Freedom of Information Act Procedures, 17789-17792 [E7-5812]

Agencies

• Privacy and Civil Liberties Oversight Board
• The White House

[Federal Register Volume 72, Number 68 (Tuesday, April 10, 2007)]
[Rules and Regulations]
[Pages 17789-17792]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-5812]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 72, No. 68 / Tuesday, April 10, 2007 / Rules 
and Regulations

[[Page 17789]]



THE WHITE HOUSE

Privacy and Civil Liberties Oversight Board

6 CFR Chapter X

[0311-AA00]


Freedom of Information Act Procedures

AGENCY: Privacy and Civil Liberties Oversight Board.

ACTION: Interim final rule.

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SUMMARY: This interim final rule establishes procedures for the public 
to obtain information from the Privacy and Civil Liberties Oversight 
Board under the Freedom of Information Act.

DATES: This interim final rule is effective May 25, 2007. Written 
comments must be submitted by May 25, 2007.

ADDRESSES: Submit written comments to: FOIA Officer, Privacy and Civil 
Liberties Oversight Board, The White House, Washington, DC 20502. 
Comments may also be faxed to 202-456-1066 or e-mailed to 
privacyboard@who.eop.gov. Given the additional time required to process 
mail through security procedures, the Board recommends sending comments 
via fax or e-mail.

FOR FURTHER INFORMATION CONTACT: Seth Wood, 202-456-1240.

SUPPLEMENTARY INFORMATION: The Intelligence Reform and Terrorism 
Prevention Act of 2004, Public Law 108-458, Sec.  1061 (2004) (IRTPA), 
created the Privacy and Civil Liberties Oversight Board (Board). IRTPA 
instructs the Board to ``ensure that concerns with respect to privacy 
and civil liberties are appropriately considered in the implementation 
of laws, regulations, and executive branch policies related to efforts 
to protect the Nation against terrorism.'' Id. Sec.  1061(c)(1)(C). In 
carrying out this mandate, the Board exercises both an advisory and 
oversight responsibility. First, it ``advise[s] the President and the 
head of any department or agency of the executive branch to ensure that 
privacy and civil liberties are appropriately considered'' in the 
development and implementation of ``laws, regulations, and Executive 
Branch policies related to efforts to protect the Nation from 
terrorism'' Id. Second, it ``continually review[s] regulations, 
executive branch policies, and procedures * * * and other actions by 
the executive branch related to efforts to protect the Nation from 
terrorism to ensure that privacy and civil liberties are protected.'' 
Id. Sec.  (c)(2)(A). IRTPA places the Board within the Executive Office 
of the President.
    The Board's membership consists of a Chairman, Vice Chairman, and 
three regular Members. The President appoints all Members, with the 
Chairman and Vice Chairman requiring Senate confirmation. Id. Sec.  
1061(e). IRTPA subjects the Board to the Freedom of Information Act, 5 
U.S.C. 552 (FOIA). IRTPA Sec.  106(i)(2). These interim-final 
regulations provide procedures for individuals to request records from 
the Board and inform the public regarding how the Board will process 
such requests. Members of the public may comment on these interim-final 
regulations forty-five days following their publication.

List of Subjects in 6 CFR Part 1000

    Administrative practice and procedure, Confidential business 
information, Reporting and recordkeeping requirements.


0
For the reasons set forth in this preamble and under the authority of 
the Intelligence Reform and Terrorism Prevention Act of 2004, the 
Privacy and Civil Liberties Oversight Board establishes 6 CFR Chapter 
X, consisting of part 1000.

Chapter X--Privacy and Civil Liberties Oversight Board

PART 1000--DISCLOSURE OF RECORDS AND INFORMATION

Freedom of Information Act

Sec.
1000.1 Definitions.
1000.2 Purpose.
1000.3 Authority and functions of Board.
1000.4 Other information.
1000.5 Public reference.
1000.6 How to request records.
1000.7 Initial determination.
1000.8 Response to FOIA request.
1000.9 Administrative appeal.
1000.10 Charges for search, review, and reproduction.
1000.11 Annual report.

    Authority:  Public Law 108-408; 5 U.S.C. 552 et seq.

Freedom of Information Act


Sec.  1000.1  Definitions.

    Agency means Agency as defined in 5 U.S.C. 552(f)(1). The Privacy 
and Civil Liberties Oversight Board shall not be considered as an 
agency for any other purpose, except as referred to in this Regulation, 
and for Freedom of Information Act (FOIA) purposes.
    Board or PCLOB means the Privacy and Civil Liberties Oversight 
Board.
    Calendar Days means all days, including Saturday, Sunday, or 
Federal holidays.
    Commercial Use Request refers to a request from or on behalf of one 
who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requestor or the person 
on whose behalf the request is made.
    Compelling need means that a failure to obtain requested Records on 
an expedited basis under this paragraph could reasonably be expected to 
pose an imminent threat to the life or physical safety of an 
individual; or with respect to a request made by a person primarily 
engaged in disseminating information, an urgency to inform the public 
concerning actual or alleged Federal Government activity.
    Computer search means the actual direct cost of providing the 
service. This will include the cost of operating the central processing 
unit for that portion of operating time that is directly attributable 
to Searching for potentially responsive records to a FOIA request and 
the portion of the salary of the operators/programmers attributable to 
the search.
    Days means ``work days'' not including Saturday, Sunday, Federal 
holidays, or other days the Board is closed.
    Direct costs means those expenditures that the Board actually 
incurs in searching for and duplicating (and in the case of commercial 
requestors, reviewing) documents to respond to a FOIA request. Direct 
costs include, for

[[Page 17790]]

example, the salary of the employee performing work (the basic rate of 
pay for the employee plus 16 percent of that rate to cover benefits) 
and the cost of operating duplicating machinery. Not included in direct 
costs are overhead expenses such as costs of space and heating or 
lighting the facility in which the Records are stored.
    Duplication means the making of a copy of a document, or of the 
information contained in it, necessary to respond to a FOIA request. 
Such copies can take the form of paper, microform, audiovisual 
materials, or electronic Records (e.g., magnetic tape or disk), among 
others.
    Educational institution refers to 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 that operates a program or programs of scholarly research.
    FOIA means the Freedom of Information Act (5 U.S.C. 552).
    Head of the agency means the Chairman of the Privacy and Civil 
Liberties Oversight Board or the Chairman's designee.
    Non-commercial scientific institution refers to an institution that 
is not operated on a commercial basis, and that is operated solely for 
the purpose of conducting scientific research the results of which are 
not intended to promote any particular product or industry.
    Record means a record as defined in 5 U.S.C. 552(f)(2). A Record 
must exist and be in the Board's custody and control at the time of the 
request to be considered subject to this part and FOIA.
    Representative of the news media refers to 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 would be of current interest to 
the public. As traditional methods of news delivery evolve (e.g., 
electronic dissemination of newspapers through telecommunications 
services and Web sites), such media would be included in this category. 
In the case of freelance journalists, they may be regarded as working 
for a news organization if they can demonstrate a solid basis for 
expecting publication through that organization, even though they are 
not actually employed by it.
    Review means the process of examining documents located in response 
to a request that is for a commercial use to determine whether any 
portion of any document located is exempt from release or otherwise 
permitted to be withheld. It also includes processing any documents for 
disclosure (doing all that is necessary to excise them and otherwise 
prepare them for release). Review does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    Search means the process of looking for and retrieving records or 
information responsive to a request. It includes page-by-page or line-
by-line identification of information within records and also includes 
reasonable efforts to locate and retrieve information from Records 
maintained in electronic form or format.


Sec.  1000.2  Purpose.

    These regulations describe how the Board implements the 
requirements of the Freedom of Information Act, 5 U.S.C. 552 et seq., 
and the procedures by which records may be obtained from the Board. 
Official records of the Board made available pursuant to FOIA shall be 
furnished to members of the public only pursuant to statute and as 
prescribed in these regulations.


Sec.  1000.3  Authority and functions of Board.

    The Board advises the President and other senior Executive Branch 
officials to ensure that concerns with respect to privacy and civil 
liberties are appropriately considered in the implementation of all 
laws, regulations, and Executive Branch policies related to efforts to 
protect the Nation against terrorism. This includes advising on whether 
adequate guidelines, supervision, and oversight exist to protect these 
important legal rights of all Americans. The Board was established by 
the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 
No. 108-458).


Sec.  1000.4  Other information.

    Additional information regarding the Board, including its members, 
organization, public statements, and relevant legislation, may be 
located on its Web site: https://www.privacyboard.gov.


Sec.  1000.5  Public reference.

    (a) The Board will make available for public inspection a copy of 
all material required to be made public by 5 U.S.C. 552(a)(2), 
including all documents published by the Board in the Federal Register 
and currently in effect. This material will also be available on the 
Board's Web site, https://www.privacyboard.gov.
    (b) In order to view documents maintained pursuant to Sec.  
1000.5(a), members of the public should contact the Board at (202) 456-
1240 or by e-mail at privacyboard@who.eop.gov.
    (c) The FOIA Officer shall also maintain a file open to the public, 
which shall contain copies of all grants or denials of appeals by the 
Board.
    (d) The public may contact the Board's Chief FOIA Officer and the 
Public Liaison by writing to the address listed in Sec.  1000.6(a) or 
by calling (202) 456-1240.


Sec.  1000.6  How to request records.

    (a) A request for records pursuant to FOIA must be submitted in 
writing. An individual may submit a request via mail: FOIA Officer, 
Privacy and Civil Liberties Oversight Board, The White House, 
Washington, DC 20502; or via fax: (202) 456-1066. To ensure prompt 
receipt, the Board recommends sending a request via fax, as security 
procedures may delay requests sent through the mail. The words ``FOIA 
REQUEST'' should be clearly marked on the envelope or cover page, as 
well as on the actual request. The request must contain a means of 
contacting the requestor via mail and via telephone. The Board does not 
accept FOIA requests by e-mail.
    (b) Each request must reasonably describe the record(s) sought, 
including when known: The organization or individual originating the 
Record; subject matter; type of record; location; and any other 
pertinent information which would assist in promptly locating the 
Record. Requests shall also contain a description of their purpose so 
that a determination may be made regarding the appropriate fee 
structure that should be applied to the request. See Sec.  1000.10(i). 
Requests that do not meet these requirements will not be considered a 
proper request.
    (c) When a request is not considered reasonably descriptive, or 
requires the production of voluminous records, or places an 
extraordinary burden on the FOIA Officer or other members of the Board 
staff that would seriously interfere with its normal functioning, the 
Board shall provide the person an opportunity to limit the scope of the 
request so that it may be processed within that time limit or an 
opportunity to arrange with the Board an alternative time frame for 
processing the request or a modified request. Refusal by the person 
reasonably to modify the request or arrange such an alternative time 
frame shall be considered as a factor in determining whether 
exceptional circumstances exist for purposes of 5 U.S.C. 552(a)(6)(C).

[[Page 17791]]

Sec.  1000.7  Initial determination.

    References to the FOIA Officer shall, unless otherwise stated, 
include the FOIA Officer's designee. The FOIA Officer shall have the 
authority to approve or deny requests received pursuant to these 
regulations. The decision of the FOIA Officer shall be final, subject 
only to administrative appeal as provided in Sec.  1000.9.


Sec.  1000.8  Response to FOIA request.

    (a) When a requested record has been identified and is available, 
the FOIA Officer shall notify the person making the request as to where 
and when the record is available for inspection or the copies will be 
available. The notification shall also advise the person making the 
request of any fees pursuant to Sec.  1000.10.
    (b) The FOIA Officer shall approve or deny, in whole or in part, a 
request for Records as soon as reasonably possible. Such a response 
will be given in writing and will occur within 20 days after the 
Officer receives the request. The FOIA Officer may grant or deny a 
portion of a request if it appears that other, separate elements of the 
request will require additional time to complete. Pursuant to 5 U.S.C. 
552(a)(6)(B), the FOIA Officer may extend these time limits by written 
notice to the person making such request. Such written notice shall set 
forth the unusual circumstances for such extension and the date on 
which a determination is expected to be dispatched. Such a notice shall 
not specify a date that would result in an extension for more than 10 
days, except as provided in Sec.  1000.6(c). Additional time may be 
required because:

    (1) It is necessary to search for, collect, and appropriately 
examine a voluminous amount of separate and distinct records which 
are demanded in a single request;
    (2) It is necessary to consult with another organization having 
a substantial interest in the determination of the request or among 
two or more components of the organization having substantial 
subject matter interest therein; or
    (3) For other reasons discussed in 5 U.S.C. 552(a)(6)(B).

    (c) If the request is denied, the written notification to the 
person making the request shall include the names of the individuals 
who participated in the determination, the reasons for the denial, and 
a notice that an appeal may be lodged with the head of the agency 
within 30 calendar days of receipt of the denial or partial denial.
    (d) The FOIA officer may grant expedited consideration of a FOIA 
request or appeal if the requestor shows a compelling need for such 
expedited consideration. The requestor must submit such a request in 
writing. A demonstration of a compelling need by a person making a 
request for expedited processing shall be made by a statement certified 
by such person to be true and correct to the best of such person's 
knowledge and belief. The FOIA officer will respond to such a request 
within 10 days of receipt of the request.


Sec.  1000.9  Administrative appeal.

    Appeals shall be set forth in writing within 30 calendar days of 
receipt of a denial and addressed to the head of the agency via mail or 
fax pursuant to the contact information listed in Sec.  1000.6(a). The 
words ``FOIA APPEAL'' must be clearly marked on the envelope or cover 
page, as well as the actual appeal. The appeal shall include a 
statement explaining the basis for the appeal. Determinations of 
appeals will be set forth in writing and signed by the head of the 
agency, or his designee, within 20 days of receipt of the appeal. If, 
on appeal, the denial is in whole or in part upheld, the written 
determination will also contain a notification of the provisions for 
judicial review, where a challenge may be filed, and the names of the 
persons who participated in the determination.


Sec.  1000.10  Charges for search, review, and reproduction.

    (a) The Board will charge fees that recoup the full allowable 
direct costs it incurs. This may also include costs incurred by another 
organization to search for, review, and produce potentially responsive 
records. Moreover, it shall use the most efficient and least costly 
methods to comply with requests for records made under FOIA.
    (b) With regard to manual searches for records, the Board will 
charge at the salary rate(s) (i.e., basic pay plus 16 percent) of the 
employee(s) making the search.
    (c) In calculating charges for computer searches for records, the 
Board will charge at the actual direct cost of providing the service. 
This will include the cost of operating the central processing unit for 
that portion of operating time that is directly attributable to 
searching for records potentially responsive to a FOIA request and the 
portion of the salary of the operators/programmers attributable to the 
search.
    (d) Only requestors who are seeking documents for commercial use 
may be charged 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 
the Board analyzes 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. The Board 
may assess the costs for such a subsequent review.
    (e) Records will be duplicated at a rate of $.15 per page, except 
that the Board may adjust that rate from time to time by notice 
published in the Federal Register. For copies prepared by computer, 
such as tapes or printouts, the Board shall charge the actual cost, 
including operator time, of production of the tape or printout. For 
other methods of reproduction or duplication, the Board will charge the 
actual direct costs of producing the document(s). If the Board 
estimates that duplication charges are likely to exceed $25, it shall 
notify the requestor of the estimated amount of fees, unless the 
requestor has indicated in advance his willingness to pay fees as high 
as those anticipated. Such a notice shall offer a requestor the 
opportunity to confer with PCLOB personnel with the object of 
reformulating the request to meet his or her needs at a lower cost.
    (f) Remittances shall be in the form either of a personal check or 
bank draft drawn on a bank in the United States, or a postal money 
order. Remittances shall be made payable to the order of the Treasury 
of the United States and mailed to the FOIA Officer, Privacy and Civil 
Liberties Oversight Board, The White House, Washington, DC 20502.
    (g) A receipt for fees paid will be given upon request. Refund of 
fees paid for services actually rendered will not be made.
    (h) With the exception of requestors seeking documents for a 
Commercial Use, the Board will provide the first 100 pages of 
duplication and the first two hours of search time without charge.
    (1) For purposes of these restrictions on assessment of fees, the 
word ``pages'' refers to 8\1/2\'' x 11'' or 11'' x 14'' paper copies. 
Thus, requestors are not entitled to 100 microfiche or 100 computer 
disks, for example. By contrast, a microfiche containing the equivalent 
of 100 pages or 100 pages of computer printout does meet the terms of 
the restriction.
    (2) Similarly, the term ``Search time'' in this context applies to 
a manual search. To apply this term to searches made by computer, the 
Board will determine the hourly cost of operating the central 
processing unit and the

[[Page 17792]]

operator's hourly salary plus 16 percent. When the cost of search 
(including the operator time and the cost of operating the computer to 
process a request) equals the equivalent dollar amount of two hours of 
the salary of the person performing the search, the Board will begin 
assessing charges for computer searches.
    (i) The Board divides FOIA requestors into four categories: 
Commercial use requestors; educational and non-commercial scientific 
institutions; representatives of the news media; and all other 
requestors. The specific levels of fees for each of these categories 
are:
    (1) Commercial use requestors. When the Board receives a request 
for documents for commercial use, it will assess charges that recover 
the full direct costs of searching for, reviewing for release, and 
duplicating the record sought. Requestors must reasonably describe the 
records sought. Commercial use requestors are entitled neither to two 
hours of free search time nor to 100 free pages of reproduction of 
documents. The Board may recover the cost of searching for and 
Reviewing Records even if there is ultimately no disclosure of Records.
    (2) Educational and non-commercial scientific institution 
requestors. The Board shall provide documents to requestors in this 
category for the cost of reproduction alone, excluding charges for the 
first 100 pages. To be eligible for inclusion in this category, 
requestors must show that the request is being made as authorized by 
and under the auspices of a qualifying institution and that the records 
are not sought for a commercial use, but are sought in furtherance of 
scholarly (if the request is from an Educational Institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research. Requestors must reasonably describe the records 
sought.
    (3) Requestors who are representatives of the news media. The Board 
will provide documents to requestors in this category for the cost of 
reproduction alone, excluding charges for the first 100 pages. To be 
eligible for inclusion in this category, a requestor must satisfy the 
definition of representatives of the news media in Sec.  1000.1, and 
his or her request must not be made for a commercial use. In reference 
to this class of requestor, a request for Records supporting the news 
dissemination function of the requestor shall not be considered to be a 
request that is for a commercial use. Requestors must reasonably 
describe the Records sought.
    (4) All other requestors. The Board shall charge requestors who do 
not fit into any of the categories above fees that recover the full 
reasonable Direct Cost of Searching for and reproducing Records that 
are responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of Search time shall be furnished 
without charge. Requestors must reasonably describe the Records sought.
    (j) The Board may assess interest charges on an unpaid bill 
starting on the 31st Calendar Day following the day on which the 
billing was sent. The fact that the fee has been received within the 
thirty Calendar Day grace period, even if the fee has not been 
processed, will suffice to stay the accrual of interest. Interest will 
be at the rate prescribed in section 3717 of title 31 of the United 
States Code and will accrue from the date of the billing.
    (k) The Board may assess charges for time spent searching, even if 
it fails to locate the Records or if Records located are determined to 
be exempt from disclosure. If the Board estimates that Search charges 
are likely to exceed $25, it shall notify the requestor of the 
estimated amount of fees, unless the requestor has indicated in advance 
his willingness to pay fees as high as those anticipated.
    (l) A requestor may not file multiple requests, each seeking 
portions of a document or documents, solely in order to avoid payment 
of fees. When the Board reasonably believes that a requestor, or a 
group of requestors acting in concert, has submitted requests that 
constitute a single request, involving clearly related matters, it may 
aggregate those requests and charge accordingly.
    (m)(1) The Board may not require a requestor to make payment before 
work is commenced or continued on a request, unless:
    (i) The Board estimates or determines that allowable charges that a 
requestor may be required to pay are likely to exceed $250; or
    (ii) A requestor has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 Days of the date of the billing).
    (2) When the Board acts under paragraph (m)(1)(i) or (ii) of this 
section, the administrative time limits prescribed in FOIA, 5 U.S.C. 
Sec.  552(a)(6) will begin only after the Board has received fee 
payments described in paragraphs (m)(1)(i) and (ii) of this section.
    (n) Fees otherwise chargeable in connection with a request for 
disclosure of a record shall be waived or reduced where it is 
determined that disclosure is in the public interest because it is 
likely to contribute significantly to public understanding of the 
operations or activities of the Government and is not primarily in the 
commercial interest of the requestor.


Sec.  1000.11  Annual report.

    The FOIA Officer or the FOIA Officer's designee shall annually, on 
or before February 1, submit a FOIA report addressing the preceding 
fiscal year to the Attorney General. The report shall include those 
matters required by 5 U.S.C. 552(e)(1). The Board will make the annual 
report available to the public pursuant to 5 U.S.C. 552(e)(2).

Mark A. Robbins,
Executive Director, Privacy and Civil Liberties Oversight Board.
[FR Doc. E7-5812 Filed 4-9-07; 8:45 am]
BILLING CODE 3195-W7-P