Disclosure of Records or Information, 1542-1552 [2011-146]
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1542
Proposed Rules
Federal Register
Vol. 76, No. 7
Tuesday, January 11, 2011
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.
ADMINISTRATIVE CONFERENCE OF
THE UNITED STATES
1 CFR Part 304
Disclosure of Records or Information
Administrative Conference of
the United States.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Administrative
Conference of the United States (ACUS
or the Conference) is promulgating
updated rules identifying its procedures
for disclosure of records under the
Freedom of Information Act and its
procedures for protection of privacy and
access to individual records under the
Privacy Act of 1974.
DATES: Comments must be received by
February 10, 2011.
ADDRESSES: Submit comments to any
one of the following:
• E-rulemaking Portal: https://www.
regulations.gov.
• E-mail: smcgibbon@acus.gov.
• Mail: FOIA and Privacy Comments,
Administrative Conference of the
United States, Suite 706 South, 1120
20th Street, NW., Washington, DC
20036.
FOR FURTHER INFORMATION CONTACT:
Shawne C. McGibbon, General Counsel,
at 202–480–2088 or smcgibbon@acus.
gov.
SUMMARY:
ACUS was
established by the Administrative
Conference Act, 5 U.S.C. 591–96.
Following the loss of its funding in
1995, ACUS ceased operations. In 1996,
its prior regulations (including Part 304)
were eliminated. 61 FR 3539 (1996).
Congress has now reauthorized and
refunded ACUS, which has now
reinitiated operations. These regulations
provide the agency’s proposed
procedures for disclosure of records, as
required by the Freedom of Information
Act (FOIA), 5 U.S.C. 552, as amended,
and its procedures for protection of
privacy and access to individual
records, as required by the Privacy Act
of 1974, 5 U.S.C. 552a, as amended.
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SUPPLEMENTARY INFORMATION:
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These regulations also reflect the
principles established by President
Obama’s Presidential Memoranda on
‘‘Transparency and Open Government’’
and ‘‘Freedom of Information Act’’
issued on January 21, 2009 and Attorney
General Holder’s Memorandum on ‘‘The
Freedom of Information Act (FOIA)’’
issued on March 19, 2009. Additionally,
the regulations reflect the Conference’s
commitment to providing the fullest
possible disclosure of records to the
public.
Required Reviews
a. Paperwork Reduction Act
ACUS has determined that the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq., does not apply because
these regulations do not contain any
information collection requirements.
b. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601 et seq., requires agencies to
perform regulatory flexibility analyses
when promulgating rules through notice
and comment procedures. ACUS has
determined that the proposed
regulations do not have a significant
economic impact on a substantial
number of small entities. Under the
FOIA, agencies may recover only the
direct costs of searching for, reviewing
and duplicating the records processed
for certain categories of requesters. The
Conference’s proposed fee structure is
in accordance with Department of
Justice guidelines and based upon OMB
fee schedules which calculate costs
based on the category of requester and
kind of employee duplicating the
records. Under the Privacy Act, agencies
may recover the cost of duplication
only. The agency will provide free
duplication and search time (up to a
certain amount) in certain cases. Where
anticipated fees exceed $50, an
opportunity is given to the requester to
refine the request in order to lower cost.
Thus, fees assessed by ACUS are
nominal and will not have a significant
economic impact on a substantial
number of small entities within the
meaning of the RFA.
c. Unfunded Mandates Reform Act
For purposes of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), the proposed
rule would not significantly or uniquely
affect small governments and would not
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result in increased expenditures by
State, local, and tribal governments, in
the aggregate, or by the private sector, of
$100 million or more (as adjusted for
inflation).
d. Executive Order 12866
In issuing this regulation, ACUS has
adhered to the regulatory philosophy
and the applicable principles of
regulation as set forth in Section 1 of
Executive Order 12866, Regulatory
Planning and Review, 58 FR 51735. This
proposed rule has not been reviewed by
the Office of Management and Budget
under the Executive Order since it is not
a significant regulatory action within
the meaning of the Executive Order.
List of Subjects in 1 CFR Part 304
Administrative practice and
procedure, Freedom of information,
Privacy.
For the reasons set forth in the
preamble, under the authority at 5
U.S.C. 552, 552a, and 591–96, the
Administrative Conference of the
United States proposes to amend 1 CFR
chapter III to add part 304 as follows:
PART 304—DISCLOSURE OF
RECORDS OR INFORMATION
Subpart A—Procedures for Disclosure of
Records Under the Freedom of Information
Act
Sec.
304.1 General provisions.
304.2 Public reading room.
304.3 Requirements for making requests.
304.4 Responsibility for responding to
requests.
304.5 Timing of responses to requests.
304.6 Responses to requests.
304.7 Business information.
304.8 Appeals.
304.9 Fees.
304.10 Preservation of records.
304.11 Other rights and services.
Subpart B—Protection of Privacy and
Access to Individual Records Under the
Privacy Act of 1974
304.20 General provisions.
304.21 Requests for access to records.
304.22 Responsibility for responding to
requests for access to records.
304.23 Responses to requests for access to
records.
304.24 Appeals from denials of requests for
access to records.
304.25 Requests for amendment or
correction of records.
304.26 Requests for an accounting of record
disclosures.
304.27 Fees.
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304.28 Notice of court-ordered and
emergency disclosures.
304.29 Security of systems of records.
304.30 Contracts for the operation of record
systems.
304.31 Use and collection of social security
numbers and other information.
304.32 Employee standards of conduct.
304.33 Preservation of records.
304.34 Other rights and services.
Subpart A—Procedures for Disclosure
of Records Under the Freedom of
Information Act
Authority: 5 U.S.C. 552, 591–96.
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§ 304.1
(a) This subpart contains the rules
that the Administrative Conference of
the United States (‘‘ACUS’’ or ‘‘the
agency’’) follows in processing requests
for disclosure of records under the
Freedom of Information Act (‘‘FOIA’’ or
‘‘the Act’’), 5 U.S.C. 552, as amended,
and in meeting its responsibilities under
the Act. These rules should be read
together with the text of the FOIA itself,
which provides additional information
about access to records maintained by
the agency. They also may be read in
conjunction with the agency’s ‘‘Freedom
of Information Act Reference Guide,’’
which provides basic information about
use of the Act in relation to the agency’s
records. Requests made by individuals
for access to records about themselves
under the Privacy Act of 1974, 5 U.S.C.
552a (2006 & Supp. II 2008), which are
processed under subpart B of this part,
are also processed under this subpart.
Information routinely provided to the
public as part of a regular agency
activity (for example, press releases or
recommendations adopted by the
agency pursuant to the Administrative
Conference Act, 5 U.S.C. 591 et seq.)
may be provided to the public without
following this subpart.
(b) As a matter of policy, ACUS makes
discretionary disclosures of records or
information exempt from disclosure
under the FOIA whenever it is
determined that disclosure would not
foreseeably harm an interest protected
by a FOIA exemption, but this policy
does not create any right enforceable in
court.
(c) The agency has designated its
General Counsel as its Chief FOIA
Officer, who has agency-wide
responsibility for efficient and
appropriate compliance with the FOIA
and these implementing regulations.
The General Counsel has designated the
agency’s Deputy General Counsel as its
FOIA Public Liaison.
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Public reading room.
(a) ACUS maintains a public reading
room that affords access to the records
that the FOIA requires it to make
regularly available for public inspection
and copying even in the absence of a
FOIA request, including a current
subject-matter index of its reading room
records that will be updated quarterly
with respect to newly included records.
(b) ACUS also makes all reading room
records that have been created by the
agency regularly available to the public
electronically on its Web site (https://
www.acus.gov).
§ 304.3
General provisions.
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§ 304.2
Requirements for making requests.
(a) How made and addressed. You
may make a request for records by
sending a written request letter to the
agency either by mail addressed to FOIA
Public Liaison, Administrative
Conference of the United States, 1120
20th Street, NW., South Lobby, Suite
706, Washington, DC 20036, or by fax
delivery to (202) 386–7190. For the
quickest possible handling, you should
mark both your request letter and the
envelope ‘‘Freedom of Information Act
Request.’’ At such time as the agency
implements the capability of receiving
requests electronically, instructions for
electronic filing will be posted on its
Web site referenced above. (You may
find the agency’s ‘‘Freedom of
Information Act Reference Guide’’—
which is available on its Web site and
in paper form—helpful in making your
request.) If you are making a request for
records about yourself, see § 304.21(d)
for additional requirements. If you are
making a request for records about
another individual, then either a written
authorization signed by that individual
permitting disclosure of those records to
you or proof that that individual is
deceased (for example, a copy of a death
certificate or an obituary notice) will
help the processing of your request.
Your request will be considered
received as of the date upon which it is
logged in as received by the agency’s
FOIA Public Liaison.
(b) Description of records sought. You
must describe the records that you seek
in enough detail to enable agency
personnel to locate them 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 subject matter of
the record. If known, you should
include any file designations or similar
descriptions for the records that you
want. As a general rule, the more
specific you are about the records or
type of records that you want, the more
likely that the agency will be able to
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locate those records in response to your
request. If the agency determines that
your request does not reasonably
describe records, then it will tell you
either what additional information is
needed or why your request is otherwise
insufficient. It also will give you an
opportunity to discuss your request by
telephone so that you may modify it to
meet the requirements of this section.
Additionally, if your request does not
reasonably describe the records you
seek, the agency’s response to it may be
delayed as an initial matter.
(c) Agreement to pay fees. When you
make a FOIA request, it will be
considered to be an agreement by you to
pay all applicable fees charged under
§ 304.9, up to $50.00, unless you
specifically request a waiver of fees. The
agency ordinarily will confirm this
agreement in an acknowledgment letter.
When making a request, you may
specify a willingness to pay a greater or
lesser amount. Your agreement will not
prejudice your ability to seek a waiver
or reduction of any applicable fee at a
later time.
§ 304.4 Responsibility for responding to
requests.
(a) In general. The agency will be
responsible for responding to a request
in all respects, except in the case of a
referral to another agency as is
described in paragraphs (b), (c), and (d)
of this section. In determining which
records are responsive to a request, the
agency ordinarily will include only
records in its possession and control as
of the date upon which it begins its
search for them. If any other date is
used, the agency will inform the
requester of that date.
(b) Consultations and referrals. When
the agency receives a request for a
record in its possession and control, it
will determine whether another agency
of the Federal Government is better able
to determine whether the record is
exempt from disclosure under the FOIA
and, if so, whether it should be
disclosed as a matter of administrative
discretion. If the agency determines that
it is best able to process the record in
response to the request, then it will do
so. If the agency determines that it is not
best able to process the record, then it
will either:
(1) Respond to the request regarding
that record, after consulting with the
agency that is best able to determine
whether to disclose it and with any
other agency that has a substantial
interest in it; or
(2) Refer the responsibility for
responding to the request regarding that
record to another agency that originated
the record (but only if that agency is
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subject to the FOIA). Ordinarily, the
agency that originated a record will be
presumed to be best able to determine
whether to disclose it.
(c) Notice of referral. When the agency
refers all or any part of the
responsibility for responding to a
request to another agency, it ordinarily
will notify the requester of the referral
and inform the requester of the name of
the agency to which the request has
been referred and of the part of the
request that has been referred.
(d) Timing of responses to
consultations and referrals. All
consultations and referrals will be
handled according to the date upon
which the FOIA request initially was
received by the first agency, and not any
later date.
(e) Agreements regarding
consultations and referrals. The agency
may make agreements with other
agencies designed to eliminate the need
for consultations or referrals regarding
particular types of records.
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§ 304.5
Timing of responses to requests.
(a) In general. The agency ordinarily
will respond to requests according to
their order of receipt.
(b) Multi-track processing. The agency
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 according
to the number of pages involved. If it
does so, then it will advise requesters in
its slower track(s) of the limits of its
faster track(s) and may provide
requesters in its slower track(s) 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(s). The agency will
contact the requester either by
telephone or by letter, whichever is
more efficient, in each case.
(c) Unusual circumstances. (1) Where
the statutory time limits for processing
a request cannot be met because of
‘‘unusual circumstances,’’ as defined in
the FOIA, and the agency determines to
extend the time limits on that basis, it
will as soon as practicable notify the
requester in writing of the unusual
circumstances and of the date by which
processing of the request can be
expected to be completed. Where the
extension is for more than ten business
days, it will provide the requester with
an opportunity either to modify the
request so that it may be processed
within the time limits or to arrange an
alternative time period processing the
request or a modified request.
(2) Where the agency reasonably
believes that multiple requests
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submitted by a requester, or by a group
of requesters acting in concert,
constitute a single request that would
otherwise involve unusual
circumstances, and the requests involve
clearly related matters, they may be
aggregated. Multiple requests involving
unrelated matters will not be aggregated.
(d) Expedited processing. (1) Requests
and appeals will be taken out of order
and given expedited treatment
whenever it is determined that they
involve:
(i) Circumstances in which the lack of
expedited treatment could reasonably be
expected to pose an imminent threat to
the life or physical safety of an
individual;
(ii) An urgency to inform the public
concerning actual or alleged federal
government activity, if made by a
person primarily engaged in
disseminating information; or
(iii) Other circumstances as
determined by the agency.
(2) A request for expedited processing
may be made at the time of the initial
request for records (i.e., as part of the
initial request) or at any later time.
(3) A requester who seeks expedited
processing must submit a statement,
certified to be true and correct to the
best of that person’s knowledge and
belief, explaining in detail the basis for
requesting expedited processing. For
example, a requester within the category
in paragraph (d)(1)(ii) of this section, if
not a full-time member of the news
media, must establish that he or she is
a person whose main professional
activity or occupation is information
dissemination, though it need not be his
or her sole occupation. That requester
also must establish a particular urgency
to inform the public about the
government activity involved in the
request, beyond the public’s right to
know about government activity
generally. The formality of certification
may be waived by the agency as a matter
of administrative discretion.
(4) Within ten calendar days of its
receipt of a request for expedited
processing, the agency will decide
whether to grant it and will notify the
requester of the decision. If a request for
expedited treatment is granted, then the
request will be given priority and will
be processed as soon as practicable. If a
request for expedited processing is
denied, then any appeal of that decision
will be acted on expeditiously.
§ 304.6
Responses to requests.
(a) Acknowledgments of requests. On
receipt of a request, the agency
ordinarily will send an acknowledgment
letter to the requester that will confirm
the requester’s agreement to pay fees
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under § 304.3(c) and will provide a
request tracking number for further
reference. Requesters may use this
tracking number to determine the status
of their request—including the date of
its receipt and the estimated date on
which action on it will be completed—
by calling the agency’s FOIA Public
Liaison at (202) 480–2080. In some
cases, the agency may seek further
information or clarification from the
requester.
(b) Grants of requests. Ordinarily, the
agency will have twenty business days
from when a request is received to
determine whether to grant or deny the
request. Once the agency makes such a
determination, it will immediately
notify the requester in writing. The
agency will inform the requester in the
notice of any fee charged under § 304.9
and will disclose records to the
requester promptly upon payment of
any applicable fee. Records disclosed in
part will be marked or annotated to
show the amount of information
deleted, unless doing so would harm an
interest protected by an applicable
exemption. The location of the
information deleted also will be
indicated on the record, if technically
feasible.
(c) Adverse determinations of
requests. Whenever the agency makes
an adverse determination denying a
request in any respect, it will notify the
requester of that determination in
writing. Adverse determinations, or
denials of requests, consist of: A
determination to withhold any
requested record in whole or in part; a
determination that a requested record
does not exist or cannot be located; a
determination that a record is not
readily reproducible in the form or
format sought by the requester; a
determination that what has been
requested is not a record subject to the
FOIA; a determination on any disputed
fee matter, including a denial of a
request for a fee waiver; and a denial of
a request for expedited treatment. The
denial letter will include:
(1) The name and title or position of
the person responsible for the denial;
(2) A brief statement of the reason(s)
for the denial, including any FOIA
exemption applied by the agency in
denying the request;
(3) An estimate of the volume of
records or information withheld, in
number of pages or in some other
reasonable form of estimation. This
estimate does not need to be provided
if the volume is otherwise indicated
through deletions on records disclosed
in part, or if providing an estimate
would harm an interest protected by an
applicable exemption; and
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(4) An indication on the released
portion of a record of each exemption
applied, at the place at which it was
applied, if technically feasible.
(5) A statement that the denial may be
appealed under § 304.8(a) and a
description of the requirements of
§ 304.8(a).
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§ 304.7
Business information.
(a) In general. Business information
obtained by the agency will be disclosed
under the FOIA only under this section
and in accordance with Executive Order
12,600, 3 CFR part 235 (1988).
(b) Definitions. For purposes of this
section:
(1) ‘‘Business information’’ means
commercial or financial information
obtained by the agency from a submitter
that may be protected from disclosure
under Exemption 4 of the FOIA.
(2) ‘‘Submitter’’ means any person or
entity from whom the agency obtains
business information, either directly or
indirectly. The term includes
corporations; state, local, and tribal
governments; and foreign governments.
(c) Designation of business
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 and all
portion(s) of its submission that it
considers to be protected from
disclosure under Exemption 4. These
designations will expire ten years after
the date of the submission unless the
submitter requests, and provides
justification for, a longer designation
period.
(d) Notice to submitters. The agency
will provide a submitter with prompt
written notice of a FOIA request or
administrative appeal that seeks its
business information wherever required
under paragraph (e) of this section,
except as provided in paragraph (h) of
this section, in order to give the
submitter an opportunity to object to
disclosure of any specified portion of
that information under paragraph (f) of
this section. The notice will either
describe the business information
requested or include copies of the
requested records or record portions
containing the information. When
notification of a voluminous number of
submitters is required, notification may
be made by posting or publishing the
notice in a place reasonably likely to
accomplish it.
(e) Where notice is required. Notice
will be given to a submitter wherever:
(1) The information has been
designated in good faith by the
submitter as information considered
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protected from disclosure under
Exemption 4; or
(2) The agency has reason to believe
that the information may be protected
from disclosure under Exemption 4.
(f) Opportunity to object to disclosure.
The agency will allow a submitter a
reasonable time to respond to the notice
described in paragraph (d) of this
section and will specify that time period
within the notice. If a submitter has any
objection to disclosure, it is required to
submit a detailed written statement. The
statement must specify all grounds for
withholding any portion of the
information under any exemption of the
FOIA and, in the case of Exemption 4,
it must show why the information is a
trade secret or commercial or financial
information that is privileged or
confidential. In the event that a
submitter fails to respond to the notice
within the time specified in it, the
submitter will be considered to have no
objection to disclosure of the
information. Information provided by
the submitter that is not received by the
agency until after its disclosure decision
has been made will not be considered
by the agency. Information provided by
a submitter under this paragraph may
itself be subject to disclosure under the
FOIA.
(g) Notice of intent to disclose. The
agency will consider a submitter’s
objections and specific grounds for
nondisclosure in deciding whether to
disclose business information.
Whenever the agency decides to
disclose business information over the
objection of a submitter, it will give the
submitter written notice, which will
include:
(1) A statement of the reason(s) why
each of the submitter’s disclosure
objections was not sustained;
(2) A description of the business
information to be disclosed; and
(3) A specified disclosure date, which
will be a reasonable time subsequent to
the notice.
(h) Exceptions to notice requirements.
The notice requirements of paragraphs
(d) and (g) of this section will not apply
if:
(1) The agency determines that the
information should not be disclosed;
(2) The information lawfully has been
published or has been officially made
available to the public;
(3) Disclosure of the information is
required by statute (other than the
FOIA) or by a regulation issued in
accordance with the requirements of
Executive Order 12,600; or
(4) The designation made by the
submitter under paragraph (c) of this
section appears obviously frivolous—
except that, in such a case, the agency
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will, within a reasonable time prior to
a specified disclosure date, give the
submitter written notice of any final
decision to disclose the information.
(i) Notice of FOIA lawsuit. Whenever
a requester files a lawsuit seeking to
compel the disclosure of business
information, the agency will promptly
notify the submitter.
(j) Corresponding notice to requesters.
Whenever the agency provides a
submitter with notice and an
opportunity to object to disclosure
under paragraph (d) of this section, it
will also notify the requester(s).
Whenever the agency notifies a
submitter of its intent to disclose
requested information under paragraph
(g) of this section, it will also notify the
requester(s). Whenever a submitter files
a lawsuit seeking to prevent the
disclosure of business information, the
agency will notify the requester(s).
§ 304.8
Appeals.
(a) Appeals of adverse
determinations. If you are dissatisfied
with the response to your request, you
may appeal an adverse determination
denying your request, in any respect, to
the Chairman of the agency. You must
make your appeal in writing and it must
be received by the agency within 60
days of the date of the agency’s response
denying your request. Your appeal letter
may include as much or as little related
information as you wish, as long as it
clearly identifies the particular
determination (including the assigned
request number, if known) that you are
appealing. For the quickest possible
handling, you should mark your appeal
letter and the envelope ‘‘Freedom of
Information Act Appeal.’’ The Chairman
or his or her designee will act on the
appeal, except that:
(1) An initial adverse determination
by the Chairman will be the final action
of the agency; and
(2) An appeal ordinarily will not be
acted on if the request becomes a matter
of FOIA litigation.
(b) Responses to appeals. The
decision on your appeal will be made in
writing. A decision affirming an adverse
determination in whole or in part will
contain a statement of the reason(s) for
the affirmance, including any FOIA
exemption(s) applied, and will inform
you of the FOIA provisions for court
review of the decision. (You also may be
aware of the mediation services that are
offered by the Office of Government
Information Services (‘‘OGIS’’) of the
National Archives and Records
Administration—see https://
www.archives.gov/ogis/—as a nonexclusive alternative to FOIA litigation.)
If the adverse determination is reversed
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or modified on appeal, in whole or in
part, then you will be notified in a
written decision and your request will
be reprocessed in accordance with that
appeal decision.
(c) When appeal is required. As a
general rule, if you wish to seek review
by a court of any adverse determination,
you must first appeal it in a timely
fashion under this section.
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§ 304.9
Fees.
(a) In general. The agency will charge
for processing requests under the FOIA
in accordance with paragraph (c) of this
section, except where fees are limited
under paragraph (d) of this section or
where a waiver or reduction of fees is
granted under paragraph (k) of this
section—and in some cases the agency
may seek further information or
clarification from the requester for this
purpose. The agency ordinarily will
collect all applicable fees before sending
copies of requested records to a
requester. Requesters must pay fees by
check or money order made payable to
the Treasury of the United States.
(b) Definitions. For purposes of this
section:
(1) ‘‘Commercial use request’’ means a
request from or on behalf of a person
who seeks information for a use or
purpose that furthers his or her
commercial, trade, or profit interests,
including furthering those interests
through litigation. The agency will
determine, whenever reasonably
possible, the use to which a requester
will put the requested records. When it
appears that the requester will put the
records to a commercial use, either
because of the nature of the request
itself or because the agency has
reasonable cause to doubt a requester’s
stated use, the agency will provide the
requester a reasonable opportunity to
submit further clarification.
(2) ‘‘Direct costs’’ means those
expenses that an agency actually incurs
in searching for and duplicating (and, in
the case of commercial use requests,
reviewing) records to respond to a FOIA
request. Direct costs include, for
example, the salary of the employee
performing the work (the basic rate of
pay for the employee, plus 16 percent of
that rate to cover benefits) and the cost
of operating duplication machinery. Not
included in direct costs are overhead
expenses such as the costs of space and
heating or lighting of the facility in
which the records are kept.
(3) ‘‘Duplication’’ means the making of
a copy of a record, or of the information
contained in it, necessary to respond to
a FOIA request. Copies can take the
form of paper, microform, audiovisual
materials, or electronic records (for
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example, magnetic tape or compact
disk), among others. The agency will
honor a requester’s specified preference
of form or format of disclosure if the
record is readily reproducible with
reasonable efforts in the requested form
or format.
(4) ‘‘Educational institution’’ means 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
qualify under 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.
(5) ‘‘Noncommercial scientific
institution’’ means an institution that is
not operated on a ‘‘commercial’’ basis, as
that term is defined in paragraph (b)(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
qualify under 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.
(6) ‘‘Representative of the news
media,’’ or ‘‘news media requester,’’
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. For this purpose, 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 by
or subscription by or 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
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entity, whether or not the journalist is
actually employed by the entity. A
publication contract would present a
solid basis for such an expectation; the
agency may also consider the past
publication record of the requester in
making such a determination. To qualify
under this category, a requester must
not be seeking the requested records for
a commercial use. A request for records
supporting the news-dissemination
function of the requester will not be
considered to be for a commercial use.
(7) ‘‘Review’’ means the examination
of a record located in response to a
request in order to determine whether
any portion of it is exempt from
disclosure. It also includes processing
any record for disclosure—for example,
doing all that is necessary to redact it
and prepare it for disclosure. Review
costs are recoverable even if a record
ultimately is not disclosed. Review time
includes time spent considering any
formal objection to disclosure made by
a business submitter under § 304.7 but
does not include time spent resolving
general legal or policy issues regarding
the application of exemptions.
(8) ‘‘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. The agency will conduct
searches in the most efficient and least
expensive manner reasonably possible.
For example, it will not search on a lineby-line basis where duplicating an
entire document would be quicker and
less expensive.
(c) Fees charged. In responding to
FOIA requests, the agency will charge
the following fees unless a waiver or
reduction of fees has been granted under
paragraph (k) of this section:
(1) Search. (i) Search fees will be
charged for all requests (other than
requests made by educational
institutions, noncommercial scientific
institutions, or representatives of the
news media) subject to the limitations of
paragraph (d) of this section. The agency
may charge for time spent searching
even if it does not locate any responsive
record or if it withholds the record(s)
located as entirely exempt from
disclosure.
(ii) For each quarter hour spent by
clerical personnel in searching for and
retrieving a requested record, the fee
will be $5.00. Where a search and
retrieval cannot be performed entirely
by clerical personnel (for example,
where the identification of records
within the scope of a request requires
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the use of professional personnel) the
fee will be $10.00 for each quarter hour
of search time spent by professional
personnel. Where the time of managerial
personnel is required, the fee will be
$15.00 for each quarter hour of time
spent by those personnel.
(iii) For computer searches of records,
requesters will be charged the direct
costs of conducting the search, although
certain requesters (as provided in
paragraph (d)(1) of this section) will be
charged no search fee and certain other
requesters (as provided in paragraph
(d)(3) of this section) will be entitled to
the cost equivalent of two hours of
manual search time without charge.
These direct costs will include the cost
of operating a central processing unit for
that portion of operating time that is
directly attributable to searching for
responsive records, as well as the costs
of operator/programmer salary
apportionable to the search.
(2) Duplication. Duplication fees will
be charged to all requesters, subject to
the limitations of paragraph (d) of this
section. For a paper photocopy of a
record (no more than one copy of which
need be supplied), the fee will be ten
cents per page. For copies produced by
computer, such as tapes, disks, or
printouts, the agency will charge the
direct costs, including operator time, of
producing the copy. For other forms of
duplication, the agency will charge the
direct costs of that duplication.
(3) Review. Review fees will be
charged to requesters who make a
commercial use request. Review fees
will be charged only for the initial
record review, when the agency
determines whether an exemption
applies to a particular record or record
portion at the initial request level. No
charge will be made for review at the
administrative appeal level regarding an
exemption already applied. However,
records or record portions withheld
under an exemption that is
subsequently determined not to apply
may be reviewed again to determine
whether any other exemption not
previously considered applies; the costs
of that review are chargeable where it is
made necessary by such a change of
circumstances. Review fees will be
charged at the same rates as those used
for a search under paragraph (c)(1)(ii) of
this section.
(d) Limitations on charging fees.
(1) No search fee will be charged for
requests by educational institutions,
noncommercial scientific institutions,
or representatives of the news media.
(2) No search fee or review fee will be
charged for a quarter-hour period unless
more than half of that period is required
for search or review.
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(3) Except for requesters seeking
records for a commercial use, the agency
will provide without charge:
(i) The first 100 pages of duplication
(or the cost equivalent); and
(ii) The first two hours of search (or
the cost equivalent).
(4) Whenever a total fee calculated
under paragraph (c) of this section is
$14.00 or less for any request, no fee
will be charged.
(5) The provisions of paragraphs (d)(3)
and (4) of this section work together.
This means that for requesters other
than those seeking records for a
commercial use, no fee will be charged
unless the cost of search in excess of
two hours plus the cost of duplication
in excess of 100 pages totals more than
$14.00.
(6) In the case of any request on
which the agency does not comply with
any of the time limits of the FOIA and
for which no ‘‘unusual or exceptional
circumstances’’ exist, as those terms are
defined by the FOIA, the agency will
not charge any search fee or, for such
requests made by educational
institutions, noncommercial scientific
institutions, or representatives of the
news media, will not charge any
duplication fee.
(e) Notice of anticipated fees in excess
of $50.00. When the agency determines
or estimates that the fees to be charged
under this section will amount to more
than $50.00, it will notify the requester
of the actual or estimated amount of the
fees, unless the requester has indicated
a willingness to pay fees as high as
those anticipated. If only a portion of
the fee can be estimated readily, the
agency will advise the requester that the
estimated fee might be only a portion of
the total fee. In cases in which a
requester has been notified that actual
or estimated fees amount to more than
$50.00, the request will not be
considered received and further work
will not be done on it until the requester
agrees to pay the total anticipated fee.
Any such agreement should be
memorialized in writing. A notice under
this paragraph will offer the requester
an opportunity to discuss the matter
with agency personnel in order to
reformulate the request to meet the
requester’s needs at a lower cost.
(f) Charges for other services. Apart
from the other provisions of this section,
when the agency chooses as a matter of
administrative discretion to provide a
special service—such as certifying that
records are true copies or sending them
by other than ordinary mail—the direct
costs of providing the service ordinarily
will be charged.
(g) Charging interest. The agency may
charge interest on any unpaid bill
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starting on the 31st day following the
date of the billing of the requester.
Interest charges will be assessed at the
rate provided in 31 U.S.C. 3717 and will
accrue from the date of the billing until
payment is received by the agency. The
agency will follow the provisions of the
Debt Collection Act of 1982, Public Law
97–365, 96 Stat. 1749, as amended, and
regulations pursuant thereto.
(h) Aggregating requests. Wherever
the agency reasonably believes that a
requester or a group of requesters acting
together is attempting to divide a
request into a series of requests for the
purpose of avoiding fees, it may
aggregate those requests and charge
accordingly. In so doing, it will presume
that multiple requests of this type made
within a 30-day period have been made
in order to avoid fees. Where requests
are separated by a longer period, the
agency will aggregate them only where
there exists a solid basis for determining
that aggregation is warranted under all
the circumstances involved. Multiple
requests involving unrelated matters
will not be aggregated.
(i) Advance payments. (1) For
requests other than those described in
paragraphs (i)(2) and (i)(3) of this
section, the agency will not require the
requester to make an advance
payment—in other words, a payment
made before work is begun or continued
on a request. Payment owed for work
already completed (i.e., a prepayment
before copies are sent to a requester) is
not an advance payment.
(2) Where the agency determines or
estimates that a total fee to be charged
under this section will be more than
$250.00, it may require the requester to
make an advance payment of an amount
up to the amount of the entire
anticipated fee before beginning to
process the request, except where it
receives a satisfactory assurance of full
payment from a requester that has a
history of prompt payment.
(3) Where a requester has previously
failed to pay a properly charged FOIA
fee to any agency within 30 days of the
date of billing, the agency may require
the requester to pay the full amount
due, plus any applicable interest, and to
make an advance payment of the full
amount of any anticipated fee, before it
begins to process a new request or
continues to process a pending request
from that requester.
(4) In cases in which the agency
requires advance payment or payment
due under paragraph (i)(2) or (i)(3) of
this section, the request will not be
considered received and further work
will not be done on it until the required
payment is received.
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(j) Other statutes specifically
providing for fees. The fee schedule of
this section does not apply to fees
charged under any statute that
specifically requires an agency to set
and collect fees for particular types of
records. In cases in which records
responsive to requests are maintained
for distribution by another agency under
such a statutorily based fee schedule
program, ACUS will inform the
requesters of the steps for obtaining
records from those sources so that they
may do so most economically.
(k) Requirements for waiver or
reduction of fees. (1) Records responsive
to a request will be furnished without
charge or at a charge reduced below that
established under paragraph (c) of this
section where the agency determines,
based on all available information, that
the requester has demonstrated that:
(i) Disclosure of the requested
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
(ii) Disclosure of the information is
not primarily in the commercial interest
of the requester.
(2) To determine whether the first fee
waiver requirement is met, the agency
will consider the following factors:
(i) The subject of the request: Whether
the subject of the requested records
concerns ‘‘the operations or activities of
the government.’’ The subject of the
requested records must concern
identifiable operations or activities of
the federal government, with a
connection that is direct and clear, not
remote or attenuated.
(ii) The informative value of the
information to be disclosed: Whether
the disclosure is ‘‘likely to contribute’’ to
an understanding of government
operations or activities. The disclosable
portions of the requested records must
be meaningfully informative about
government operations or activities in
order to be ‘‘likely to contribute’’’ to an
increased public understanding of those
operations or activities.
(iii) The contribution to an
understanding of the subject by the
public likely to result from disclosure:
Whether disclosure of the requested
information will contribute to ‘‘public
understanding.’’ The disclosure must
contribute to the understanding of a
reasonably broad audience of persons
interested in the subject, as opposed to
the individual understanding of the
requester. A requester’s expertise in the
subject area and ability and intention to
convey information effectively to the
public will be considered. It will be
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presumed that a representative of the
news media satisfies this consideration.
(iv) The significance of the
contribution to public understanding:
Whether the disclosure is likely to
contribute ‘‘significantly’’ to public
understanding of government operations
or activities. The public’s understanding
of the subject in question, as compared
to the level of public understanding
existing prior to the disclosure, must be
enhanced by the disclosure to a
significant extent. The agency will not
make value judgments about whether
information that would contribute
significantly to public understanding of
the operations or activities of the
government is ‘‘important’’ enough to be
made public.
(3) To determine whether the second
fee waiver requirement is met, the
agency will consider the following
factors:
(i) The existence and magnitude of a
commercial interest: Whether the
requester has a commercial interest that
would be furthered by the requested
disclosure. The agency will consider
any commercial interest of the requester
(with reference to the definition of
‘‘commercial use’’ in paragraph (b)(1) of
this section), or of any person on whose
behalf the requester may be acting, that
would be furthered by the requested
disclosure. Requesters will be given an
opportunity in the administrative
process to provide explanatory
information regarding this
consideration.
(ii) The primary interest in disclosure:
Whether any identified commercial
interest of the requester is sufficiently
large, in comparison with the public
interest in disclosure, that disclosure is
‘‘primarily in the commercial interest of
the requester.’’ A fee waiver or reduction
is justified where the public interest
standard is satisfied and that public
interest is greater in magnitude than that
of any identified commercial interest in
disclosure. The agency ordinarily will
presume that where a news media
requester has satisfied the public
interest standard, the public interest
will be the interest primarily served by
disclosure to that requester. Disclosure
to data brokers or others who merely
compile and market government
information for direct economic return
will not be presumed primarily to serve
the public interest.
(4) Where only some of the records to
be released satisfy the requirements for
a waiver of fees, a waiver will be
granted for those records.
(5) Requests for the waiver or
reduction of fees should address the
factors listed in paragraphs (k)(2) and
(k)(3) of this section insofar as they
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apply to each request. The agency will
exercise its discretion to consider the
cost-effectiveness of its investment of
administrative resources in this
decisionmaking process in deciding to
grant waivers or reductions of fees.
§ 304.10
Preservation of records.
(a) The agency will preserve all
correspondence pertaining to the
requests that it receives under this
subpart, as well as copies of all
requested records, until disposition or
destruction is authorized by title 44 of
the United States Code or the National
Archives and Records Administration’s
General Records Schedule 14. Records
will not be disposed of while they are
the subject of a pending request, appeal,
or lawsuit under the FOIA.
(b) In the event that the agency
contracts with another agency, entity, or
person to maintain records for the
agency for the purposes of records
management, it will promptly identify
such records in its ‘‘Freedom of
Information Reference Guide’’ and
specify the particular means by which
request for such records can be made.
§ 304.11
Other rights and services.
Nothing in this subpart shall be
construed to entitle any person, as of
right, to any service or to the disclosure
of any record to which such person is
not entitled under the FOIA.
Subpart B—Protection of Privacy and
Access to Individual Records Under
the Privacy Act of 1974
Authority: 5 U.S.C. 552a, 591–96.
§ 304.20
General provisions.
(a) Purpose and scope. This subpart
contains the rules that the
Administrative Conference of the
United States (‘‘ACUS’’ or ‘‘the agency’’)
follows under the Privacy Act of 1974
(‘‘the Privacy Act’’), 5 U.S.C. 552a, as
amended, regarding the protection of,
and individual access to, certain records
about individuals. These rules should
be read together with and are governed
by the Privacy Act itself, which
provides additional information about
records maintained on individuals. The
rules in this subpart apply to all records
in systems of records maintained by the
agency that are retrieved by an
individual’s name or personal identifier.
They describe the procedures by which
individuals may request access to
records about themselves, request
amendment or correction of those
records, and request an accounting of
disclosures of those records by the
agency. In addition, the agency
processes all Privacy Act requests for
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access to records under the Freedom of
Information Act (‘‘FOIA’’), 5 U.S.C. 552,
as amended, following the rules
contained in subpart A of this part.
Thus, all Privacy Act requests will be
subject to exemptions for access to
records only applicable under both
FOIA and the Privacy Act.
(b) Definitions. As used in this
subpart:
(1) ‘‘Request for access to a record’’
means a request made under Privacy
Act, 5 U.S.C. 552a(d)(1).
(2) ‘‘Request for amendment or
correction of a record’’ means a request
made under Privacy Act, 5 U.S.C.
552a(d)(2).
(3) ‘‘Request for an accounting’’ means
a request made under Privacy Act, 5
U.S.C. 552a(c)(3).
(4) ‘‘Requester’’ means an individual
who makes a request for access, a
request for amendment or correction, or
a request for an accounting under the
Privacy Act.
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§ 304.21
Requests for access to records.
(a) How made and addressed. You
may make a request for access to a
record about yourself by appearing in
person or by sending a written request
letter to the agency either by mail
addressed to 1120 20th Street, NW.,
South Lobby, Suite 706, Washington,
DC 20036, or by fax delivery to (202)
386–7190. For the quickest possible
handling, you should mark both your
request letter and the envelope ‘‘Privacy
Act Request.’’
(b) Description of records sought. You
must describe the records that you want
in enough detail to enable agency
personnel to locate the system of
records containing them with a
reasonable amount of effort. Whenever
possible, your request should describe
the records sought, the time periods in
which you believe they were compiled,
and the name or identifying number of
each system of records in which you
believe they are kept. The agency
publishes a notice in the Federal
Register that describes its systems of
records.
(c) Agreement to pay fees. If you make
a Privacy Act request for access to
records, it will be considered an
agreement by you to pay all applicable
fees charged under § 304.27, up to
$50.00. Duplication fees in excess of
$50.00 are subject to the requirements of
§ 304.27 of this subpart and the
notification requirements in § 304.9 of
subpart A. The agency ordinarily will
confirm this agreement in an
acknowledgment letter. When making a
request, you may specify a willingness
to pay a greater or lesser amount.
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(d) Verification of identity. When you
make a request for access to records
about yourself, you must verify your
identity. You must state your full name,
current address, and date and place of
birth. You must sign your request and
your signature must either be notarized
or submitted by you under 28 U.S.C.
1746, a law that permits statements to
be made under penalty of perjury as a
substitute for notarization. In order to
help the identification and location of
requested records, you may also,
entirely at your option, include the last
four digits of your social security
number.
§ 304.22 Responsibility for responding to
requests for access to records.
(a) In general. The agency will be
responsible for responding to a request
in all respects, except in the case of a
referral to another agency as is
described in paragraphs (b), (c), and (d)
of this section. In determining which
records are responsive to a request, the
agency ordinarily will include only
records in its possession and control as
of the date upon which it begins its
search for them. If any other date is
used, the agency will inform the
requester of that date.
(b) Consultations and referrals. When
the agency receives a request for access
to a record in its possession and control,
it will determine whether another
agency of the Federal Government, is
better able to determine whether the
record is exempt from access under the
Privacy Act. If the agency determines
that it is the agency best able to process
the record in response to the request,
then it will do so. If it determines that
it is not best able to process the record,
then it will either:
(1) Respond to the request regarding
that record, after consulting with the
agency that is best able to determine
whether the record is exempt from
access and with any other agency that
has a substantial interest in it; or
(2) Refer the responsibility for
responding to the request regarding that
record to the agency that is best able to
determine whether it is exempt from
access, or to another agency that
originated the record (but only if that
agency is subject to the Privacy Act).
Ordinarily, the agency that originated a
record will be presumed to be best able
to determine whether it is exempt from
access.
(c) Notice of referral. When the agency
refers all or any part of the
responsibility for responding to a
request to another agency, it ordinarily
will notify the requester of the referral
and inform the requester of the name of
the agency to which the request has
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been referred and of the part of the
request that has been referred.
(d) Timing of responses to
consultations and referrals. All
consultations and referrals will be
handled according to the date upon
which the Privacy Act access request
was initially received by the first
agency, not any later date.
(e) Agreements regarding
consultations and referrals. The agency
may make agreements with other
agencies designed to eliminate the need
for consultations or referrals for
particular types of records.
§ 304.23 Responses to requests for access
to records.
(a) Acknowledgments of requests. On
receipt of a request, the agency
ordinarily will send an acknowledgment
letter to the requester that will confirm
the requester’s agreement to pay fees
under § 304.21(c) and provide an
assigned request number for further
reference. In some cases, the agency
may seek further information or
clarification from the requester.
(b) Grants of requests for access. Once
the agency makes a determination to
grant a request for access in whole or in
part, it will notify the requester in
writing. The agency will inform the
requester in the notice of any fee
charged under § 304.27 and will
disclose records to the requester
promptly on payment of any applicable
fee. If a request is made in person, the
agency may disclose records to the
requester directly, in a manner not
unreasonably disruptive of its
operations, on payment of any
applicable fee and with a written record
made of the grant of the request. If a
requester is accompanied by another
person, the requester will be required to
authorize in writing any discussion of
the records in the presence of the other
person.
(c) Adverse determinations of requests
for access. Upon making an adverse
determination denying a request for
access in any respect, the agency will
notify the requester of that
determination in writing. Adverse
determinations, or denials of requests
consist of: A determination to withhold
any requested record in whole or in
part; a determination that a requested
record does not exist or cannot be
located; a determination that what has
been requested is not a record subject to
the Privacy Act; a determination on any
disputed fee matter; and a denial of a
request for expedited treatment. The
notification letter will include:
(1) The name and title or position of
the person responsible for the denial;
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(2) A brief statement of the reason(s)
for the denial, including any Privacy
Act exemption(s) applied in denying the
request; and
(3) A statement that the denial may be
appealed under § 304.24(a) and a
description of the requirements of
§ 304.24(a).
§ 304.24 Appeals from denials of requests
for access to records.
(a) Appeals. If you are dissatisfied
with the response to your request, you
may appeal an adverse determination
denying your request, in any respect, to
the head of the agency. You must make
your appeal in writing and it must be
received by the agency within 60 days
of the date of the letter denying your
request. Your appeal letter may include
as much or as little related information
as you wish, as long as it clearly
identifies the particular determination
(including the assigned request number,
if known) that you are appealing. For
the quickest possible handling, you
should mark your appeal letter and the
envelope ‘‘Privacy Act Appeal.’’ The
Chairman of the agency or his or her
designee will act on the appeal, except
that:
(1) An initial adverse determination
by the Chairman of the agency will be
the final action of the agency; and
(2) An appeal ordinarily will not be
acted on if the request becomes a matter
of FOIA litigation.
(b) Responses to appeals. The
decision on your appeal will be made in
writing. A decision affirming an adverse
determination in whole or in part will
include a brief statement of the reason(s)
for the affirmance, including any
exemption applied, and will inform you
of thePrivacy Act provisions for court
review of the decision. If the adverse
determination is reversed or modified
on appeal in whole or in part, then you
will be notified in a written decision
and your request will be reprocessed in
accordance with that appeal decision.
(c) When appeal is required. As a
general rule, if you wish to seek review
by a court of any adverse determination
or denial of a request, you must first
appeal it under this section.
emcdonald on DSK2BSOYB1PROD with PROPOSALS
§ 304.25 Requests for amendment or
correction of records.
(a) How made and addressed. Unless
the record is not subject to amendment
or correction as stated in paragraph (f)
of this section, you may make a request
for amendment or correction of an
ACUS record about yourself by
following the same procedures as in
§ 304.21. Your request should identify
each particular record in question, state
the amendment or correction that you
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want, and state why you believe that the
record is not accurate, relevant, timely,
or complete. You may submit any
documentation that you think would be
helpful. If you believe that the same
record is maintained in more than one
system of records, you should state that.
(b) Agency responses. Within ten
business days of receiving your request
for amendment or correction of records,
the agency will send you a written
acknowledgment of its receipt of your
request. The agency will promptly
notify you whether your request is
granted or denied. If the agency grants
your request in whole or in part, it will
describe the amendment or correction
made and will advise you of your right
to obtain a copy of the corrected or
amended record, in disclosable form. If
the agency denies your request in whole
or in part, it will send you a letter that
will state:
(1) The reason(s) for the denial; and
(2) The procedure for appeal of the
denial under paragraph (c) of this
section, including the name and
business address of the official who will
act on your appeal.
(c) Appeals. You may appeal a denial
of a request for amendment or
correction in the same manner as a
denial of a request for access to records
(see § 304.24(a)) and the same
procedures will be followed. The agency
will ordinarily act on the appeal within
30 business days of the appeal, except
that the Chairman of the agency may
extend the time for response for good
cause shown. If your appeal is denied,
you will be advised of your right to file
a Statement of Disagreement as
described in paragraph (d) of this
section and of your right under the
Privacy Act for court review of the
decision.
(d) Statements of Disagreement. If
your appeal under this section is denied
in whole or in part, you have the right
to file a Statement of Disagreement that
states your reason(s) for disagreeing
with the agency’s denial of your request
for amendment or correction.
Statements of Disagreement must be
concise, must clearly identify each part
of any record that is disputed, and
should be no longer than one typed page
for each fact disputed. The agency will
place your Statement of Disagreement in
the system of records in which the
disputed record is maintained and will
mark the disputed record to indicate
that a Statement of Disagreement has
been filed and exactly where in the
system of records it may be found.
(e) Notification of amendment/
correction or disagreement. Within 30
business days of the amendment or
correction of a record, the agency will
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notify all persons, organizations, or
agencies to which it previously
disclosed the record, if an accounting of
that disclosure was made, that the
record has been amended or corrected.
If an individual has filed a Statement of
Disagreement, the agency will append a
copy of it to the disputed record
whenever the record is disclosed and
may also append a concise statement of
its reason(s) for denying the request to
amend or correct the record.
(f) Records not subject to amendment
or correction. The following records are
not subject to amendment or correction:
(1) Transcripts of testimony given
under oath or written statements made
under oath;
(2) Transcripts of grand jury
proceedings, judicial proceedings, or
quasi-judicial proceedings, which are
the official record of those proceedings;
and
(3) Any other record that originated
with the courts.
§ 304.26 Requests for an accounting of
record disclosures.
(a) How made and addressed. Except
where accountings of disclosures are not
required to be kept (as stated in
paragraph (b) of this section), you may
make a request for an accounting of any
disclosure that has been made by the
agency to another person, organization,
or agency of any record about you. This
accounting contains the date, nature,
and purpose of each disclosure, as well
as the name and address of the person,
organization, or agency to which the
disclosure was made. Your request for
an accounting should identify each
particular record in question and should
be made in writing to the agency,
following the procedures in Sec. 304.21.
(b) Where accountings are not
required. The agency is not required to
provide accountings to you where they
relate to:
(1) Disclosures for which accountings
are not required to be kept (i.e.,
disclosures that are made to officers and
employees of the agency and disclosures
required under the FOIA); or
(2) Disclosures made to law
enforcement agencies for authorized law
enforcement activities in response to
written requests from a duly authorized
representative of any such law
enforcement agency specifying portion
of the record desired and the law
enforcement activity for which the
record is sought.
(c) Appeals. You may appeal a denial
of a request for an accounting in the
same manner as a denial of a request for
access to records (see § 304.24(c)) and
the same procedures will be followed.
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Federal Register / Vol. 76, No. 7 / Tuesday, January 11, 2011 / Proposed Rules
§ 304.27
Fees.
The agency will charge fees for
duplication of records under the Privacy
Act in the same way in which it charges
duplication fees under § 304.9 of
subpart A. No search or review fee may
be charged for any record under the
Privacy Act.
§ 304.28 Notice of court-ordered and
emergency disclosures.
(a) Court-ordered disclosures. When a
record pertaining to an individual is
required to be disclosed by a court
order, the agency will make reasonable
efforts to provide notice of such order to
the individual. Notice will be given
within a reasonable time after the
agency’s receipt of the order, except that
in a case in which the order is not a
matter of public record, the notice will
be given only after the order becomes
public. This notice will be mailed to the
individual’s last known address and
will contain a copy of the order and a
description of the information
disclosed.
(b) Emergency disclosures. Upon
disclosing a record pertaining to an
individual made under compelling
circumstances affecting health or safety,
the agency will notify that individual of
the disclosure. This notice will be
mailed to the individual’s last known
address and will state the nature of the
information disclosed; the person,
organization, or agency to which it was
disclosed; the date of disclosure; and
the compelling circumstances justifying
the disclosure.
emcdonald on DSK2BSOYB1PROD with PROPOSALS
§ 304.29
Security of systems of records.
(a) Administrative and physical
controls. The agency will have
administrative and physical controls to
prevent unauthorized access to its
systems of records, to prevent
unauthorized disclosure of records, and
to prevent physical damage to or
destruction of records. The stringency of
these controls corresponds to the
sensitivity of the records that the
controls protect. At a minimum, these
controls are designed to ensure that:
(1) Records are protected from public
view;
(2) The area in which records are kept
is supervised during business hours in
order to prevent unauthorized persons
from having access to them;
(3) Records are inaccessible to
unauthorized persons outside of
business hours; and
(4) Records are not disclosed to
unauthorized persons or under
unauthorized circumstances in oral,
written or any other form.
(b) Restrictive procedures. The agency
will implement practices and
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procedures that restrict access to records
to only those individuals within the
agency who must have access to those
records in order to perform their duties
and that prevent inadvertent disclosure
of records.
§ 304.30 Contracts for the operation of
record systems.
Any approved contract for the
operation of a record system will
contain appropriate requirements issued
by the General Services Administration
in order to ensure compliance with the
requirements of the Privacy Act for that
record system. The contracting officer of
the agency will be responsible for
ensuring that the contractor complies
with these contract requirements.
§ 304.31 Use and collection of social
security numbers and other information.
The agency will ensure that
employees authorized to collect
information are aware:
(a) That individuals may not be
denied any right, benefit, or privilege as
a result of refusing to provide their
social security numbers, unless the
collection is authorized either by a
statute or by a regulation issued prior to
1975;
(b) That individuals requested to
provide their social security numbers, or
any other information collected from
them, must be informed, before
providing such information, of:
(1) Whether providing social security
numbers (or such other information) is
mandatory or voluntary;
(2) Any statutory or regulatory
authority that authorizes the collection
of social security numbers (or such
other information);
(3) The principal purpose(s) for which
the information is intended to be used;
(4) The routine uses that may be made
of the information; and
(5) The effects, in any, on the
individual of not providing all or any
part of the requested information; and
(c) That, where the information
referred to above is requested on a form,
the requirements for informing such
individuals are set forth on the form
used to collect the information, or on a
separate form that can be retained by
such individuals.
§ 304.32
Employee standards of conduct.
The agency will inform its employees
of the provisions of the Privacy Act,
including the scope of its restriction
against disclosure of records maintained
in a system of records without the prior
written consent of the individual
involved, and the Act’s civil liability
and criminal penalty provisions. Unless
otherwise permitted by law, an
employee of the agency will:
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Sfmt 4702
1551
(a) Collect from individuals and
maintain only the information that is
relevant and necessary to discharge the
agency’s responsibilities;
(b) Collect information about an
individual directly from that individual
to the greatest extent practicable when
the information may result in an adverse
determination about an individual’s
rights, benefits, or privileges under
Federal programs;
(c) Inform each individual from whom
information is collected of the
information set forth in § 304.31(b);
(d) Ensure that the agency maintains
no system of records without public
notice and also notify appropriate
agency officials of the existence or
development of any system of records
that is not the subject of a current or
planned public notice;
(e) Maintain all records that are used
by it in making any determination about
an individual with such accuracy,
relevance, timeliness, and completeness
as is reasonably necessary to ensure
fairness to the individual in the
determination;
(f) Except as to disclosures made to an
agency or made under the FOIA, make
reasonable efforts, prior to
disseminating any record about an
individual, to ensure that the record is
accurate, relevant, timely, and complete;
(g) Maintain no record describing how
an individual exercises his or her First
Amendment rights unless such
maintenance is expressly authorized by
statute or by the individual about whom
the record is maintained or is pertinent
to and within the scope of an authorized
law enforcement activity;
(h) When required by the Privacy Act,
maintain an accounting in the specified
form of all disclosures of records by the
agency to persons, organizations, or
agencies;
(i) Maintain and use records with care
in order to prevent the unauthorized or
inadvertent disclosure of a record to
anyone; and
(j) Notify the appropriate agency
official of any record that contains
information that the Privacy Act does
not permit the agency to maintain.
§ 304.33
Preservation of records.
The agency will preserve all
correspondence pertaining to the
requests that it receives under this
subpart, as well as copies of all
requested records, until disposition or
destruction is authorized by title 44 of
the United States Code or the National
Archives and Records Administration’s
General Records Schedule 14. Records
will not be disposed of while they are
the subject of a pending request, appeal,
or lawsuit under the Act.
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1552
§ 304.34
Federal Register / Vol. 76, No. 7 / Tuesday, January 11, 2011 / Proposed Rules
Other rights and services.
Nothing in this subpart shall be
construed to entitle any person, as of
right, to any service or to the disclosure
of any record to which such person is
not entitled under the Privacy Act.
Dated: January 4, 2011.
Shawne C. McGibbon,
General Counsel.
[FR Doc. 2011–146 Filed 1–10–11; 8:45 am]
BILLING CODE 6110–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2008–1118; Directorate
Identifier 2007–NM–318–AD]
RIN 2120–AA64
Airworthiness Directives; The Boeing
Company Model 737–600, –700, –700C,
–800, –900, and –900ER Series
Airplanes
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Supplemental notice of
proposed rulemaking (NPRM);
reopening of comment period.
AGENCY:
The FAA is revising an earlier
NPRM for an airworthiness directive
(AD) that applies to all Boeing Model
737–600, –700, –700C, –800, and –900
series airplanes. The original NPRM
would have superseded an existing AD
that currently requires reviewing the
airplane maintenance records to
determine whether an engine has been
removed from the airplane since the
airplane was manufactured. For
airplanes on which an engine has been
removed, the existing AD also requires
an inspection of the aft engine mount to
determine if the center link assembly is
correctly installed, and follow-on
actions if necessary. The original NPRM
proposed to require the same actions for
airplanes on which the engine has not
been previously removed. The original
NPRM resulted from reports indicating
that operators found that the center link
assembly for the aft engine mount was
reversed on several airplanes that had
not had an engine removed since
delivery. This new action revises the
original NPRM by expanding the
applicability to include Model 737–
900ER airplanes. We are proposing this
supplemental NPRM to prevent
increased structural loads on the aft
engine mount, which could result in
failure of the aft engine mount and
emcdonald on DSK2BSOYB1PROD with PROPOSALS
SUMMARY:
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consequent separation of the engine
from the airplane.
ADDRESSES: We must receive comments
on this supplemental NPRM by
February 25, 2011.
DATES: You may send comments by any
of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations,
M–30, West Building Ground Floor,
Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590.
• Hand Delivery: U.S. Department of
Transportation, Docket Operations,
M–30, West Building Ground Floor,
Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
For service information identified in
this proposed AD, contact Boeing
Commercial Airplanes, Attention: Data
& Services Management, P.O. Box 3707,
MC 2H–65, Seattle, Washington 98124–
2207; telephone 206–544–5000,
extension 1; fax 206–766–5680; e-mail
me.boecom@boeing.com; Internet
https://www.myboeingfleet.com. You
may review copies of the referenced
service information at the FAA,
Transport Airplane Directorate, 1601
Lind Avenue, SW., Renton, Washington.
For information on the availability of
this material at the FAA, call 425–227–
1221.
Examining the AD Docket
You may examine the AD docket on
the Internet at https://
www.regulations.gov; or in person at the
Docket Management Facility between
9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays. The AD
docket contains this proposed AD, the
regulatory evaluation, any comments
received, and other information. The
street address for the Docket Office
(telephone 800–647–5527) is in the
ADDRESSES section. Comments will be
available in the AD docket shortly after
receipt.
FOR FURTHER INFORMATION CONTACT:
Alan Pohl, Aerospace Engineer,
Airframe Branch, ANM–120S, FAA,
Seattle Aircraft Certification Office,
1601 Lind Avenue, SW., Renton,
Washington 98057–3356; telephone
(425) 917–6450; fax (425) 917–6590.
SUPPLEMENTARY INFORMATION:
Comments Invited
We invite you to send any written
relevant data, views, or arguments about
this proposed AD. Send your comments
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Fmt 4702
Sfmt 4702
to an address listed under the
section. Include ‘‘Docket No.
FAA–2008–1118; Directorate Identifier
2007–NM–318–AD’’ at the beginning of
your comments. We specifically invite
comments on the overall regulatory,
economic, environmental, and energy
aspects of this proposed AD. We will
consider all comments received by the
closing date and may amend this
proposed AD because of those
comments.
We will post all comments we
receive, without change, to https://
www.regulations.gov, including any
personal information you provide. We
will also post a report summarizing each
substantive verbal contact we receive
about this proposed AD.
ADDRESSES
Discussion
We proposed to amend part 39 of the
Federal Aviation Regulations (14 CFR
part 39) with a notice of proposed
rulemaking (NPRM) for an AD (the
‘‘original NPRM’’) to supersede AD
2003–03–01, Amendment 39–13025 (68
FR 4367, January 29, 2003). The original
NPRM applied to all Model 737–600,
–700, –700C, –800, and –900 series
airplanes. The original NPRM was
published in the Federal Register on
October 30, 2008 (73 FR 64568). The
original NPRM would have superseded
an existing AD that currently requires
reviewing the airplane maintenance
records to determine whether an engine
has been removed from the airplane
since the airplane was manufactured.
For airplanes on which an engine has
been removed, the existing AD also
requires an inspection of the aft engine
mount to determine if the center link
assembly is correctly installed, and
follow-on actions if necessary. The
original NPRM proposed to require the
same actions for airplanes on which the
engine has not been previously
removed.
Actions Since Original NPRM Was
Issued
Since we issued the original NPRM,
the manufacturer has informed us that
Model 737–900ER airplanes should be
included in the applicability of the
supplemental NPRM. Model 737–900ER
airplanes were not being produced in
May 2004 when Revision 3, dated May
20, 2004, of Boeing Alert Service
Bulletin 737–71A1462, was issued.
(Revision 3 was referred to as an
appropriate source of service
information for accomplishing the
proposed actions in the original NPRM.)
Following production it was determined
that the affected aft engine mount is
interchangeable with Model 737–900ER
airplanes; however, those airplanes
E:\FR\FM\11JAP1.SGM
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Agencies
[Federal Register Volume 76, Number 7 (Tuesday, January 11, 2011)]
[Proposed Rules]
[Pages 1542-1552]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-146]
========================================================================
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.
========================================================================
Federal Register / Vol. 76, No. 7 / Tuesday, January 11, 2011 /
Proposed Rules
[[Page 1542]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
1 CFR Part 304
Disclosure of Records or Information
AGENCY: Administrative Conference of the United States.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Administrative Conference of the United States (ACUS or
the Conference) is promulgating updated rules identifying its
procedures for disclosure of records under the Freedom of Information
Act and its procedures for protection of privacy and access to
individual records under the Privacy Act of 1974.
DATES: Comments must be received by February 10, 2011.
ADDRESSES: Submit comments to any one of the following:
E-rulemaking Portal: https://www.regulations.gov.
E-mail: smcgibbon@acus.gov.
Mail: FOIA and Privacy Comments, Administrative Conference
of the United States, Suite 706 South, 1120 20th Street, NW.,
Washington, DC 20036.
FOR FURTHER INFORMATION CONTACT: Shawne C. McGibbon, General Counsel,
at 202-480-2088 or smcgibbon@acus.gov.
SUPPLEMENTARY INFORMATION: ACUS was established by the Administrative
Conference Act, 5 U.S.C. 591-96. Following the loss of its funding in
1995, ACUS ceased operations. In 1996, its prior regulations (including
Part 304) were eliminated. 61 FR 3539 (1996). Congress has now
reauthorized and refunded ACUS, which has now reinitiated operations.
These regulations provide the agency's proposed procedures for
disclosure of records, as required by the Freedom of Information Act
(FOIA), 5 U.S.C. 552, as amended, and its procedures for protection of
privacy and access to individual records, as required by the Privacy
Act of 1974, 5 U.S.C. 552a, as amended. These regulations also reflect
the principles established by President Obama's Presidential Memoranda
on ``Transparency and Open Government'' and ``Freedom of Information
Act'' issued on January 21, 2009 and Attorney General Holder's
Memorandum on ``The Freedom of Information Act (FOIA)'' issued on March
19, 2009. Additionally, the regulations reflect the Conference's
commitment to providing the fullest possible disclosure of records to
the public.
Required Reviews
a. Paperwork Reduction Act
ACUS has determined that the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., does not apply because these regulations do not contain
any information collection requirements.
b. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
requires agencies to perform regulatory flexibility analyses when
promulgating rules through notice and comment procedures. ACUS has
determined that the proposed regulations do not have a significant
economic impact on a substantial number of small entities. Under the
FOIA, agencies may recover only the direct costs of searching for,
reviewing and duplicating the records processed for certain categories
of requesters. The Conference's proposed fee structure is in accordance
with Department of Justice guidelines and based upon OMB fee schedules
which calculate costs based on the category of requester and kind of
employee duplicating the records. Under the Privacy Act, agencies may
recover the cost of duplication only. The agency will provide free
duplication and search time (up to a certain amount) in certain cases.
Where anticipated fees exceed $50, an opportunity is given to the
requester to refine the request in order to lower cost. Thus, fees
assessed by ACUS are nominal and will not have a significant economic
impact on a substantial number of small entities within the meaning of
the RFA.
c. Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), the proposed rule would not significantly
or uniquely affect small governments and would not result in increased
expenditures by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more (as adjusted for
inflation).
d. Executive Order 12866
In issuing this regulation, ACUS has adhered to the regulatory
philosophy and the applicable principles of regulation as set forth in
Section 1 of Executive Order 12866, Regulatory Planning and Review, 58
FR 51735. This proposed rule has not been reviewed by the Office of
Management and Budget under the Executive Order since it is not a
significant regulatory action within the meaning of the Executive
Order.
List of Subjects in 1 CFR Part 304
Administrative practice and procedure, Freedom of information,
Privacy.
For the reasons set forth in the preamble, under the authority at 5
U.S.C. 552, 552a, and 591-96, the Administrative Conference of the
United States proposes to amend 1 CFR chapter III to add part 304 as
follows:
PART 304--DISCLOSURE OF RECORDS OR INFORMATION
Subpart A--Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec.
304.1 General provisions.
304.2 Public reading room.
304.3 Requirements for making requests.
304.4 Responsibility for responding to requests.
304.5 Timing of responses to requests.
304.6 Responses to requests.
304.7 Business information.
304.8 Appeals.
304.9 Fees.
304.10 Preservation of records.
304.11 Other rights and services.
Subpart B--Protection of Privacy and Access to Individual Records Under
the Privacy Act of 1974
304.20 General provisions.
304.21 Requests for access to records.
304.22 Responsibility for responding to requests for access to
records.
304.23 Responses to requests for access to records.
304.24 Appeals from denials of requests for access to records.
304.25 Requests for amendment or correction of records.
304.26 Requests for an accounting of record disclosures.
304.27 Fees.
[[Page 1543]]
304.28 Notice of court-ordered and emergency disclosures.
304.29 Security of systems of records.
304.30 Contracts for the operation of record systems.
304.31 Use and collection of social security numbers and other
information.
304.32 Employee standards of conduct.
304.33 Preservation of records.
304.34 Other rights and services.
Subpart A--Procedures for Disclosure of Records Under the Freedom
of Information Act
Authority: 5 U.S.C. 552, 591-96.
Sec. 304.1 General provisions.
(a) This subpart contains the rules that the Administrative
Conference of the United States (``ACUS'' or ``the agency'') follows in
processing requests for disclosure of records under the Freedom of
Information Act (``FOIA'' or ``the Act''), 5 U.S.C. 552, as amended,
and in meeting its responsibilities under the Act. These rules should
be read together with the text of the FOIA itself, which provides
additional information about access to records maintained by the
agency. They also may be read in conjunction with the agency's
``Freedom of Information Act Reference Guide,'' which provides basic
information about use of the Act in relation to the agency's records.
Requests made by individuals for access to records about themselves
under the Privacy Act of 1974, 5 U.S.C. 552a (2006 & Supp. II 2008),
which are processed under subpart B of this part, are also processed
under this subpart. Information routinely provided to the public as
part of a regular agency activity (for example, press releases or
recommendations adopted by the agency pursuant to the Administrative
Conference Act, 5 U.S.C. 591 et seq.) may be provided to the public
without following this subpart.
(b) As a matter of policy, ACUS makes discretionary disclosures of
records or information exempt from disclosure under the FOIA whenever
it is determined that disclosure would not foreseeably harm an interest
protected by a FOIA exemption, but this policy does not create any
right enforceable in court.
(c) The agency has designated its General Counsel as its Chief FOIA
Officer, who has agency-wide responsibility for efficient and
appropriate compliance with the FOIA and these implementing
regulations. The General Counsel has designated the agency's Deputy
General Counsel as its FOIA Public Liaison.
Sec. 304.2 Public reading room.
(a) ACUS maintains a public reading room that affords access to the
records that the FOIA requires it to make regularly available for
public inspection and copying even in the absence of a FOIA request,
including a current subject-matter index of its reading room records
that will be updated quarterly with respect to newly included records.
(b) ACUS also makes all reading room records that have been created
by the agency regularly available to the public electronically on its
Web site (https://www.acus.gov).
Sec. 304.3 Requirements for making requests.
(a) How made and addressed. You may make a request for records by
sending a written request letter to the agency either by mail addressed
to FOIA Public Liaison, Administrative Conference of the United States,
1120 20th Street, NW., South Lobby, Suite 706, Washington, DC 20036, or
by fax delivery to (202) 386-7190. For the quickest possible handling,
you should mark both your request letter and the envelope ``Freedom of
Information Act Request.'' At such time as the agency implements the
capability of receiving requests electronically, instructions for
electronic filing will be posted on its Web site referenced above. (You
may find the agency's ``Freedom of Information Act Reference Guide''--
which is available on its Web site and in paper form--helpful in making
your request.) If you are making a request for records about yourself,
see Sec. 304.21(d) for additional requirements. If you are making a
request for records about another individual, then either a written
authorization signed by that individual permitting disclosure of those
records to you or proof that that individual is deceased (for example,
a copy of a death certificate or an obituary notice) will help the
processing of your request. Your request will be considered received as
of the date upon which it is logged in as received by the agency's FOIA
Public Liaison.
(b) Description of records sought. You must describe the records
that you seek in enough detail to enable agency personnel to locate
them 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 subject matter
of the record. If known, you should include any file designations or
similar descriptions for the records that you want. As a general rule,
the more specific you are about the records or type of records that you
want, the more likely that the agency will be able to locate those
records in response to your request. If the agency determines that your
request does not reasonably describe records, then it will tell you
either what additional information is needed or why your request is
otherwise insufficient. It also will give you an opportunity to discuss
your request by telephone so that you may modify it to meet the
requirements of this section. Additionally, if your request does not
reasonably describe the records you seek, the agency's response to it
may be delayed as an initial matter.
(c) Agreement to pay fees. When you make a FOIA request, it will be
considered to be an agreement by you to pay all applicable fees charged
under Sec. 304.9, up to $50.00, unless you specifically request a
waiver of fees. The agency ordinarily will confirm this agreement in an
acknowledgment letter. When making a request, you may specify a
willingness to pay a greater or lesser amount. Your agreement will not
prejudice your ability to seek a waiver or reduction of any applicable
fee at a later time.
Sec. 304.4 Responsibility for responding to requests.
(a) In general. The agency will be responsible for responding to a
request in all respects, except in the case of a referral to another
agency as is described in paragraphs (b), (c), and (d) of this section.
In determining which records are responsive to a request, the agency
ordinarily will include only records in its possession and control as
of the date upon which it begins its search for them. If any other date
is used, the agency will inform the requester of that date.
(b) Consultations and referrals. When the agency receives a request
for a record in its possession and control, it will determine whether
another agency of the Federal Government is better able to determine
whether the record is exempt from disclosure under the FOIA and, if so,
whether it should be disclosed as a matter of administrative
discretion. If the agency determines that it is best able to process
the record in response to the request, then it will do so. If the
agency determines that it is not best able to process the record, then
it will either:
(1) Respond to the request regarding that record, after consulting
with the agency that is best able to determine whether to disclose it
and with any other agency that has a substantial interest in it; or
(2) Refer the responsibility for responding to the request
regarding that record to another agency that originated the record (but
only if that agency is
[[Page 1544]]
subject to the FOIA). Ordinarily, the agency that originated a record
will be presumed to be best able to determine whether to disclose it.
(c) Notice of referral. When the agency refers all or any part of
the responsibility for responding to a request to another agency, it
ordinarily will notify the requester of the referral and inform the
requester of the name of the agency to which the request has been
referred and of the part of the request that has been referred.
(d) Timing of responses to consultations and referrals. All
consultations and referrals will be handled according to the date upon
which the FOIA request initially was received by the first agency, and
not any later date.
(e) Agreements regarding consultations and referrals. The agency
may make agreements with other agencies designed to eliminate the need
for consultations or referrals regarding particular types of records.
Sec. 304.5 Timing of responses to requests.
(a) In general. The agency ordinarily will respond to requests
according to their order of receipt.
(b) Multi-track processing. The agency 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 according to the number of pages involved. If it
does so, then it will advise requesters in its slower track(s) of the
limits of its faster track(s) and may provide requesters in its slower
track(s) 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(s). The agency will contact the requester either by
telephone or by letter, whichever is more efficient, in each case.
(c) Unusual circumstances. (1) Where the statutory time limits for
processing a request cannot be met because of ``unusual
circumstances,'' as defined in the FOIA, and the agency determines to
extend the time limits on that basis, it will as soon as practicable
notify the requester in writing of the unusual circumstances and of the
date by which processing of the request can be expected to be
completed. Where the extension is for more than ten business days, it
will provide the requester with an opportunity either to modify the
request so that it may be processed within the time limits or to
arrange an alternative time period processing the request or a modified
request.
(2) Where the agency reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in
concert, constitute a single request that would otherwise involve
unusual circumstances, and the requests involve clearly related
matters, they may be aggregated. Multiple requests involving unrelated
matters will not be aggregated.
(d) Expedited processing. (1) Requests and appeals will be taken
out of order and given expedited treatment whenever it is determined
that they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public concerning actual or alleged
federal government activity, if made by a person primarily engaged in
disseminating information; or
(iii) Other circumstances as determined by the agency.
(2) A request for expedited processing may be made at the time of
the initial request for records (i.e., as part of the initial request)
or at any later time.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
person's knowledge and belief, explaining in detail the basis for
requesting expedited processing. For example, a requester within the
category in paragraph (d)(1)(ii) of this section, if not a full-time
member of the news media, must establish that he or she is a person
whose main professional activity or occupation is information
dissemination, though it need not be his or her sole occupation. That
requester also must establish a particular urgency to inform the public
about the government activity involved in the request, beyond the
public's right to know about government activity generally. The
formality of certification may be waived by the agency as a matter of
administrative discretion.
(4) Within ten calendar days of its receipt of a request for
expedited processing, the agency will decide whether to grant it and
will notify the requester of the decision. If a request for expedited
treatment is granted, then the request will be given priority and will
be processed as soon as practicable. If a request for expedited
processing is denied, then any appeal of that decision will be acted on
expeditiously.
Sec. 304.6 Responses to requests.
(a) Acknowledgments of requests. On receipt of a request, the
agency ordinarily will send an acknowledgment letter to the requester
that will confirm the requester's agreement to pay fees under Sec.
304.3(c) and will provide a request tracking number for further
reference. Requesters may use this tracking number to determine the
status of their request--including the date of its receipt and the
estimated date on which action on it will be completed--by calling the
agency's FOIA Public Liaison at (202) 480-2080. In some cases, the
agency may seek further information or clarification from the
requester.
(b) Grants of requests. Ordinarily, the agency will have twenty
business days from when a request is received to determine whether to
grant or deny the request. Once the agency makes such a determination,
it will immediately notify the requester in writing. The agency will
inform the requester in the notice of any fee charged under Sec. 304.9
and will disclose records to the requester promptly upon payment of any
applicable fee. Records disclosed in part will be marked or annotated
to show the amount of information deleted, unless doing so would harm
an interest protected by an applicable exemption. The location of the
information deleted also will be indicated on the record, if
technically feasible.
(c) Adverse determinations of requests. Whenever the agency makes
an adverse determination denying a request in any respect, it will
notify the requester of that determination in writing. Adverse
determinations, or denials of requests, consist of: A determination to
withhold any requested record in whole or in part; a determination that
a requested record does not exist or cannot be located; a determination
that a record is not readily reproducible in the form or format sought
by the requester; a determination that what has been requested is not a
record subject to the FOIA; a determination on any disputed fee matter,
including a denial of a request for a fee waiver; and a denial of a
request for expedited treatment. The denial letter will include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reason(s) for the denial, including
any FOIA exemption applied by the agency in denying the request;
(3) An estimate of the volume of records or information withheld,
in number of pages or in some other reasonable form of estimation. This
estimate does not need to be provided if the volume is otherwise
indicated through deletions on records disclosed in part, or if
providing an estimate would harm an interest protected by an applicable
exemption; and
[[Page 1545]]
(4) An indication on the released portion of a record of each
exemption applied, at the place at which it was applied, if technically
feasible.
(5) A statement that the denial may be appealed under Sec.
304.8(a) and a description of the requirements of Sec. 304.8(a).
Sec. 304.7 Business information.
(a) In general. Business information obtained by the agency will be
disclosed under the FOIA only under this section and in accordance with
Executive Order 12,600, 3 CFR part 235 (1988).
(b) Definitions. For purposes of this section:
(1) ``Business information'' means commercial or financial
information obtained by the agency from a submitter that may be
protected from disclosure under Exemption 4 of the FOIA.
(2) ``Submitter'' means any person or entity from whom the agency
obtains business information, either directly or indirectly. The term
includes corporations; state, local, and tribal governments; and
foreign governments.
(c) Designation of business 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 and all portion(s) of its submission that it considers
to be protected from disclosure under Exemption 4. These designations
will expire ten years after the date of the submission unless the
submitter requests, and provides justification for, a longer
designation period.
(d) Notice to submitters. The agency will provide a submitter with
prompt written notice of a FOIA request or administrative appeal that
seeks its business information wherever required under paragraph (e) of
this section, except as provided in paragraph (h) of this section, in
order to give the submitter an opportunity to object to disclosure of
any specified portion of that information under paragraph (f) of this
section. The notice will either describe the business information
requested or include copies of the requested records or record portions
containing the information. When notification of a voluminous number of
submitters is required, notification may be made by posting or
publishing the notice in a place reasonably likely to accomplish it.
(e) Where notice is required. Notice will be given to a submitter
wherever:
(1) The information has been designated in good faith by the
submitter as information considered protected from disclosure under
Exemption 4; or
(2) The agency has reason to believe that the information may be
protected from disclosure under Exemption 4.
(f) Opportunity to object to disclosure. The agency will allow a
submitter a reasonable time to respond to the notice described in
paragraph (d) of this section and will specify that time period within
the notice. If a submitter has any objection to disclosure, it is
required to submit a detailed written statement. The statement must
specify all grounds for withholding any portion of the information
under any exemption of the FOIA and, in the case of Exemption 4, it
must show why the information is a trade secret or commercial or
financial information that is privileged or confidential. In the event
that a submitter fails to respond to the notice within the time
specified in it, the submitter will be considered to have no objection
to disclosure of the information. Information provided by the submitter
that is not received by the agency until after its disclosure decision
has been made will not be considered by the agency. Information
provided by a submitter under this paragraph may itself be subject to
disclosure under the FOIA.
(g) Notice of intent to disclose. The agency will consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose business information. Whenever the agency
decides to disclose business information over the objection of a
submitter, it will give the submitter written notice, which will
include:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections was not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which will be a reasonable time
subsequent to the notice.
(h) Exceptions to notice requirements. The notice requirements of
paragraphs (d) and (g) of this section will not apply if:
(1) The agency determines that the information should not be
disclosed;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12,600; or
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous--except that, in such a case,
the agency will, within a reasonable time prior to a specified
disclosure date, give the submitter written notice of any final
decision to disclose the information.
(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of business information, the agency
will promptly notify the submitter.
(j) Corresponding notice to requesters. Whenever the agency
provides a submitter with notice and an opportunity to object to
disclosure under paragraph (d) of this section, it will also notify the
requester(s). Whenever the agency notifies a submitter of its intent to
disclose requested information under paragraph (g) of this section, it
will also notify the requester(s). Whenever a submitter files a lawsuit
seeking to prevent the disclosure of business information, the agency
will notify the requester(s).
Sec. 304.8 Appeals.
(a) Appeals of adverse determinations. If you are dissatisfied with
the response to your request, you may appeal an adverse determination
denying your request, in any respect, to the Chairman of the agency.
You must make your appeal in writing and it must be received by the
agency within 60 days of the date of the agency's response denying your
request. Your appeal letter may include as much or as little related
information as you wish, as long as it clearly identifies the
particular determination (including the assigned request number, if
known) that you are appealing. For the quickest possible handling, you
should mark your appeal letter and the envelope ``Freedom of
Information Act Appeal.'' The Chairman or his or her designee will act
on the appeal, except that:
(1) An initial adverse determination by the Chairman will be the
final action of the agency; and
(2) An appeal ordinarily will not be acted on if the request
becomes a matter of FOIA litigation.
(b) Responses to appeals. The decision on your appeal will be made
in writing. A decision affirming an adverse determination in whole or
in part will contain a statement of the reason(s) for the affirmance,
including any FOIA exemption(s) applied, and will inform you of the
FOIA provisions for court review of the decision. (You also may be
aware of the mediation services that are offered by the Office of
Government Information Services (``OGIS'') of the National Archives and
Records Administration--see https://www.archives.gov/ogis/--as a non-
exclusive alternative to FOIA litigation.) If the adverse determination
is reversed
[[Page 1546]]
or modified on appeal, in whole or in part, then you will be notified
in a written decision and your request will be reprocessed in
accordance with that appeal decision.
(c) When appeal is required. As a general rule, if you wish to seek
review by a court of any adverse determination, you must first appeal
it in a timely fashion under this section.
Sec. 304.9 Fees.
(a) In general. The agency will charge for processing requests
under the FOIA in accordance with paragraph (c) of this section, except
where fees are limited under paragraph (d) of this section or where a
waiver or reduction of fees is granted under paragraph (k) of this
section--and in some cases the agency may seek further information or
clarification from the requester for this purpose. The agency
ordinarily will collect all applicable fees before sending copies of
requested records to a requester. Requesters must pay fees by check or
money order made payable to the Treasury of the United States.
(b) Definitions. For purposes of this section:
(1) ``Commercial use request'' means a request from or on behalf of
a person who seeks information for a use or purpose that furthers his
or her commercial, trade, or profit interests, including furthering
those interests through litigation. The agency will determine, whenever
reasonably possible, the use to which a requester will put the
requested records. When it appears that the requester will put the
records to a commercial use, either because of the nature of the
request itself or because the agency has reasonable cause to doubt a
requester's stated use, the agency will provide the requester a
reasonable opportunity to submit further clarification.
(2) ``Direct costs'' means those expenses that an agency actually
incurs in searching for and duplicating (and, in the case of commercial
use requests, reviewing) records to respond to a FOIA request. Direct
costs include, for example, the salary of the employee performing the
work (the basic rate of pay for the employee, plus 16 percent of that
rate to cover benefits) and the cost of operating duplication
machinery. Not included in direct costs are overhead expenses such as
the costs of space and heating or lighting of the facility in which the
records are kept.
(3) ``Duplication'' means the making of a copy of a record, or of
the information contained in it, necessary to respond to a FOIA
request. Copies can take the form of paper, microform, audiovisual
materials, or electronic records (for example, magnetic tape or compact
disk), among others. The agency will honor a requester's specified
preference of form or format of disclosure if the record is readily
reproducible with reasonable efforts in the requested form or format.
(4) ``Educational institution'' means 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 qualify
under 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.
(5) ``Noncommercial scientific institution'' means an institution
that is not operated on a ``commercial'' basis, as that term is defined
in paragraph (b)(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 qualify
under 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.
(6) ``Representative of the news media,'' or ``news media
requester,'' 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. For this purpose, 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 by or
subscription by or 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; the agency may also consider the past publication record
of the requester in making such a determination. To qualify under this
category, a requester must not be seeking the requested records for a
commercial use. A request for records supporting the news-dissemination
function of the requester will not be considered to be for a commercial
use.
(7) ``Review'' means the examination of a record located in
response to a request in order to determine whether any portion of it
is exempt from disclosure. It also includes processing any record for
disclosure--for example, doing all that is necessary to redact it and
prepare it for disclosure. Review costs are recoverable even if a
record ultimately is not disclosed. Review time includes time spent
considering any formal objection to disclosure made by a business
submitter under Sec. 304.7 but does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
(8) ``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. The agency will
conduct searches in the most efficient and least expensive manner
reasonably possible. For example, it will not search on a line-by-line
basis where duplicating an entire document would be quicker and less
expensive.
(c) Fees charged. In responding to FOIA requests, the agency will
charge the following fees unless a waiver or reduction of fees has been
granted under paragraph (k) of this section:
(1) Search. (i) Search fees will be charged for all requests (other
than requests made by educational institutions, noncommercial
scientific institutions, or representatives of the news media) subject
to the limitations of paragraph (d) of this section. The agency may
charge for time spent searching even if it does not locate any
responsive record or if it withholds the record(s) located as entirely
exempt from disclosure.
(ii) For each quarter hour spent by clerical personnel in searching
for and retrieving a requested record, the fee will be $5.00. Where a
search and retrieval cannot be performed entirely by clerical personnel
(for example, where the identification of records within the scope of a
request requires
[[Page 1547]]
the use of professional personnel) the fee will be $10.00 for each
quarter hour of search time spent by professional personnel. Where the
time of managerial personnel is required, the fee will be $15.00 for
each quarter hour of time spent by those personnel.
(iii) For computer searches of records, requesters will be charged
the direct costs of conducting the search, although certain requesters
(as provided in paragraph (d)(1) of this section) will be charged no
search fee and certain other requesters (as provided in paragraph
(d)(3) of this section) will be entitled to the cost equivalent of two
hours of manual search time without charge. These direct costs will
include the cost of operating a central processing unit for that
portion of operating time that is directly attributable to searching
for responsive records, as well as the costs of operator/programmer
salary apportionable to the search.
(2) Duplication. Duplication fees will be charged to all
requesters, subject to the limitations of paragraph (d) of this
section. For a paper photocopy of a record (no more than one copy of
which need be supplied), the fee will be ten cents per page. For copies
produced by computer, such as tapes, disks, or printouts, the agency
will charge the direct costs, including operator time, of producing the
copy. For other forms of duplication, the agency will charge the direct
costs of that duplication.
(3) Review. Review fees will be charged to requesters who make a
commercial use request. Review fees will be charged only for the
initial record review, when the agency determines whether an exemption
applies to a particular record or record portion at the initial request
level. No charge will be made for review at the administrative appeal
level regarding an exemption already applied. However, records or
record portions withheld under an exemption that is subsequently
determined not to apply may be reviewed again to determine whether any
other exemption not previously considered applies; the costs of that
review are chargeable where it is made necessary by such a change of
circumstances. Review fees will be charged at the same rates as those
used for a search under paragraph (c)(1)(ii) of this section.
(d) Limitations on charging fees. (1) No search fee will be charged
for requests by educational institutions, noncommercial scientific
institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use, the
agency will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent);
and
(ii) The first two hours of search (or the cost equivalent).
(4) Whenever a total fee calculated under paragraph (c) of this
section is $14.00 or less for any request, no fee will be charged.
(5) The provisions of paragraphs (d)(3) and (4) of this section
work together. This means that for requesters other than those seeking
records for a commercial use, no fee will be charged unless the cost of
search in excess of two hours plus the cost of duplication in excess of
100 pages totals more than $14.00.
(6) In the case of any request on which the agency does not comply
with any of the time limits of the FOIA and for which no ``unusual or
exceptional circumstances'' exist, as those terms are defined by the
FOIA, the agency will not charge any search fee or, for such requests
made by educational institutions, noncommercial scientific
institutions, or representatives of the news media, will not charge any
duplication fee.
(e) Notice of anticipated fees in excess of $50.00. When the agency
determines or estimates that the fees to be charged under this section
will amount to more than $50.00, it will notify the requester of the
actual or estimated amount of the fees, unless the requester has
indicated a willingness to pay fees as high as those anticipated. If
only a portion of the fee can be estimated readily, the agency will
advise the requester that the estimated fee might be only a portion of
the total fee. In cases in which a requester has been notified that
actual or estimated fees amount to more than $50.00, the request will
not be considered received and further work will not be done on it
until the requester agrees to pay the total anticipated fee. Any such
agreement should be memorialized in writing. A notice under this
paragraph will offer the requester an opportunity to discuss the matter
with agency personnel in order to reformulate the request to meet the
requester's needs at a lower cost.
(f) Charges for other services. Apart from the other provisions of
this section, when the agency chooses as a matter of administrative
discretion to provide a special service--such as certifying that
records are true copies or sending them by other than ordinary mail--
the direct costs of providing the service ordinarily will be charged.
(g) Charging interest. The agency may charge interest on any unpaid
bill starting on the 31st day following the date of the billing of the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the date of the billing until payment
is received by the agency. The agency will follow the provisions of the
Debt Collection Act of 1982, Public Law 97-365, 96 Stat. 1749, as
amended, and regulations pursuant thereto.
(h) Aggregating requests. Wherever the agency reasonably believes
that a requester or a group of requesters acting together is attempting
to divide a request into a series of requests for the purpose of
avoiding fees, it may aggregate those requests and charge accordingly.
In so doing, it will presume that multiple requests of this type made
within a 30-day period have been made in order to avoid fees. Where
requests are separated by a longer period, the agency will aggregate
them only where there exists a solid basis for determining that
aggregation is warranted under all the circumstances involved. Multiple
requests involving unrelated matters will not be aggregated.
(i) Advance payments. (1) For requests other than those described
in paragraphs (i)(2) and (i)(3) of this section, the agency will not
require the requester to make an advance payment--in other words, a
payment made before work is begun or continued on a request. Payment
owed for work already completed (i.e., a prepayment before copies are
sent to a requester) is not an advance payment.
(2) Where the agency determines or estimates that a total fee to be
charged under this section will be more than $250.00, it may require
the requester to make an advance payment of an amount up to the amount
of the entire anticipated fee before beginning to process the request,
except where it receives a satisfactory assurance of full payment from
a requester that has a history of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to any agency within 30 days of the date of billing,
the agency may require the requester to pay the full amount due, plus
any applicable interest, and to make an advance payment of the full
amount of any anticipated fee, before it begins to process a new
request or continues to process a pending request from that requester.
(4) In cases in which the agency requires advance payment or
payment due under paragraph (i)(2) or (i)(3) of this section, the
request will not be considered received and further work will not be
done on it until the required payment is received.
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(j) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. In cases in which records responsive
to requests are maintained for distribution by another agency under
such a statutorily based fee schedule program, ACUS will inform the
requesters of the steps for obtaining records from those sources so
that they may do so most economically.
(k) Requirements for waiver or reduction of fees. (1) Records
responsive to a request will be furnished without charge or at a charge
reduced below that established under paragraph (c) of this section
where the agency determines, based on all available information, that
the requester has demonstrated that:
(i) Disclosure of the requested 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
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(2) To determine whether the first fee waiver requirement is met,
the agency will consider the following factors:
(i) The subject of the request: Whether the subject of the
requested records concerns ``the operations or activities of the
government.'' The subject of the requested records must concern
identifiable operations or activities of the federal government, with a
connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about government
operations or activities in order to be ``likely to contribute''' to an
increased public understanding of those operations or activities.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject, as opposed to the
individual understanding of the requester. A requester's expertise in
the subject area and ability and intention to convey information
effectively to the public will be considered. It will be presumed that
a representative of the news media satisfies this consideration.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a significant extent. The agency will not
make value judgments about whether information that would contribute
significantly to public understanding of the operations or activities
of the government is ``important'' enough to be made public.
(3) To determine whether the second fee waiver requirement is met,
the agency will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. The agency will consider any commercial interest
of the requester (with reference to the definition of ``commercial
use'' in paragraph (b)(1) of this section), or of any person on whose
behalf the requester may be acting, that would be furthered by the
requested disclosure. Requesters will be given an opportunity in the
administrative process to provide explanatory information regarding
this consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. The agency ordinarily
will presume that where a news media requester has satisfied the public
interest standard, the public interest will be the interest primarily
served by disclosure to that requester. Disclosure to data brokers or
others who merely compile and market government information for direct
economic return will not be presumed primarily to serve the public
interest.
(4) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver will be granted for those
records.
(5) Requests for the waiver or reduction of fees should address the
factors listed in paragraphs (k)(2) and (k)(3) of this section insofar
as they apply to each request. The agency will exercise its discretion
to consider the cost-effectiveness of its investment of administrative
resources in this decisionmaking process in deciding to grant waivers
or reductions of fees.
Sec. 304.10 Preservation of records.
(a) The agency will preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the FOIA.
(b) In the event that the agency contracts with another agency,
entity, or person to maintain records for the agency for the purposes
of records management, it will promptly identify such records in its
``Freedom of Information Reference Guide'' and specify the particular
means by which request for such records can be made.
Sec. 304.11 Other rights and services.
Nothing in this subpart shall be construed to entitle any person,
as of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
Subpart B--Protection of Privacy and Access to Individual Records
Under the Privacy Act of 1974
Authority: 5 U.S.C. 552a, 591-96.
Sec. 304.20 General provisions.
(a) Purpose and scope. This subpart contains the rules that the
Administrative Conference of the United States (``ACUS'' or ``the
agency'') follows under the Privacy Act of 1974 (``the Privacy Act''),
5 U.S.C. 552a, as amended, regarding the protection of, and individual
access to, certain records about individuals. These rules should be
read together with and are governed by the Privacy Act itself, which
provides additional information about records maintained on
individuals. The rules in this subpart apply to all records in systems
of records maintained by the agency that are retrieved by an
individual's name or personal identifier. They describe the procedures
by which individuals may request access to records about themselves,
request amendment or correction of those records, and request an
accounting of disclosures of those records by the agency. In addition,
the agency processes all Privacy Act requests for
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access to records under the Freedom of Information Act (``FOIA''), 5
U.S.C. 552, as amended, following the rules contained in subpart A of
this part. Thus, all Privacy Act requests will be subject to exemptions
for access to records only applicable under both FOIA and the Privacy
Act.
(b) Definitions. As used in this subpart:
(1) ``Request for access to a record'' means a request made under
Privacy Act, 5 U.S.C. 552a(d)(1).
(2) ``Request for amendment or correction of a record'' means a
request made under Privacy Act, 5 U.S.C. 552a(d)(2).
(3) ``Request for an accounting'' means a request made under
Privacy Act, 5 U.S.C. 552a(c)(3).
(4) ``Requester'' means an individual who makes a request for
access, a request for amendment or correction, or a request for an
accounting under the Privacy Act.
Sec. 304.21 Requests for access to records.
(a) How made and addressed. You may make a request for access to a
record about yourself by appearing in person or by sending a written
request letter to the agency either by mail addressed to 1120 20th
Street, NW., South Lobby, Suite 706, Washington, DC 20036, or by fax
delivery to (202) 386-7190. For the quickest possible handling, you
should mark both your request letter and the envelope ``Privacy Act
Request.''
(b) Description of records sought. You must describe the records
that you want in enough detail to enable agency personnel to locate the
system of records containing them with a reasonable amount of effort.
Whenever possible, your request should describe the records sought, the
time periods in which you believe they were compiled, and the name or
identifying number of each system of records in which you believe they
are kept. The agency publishes a notice in the Federal Register that
describes its systems of records.
(c) Agreement to pay fees. If you make a Privacy Act request for
access to records, it will be considered an agreement by you to pay all
applicable fees charged under Sec. 304.27, up to $50.00. Duplication
fees in excess of $50.00 are subject to the requirements of Sec.
304.27 of this subpart and the notification requirements in Sec. 304.9
of subpart A. The agency ordinarily will confirm this agreement in an
acknowledgment letter. When making a request, you may specify a
willingness to pay a greater or lesser amount.
(d) Verification of identity. When you make a request for access to
records about yourself, you must verify your identity. You must state
your full name, current address, and date and place of birth. You must
sign your request and your signature must either be notarized or
submitted by you under 28 U.S.C. 1746, a law that permits statements to
be made under penalty of perjury as a substitute for notarization. In
order to help the identification and location of requested records, you
may also, entirely at your option, include the last four digits of your
social security number.
Sec. 304.22 Responsibility for responding to requests for access to
records.
(a) In general. The agency will be responsible for responding to a
request in all respects, except in the case of a referral to another
agency as is described in paragraphs (b), (c), and (d) of this section.
In determining which records are responsive to a request, the agency
ordinarily will include only records in its possession and control as
of the date upon which it begins its search for them. If any other date
is used, the agency will inform the requester of that date.
(b) Consultations and referrals. When the agency receives a request
for access to a record in its possession and control, it will determine
whether another agency of the Federal Government, is better able to
determine whether the record is exempt from access under the Privacy
Act. If the agency determines that it is the agency best able to
process the record in response to the request, then it will do so. If
it determines that it is not best able to process the record, then it
will either:
(1) Respond to the request regarding that record, after consulting
with the agency that is best able to determine whether the record is
exempt from access and with any other agency that has a substantial
interest in it; or
(2) Refer the responsibility for responding to the request
regarding that record to the agency that is best able to determine
whether it is exempt from access, or to another agency that originated
the record (but only if that agency is subject to the Privacy Act).
Ordinarily, the agency that originated a record will be presumed to be
best able to determine whether it is exempt from access.
(c) Notice of referral. When the agency refers all or any part of
the responsibility for responding to a request to another agency, it
ordinarily will notify the requester of the referral and inform the
requester of the name of the agency to which the request has been
referred and of the part of the request that has been referred.
(d) Timing of responses to consultations and referrals. All
consultations and referrals will be handled according to the date upon
which the Privacy Act access request was initially received by the
first agency, not any later date.
(e) Agreements regarding consultations and referrals. The agency
may make agreements with other agencies designed to eliminate the need
for consultations or referrals for particular types of records.
Sec. 304.23 Responses to requests for access to records.
(a) Acknowledgments of requests. On receipt of a request, the
agency ordinarily will send an acknowledgment letter to the requester
that will confirm the requester's agreement to pay fees under Sec.
304.21(c) and provide an assigned request number for further reference.
In some cases, the agency may seek further information or clarification
from the requester.
(b) Grants of requests for access. Once the agency makes a
determination to grant a request for access in whole or in part, it
will notify the requester in writing. The agency will inform the
requester in the notice of any fee charged under Sec. 304.27 and will
disclose records to the requester promptly on payment of any applicable
fee. If a request is made in person, the agency may disclose records to
the requester directly, in a manner not unreasonably disruptive of its
operations, on payment of any applicable fee and with a written record
made of the grant of the request. If a requester is accompanied by
another person, the requester will be required to authorize in writing
any discussion of the records in the presence of the other person.
(c) Adverse determinations of requests for access. Upon making an
adverse determination denying a request for access in any respect, the
agency will notify the requester of that determination in writing.
Adverse determinations, or denials of requests consist of: A
determination to withhold any requested record in whole or in part; a
determination that a requested record does not exist or cannot be
located; a determination that what has been requested is not a record
subject to the Privacy Act; a determination on any disputed fee matter;
and a denial of a request for expedited treatment. The notification
letter will include:
(1) The name and title or position of the person responsible for
the denial;
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(2) A brief statement of the reason(s) for the denial, including
any Privacy Act exemption(s) applied in denying the request; and
(3) A statement that the denial may be appealed under Sec.
304.24(a) and a description of the requirements of Sec. 304.24(a).
Sec. 304.24 Appeals from denials of requests for access to records.
(a) Appeals. If you are dissatisfied with the response to your
request, you may appeal an adverse determination denying your request,
in any respect, to the head of the agency. You must make your appeal in
writing and it must be received by the agency within 60 days of the
date of the letter denying your request. Your appeal letter may include
as much or as little related information as you wish, as long as it
clearly identifies the particular determination (including the assigned
request number, if known) that you are appealing. For the quickest
possible handling, you should mark your appeal letter and the envelope
``Privacy Act Appeal.'' The Chairman of the agency or his or her
designee will act on the appeal, except that:
(1) An initial adverse determination by the Chairman of the agency
will be the final action of the agency; and
(2) An appeal ordinarily will not be acted on if the request
becomes a matter of FOIA litigation.
(b) Responses to appeals. The decision on your appeal will be made
in writing. A decision affirming an adverse determination in whole or
in part will include a brief statement of the reason(s) for the
affirmance, including any exemption applied, and will inform you of
thePrivacy Act provisions for court review of the decision. If the
adverse determination is reversed or modified on appeal in whole or in
part, then you will be notified in a written decision and your request
will be reprocessed in accordance with that appeal decision.
(c) When appeal is required. As a general rule, if you wish to seek
review by a court of any adverse determination or denial of a request,
you must first appeal it under this section.
Sec. 304.25 Requests for amendment or correction of records.
(a) How made and addressed. Unless the record is not subject to
amendment or correction as stated in paragraph (f) of this section, you
may make a request for amendment or correction of an ACUS record about
yourself by following the same procedures as in Sec. 304.21. Your
request should identify each particular record in question, state the
amendment or correction that you want, and state why you believe that
the record is not accurate, relevant, timely, or complete. You may
submit any documentation that you think would be helpful. If you
believe that the same record is maintained in more than one system of
records, you should state that.
(b) Agency responses. Within ten business days of receiving your
request for amendment or correction of records, the agency will send
you a written acknowledgment of its receipt of your request. The agency
will promptly notify you whether your request is granted or denied. If
the agency grants your request in whole or in part, it will describe
the amendment or correction made and will advise you of your right to
obtain a copy of the corrected or amended record, in disclosable form.
If the agency denies your request in whole or in part, it will send you
a letter that will state:
(1) The reason(s) for the denial; and
(2) The procedure for appeal of the denial under paragraph (c) of
this section, including the name and business address of the official
who will act on your appeal.
(c) Appeals. You may appeal a denial of a request for amendment or
correction in the same manner as a denial of a request for access to
records (see Sec. 304.24(a)) and the same procedures will be followed.
The agency will ordinarily act on the appeal within 30 business days of
the appeal, except that the Chairman of the agency may extend the time
for response for good cause shown. If your appeal is denied, you will
be advised of your right to file a Statement of Disagreement as
described in paragraph (d) of this section and of your right under the
Privacy Act for court review of the decision.
(d) Statements of Disagreement. If your appeal under this section
is denied in whole or in part, you have the right to file a Statement
of Disagreement that states your reason(s) for disagreeing with the
agency's denial of your request for amendment or correction. Statements
of Disagreement must be concise, must clearly identify each part of any
record that is disputed, and should be no longer than one typed page
for each fact disputed. The agency will place your Statement of
Disagreement in the system of records in which the disputed record is
maintained and will mark the disputed record to indicate that a
Statement of Disagreement has been filed and exactly where in the
system of records it may be found.
(e) Notification of amendment/correction or disagreement. Within 30
business days of the amendment or correction of a record, the agency
will notify all persons, organizations, or agencies to which it
previously disclosed the record, if an accounting of that disclosure
was made, that the record has been amended or corrected. If an
individual has filed a Statement of Disagreement, the agency will
append a copy of it to the disputed record whenever the record is