Freedom of Information Act Regulation, 45895-45900 [E7-15996]

Agencies

• Office of the Director of National Intelligence

[Federal Register Volume 72, Number 158 (Thursday, August 16, 2007)]
[Rules and Regulations]
[Pages 45895-45900]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-15996]


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OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

32 CFR Chapter XVII


Freedom of Information Act Regulation

AGENCY: Office of the Director of National Intelligence.

ACTION: Final rule.

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SUMMARY: This final regulation provides the Office of the Director of 
National Intelligence's rules implementing the Freedom of Information 
Act (FOIA), 5 U.S.C. 552. The regulation addresses all aspects of FOIA 
processing, including how and where to submit FOIA requests, fees for 
record services, procedures for handling business information, requests 
for expedited processing, and the right to appeal denials of 
information.

EFFECTIVE DATE: August 16, 2007.

FOR FURTHER INFORMATION CONTACT: Mr. John F. Hackett, (703) 482-1707.

SUPPLEMENTARY INFORMATION: The Office of the Director of National 
Intelligence (ODNI) was created by the Intelligence Reform and 
Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3638. The 
ODNI began operations on April 22, 2005, the day after the first 
Director of National Intelligence took office. Because the majority of 
documents held by the ODNI at its inception were previously maintained 
by the Central Intelligence Agency (CIA) and the ODNI did not have a 
FOIA staff upon stand-up, the CIA agreed to handle the administrative 
aspects of the ODNI's FOIA processing. Through this arrangement, the 
ODNI makes all legal decisions regarding the handling of FOIA requests 
for ODNI records and the CIA assists with the administrative tasks 
associated with processing FOIA requests, including the intake and 
tracking of requests, as well as drafting correspondence to requesters. 
We are currently working toward having our own FOIA office handle all 
aspects of ODNI's FOIA processing.
    On June 4, 2007, the ODNI submitted a proposed regulation 
implementing the FOIA for public comment. The ODNI received two 
submissions with comments on the proposed regulation. The ODNI has 
reviewed and carefully considered all of the comments that were 
submitted and has made the following changes to the regulation:
    (1) The definitions of educational institution and noncommercial 
scientific institution have been changed and are in accordance with the 
definition in the Office of Management and Budget's guidelines, 52 Fed. 
Reg. 10,012 (Mar. 27, 1987).
    (2) We have changed the fee portion of the regulation so that a 
FOIA request will be considered a commitment to pay up to $25.00 unless 
the requester asks for a waiver of fees.
    (3) The term ``reasonably described record'' has been removed from 
the definitional section of the regulation. A more detailed explanation 
of the type of information the ODNI needs in order to locate records 
responsive to a particular request has been added in a separate 
section.
    (4) We have decided to accept FOIA requests electronically and have 
added the email address to the regulation. Although the FOIA does not 
require this, it is a growing trend within the federal government and 
we believe it will provide better customer service to our FOIA 
requesters.
    (5) The expedited processing section and other sections have been 
clarified.
    (6) Certain superfluous words in the definitional section and a 
paragraph regarding allocation of resources have been removed.

List of Subjects in 32 CFR Part 1700

    Freedom of information.

0
Therefore, as discussed in the preamble, and under the authority of the 
Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-
458, 118 Stat. 3638, the Office of the Director of National 
Intelligence establishes 32 CFR Chapter XVII and adds part 1700 to read 
as follows:

Chapter XVII--Office of the Director of National Intelligence

PART 1700--PROCEDURES FOR DISCLOSURE OF RECORDS PURSUANT TO THE 
FREEDOM OF INFORMATION ACT

Sec.
1700.1 Authority and purpose.
1700.2 Definitions.
1700.3 Contact for general information and requests.
1700.4 Preliminary information.
1700.5 Requirements as to form and content.
1700.6 Fees for records services.
1700.7 Processing of requests for records.
1700.8 Action on the request.
1700.9 Payment of fees, notification of decision, and right of 
appeal.
1700.10 Procedures for business information.
1700.11 Procedures for information concerning other persons.
1700.12 Requests for expedited processing.
1700.13 Right to appeal and appeal procedures.
1700.14 Action by appeals authority.

    Authority: 5 U.S.C. 552, 50 U.S.C. 401-442; Pub. L. 108-458, 118 
Stat. 3638.


Sec.  1700.1  Authority and purpose.

    (a) Authority. This Part is issued under the authority of and in 
order to implement the Freedom of Information Act, as amended, 5 U.S.C. 
552; the National Security Act of 1947, as amended, 50 U.S.C. 401-442; 
and the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. 
L. 108-458, 118 Stat. 3638.
    (b) Purpose in general. This Part prescribes procedures for:
    (1) ODNI administration of the FOIA;
    (2) Requesting records pursuant to the FOIA; and
    (3) Filing an administrative appeal of an initial adverse decision 
under the FOIA.


Sec.  1700.2  Definitions.

    For purposes of this Part, the following terms have the meanings 
indicated:
    (a) Days means calendar days when ODNI is operating and 
specifically excludes Saturdays, Sundays, and legal public holidays;
    (b) Direct costs means those expenditures which ODNI actually 
incurs in the processing of a FOIA request; it does not include 
overhead factors such as space;
    (c) Pages means paper copies of standard office size or the dollar 
value equivalent in other media;

[[Page 45896]]

    (d) Reproduction means generation of a copy of a requested record 
in a form appropriate for release;
    (e) Review means all time expended in examining a record to 
determine whether any portion must be withheld pursuant to law and in 
effecting any required deletions but excludes personnel hours expended 
in resolving general legal or policy issues; it also means personnel 
hours of professional time;
    (f) Search means all time expended in looking for and retrieving 
material that may be responsive to a request utilizing available paper 
and electronic indices and finding aids; it also means personnel hours 
of professional time or the dollar value equivalent in computer 
searches;
    (g) Expression of interest means a written or electronic 
communication submitted by any person requesting information on or 
concerning the FOIA program, the availability of documents from ODNI, 
or both;
    (h) Fees means those direct costs which may be assessed a requester 
considering the categories established by the FOIA; requesters should 
submit information to assist the ODNI in determining the proper fee 
category and the ODNI may draw reasonable inferences from the identity 
and activities of the requester in making such determinations; the fee 
categories include:
    (1) Commercial use request: A request in which the disclosure 
sought is primarily in the commercial interest of the requester and 
which furthers such commercial, trade, income or profit interests;
    (2) Educational institution: A preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To be in this category, 
a requester must show that the request is authorized by and is made 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use but are sought to further scholarly 
research.
    (3) Noncommercial scientific institution: An institution that is 
not operated on a commercial basis, as that term is defined in 
paragraph (h)(1) of this section, and that is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry. To be in this 
category, a requester must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scientific research.
    (4) Representative of the news media: An individual actively 
gathering news for an entity that is organized and operated to publish 
and broadcast news to the public and pursuant to the entity's news 
dissemination function and not its commercial interests; the term 
``news'' means information which concerns current events, would be of 
current interest to the general public, would enhance the public 
understanding of the operations or activities of the U.S. Government, 
and is in fact disseminated to a significant element of the public at 
minimal cost; freelance journalists are included in this definition if 
they provide sufficient evidence to justify an expectation of 
publication through such an organization, even though not actually 
employed by it; a publication contract or prior publication record is 
relevant to such status;
    (5) All other: A request from an individual not within paragraphs 
(h)(1), (2), (3), or (4) of this section;
    (i) Freedom of Information Act, ``FOIA,'' or ``the Act'' means the 
statute as codified at 5 U.S.C. 552;
    (j) ODNI means the Office of the Director of National Intelligence 
and its component organizations. It does not include other members of 
the Intelligence Community as defined in 50 U.S.C. 401a, or other 
federal entities subsequently designated in accordance with this 
authority, unless specifically designated as included in this Part or 
in the notice of a system of records;
    (k) Potential requester means a person, organization, or other 
entity who submits an expression of interest.


Sec.  1700.3  Contact for general information and requests.

    For general information on this Part, to inquire about the FOIA 
program at ODNI, or to file a FOIA request (or expression of interest), 
please direct communication in writing to the Office of the Director of 
National Intelligence, Chief FOIA Officer c/o Director, Information 
Management Office, Washington, DC 20511 by mail or by facsimile at 
(703) 482-2144. FOIA requests can also be submitted by electronic mail 
to FOIA @ dni.gov. For general information or status information on 
pending cases only, call the ODNI FOIA Customer Service Center at (571) 
204-4774.


Sec.  1700.4  Preliminary information.

    Members of the public shall address all communications to the point 
of contact specified in Sec.  1700.3 and clearly delineate the 
communication as a request under the FOIA. ODNI staff who receive a 
FOIA request shall expeditiously forward the request to the Director, 
Information Management Office (IMO). Requests and appeals (as well as 
referrals and consultations) received from FOIA requesters who owe 
outstanding fees for information services at this or other federal 
agencies will not be accepted and action on all pending requests shall 
be terminated in such circumstances.


Sec.  1700.5  Requirements as to form and content.

    (a) Required information. No particular form is required. A request 
must reasonably describe the record or records being sought and be 
submitted in accordance with this regulation. Documents must be 
described sufficiently to enable a staff member familiar with the 
subject to locate the documents with a reasonable amount of effort. 
Whenever possible, your request should include specific information 
about each record sought, such as the date, title or name, author, 
recipient, and the subject matter of the record. As a general rule, the 
more specific you are about the records or type of records that you 
want, the more likely it will be that the IMO will be able to locate 
records responsive to your request. The IMO will provide you an 
opportunity to discuss your request with it so that you may modify your 
request to meet the requirements of this section. If after having been 
asked to do so you do not provide the IMO with information sufficient 
to enable it to locate responsive records your request will be closed.
    (b) Additional information for fee determination. A requester must 
provide sufficient personally identifying information to allow staff to 
determine the appropriate fee category and to contact the requester 
easily.


Sec.  1700.6  Fees for records services.

    (a) In general. Search, review, and reproduction fees will be 
charged in accordance with the provisions below relating to schedule, 
limitations, and category of requester. Applicable fees will be due 
even if a subsequent search locates no responsive records or some or 
all of the responsive records must be denied under one or more of the 
exemptions of the FOIA.
    (b) Fee waiver requests. Records will be furnished without charge 
or at a reduced rate when ODNI determines:
    (1) As a matter of administrative discretion, the interest of the 
United States Government would be served, or

[[Page 45897]]

    (2) It is in the public interest to provide responsive records 
because the disclosure is likely to contribute significantly to the 
public understanding of the operations or activities of the United 
States Government and is not primarily in the commercial interest of 
the requester.
    (c) Fee waiver appeals. Denials of requests for fee waivers or 
reductions may be appealed to the Director of the Intelligence Staff, 
or his functional equivalent, through the ODNI Chief FOIA Officer. A 
requester is encouraged to provide any explanation or argument as to 
how his or her request satisfies the requirements of this regulation 
and the Act. See Sec.  1700.14 for further details on appeals.
    (d) Time for fee waiver requests and appeals. Appeals should be 
resolved prior to the initiation of processing and the incurring of 
costs. However, fee waiver requests will be accepted at any time prior 
to an agency decision regarding the request, except when processing has 
been initiated, in which case the requester must agree to be 
responsible for costs in the event of an adverse administrative or 
judicial decision.
    (e) Agreement to pay fees. If you make a FOIA request, it shall be 
considered a firm commitment by you to pay all applicable fees 
chargeable under this regulation, up to and including the amount of 
$25.00, unless you ask for a waiver of fees. When making a request, you 
may specify a willingness to pay a greater or lesser amount.
    (f) Advance payment. The ODNI may require an advance payment of up 
to 100 percent of the estimated fees when projected fees exceed 
$250.00, not including charges associated with the first 100 pages of 
production and two hours of search (when applicable), or when the 
requester previously failed to pay fees in a timely fashion, for fees 
of any amount. ODNI will hold in abeyance for 45 days those requests 
where advance payment has been requested.
    (g) Schedule of fees.--(1) In general. The schedule of fees for 
services performed in responding to requests for records is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
                       Personnel Search and Review
------------------------------------------------------------------------
Clerical/Technical...............  Quarter hour............        $5.00
Professional/Supervisory.........  Quarter hour............        10.00
Manager/Senior Professional......  Quarter hour............        18.00
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                     Computer Search and Production
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Search (on-line).................  Flat rate...............        10.00
Search (off-line)................  Flat rate...............        30.00
Other activity...................  Per minute..............        10.00
Tapes (mainframe cassette).......  Each....................         9.00
Tapes (mainframe cartridge)......  Each....................         9.00
Tapes (mainframe reel)...........  Each....................        20.00
Tapes (PC 9mm)...................  Each....................        25.00
Diskette (3.5'').................   Each...................         4.00
CD (bulk recorded)...............  Each....................        10.00
CD (recordable)..................  Each....................        20.00
Telecommunications...............  Per minute..............          .50
Paper (mainframe printer)........  Per page................          .10
Paper (PC b&w laser printer).....  Per page................          .10
Paper (PC color printer).........  Per page................         1.00
------------------------------------------------------------------------
                            Paper Production
------------------------------------------------------------------------
Photocopy (standard or legal)....  Per page................          .10
Microfiche.......................  Per frame...............          .20
Pre-printed (if available).......  Per 100 pages...........         5.00
Published (if available).........  Per item................         NTIS
------------------------------------------------------------------------

    (2) Application of schedule. Personnel search time includes time 
expended in manual paper records searches, indices searches, review of 
computer search results for relevance, and personal computer system 
searches. In any event where the actual cost to ODNI of a particular 
item is less than the above schedule (e.g., a large production run of a 
document resulting in a cost less than $5.00 per hundred pages), then 
the actual lesser cost will be charged.
    (3) Other services. For all other types of output, production, or 
reproduction (e.g., photographs, maps, or published reports), ODNI will 
charge actual cost or amounts authorized by statute. Determinations of 
actual cost shall include the commercial cost of the media, the 
personnel time expended in making the item to be released, and an 
allocated cost of the equipment used in making the item, or, if the 
production is effected by a commercial service, then that charge shall 
be deemed the actual cost for purposes of this regulation.
    (h) Limitations on collection of fees--(1) In general. No fees will 
be charged if the cost of collecting the fee is equal to or greater 
than the fee itself. That cost includes the administrative costs to 
ODNI of billing, receiving, recording, and processing the fee for 
deposit to the Treasury Department and, as of the date of these 
regulations, is deemed to be $10.00.
    (i) Fee categories. There are four categories of FOIA requesters 
for fee purposes: Commercial use requesters, educational and non-
commercial scientific institution requesters, representatives of the 
news media requesters, and all other requesters. The categories are 
defined in Sec.  1700.2 and applicable fees will be assessed as 
follows:
    (1) Commercial use requesters: Charges which recover the full 
direct costs of searching for, reviewing, and duplicating responsive 
records (if any);
    (2) Educational and non-commercial scientific institution 
requesters, and representatives of the news media requesters: Only 
charges for reproduction beyond the first 100 pages;
    (3) All other requesters: Charges which recover the full direct 
cost of searching for and reproducing responsive records (if any) 
beyond the first 100 pages of reproduction and the

[[Page 45898]]

first two hours of search time which will be furnished without charge.
    (j) Associated requests. If it appears a requester or a group of 
requesters acting in concert have requested portions of an apparently 
unitary request for the purpose of avoiding the assessment of fees, 
ODNI may aggregate any such requests and charge accordingly. Requests 
from multiple requesters will not be aggregated without clear evidence. 
ODNI will not aggregate multiple unrelated requests.


Sec.  1700.7  Processing of requests for records.

    (a) In general. Requests meeting the requirements of Sec.  1700.3 
through Sec.  1700.6 shall be accepted as formal requests and processed 
under the FOIA and this Part. A request will not be considered received 
until it reaches the IMO. Ordinarily upon its receipt a request will be 
date-stamped as received. It is this date that establishes when your 
request is received for administrative purposes, not any earlier date 
such as the date of the letter or its postmark date. For the quickest 
possible handling, both the request letter and the envelope should be 
marked ``Freedom of Information Act Request.''
    (b) Electronic Reading Room. ODNI maintains an online FOIA Reading 
Room on the ODNI Web site which contains the information that the FOIA 
requires be routinely made available for public inspection and copying 
as well as other information determined to be of general public 
interest.
    (c) Confirming the existence of certain documents. In processing a 
request, ODNI shall decline to confirm or deny the existence of 
responsive records whenever the fact of their existence or nonexistence 
is itself classified under Executive Order 12,958 and its amending 
orders, reveals intelligence sources and methods protected pursuant to 
50 U.S.C. 403-1(i)(1), or would be an invasion of the personal privacy 
of third parties. In such circumstances, ODNI, in its final written 
response, shall so inform the requester and advise of his or her right 
to file an administrative appeal.
    (d) Time for response. Whenever the statutory time limits for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and the component determines 
to extend the time limits on that basis, ODNI will inform the requester 
in writing and advise the requester of the right to narrow the scope of 
his or her request or agree to an alternative timeframe for processing.
    (e) Multitrack processing. ODNI may use two or more processing 
tracks by distinguishing between simple and more complex requests based 
on the amount of work and/or time needed to process the request, 
including through limits based on the number of pages involved. ODNI 
may provide requesters in its slower track with an opportunity to limit 
the scope of their requests in order to qualify for faster processing 
within the specified limits of its faster track.


Sec.  1700.8  Action on the request.

    (a) Initial action for access. ODNI staff identified to search for 
records pursuant to a FOIA request shall search all relevant record 
systems within their cognizance as of the date the search is commenced. 
A staff member tasked to conduct a search shall:
    (1) Determine whether records exist;
    (2) Determine whether and to what extent any FOIA exemptions apply;
    (3) Make recommendations for withholding records or portions of 
records that originated in the staff member's organization and for 
which there is a legal basis for denial or make a recommendation in 
accordance with Sec.  1700.7(c). In making recommendations, ODNI staff 
shall be guided by the procedures specified in Sec.  1700.10 regarding 
confidential commercial information and Sec.  1700.11 regarding third 
party information; and
    (4) Forward to the Director, IMO, all records responsive to the 
request.
    (b) Referrals and consultations. ODNI records containing 
information originated by other ODNI components shall be forwarded to 
those entities for action in accordance with paragraph (a) of this 
section and returned. Records originated by other federal agencies or 
ODNI records containing other federal agency information shall be 
forwarded to such agencies for processing and direct response to the 
requester or for consultation and return to the ODNI. ODNI will notify 
the requester if it makes a referral for direct response.
    (c) Release of information. When the Director, IMO (or Appeals 
Authority) makes a final determination to release records, the records 
will be forwarded to the requester in an appropriate format promptly 
upon compliance with any preliminary procedural requirements, including 
payment of fees. If any portion of a record is withheld initially or 
upon appeal, the Director, IMO (or Appeals Authority) will provide a 
written response that shall include, at a minimum:
    (1) The basis for the withholding, citing the specific statutory 
exemption or exemptions invoked under the FOIA with respect to each 
portion withheld, unless documents are withheld in accordance with 
Sec.  1700.7(c);
    (2) When the withholding is based in whole or in part on a security 
classification, the explanation shall include a determination that the 
record meets the cited criteria and rationale of the governing 
Executive Order;
    (3) When the denial is based on 5 U.S.C. 552(b)(3), the statute 
relied upon; and
    (4) Notice to the requester of the right to judicial review.


Sec.  1700.9  Payment of fees, notification of decision, and right of 
appeal.

    (a) Fees in general. Fees collected under this part do not accrue 
to ODNI and shall be deposited immediately to the general account of 
the United States Treasury.
    (b) Notification of decision. Upon completion of all required 
review and the receipt of accrued fees (or promise to pay such fees), 
ODNI will promptly inform the requester in writing of those records or 
portions of records that will be released and those that will be 
denied.
    (1) For documents to be released, ODNI will provide paper copies or 
documents on electronic media, if requested and available;
    (2) For documents not released or partially released, ODNI shall 
explain the reasons for any denial and give notice of a right of 
administrative appeal. For partial releases, redactions will be made to 
ensure requesters can see the placement and general length of 
redactions with the applicable exemption or exemptions clearly with 
respect to each redaction.


Sec.  1700.10  Procedures for business information.

    (a) In general. Business information obtained by ODNI from a 
submitter shall not be disclosed pursuant to a FOIA request except in 
accordance with this section. For purposes of this section, the 
following definitions apply:
    (1) Business information means commercial or financial information 
in which a legal entity has a recognized property interest;
    (2) Confidential commercial information means such business 
information provided to the United States Government by a submitter 
which is reasonably believed to contain information exempt from release 
under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), because disclosure 
could reasonably be expected to cause substantial competitive harm; and
    (3) Submitter means any person or entity who provides confidential 
commercial information to the United

[[Page 45899]]

States Government; it includes, but is not limited to, corporations, 
businesses (however organized), State governments, and foreign 
governments.
    (b) Designation of confidential commercial information. A submitter 
of business information will use good-faith efforts to designate, by 
appropriate markings, either at the time of submission or at a 
reasonable time thereafter, any portions of its submission that it 
considers to be confidential commercial information and hence protected 
from required disclosure pursuant to Exemption 4 of the FOIA. Such 
designations shall expire 10 years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
designation period.
    (c) Process in event of FOIA request--(1) Notice to submitters. 
ODNI shall provide a submitter with prompt written notice of receipt of 
a FOIA request encompassing business information whenever:
    (i) The submitter has in good faith designated the information as 
confidential commercial information, or
    (ii) ODNI staff believe that disclosure of the information could 
reasonably be expected to cause substantial competitive harm, and
    (iii) The information was submitted within the last 10 years unless 
the submitter requested and provided acceptable justification for a 
specific notice period of greater duration.
    (2) Form of notice. Communication to a submitter of commercial 
information shall either describe the exact nature of the confidential 
commercial information at issue or provide copies of the responsive 
records containing such information.
    (3) Response by submitter. (i) Within seven days of the notice 
described in paragraph (c)(1), all claims of confidentiality by a 
submitter must be supported by a detailed statement of any objection to 
disclosure. Such statement shall:
    (A) Affirm that the information has not been disclosed to the 
public;
    (B) Explain why the information is a trade secret or confidential 
commercial information;
    (C) Explain in detail how disclosure of the information will result 
in substantial competitive harm;
    (D) Affirm that the submitter will provide ODNI and the Department 
of Justice with such litigation support as requested; and
    (E) Be certified by an officer authorized to legally bind the 
submitter.
    (ii) It should be noted that information provided by a submitter 
pursuant to this provision may itself be subject to disclosure under 
the FOIA.
    (4) Decision and notice of intent to disclose. (i) ODNI shall 
consider carefully a submitter's objections and specific grounds for 
nondisclosure prior to its final determination. If the Director, IMO, 
decides to disclose a document over the objection of a submitter, ODNI 
shall provide the submitter a written notice that shall include:
    (A) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (B) A description of the information to be disclosed; and
    (C) A specified disclosure date that is seven days after the date 
of the instant notice.
    (ii) When notice is given to a submitter under this section, the 
ODNI shall also notify the requester and, if the ODNI notifies a 
submitter that it intends to disclose information, then the requester 
shall be notified also and given the proposed date for disclosure.
    (5) Notice of FOIA lawsuit. If a requester initiates legal action 
seeking to compel disclosure of information asserted to be within the 
scope of this section, ODNI shall promptly notify the submitter. The 
submitter, as specified above, shall provide such litigation assistance 
as required by ODNI and the Department of Justice.
    (6) Exceptions to notice requirement. The notice requirements of 
this section shall not apply if ODNI determines that:
    (i) The information should not be disclosed, pursuant to Exemption 
4 and/or any other exemption of the FOIA;
    (ii) The information has been published lawfully or has been 
officially made available to the public;
    (iii) The disclosure of the information is otherwise required by 
law or federal regulation; or
    (iv) The designation made by the submitter under this section 
appears frivolous, except that, in such a case, the ODNI will, within a 
reasonable time prior to the specified disclosure date, give the 
submitter written notice of any final decision to disclose the 
information.


Sec.  1700.11  Procedures for information concerning other persons.

    (a) In general. Personal information concerning individuals other 
than the requester shall not be disclosed under the FOIA if the 
proposed release would constitute a clearly unwarranted invasion of 
personal privacy, or, if the information was compiled for law 
enforcement purposes, it could reasonably be expected to constitute an 
unwarranted invasion of personal privacy. See 5 U.S.C. 552 (b)(6) and 
(b)(7)(C). For purposes of this section, the following definitions 
apply:
    (1) Personal information means any information about an individual 
that is not a matter of public record, or easily discernible to the 
public, or protected from disclosure because of the implications that 
arise from Government possession of such information.
    (2) Public interest means the public interest in understanding the 
operations and activities of the United States Government and not 
simply any matter that might be of general interest to the requester or 
members of the public.
    (b) Determination to be made. In making the required determination 
under this section and pursuant to Exemptions 6 and 7(C) of the FOIA, 
ODNI will balance the privacy interests that would be compromised by 
disclosure against the public interest in release of the requested 
information.
    (c) Otherwise. A requester seeking information on a third party is 
encouraged to provide a signed affidavit or declaration from the third 
party consenting to disclosure of the information. However, any such 
statements shall be narrowly construed and the Director, IMO, in the 
exercise of that officer's discretion and administrative authority, may 
seek clarification from the third party prior to any or all releases.


Sec.  1700.12  Requests for expedited processing.

    (a) In general. All requests will be handled in the order received 
on a strictly ``first-in, first-out'' basis. Exceptions to this rule 
will only be made in accordance with the following procedures.
    (b) Procedure. A requester who seeks expedited processing must 
submit a statement, certified to be true and correct, explaining in 
detail the basis for requesting expedited processing. Within ten 
calendar days of its receipt of a request for expedited processing, the 
IMO shall decide whether to grant it and shall notify the requester of 
the decision. If a request for expedited processing is granted, the 
request shall be given priority and shall be processed as soon as 
practicable.
    (c) Determination to be made: Requests and appeals will be taken 
out of order and given expedited processing treatment whenever it is 
determined that they involve:
    (1) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (2) An urgency to inform the public concerning an actual or alleged 
Federal

[[Page 45900]]

Government activity, if made by a person primarily engaged in 
disseminating information.


Sec.  1700.13  Right to appeal and appeal procedures.

    (a) Right to appeal. Individuals who disagree with a decision not 
to produce a document or parts of a document, to deny a fee category 
request, to deny a request for a fee waiver or fee reduction, to deny 
expedited processing, or a decision regarding a fee estimate or a 
determination that no records exist, should submit a written request 
for review to the Chief FOIA Officer c/o Director, Information 
Management Office, Office of the Director of National Intelligence, 
Washington, DC 20511. The words ``FOIA APPEAL'' should be written on 
the letter and the envelope. The appeal must be signed by the 
individual or his legal counsel.
    (b) Requirements as to time and form. Appeals of adverse decisions 
must be received within 45 days of the date of the ODNI's initial 
decision. Requesters should include a statement of the reasons 
supporting the request for reversal of the initial decision.
    (c) Exceptions. No appeal shall be accepted if the requester has 
outstanding fees for information services at this or another federal 
agency. In addition, no appeal shall be accepted if the information in 
question has been the subject of an administrative review within the 
previous two years or is the subject of pending litigation in the 
Federal courts.


Sec.  1700.14  Action by appeals authority.

    (a) The Director of the Intelligence Staff, after consultation with 
any ODNI component organization involved in the initial decision as 
well as with the Office of General Counsel, will make a final 
determination on the appeal. Appeals of denials of requests for 
expedited processing shall be acted on expeditiously.
    (b) The Director, IMO, will ordinarily be the initial deciding 
official on FOIA requests to the ODNI. However, in the event the 
Director of the Intelligence Staff makes an initial decision that is 
later appealed, the Principal Deputy Director for National Intelligence 
will decide the appeal in accordance with the procedures in this 
section.

    Dated: August 9, 2007.
Ronald L. Burgess, Jr.,
Director of the Intelligence Staff.
 [FR Doc. E7-15996 Filed 8-15-07; 8:45 am]
BILLING CODE 3910-A7-P