure of the estimate would harm an interest protected by an applicable FOIA exemption;
(4) A statement that the adverse determination may be appealed and a description of the requirements for an appeal under [section 1001.7]; and
(5) The name and contact information for a supervisory FOIA Officer within the agency.
(e) If we are not able to respond to your request within 20 business days after receiving your request, we will as soon as practicable provide you an estimated day by which we will complete processing the request. We will also notify you that you may reformulate your request in order to reduce the processing time.
(f) If we cannot respond to a request within 20 business days because of unusual circumstances, we may extend the time limits by no more than ten working days by providing you with written notice explaining the unusual circumstances and providing the date by which we expect to complete processing the request.
(g) If a request involves a voluminous amount of material or requires searches in multiple locations, we will provide you with interim responses, releasing the records on a rolling basis.
(h) Consultations and referrals.
(2) If we, the agency that initially received the request, determine another agency is better able to evaluate the releasability of the requested record(s), we will:
(ii) Refer the responsibility for responding to your request to the department or agency best able to determine whether to disclose it (but only if that other department or agency is subject to FOIA). Ordinarily, the department or agency that originated the record will be presumed best able to determine whether to disclose it.
(4) If we refer responsibility for responding to a request to another department or agency, we, as the agency or component originally in receipt of the request, will notify you of the referral. Our notice will identify the part of the request that has been referred and the name of each department or agency to which the request, or part of the request, has been referred, together with a point of contact for the referral agency or department.
§1001.7 Administrative appeals.
(a) You may appeal an adverse determination related to your FOIA request, or our failure to respond to your FOIA request within the prescribed time limits, to [agency address].
(b) Your appeal must be in writing and sent to the Chief FOIA Officer within 60 days of the date of the letter conveying an adverse determination to your request, including denying your request, in whole or in part. In case of our failure to respond within the statutory time frame, you may submit an administrative appeal at any time until our response has been provided. For the most expeditious handling, your appeal letter and envelope should be marked “Freedom of Information Act appeal.”
(c) Your appeal letter should state facts and may cite legal or other authorities in support of your request.
(d) Our official charged with responding to administrative appeals must respond to all administrative appeals in writing and within the time frame stated in § 1001.8(d). If that official’s decision affirms, in whole or in part, the FOIA Officer's determination, the letter will contain a statement of the reasons for the affirmance, including any FOIA exemption(s) applied, and will inform you of the FOIA's provisions for court review. If that official reverses or modifies the FOIA Officer's determination, in whole or in part, you will be notified in writing that additional information has been released to you or that your request will be reprocessed in accordance with that decision. We may work with Office of Government Information Services (OGIS) to resolve disputes between you and us. You may also contact OGIS in the following ways: Via mail to OGIS, National Archives and Records Administration, 8601 Adelphi Road—OGIS, College Park, MD 20740 (ogis.archives.gov), via email at [email protected], or via telephone at 202-741-5770 or 877-684-6448. Facsimile is also available at 202-741-5769.
§1001.8 Time frame for Agency response.
(a) In general. We ordinarily will respond to requests according to the order of receipt.
(b) We will use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work or time needed to process the request.
(c) Initial decisions. We will make a determination regarding your FOIA request within 20 working days after our receipt of your request, unless the time frame for response is extended due to unusual circumstances as further described in paragraph (f) of this section. A request is received by us, for purposes of commencing the 20-day timeframe for our response, on the day it is received by the FOIA Officer or, in any event, not later than ten days after the request is first received by any Agency office.
(d) Administrative appeals. Our official charged with determining administrative appeals will determine whether to affirm or overturn a decision subject to administrative appeal within 20 working days after receipt of the appeal, unless the time frame for response is extended in accordance with subsection (e) of this section.
(e) Tolling timelines. We may toll the 20-day timeframe set forth in paragraphs (c) or (d) of this section:
(2) As necessary to clarify with you issues regarding the fee assessment.
(3) If we toll the time frame for response under paragraphs (e)(1) or (2) of this section, the tolling period ends upon our receipt of your response.
(f) Unusual circumstances. In the event of unusual circumstances, we may extend the time frame for response provided in paragraphs (c) or (d) of this section by providing you with written notice of the unusual circumstances and the date on which a determination is expected to be made. We will not specify a date that would result in an extension for more than ten working days, except as provided in clause (i) of this subparagraph.
(ii)To aid you in modifying your request, we will make available our FOIA Public Liaison, who will assist in the resolution of any disputes between you and us. The contact information for our FOIA Public Liaison is [address][phone number][email][fax].
(g) Expedited processing. You may request that we expedite processing of your FOIA request. To receive expedited processing, you must demonstrate a compelling need for such processing.
(ii) A request made by a person primarily engaged in disseminating information, with an urgency to inform the public of actual or alleged federal government activity.
(3) Your request for expedited processing must include a statement, certified to be true and correct to the best of your knowledge and belief, explaining in detail the basis for requesting expedited processing. If you are a person primarily engaged in disseminating information, you must establish a particular urgency to inform the public about the federal government activity involved in the request.
(4) The FOIA Officer must decide whether to grant or deny your request for expedited processing within ten calendar days of receipt. You will be notified in writing of the determination. Appeals of adverse decisions regarding expedited processing will be processed expeditiously.
§1001.9 Business information.
(a) Designation of confidential business information. In the event a FOIA request is made for confidential business information previously submitted to the Government by a commercial entity or on behalf of it (referred to as a `submitter'), the regulations in this section apply. When submitting confidential business information, the submitter must use a good-faith effort to designate, by use of appropriate markings, at the time of submission or at a reasonable time thereafter, any portions of the submitter’s submission the submitter considers to be exempt from disclosure under FOIA Exemption 4, 5 U.S.C. 552(b)(4). The submitter’s designation will expire ten years after the date of submission unless the submitter requests, and provides justification for, a longer designation period.
(b) Notice to submitters. Whenever the submitter designates confidential business information as provided in paragraph (a) of this section, or we have reason to believe the submitter’s submission may contain confidential business information, we will provide the submitter with prompt written notice of a FOIA request that seeks the submitter’s business information. The notice will:
(2) Describe the business information requested or include copies of the requested records or record portions containing the information; and
(3) Inform the submitter of the time frame in which the submitter must respond to the notice.
(c) Opportunity to object to disclosure. We will allow the submitter a reasonable time to respond to the notice described in paragraph (b) of this section. If the submitter objects to the disclosure of the submitter’s information, in whole or in part, the submitter must provide us with a detailed written statement of any objection. The statement must specify all grounds for withholding any portion of the information under any FOIA exemption and, when relying on FOIA Exemption 4, it must explain why the information is a trade secret or commercial or financial information that is privileged and confidential. If the submitter fails to respond within the time frame specified in the notice, we will conclude the submitter has no objection to disclosure of the requested information. We will only consider information that we receive within the time frame specified in the notice.
(d) Notice of intent to disclose. We will consider the submitter’s objection and specific grounds for non-disclosure in deciding whether to disclose business information. Whenever we decide to disclose business information over the submitter’s objection, we will provide the submitter with written notice that includes:
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which will be a reasonable time after the notice.
(e) Exceptions to the notice requirement. The notice requirements of paragraphs (c) and (d) of this section will not apply if:
(2) The information lawfully has been published or has been officially made available to the public;
(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600;
(4) The designation made by the submitter under paragraph (a) of this section appears obviously frivolous, except that, in such a case, we will, within a reasonable time prior to the date the disclosure will be made, give the submitter written notice of the final decision to disclose the information.
(f) Notice to requesters. Whenever we provide a submitter with the notice described in paragraph (b) of this section, we also will provide notice to the requester that notice and opportunity to object to the disclosure are being provided to the submitter.
(a) Aside from providing materials at a reduced rate to educational institutions, non-commercial scientific organizations, and representatives of the news media, as a matter of administrative discretion, we will also release records without charge or at a reduced rate whenever we determine that efficiency or the goals of the FOIA would be served. When necessary we may charge fees that recoup the full allowable direct costs we incur in processing your FOIA request. Fees may be charged for search, review or duplication. We will use the most efficient and least costly methods to comply with your request.
(b) With regard to manual searches for records, we will charge the salary rate(s) (calculated as the basic rate of pay plus 16 percent of that basic rate to cover benefits) of the employee(s) performing the search. We will inform you of the rate to be charged before the search begins.
(c) In calculating charges for computer searches for records, we will charge at the actual direct cost of providing the service, including the cost of operating the central processing unit directly attributable to searching for records potentially responsive to your FOIA request and the portion of the salary of the operators/programmers performing the search. We will inform you, the requester, of the estimated cost for the search, including the rate to be charged, before the search begins.
(d) We may only charge requesters seeking records for commercial use for time spent reviewing records to determine whether they are exempt from mandatory disclosure. Charges may be assessed only for the initial review—that is the review undertaken the first time we analyze the applicability of a specific exemption to a particular record or portion of a record. Records or portions of records withheld in full under an exemption that is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. We may assess the costs for such subsequent review.
(e) Records will be duplicated at a rate of $.10 per page, except that we may adjust this rate from time to time by rule published in the Federal Register. For copies prepared by computer, such as tapes, CDs, DVDs, or printouts, we will charge the actual cost, including operator time, of production. For other methods of reproduction or duplication, we will charge the actual direct costs of producing the document(s). If we estimate that duplication charges are likely to exceed $25, we will notify you of the estimated amount of fees, unless you indicated in advance your willingness to pay fees as high as those anticipated. Our notice will offer you an opportunity to confer with our personnel to reformulate the request to meet your needs at a lower cost.
(f) We will charge you the full costs of providing you with the following services:
(2) Sending records by special methods such as express mail.
(g) We may assess interest charges on an unpaid bill starting on the 31st calendar day following the day on which we sent the billing. Interest will be at the rate prescribed in 31 U.S.C. 3717 and will accrue from the date of the billing.
(h) We will not charge a search fee for requests by educational institutions, non-commercial scientific institutions, or representatives of the news media. A search fee will be charged for commercial use requests.
(i) Except for a commercial use request, we will not charge for the first 100 pages of duplication and the first two hours of search.
(j) We may not require you to make payment before we begin work to satisfy the request or to continue work on a request, unless:
(2) You have previously failed to pay a fee charged within 30 days of the date of billing.
(k) You may make a written request for a fee waiver or reduction in fees. We will provide records without any charge or at a charge reduced below the fees established above if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in your commercial interest.
(l) We will conditionally grant your request for a fee waiver if the subject of the request appears likely to produce records that meet the standard described in subsection (k). If after a conditional fee waiver is granted, and we later decides that the records do not meet the standard laid out above, we must then give you a written explanation regarding why the waiver is being denied. You may appeal that determination under §1001.7.
(m) As per the Open Government Act of 2007, we will not charge search and review fees for requesters, or duplication fees for requesters who qualify as non-commercial scientific or educational institutions or news media requestors, when processing a FOIA request if we exceed any time limit under 5 U.S.C. 552(a)(6) in processing that request.
(n) If “unusual” or “exceptional” circumstances exist that justify a delay in our processing, we are permitted ten additional days during which we can process the request and still obtain fees. Once ten days have expired, we will no longer charge search and review fees for requesters, or duplication fees for non-commercial scientific or educational institutions or news media requestors.