Implementation of the Freedom of Information Act, 43153-43160 [E8-16796]

Agencies

• Office of Personnel Management
• Personnel Management Office

[Federal Register Volume 73, Number 143 (Thursday, July 24, 2008)]
[Proposed Rules]
[Pages 43153-43160]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16796]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 73, No. 143 / Thursday, July 24, 2008 / 
Proposed Rules

[[Page 43153]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 294

RIN 3206-AK53


Implementation of the Freedom of Information Act

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is proposing to 
revise its regulations regarding implementation of the Freedom of 
Information Act (FOIA). The purpose of the revision is to make the 
regulations easier to understand and to update them with all changes to 
the FOIA since the last revision.

DATES: Comments must be received on or before September 22, 2008.

ADDRESSES: Send or deliver comments to Paul Carr, Freedom of 
Information/Privacy Act Officer, Center for Information Services, U.S. 
Office of Personnel Management, 1900 E Street, NW., Room 5415, 
Washington, DC 20415; FAX (202) 418-3251; or e-mail to foia@opm.gov.

FOR FURTHER INFORMATION CONTACT: Paul Carr, (202) 606-4018.

SUPPLEMENTARY INFORMATION: OPM is issuing proposed regulations to 
revise the rules implementing 5 U.S.C. 552, concerning the Freedom of 
Information Act (FOIA). The purpose of this revision to part 294 is to 
include both the 1996 E-FOIA and the 2007 OPEN Government Act 
amendments and to make part 294 easier to understand.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with E.O. 12866.

Regulatory Flexibility Act

    I certify these regulations will not have a significant economic 
impact on a substantial number of small entities because costs 
associated with requesting information under the Freedom of Information 
Act are not affected.

List of Subjects in 5 CFR Part 294

    Freedom of information.

    U.S. Office of Personnel Management.
Linda M. Springer,
Director.

    Accordingly, OPM proposes to revise 5 CFR part 294 to read as 
follows:

PART 294--AVAILABILITY OF OFFICIAL INFORMATION

Subpart A--Procedures for Disclosure of Records Under the Freedom of 
Information Act
Sec.
294.101 Purpose.
294.102 General definitions.
294.103 Definitions of categories and assignment of requests and 
requesters to categories.
294.104 Clarifying a requester's category.
294.105 Access to the requester's own records.
294.106 Publications, periodicals, and OPM issuances.
294.107 Places to obtain records.
294.108 Procedures for obtaining records.
294.109 Fees.
294.110 Appeals.
294.111 Custody of records; subpoenas.
294.112 Confidential commercial information.
Subpart B--The Public Information Function
294.201 Public information policy.
Subpart C--Office Operations
294.301 Policy and operations.
Subpart D--Cross References
294.401 References.

    Authority: 5 U.S.C. 552, Freedom of Information Act (FOIA), 
Public Law 92-502, as amended by the Freedom of Information Reform 
Act of 1986, Public Law 99-570, E.O. 12600, 52 FR 23781 (June 25, 
1987), Public Law 104-201, Public Law 104-231, E.O. 13392 (December 
14, 2005), and Public Law 110-175.

Subpart A--Provisions for the Freedom of Information Act


Sec.  294.101  Purpose.

    This subpart contains the regulations the Office of Personnel 
Management (OPM) follows in processing all requests for records under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, except 
when an individual requests their own records maintained in an OPM or 
government-wide systems of records. In this case, OPM will process the 
request under the Privacy Act, as provided by 5 CFR 294.105.


Sec.  294.102  General definitions.

    (a) All of the terms defined in the Freedom of Information Act, and 
the definitions included in the ``Uniform Freedom of Information Act 
Fee Schedule and Guidelines'' issued by the Office of Management and 
Budget apply, regardless of whether they are defined in this subpart.
    (b) Definitions, as used in this subpart:
    Agency, as used in this part, refers to the U.S. Office of 
Personnel Management (OPM).
    Component means each separate office, division, center, or group in 
OPM with responsibility for responding to FOIA requests.
    Direct costs means the expenditures OPM actually incurs in 
searching for, duplicating and reviewing documents to respond to a FOIA 
request. Overhead expenses, such as the cost of space and heating or 
lighting the facility in which the records are stored, are not included 
in direct costs.
    Disclose or disclosure means making records available, on request, 
for examination and copying or furnishing a copy of records.
    Duplication means the process of making a copy of a document 
necessary to respond to a FOIA request. Among the forms that such 
copies can take are paper, microform, audiovisual materials or machine 
readable documentation (e.g., magnetic tape, disk or CD-ROM).
    FOIA request means a written request (including letter, FAX or e-
mail), citing the FOIA, for access to records of the executive branch 
of the Federal Government the requester believes are held by OPM.
    Records, information, document and material mean the same as the 
term agency records in 5 U.S.C. 552(f).
    Review means the process of initially examining documents located 
in response to a request to determine whether any documents or portion 
of any document located may be withheld from disclosure. Review also 
includes processing documents for disclosure; e.g., doing all that is 
necessary to excise them and otherwise prepare them for release. Review 
does not include the time spent resolving general legal and policy 
issues regarding the application of exemptions.

[[Page 43154]]

    Search means the time spent looking for material that is responsive 
to a request, including page-by-page or line-by-line, manually or by 
automated means, identification of material within documents.


Sec.  294.103  Definitions of categories and assignment of requests and 
requesters to categories.

    OPM will apply the definitions and procedures outlined in this 
section to assign requesters to categories. The requester categories, 
as established by 5 U.S.C. 552(a), are:
    (a) Commercial use request means a FOIA 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 requester or the person 
or institution on whose behalf the request is made. In determining 
whether a request properly belongs in this category, OPM will look 
first to the intended use of the documents being requested.
    (b) Educational institution request means a FOIA request that is 
made as authorized by, and under the auspices of, a qualifying public 
or private educational institution; and the records are sought in 
furtherance of scholarly goal of the institution and not an individual 
goal. Educational institutions refers to public or private, preschools, 
elementary or secondary schools, institutions of undergraduate or 
graduate higher education, institutions of professional education or 
vocational education that operate a program or programs of scholarly or 
scientific research.
    (c) News media request means a FOIA request from a representative 
of the news media which means any person or entity that gathers 
information of potential interest to a segment of the public, uses its 
editorial skills to turn the raw materials into a distinct work, and 
distributes that work to an audience. The term news means information 
that is about current events or that would be of current interest to 
the public. Examples of news-media entities are television or radio 
stations broadcasting to the public at large and publishers of 
periodicals (but only if such entities qualify as disseminators of 
news) who make their products available for purchase or subscription or 
by free distribution to the general public. These examples are not all-
inclusive. Moreover, as methods of news delivery evolve (for example, 
the adoption of the electronic dissemination of newspapers through 
telecommunications services), such alternative media shall be 
considered to be news-media entities. A freelance journalist shall be 
regarded as working for a news-media entity if the journalist can 
demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by the 
entity. A publication contract would present a solid basis for such an 
expectation; OPM may also consider the past publication record of the 
requester in making such a determination.
    (d) Non-commercial scientific institution request means a FOIA 
request from an institution not operated on a commercial basis and is 
operated solely to conduct scientific research that produces results 
that are not intended to promote any particular product or industry.
    (e) Other request means a FOIA request not covered in paragraphs 
(a), (b), (c), or (d) of this section. However, as provided by Sec.  
294.105, OPM will use its Privacy Act regulations, rather than this 
subpart, when individuals ask for records about themselves that may be 
filed in OPM systems of records.


Sec.  294.104  Clarifying a requester's category.

    (a) Seeking clarification of a requester's category. OPM may seek 
additional clarification from a requester before assigning his or her 
request to a specific category if:
    (1) There is reasonable cause to doubt the requester's intended use 
of records; or
    (2) The intended use is not clear from the request itself; or
    (3) There is any other reasonable doubt about qualifications that 
may affect the fees applicable or the services rendered under Sec.  
294.109.
    (b) Prompt notification to requester. When OPM seeks clarification 
as provided by paragraph (a) of this section, it will notify a 
requester promptly either by telephone or in writing of the information 
or materials needed.
    (c) Effect of seeking clarification on time limits for responding. 
If OPM does not receive the requested information from the requester 
within 30 days, OPM will assign a final requester category to the 
request, calculate any fees, and apply the time limits under 5 U.S.C. 
552 for responding to the FOIA request. OPM will not consider any 
request for records as received from the requester until it:
    (1) Receives any additional clarification needed under paragraph 
(a) of this section; and
    (2) Determines the clarifying information is sufficient to 
correctly place the requester in one of the request categories in 5 CFR 
294.103.


Sec.  294.105  Access to the requester's own records.

    (a) Personnel, retirement or background investigation records. Only 
the subject of a record, or his or her authorized representative, may 
request records about him or herself as defined by 5 U.S.C. 552a(a)(4) 
by writing to the addresses in 5 CFR 294.107. The record must be 
identifiable by the subject's name or other personal identifier. OPM 
will process the request under Privacy Act procedures in 5 CFR part 
297.
    (b) Medical records. OPM may disclose a subject's medical records 
to him or her, or to his or her authorized representative. Medical 
records may contain information about a subject's mental or physical 
condition a physician would hesitate to give to the subject. In these 
circumstances, OPM will disclose the records, including the exact 
nature and probable outcome of the subject's condition, only to a 
licensed physician designated in writing by the subject or his or her 
designated representative. OPM will process the request under the 
Privacy Act procedures in 5 CFR part 297.


Sec.  294.106  Publications, periodicals, and OPM issuances.

    (a) OPM makes available in the agency's Electronic Reading Room or 
for public inspection and copying the following types of records unless 
a FOIA exemption applies:
    (1) Records requested three or more times under FOIA;
    (2) OPM administrative staff manuals and instructions that affect 
members of the public;
    (3) Final opinions made by OPM in the adjudication of cases;
    (4) OPM policy statements and interpretations adopted but not 
published in the Federal Register;
    (5) Public agency documents created after October 31, 1996.
    (b) OPM may delete identifying details when publishing an opinion, 
statement of policy, interpretation, manual or instruction to prevent a 
clearly unwarranted invasion of personal privacy.
    (c) These materials are available during normal working hours. 
Review of the materials must be coordinated with OPM's FOIA/PA Officer.
    (d) Electronic copies are available through OPM's Electronic FOIA 
Reading room at https://www.opm.gov/efoia/.
    (e) Paper copies are also available by writing to: FOIA/PA Officer, 
U.S. Office of Personnel Management, Office of the Chief Information 
Officer, FOIA Requester Service Center, 1900 E Street, NW., Washington, 
DC 20415.
    (f) If a request is for material published and offered for sale 
(e.g., by

[[Page 43155]]

the Superintendent of Documents, Government Printing Office), OPM will 
explain where the material may be reviewed or purchased.


Sec.  294.107  Places to obtain records.

    (a) Though OPM has a decentralized system for processing FOIA 
requests whereby each OPM component has responsibility for responding 
to FOIA requests for records they maintain, all requests for records 
except as shown in paragraphs (b), (c), (d), or (e) of this section 
should be sent to: FOIA/PA Officer, U.S. Office of Personnel 
Management, Office of the Chief Information Officer, FOIA Requester 
Service Center, 1900 E Street, NW., Washington, DC 20415. E-mail: 
foia@opm.gov. Fax: See the FAX number for this office on OPM's Web site 
at https://www.opm.gov/efoia.
    (b) Requesting copies of background investigations. (1) The 
background investigations for most former civilian and military Federal 
employees, Federal contractors and applicants for Federal employment 
are stored at the address below. Requests must include the subject's 
hand-written signature and all of the information below. E-mail 
requests cannot be accepted.
    (i) Full name.
    (ii) Social Security Number.
    (iii) Date of birth.
    (iv) Place of birth.
    (v) Current home address (a Post Office Box is not acceptable).
    (vi) FAX: See the FAX number for this office on OPM's Web site at 
https://www.opm.gov/efoia.
    (2) Mail requests to: FOI/P, OPM-FIPC, P.O. Box 618, 1137 Branchton 
Road, Boyers, PA 16018-0618.
    (c) Requesting personnel records for current Federal employees. The 
Official Personnel Folders (OPFs) for current Federal employees are 
stored at the employee's current employing agency. The request for the 
records must be made directly to that agency's Freedom of Information/
Privacy office. The Department of Justice (DOJ) provides the current 
list of agency Freedom of Information/Privacy contacts on its Web site 
at https://www.usdoj.gov/oip/foiacontacts.htm.
    (d) Requesting personnel records for non-Postal former Federal 
employees. (1) The Official Personnel Folders (OPFs) for most former 
civilian and military Federal employees are stored at the address 
below. Requests must include the subject's hand-written signature and 
all of the information below. E-mail requests cannot be accepted.
    (i) Social Security Number.
    (ii) Date of birth.
    (iii) Name of last agency where employed.
    (iv) Approximate date when last employed with the Federal 
government.
    (2) Mail requests to: National Personnel Records Center (NPRC), 111 
Winnebago Street (indicate Civilian or Military), St. Louis, MO 63118-
4126. Fax: (314) 801-9268.
    (e) Requesting personnel records for former Postal Federal 
employees. (1) The Official Personnel Folders (OPFs) for former U.S. 
Postal Service (USPS) employees are stored at the U.S. Postal Service. 
Requests must include the subject's hand-written signature and all of 
the information below. E-mail requests cannot be accepted.
    (i) Social Security Number.
    (ii) Date of birth.
    (iii) Name of last agency where employed.
    (iv) Approximate date when last employed with the U.S. Postal 
Service.
    (2) Mail requests to: U.S. Postal Service, General Manager, 
Headquarters Personnel Division, 475 L'Enfant Plaza, SW., Washington, 
DC 20260-4261.
    (f) When an organization does not have records in its custody. When 
an OPM organization receives a Freedom of Information Act request for 
OPM records that it does not have in its possession, it will promptly 
forward the request to the appropriate organization. If a person has 
asked to be kept apprised of anything that will delay the official 
receipt of a request, OPM will provide notice of this forwarding 
action. Otherwise, OPM may, at its option, provide such notice.
    (g) Records from other Government agencies. When a person seeks 
records that originated in another Government agency, OPM may refer the 
request to the other agency for response. Ordinarily, OPM will provide 
notice of this type of referral.
    (h) Creating records. If a person seeks information from OPM in a 
format that does not currently exist, OPM will not ordinarily compile 
the information for the purpose of creating a record to respond to the 
request. OPM will advise the individual that it does not have records 
in the format sought. If other existing records would reasonably 
respond to the request or portions of it, OPM may provide these. If 
fees as provided in Sec.  294.109 apply to any alternative records, OPM 
will advise the requester before providing the records.


Sec.  294.108  Procedures for obtaining records.

    Any individual (U.S./foreign), partnership, corporation, 
association or government (except foreign governments seeking 
intelligence agency information) may file a FOIA request with OPM. All 
requests for OPM records should be sent to the OPM office listed in 5 
CFR 294.107(a).
    (a) Delivering a request. Requests for OPM records may be delivered 
to OPM during business hours on a regular business day in the following 
manner:
    (1) By mail;
    (2) In person;
    (3) By faxing a request (FAX numbers are on the FOIA contacts list 
at https://www.opm.gov/efoia/); or
    (4) By e-mailing a request to foia@opm.gov, EXCEPT for those 
Privacy requests shown in Sec.  294.107 (b), (c), (d), and (e).
    (b) Marking the request. Mark the request for records clearly and 
prominently with ``FOIA Request'' or ``Freedom of Information Act 
Request.'' If the request is sent by:
    (1) Mail or in an envelope, mark the outside envelope and the 
letter;
    (2) FAX, mark the top of the page; or
    (3) E-mail, include the mark in the subject line.
    (c) Information to provide in the request. The request, regardless 
of the format, must describe the records sought in sufficient detail to 
enable OPM staff to locate the records with a reasonable amount of 
effort. OPM will regard a request for a specific category of records as 
fulfilling the requirements of this paragraph, if it enables responsive 
records to be identified by a technique or process that is not 
unreasonably burdensome or disruptive to OPM operations. The more 
information the requester includes, the easier it will be for OPM to 
locate the record(s) he or she seeks. Each record request should 
include specific information, such as:
    (1) Requester's name, full mailing address, telephone number and, 
if available, e-mail address;
    (2) The approximate date the record was created;
    (3) The Social Security Number, retirement claim number, 
publication number or any other number the requester believes will help 
OPM to identify the record;
    (4) The title, name or subject matter of the record; and
    (5) The author of any publication.
    (d) Restrictions on e-mail requests. OPM cannot accept e-mail 
requests for the following types of records because written signature 
of either the requester or his or her authorized representative are 
required:
    (1) Individual personnel records;
    (2) Individual retirement records; or
    (3) Individual background investigation records.
    (e) Medical records. OPM or another Government agency may disclose 
the

[[Page 43156]]

medical records of an applicant, employee, or annuitant to the subject 
of the record, or to a representative designated in writing. However, 
medical records may contain information about an individual's mental or 
physical condition that a prudent physician would hesitate to give to 
the individual. Under such circumstances, OPM may disclose the records, 
including the exact nature and probable outcome of the condition, only 
to a licensed physician designated in writing for that purpose by the 
individual or his or her designated representative.
    (f) Publications. If the subject matter of a request includes 
material published and offered for sale (e.g., by the Superintendent of 
Documents, Government Printing Office), OPM will explain where a person 
may review and/or purchase the publications.
    (g) Responsibility for responding to requests. OPM has a 
decentralized system for processing FOIA requests whereby each OPM 
component has responsibility for responding to FOIA requests for 
records they maintain. Within 10 working days of receiving a request in 
OPM's FOIA Requester Service Center, or any OPM component, a request 
will be reviewed to:
    (1) Determine if the request is for records OPM maintains and, if 
so, forward to the appropriate OPM component(s) which may have 
responsive records. The OPM component(s) will have 20 business days 
from receipt of the forwarded request to provide the records sought 
except as provided in paragraph (g)(2) of this section.
    (2) Determine if the request reasonably describes the record(s) 
sought. If it does not, OPM will tell the requester why the request is 
insufficient and notify the requester of any additional information 
needed to process the request. OPM will also offer the requester an 
opportunity to prepare and reformulate the request so it meets the 
requirements of this section.
    (3) Determine if another Federal agency may have the records and 
refer the request to that agency for action. The request will then be 
subject to that agency's FOIA regulations. If the requester or the 
requester's authorized representative asks to be notified of anything 
that will delay the official receipt of the requester's request, OPM 
will notify the requester in writing that his or her request has been 
forwarded to another agency for action.
    (i) If a request is for records OPM does not have the authority to 
release without consulting another agency, copies of the request will 
be referred to the appropriate agency. Depending on the records sought, 
the appropriate agency may respond directly to the requester. 
Otherwise, the final response to a request can be made only when the 
agency to whom OPM referred the documents responds to OPM.
    (ii) If a request is for records containing confidential commercial 
information, OPM will contact the submitter of the requested 
information.
    (h) Acknowledgements of requests. On receipt of a request, an OPM 
component will ordinarily send an acknowledgement letter to the 
requester under 5 CFR 294.109 and provide an assigned request number 
for further reference; acknowledgement letters will confirm the 
requester's agreement to pay fees, if required. Information regarding 
the status of the request can be obtained by following the procedures 
on OPM's FOIA page at https://www.opm.gov/efoia/.
    (i) New Time Limits. As required by amendments to section 552 of 
title 5 United States Code, effective December 31, 2008, the 20-day 
period shall commence on the date on which the request is first 
received by the appropriate component of OPM, but in any event not 
later than ten days after the request is first received by the OPM FOIA 
Requester Center.
    (j) Applying the time limits. When applying the time limits in 
section 552 of title 5, United States Code, OPM will not officially 
consider any request to be received until it arrives in the OPM 
organization that has responsibility for the records sought.
    (k) Responses to requests.--(1) Grants of requests. (i) Once OPM 
decides to release the requested records in whole or in part, the 
requester will be informed in writing. If the records will be released, 
OPM's response may include the records or where they may be reviewed. 
If the records will be released only in part or the request will be 
denied, OPM's response will explain the reasons for this decision, the 
exemption(s) that apply and the requester's right to appeal the 
decision. If there are applicable fees associated with processing a 
request, OPM will release the records when payment is received as 
explained in 5 CFR 294.109. Once applicable fees are paid, OPM will 
provide the requester with copies of records in the format requested if 
the records:
    (A) Already exist in the requested format; or
    (B) Are readily reproducible in the requested format.
    (ii) If a requester requests information from OPM in a format that 
does not currently exist, OPM will not create a record to respond to 
the requester.
    (2) Denials of requests. When OPM decides to withhold in part or to 
deny the release of records, OPM will notify the requester in writing. 
Reasons for denying a request are:
    (i) Records do not exist or cannot be located;
    (ii) Records are not readily reproducible in the form or format 
requested;
    (iii) Records are not subject to release under one of the nine 
published exemptions; or
    (iv) Records are the subject of a disputed fee matter, including a 
denial of a fee waiver. OPM's denial letter will be signed by the 
appropriate official and will include:
    (A) The name and title or position of the person responsible for 
the denial;
    (B) A brief statement of the reason(s) for the denial, including 
any FOIA exemption(s) applied;
    (C) An estimate of the volume of records withheld, in number of 
pages or other reasonable form of estimation. The estimate will include 
specific exemptions used where the deletions are shown on the records 
or if disclosure will harm an interest protected by an applicable 
exemption; and
    (D) The requester's right to appeal OPM's denial under 5 CFR 
294.110.
    (l) Expedited processing. To request expedited processing of a FOIA 
request, the requester must submit a statement, certified to be true 
and correct to the best of his or her knowledge, explaining the basis 
for expedited processing. OPM will expedite a FOIA request or appeal 
for any of the following reasons:
    (1) Imminent threat to an individual's life or physical safety;
    (2) Imminent loss of a substantial due-process right;
    (3) An urgent need to inform the public about an actual or alleged 
Federal Government activity if the request is made by a person 
primarily engaged in disseminating information to the public; or
    (4) A matter of widespread and exceptional media interest in which 
there exists possible questions about the Government's integrity that 
affects public confidence. Ordinarily, OPM will respond to a request 
for expedited processing within 10 days of receipt of the request. If 
OPM grants a request for expedited processing, OPM will process the 
request as quickly as possible. If OPM denies a request for expedited 
processing and a requester decide to appeal the denial, OPM will 
expedite the review of the appeal.


Sec.  294.109  Fees.

    (a) Applicability of fees. (1) OPM will provide, without charge, 
reasonable

[[Page 43157]]

quantities of material available for free distribution to the public.
    (2) OPM may provide other material, subject to payment of fees 
intended to recoup the full allowable direct costs of providing 
services. Fees for these materials may be waived if the request meets 
the requirements specified in 5 CFR 294.109.
    (3) If a request does not include an acceptable agreement to pay 
fees and does not otherwise convey a willingness to pay fees, OPM will 
promptly notify the requester of the estimated fees associated with 
processing the requester's FOIA request. OPM's notice will offer the 
requester an opportunity to confer with OPM staff to modify the request 
to meet the requester's needs at a lower cost. OPM will process the 
request when the requester or the requester's authorized representative 
come to an agreement with OPM about the payment of the required fee. If 
OPM does not receive a response from the requester within 30 days of 
the date of notification, either of the requester's agreement to pay 
the fees associated with processing the FOIA request, or a modification 
to the request lowering the estimated costs, OPM will close the request 
and no additional action will be taken.
    (4) OPM will ordinarily respond to FOIA requests in a decentralized 
manner. OPM may, at times, refer a single request to two or more 
components to make separate responses directly to a requester. Each 
component may assess fees for a requester's request for the direct 
costs to prepare the response.
    (5) If a requester authorizes fees for a document search as 
provided in paragraph (c), OPM may assess charges for employee time 
spent searching for documents and other direct costs of a search, even 
if a fails to locate records or if the located records are determined 
to be exempt from disclosure. OPM will conduct searches in the most 
efficient and least expensive manner to minimize the cost for both the 
requester and OPM, e.g., personnel should not engage in line-by-line 
search when photocopying an entire document would be a less expensive 
and quicker way to comply with a request.
    (6) OPM will charge the requester for services requested and 
performed, but not required, under the FOIA, such as formal 
certification of records as true copies, by using the Federal User 
Charge Statute (31 U.S.C. 483a) or other applicable statutes.
    (7) If OPM is assessed fees from the National Archives and Records 
Administration (NARA) or other institutions for retrieving records to 
assist in preparing a response to a request, those fees may be passed 
on to the requester.
    (b) Rates used to compute fees. OPM will charge the requester the 
following rates for a document search, duplication, and review as 
required by 5 U.S.C. 552(a)(4). The rates below should be used in 
conjunction with the fee components listed in paragraph (c) of this 
section:

------------------------------------------------------------------------
                  Service                               Rate
------------------------------------------------------------------------
(1) Employee time.........................  Salary rate plus 20% to
                                             cover benefits.
(2) Photocopies (up to 8\1/2\'' x 14'')...  $0.25 per page.
(3) Computer time.........................  Actual direct cost.
(4) Supplies and other materials..........  Actual direct cost.
(5) Other costs not identified above......  Actual direct cost.
------------------------------------------------------------------------

    (c) Assessing fees based on requester's category. (1) OPM 
determines fees differently for each category of requester as defined 
in 5 CFR 294.103. Requests have three cost components for the purpose 
of assessing fees:
    (i) The cost of document search;
    (ii) The cost of review; and
    (iii) The cost of duplication.
    (2) OPM will apply the rates in paragraph (b) of this section to 
the cost components that apply to he requester's category as follows:

----------------------------------------------------------------------------------------------------------------
      Requester's category             Search              Review                      Duplication
----------------------------------------------------------------------------------------------------------------
(i) Commercial.................  Actual direct       Actual direct       Actual direct costs.
                                  costs.              costs.
(ii) Non-commercial              No charge.........  No charge.........  Actual direct costs.\1\
 (educational or scientific
 institution) or news media.
(iii) All others...............  Actual direct       No charge.........  Actual direct costs.\1\
                                  costs.\2\.
----------------------------------------------------------------------------------------------------------------
\1\ First 100 pages of paper copies or reasonable equivalent are copied free.
\2\ First 2 hours of manual search time are free. If requested records are maintained in a computerized data
  base, OPM will use the following formula, suggested by OMB, to provide the equivalent of 2 hours manual search
  time free before charging for computer search time: The operator's hourly salary plus 20% will be added to the
  hourly cost of operating the central processing unit that contains the record information.

    (d) OPM failure to comply with FOIA time limits. If OPM fails to 
comply with the FOIA's time limits, unless ``unusual'' or 
``exceptional'' circumstances as defined by 5 U.S.C. 552 apply to the 
processing of the request, OPM will not assess search fees.
    (e) Agreement to pay fees. If a requester makes a FOIA request, it 
shall be considered an agreement by the requester to pay all applicable 
fees charged under 5 CFR 294.109, unless the requester seeks a waiver 
of fees. When making a request, the requester may specify a willingness 
to pay a greater or lesser amount. The requester may find OPM's Freedom 
of Information Act Reference Guide helpful in making his or her 
request. It is available on OPM's Web site at https://www.opm.gov/efoia/ and in paper form by writing to: FOIA/Privacy Act Officer, U.S. Office 
of Personnel Management, Office of the Chief Information Officer, FOIA 
Requester Service Center, 1900 E Street, NW., Washington, DC 20415.
    (f) Payment of fees. Fees are payable by check or money order to 
the Office of Personnel Management (OPM).
    (1) When the fee total is less than $25.00, OPM will usually waive 
the fee except as provided in 5 CFR 294.109.
    (2) If a request may reasonably result in a fee assessment of more 
than $25.00, OPM will not release the records unless the requester 
agrees in advance to pay the anticipated charges.
    (3) OPM may put requests together (aggregate) and charge fees 
accordingly when there is a reasonable belief a requester, or a group 
of requesters acting in concert, is attempting to break down a request 
into a series of requests to avoid the assessment of fees.
    (i) If multiple requests of this type occur within a 30 day period, 
OPM may notify the requester it is aggregating the requests together as 
one and that it will apply the fee provisions of this section, 
including any required agreement to pay fees and any advance payment.
    (ii) Before aggregating requests of this type made over a period 
longer than 30 days, OPM will assure that it has a solid basis on which 
to conclude that requesters are acting in concert and are acting 
specifically to avoid payment of fees.
    (iii) OPM will not aggregate multiple requests on unrelated 
subjects from one requester.

[[Page 43158]]

    (g) Payment of fees in advance. If OPM estimates or determines the 
fees are likely to exceed $250.00, OPM may require the payment of 
applicable fees in advance.
    (1) If an OPM official, who is authorized to make a decision on a 
particular request, determines a requester has a history of prompt 
payment of FOIA fees, OPM will provide notice of the likely cost and 
obtain satisfactory assurance of full payment.
    (2) When a requester or an organization a requester represents 
previously failed to pay assessed fees in a timely manner (i.e., 
payment was not made within 30 days of the billing date), OPM will 
require full payment of all fees in advance.
    (3) If a requester or the organization the requester represents has 
not paid previously assessed fees, OPM will not begin to process any 
new request for records until the full amount the requester or the 
organization has paid the full amount owed plus any applicable 
interest, and the requester or the organization makes a full advance 
payment for the new request.
    (h) Waiver or reduction of fees. All requests for fee waivers or 
reductions must be made at the time of the initial FOIA request. All 
requests must include the grounds for requesting the reduction or 
elimination of fees. OPM will waive or reduce fees only 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 release of the material is not 
primarily in the commercial interest of the requester.
    (1) In determining whether disclosure is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government, OPM 
will consider the following factors:
    (i) Subject of request: Whether the subject of the requested 
records concerns ``the operations or activities of the Government'';
    (ii) The information value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of Government operations or activities;
    (iii) The contribution to an understanding of the subject by the 
general public likely to result from disclosure: Whether disclosure of 
the requested information will contribute to ``public understanding'' 
of the subject;
    (iv) The significance of the contribution of public understanding: 
Whether disclosure of the requested information is likely to contribute 
``significantly'' to public understanding of Government operations or 
activities;
    (2) A commercial interest is a commercial, trade, or profit 
interest as these terms are commonly understood. A requester's status 
as ``profit making'' or ``non-profit making'' is not the deciding 
factor. Not only profit-making entities, but other organizations or 
individuals may have a commercial interest to be served by disclosure, 
depending on the circumstances involved. In determining whether 
disclosure is or is not primarily in the commercial interest of the 
requester, OPM will consider the following factors:
    (i) Existence and magnitude of a commercial interest. Whether 
disclosure of the requested information will further the requesters 
commercial interest; and, if so,
    (ii) Primary interest in disclosure. Whether the magnitude of the 
identified commercial interest of the requester is sufficiently large, 
in comparison with the public interest in disclosure with public 
interest in disclosure is ``primarily in the commercial interest of the 
requester.''
    (3) In all cases, the burden of proof is on the requester to 
present evidence or information in support of a request for a fee 
waiver or reduction.
    (i) Denial of fee waiver and reduction requests.
    (1) An OPM official may deny a request for a full or partial waiver 
of fees without further consideration if a request does not include:
    (i) A clear statement of requester's interest in the requested 
information;
    (ii) A clear statement of requester's proposed use for the 
information and whether the requester will derive an income or other 
benefit from this use;
    (iii) A clear statement of how the public will benefit from OPM's 
release of the requested information; and
    (iv) A clear statement of requester's qualifications, if a 
specialized use is planned.
    (2) A requester may appeal the denial of a waiver request as 
provided by 5 CFR 294.110 of this part.
    (j) Fees not paid; penalties; debt collection.
    (1) OPM will promptly notify a requester if an advance payment, as 
provided under this section, is required before further processing of a 
request can begin. Payment of all fees is required within 30 days. OPM 
will not continue processing a request until payment is received.
    (2) OPM may begin assessing interest charges on an unpaid bill 
starting on the 31st day following the date on which the bill was sent. 
Interest will be charged at the rate allowed in 31 U.S.C. 3717, and 
will accrue from the billing date.
    (3) OPM may use the procedures authorized by Public Law 97-365, the 
Debt Collection Act of 1982, to encourage the repayment of debts 
incurred under this section. These procedures may include deciding to 
disclose information to consumer reporting agencies and to use 
collection agencies.


Sec.  294.110  Appeals.

    (a) When an OPM official denies records or waivers of fees under 
the Freedom of Information Act, the requester may appeal to: Office of 
the General Counsel, U.S. Office of Personnel Management, 1900 E 
Street, NW., Washington, DC 20415. If the Office of the General Counsel 
denied the FOIA request, a requester may appeal the denial to the: 
Deputy Director, U.S. Office of Personnel Management, 1900 E Street, 
NW., Washington, DC 20415.
    (b) An appeal must be received in writing within 60 calendar days 
from the date of OPM's letter denying a request. The appellant should 
mark the letter and envelope with the words ``FOIA Appeal'' and include 
a copy of his or her initial request and the letter of denial. 
Additionally, the appellant should explain why OPM should release the 
requested records, grant a fee waiver request, or expedite the 
processing of his or her request. If OPM was not able to find the 
records the requester wanted, the appellant should explain why he or 
she believes the search was inadequate. If OPM denied a requester 
access to records and told him or her that the records were not subject 
to FOIA, the appellant should explain why he or she believes the 
records are subject to FOIA.
    (c) The appeals provided for in this section constitute the final 
available levels of administrative review. If OPM affirms a denial of 
information or a denial of a fee waiver, a requester may seek judicial 
review in the district court of the United States District in the 
district where he or she resides, or has his or her principal place of 
business, or in which the agency records are located; or in the 
District of Columbia.
    (d) If an official of another agency denies a FOIA request for 
records in one of OPM's government-wide systems of records, the 
requester should consult that agency's regulations for any appeal 
rights which may apply. An agency may, at its discretion, direct these 
appeals to OPM's Office of the General Counsel.


Sec.  294.111  Custody of records; subpoenas.

    (a) The Center for Information Services, OPM, has official custody 
of

[[Page 43159]]

OPM records. A subpoena or other judicial order for an official record 
from OPM must be signed by a judge and should be served on the: FOIA/PA 
Office, U.S. Office of Personnel Management, Office of the Chief 
Information Officer, FOIA Requester Service Center, 1900 E Street, NW., 
Washington, DC 20415.
    (b) See 5 CFR part 297 for the steps other officials should take on 
receipt of a subpoena or other judicial order for an OPM record.


Sec.  294.112  Confidential commercial information.

    (a) In general, OPM will not disclose confidential commercial 
information in response to a FOIA request except in accordance with 
this section.
    (b) The following definitions from Executive Order 12600 apply to 
this section:
    (1) Confidential commercial information means records provided to 
the Government by a submitter that arguably contain material 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.
    (2) Submitter means any person or entity who provides confidential 
commercial information, directly or indirectly, to OPM. The term 
includes, but is not limited to, corporations, State governments and 
foreign governments.
    (c) Designation of confidential commercial information. Submitters 
of confidential commercial information must show by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of their submissions they consider to be 
confidential information and protected from disclosure under Exemption 
4.
    (d) Notice to submitters. OPM will, to the extent permitted by law, 
provide prompt written notice to an information submitter of FOIA 
requests or administrative appeals if:
    (1) The submitter has made a good faith designation that the 
requested material is confidential commercial information; or
    (2) OPM has reason to believe the requested material may be 
confidential commercial information.
    (e) The written notice required in paragraph (d) of this section 
will either describe the confidential commercial material requested or 
include as an attachment, copies or pertinent portions of the records.
    (f) Whenever OPM provides the notification and opportunity to 
object required by paragraphs (d) and (h) of this section, OPM will 
advise the requester that notice and an opportunity to object are being 
provided to the submitter.
    (g) The notice requirements of paragraph (d) of this section will 
not apply if:
    (1) OPM determines the information should not be disclosed;
    (2) The information has been lawfully published or officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552);
    (4) The information was submitted on or after August 20, 1992, and 
has not been designated by the submitter as exempt from disclosure in 
accordance with paragraph (c) of this section, unless OPM has 
substantial reason to believe disclosure of the information would 
result in competitive harm; or
    (5) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous. In such a 
case, OPM will, within a reasonable number of days prior to a specified 
disclosure date, notify the submitter in writing of any final 
administrative decision to disclose the information.
    (h) The notice described in paragraph (d) of this section will give 
a submitter a reasonable period from the date of the notice to provide 
OPM with a detailed written statement of any objection to disclosure. 
The statement must specify all the reasons for withholding any of the 
material under any exemption of the FOIA. When Exemption 4 of the FOIA 
is cited as the reason for withholding information, the specification 
will demonstrate the basis for any contention that the material is a 
trade secret, commercial or financial information that is privileged or 
confidential. The statement must also include a specification of any 
claim of competitive harm, including the degree of such harm, that will 
result from disclosure. The information provided in response to this 
paragraph may also be subject to disclosure under the FOIA. Information 
provided in response to this paragraph will also be subject to the 
designation requirements of paragraph (c) of this section. Failure to 
object in a timely manner, will be considered a statement of no 
objection by OPM, unless OPM extends the time for objection upon timely 
request from the submitter and for good cause shown. The provisions of 
this paragraph concerning opportunity to object will not apply to 
notices of administrative appeals when the submitter has been 
previously provided an opportunity to object at the time the request 
was initially considered.
    (i) OPM will carefully consider a submitter's objections and 
specific grounds for nondisclosure, when it is received within the 
period of time described in paragraph (h) of this section, prior to 
determining whether to disclose the information. Whenever OPM decides 
to disclose the information over the objection of a submitter, OPM will 
send the submitter a written notice that will include:
    (1) A statement of the reasons the submitter's disclosure 
objections were not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specific disclosure date.
    (j) OPM will notify both the submitter and the requester of its 
intent to disclose material a reasonable number of days prior to the 
specific disclosure date.
    (k) If a requester brings suit seeking to compel disclosure of 
confidential commercial information, OPM will promptly notify the 
submitter.

Subpart B--The Public Information Function


Sec.  294.201  Public information policy.

    (a) OPM's public information policy is to release information about 
the functions and programs administered by OPM through news releases, 
publications, the world wide web or other methods.
    (b) The Director, Office of Communications and Public Liaison, 
carries out OPM's public information policy. In addition, each OPM 
employee will cooperate in carrying out this policy.

Subpart C--Office Operations


Sec.  294.301  Policy and operations.

    (a) Statements of Office policy and interpretations of the laws and 
regulations administered by the Office which the Office has adopted, 
whether or not published in the Federal Register are available to the 
public.
    (b) Generally, memoranda, correspondence, opinions, data, staff 
studies, information received in confidence, and similar documentary 
material, when prepared for the purpose of internal communication 
within the Office or between the Office and other agencies, 
organizations, or persons, are not available to the public.

Subpart D--Cross References


Sec.  294.401  References.

    The table below provides assistance in locating other OPM 
regulations in title 5 of the Code of Federal Regulations with 
provisions on the disclosure of records:

[[Page 43160]]



------------------------------------------------------------------------
                                                          Location (CFR
                  Type of information                       part No.)
------------------------------------------------------------------------
Classification appeal records.........................               511
Classification information............................               175
Employee performance folders..........................               293
Examination and related subjects records..............               300
Grade and pay retention records.......................               536
Investigative records.................................               736
Job grading reviews and appeals records...............               532
Medical information...................................         297 & 293
Official Personnel Folders............................               293
Privacy and personnel records.........................               297
Retirement............................................         831 & 841
------------------------------------------------------------------------

[FR Doc. E8-16796 Filed 7-23-08; 8:45 am]
BILLING CODE 6325-47-P