Procedures for Disclosure of Records Under the Freedom of Information Act and Privacy Act, 29539-29550 [2015-12459]
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Federal Register / Vol. 80, No. 99 / Friday, May 22, 2015 / Rules and Regulations
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(vi) Restriction: Disposal shall be
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(vi) Restriction: Disposal shall be
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(vi) Restriction: Disposal shall be
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(vi) Restriction: Disposal shall be
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[FR Doc. 2015–12335 Filed 5–21–15; 8:45 am]
BILLING CODE 6560–50–P
GULF COAST ECOSYSTEM
RESTORATION COUNCIL
40 CFR Part 1850
[Docket Number: 105002015–1111–05]
Procedures for Disclosure of Records
Under the Freedom of Information Act
and Privacy Act
Gulf Coast Ecosystem
Restoration Council.
ACTION: Final rule.
AGENCY:
This rule sets forth the Gulf
Coast Ecosystem Restoration Council’s
(Council) regulations regarding the
Freedom of Information Act (FOIA),
Privacy Act (PA), and declassification
and public availability of national
security information. The FOIA and PA
require each agency to promulgate
regulations implementing the provisions
of those laws and this Final Rule fulfills
that mandate, facilitating public access
to Council records.
DATES: This rule becomes effective on
June 22, 2015.
ADDRESSES: The Council posted all
comments on the proposed FOIA and
PA regulations on its Web site, https://
www.restorethegulf.gov/, without
change, including any business or
personal information provided, such as
names, addresses, email addresses, or
telephone numbers. All comments
received are part of the public record
and subject to public disclosure.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Roberson at 202–482–1315.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Background
The RESTORE Act, Public Law 112–
141 (July 6, 2012), codified at 33 U.S.C.
1321(t) and note, makes funds available
for the restoration and protection of the
Gulf Coast Region through a new trust
fund in the Treasury of the United
States, known as the Gulf Coast
Restoration Trust Fund (Trust Fund).
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The Trust Fund will contain 80 percent
of the administrative and civil penalties
paid by the responsible parties after July
6, 2012, under the Federal Water
Pollution Control Act in connection
with the Deepwater Horizon oil spill.
These funds will be invested and made
available through five components of
the RESTORE Act.
Two of the five components, the
Comprehensive Plan and Spill Impact
Components, are administered by the
Council, an independent federal entity
created by the RESTORE Act. Under the
Comprehensive Plan Component (33
U.S.C. 1321(t)(2)), 30 percent of funds in
the Trust Fund (plus interest) are
available to develop a Comprehensive
Plan to restore the ecosystem and the
economy of the Gulf Coast Region.
Under the Spill Impact Component (33
U.S.C. 1321(t)(3)), 30 percent of funds in
the Trust Fund will be disbursed to the
five Gulf Coast States (Alabama, Florida,
Louisiana, Mississippi, and Texas) or
their administrative agents based on an
allocation formula established by the
Council by regulation based on criteria
in the RESTORE Act.
II. Public Comments and Summary of
Changes to Final Rule
On February 9, 2015, the Council
proposed a draft rule implementing its
obligations to make records available
under the Freedom of Information Act
(FOIA) and Privacy Act (PA). 80 FR
6934. The FOIA regulations govern
third-party requests for information
controlled by the Council. The PA
regulations govern first-party requests
for his or her own information. The
Council provided a public comment
period of 30 days and received
comments from four separate
commenters, three citizens and one
Federal agency. The recommendations
contained in the four comments are
summarized below section by section,
along with the Council’s responses to
the recommendations. The Council also
posted all comments on its Web site,
https://www.restorethegulf.gov/, without
change, including any business or
personal information provided, such as
names, addresses, email addresses, or
telephone numbers. All comments
received are part of the public record
and subject to public disclosure.
Section-by-Section Analysis
Section 1850.1
Purpose and Scope
The agency commenter suggested that
the Council include language clarifying
the intersection of FOIA and the PA.
The Council accepts this comment and
the suggested language can be found in
the last paragraph of section 1850.1.
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Section 1850.2 Definitions
The agency commenter suggested
adding three new definitions: FOIA
public liaison, requester category, and
fee waiver. The Council accepts this
comment and the definitions can be
found at new paragraphs 1850.2(i), (j),
and (s).
Section 1850.4 Public Reading Room
One commenter asked whether
documents will be placed online for the
public to access without request. The
Council is committed to making
documents of interest to the public
available online in its public reading
room on its Web site, https://
www.restorethegulf.gov. This
commitment is documented in section
1850.4 of these regulations. No change
was made to the regulations in response
to this comment.
Section 1850.5 Requirements for
Making Requests
The agency commenter suggested that
the Council’s wording of paragraph
1850.5(b) where the Council describes
its process for contacting a requester to
narrow the scope of a request has a
negative connotation. The agency
commenter suggested alternative text
that the Council has incorporated into
paragraph 1850.5(b).
The agency commenter also suggested
adding two paragraphs to the end of
section 1850.5 to help explain the
interaction of the Council’s FOIA and
PA regulations and the effect on a
request for Council records pertaining to
another individual of submitting proof
of death or a notarized authorization to
access records by that individual. The
Council accepts this comment and the
paragraphs can be found at new
paragraphs 1850.5(e) and (f).
Section 1850.6 Responding to Records
The agency commenter suggested
consistency edits to paragraph 1850.6(a)
to keep the terminology of simple and
complex track processing consistent.
The Council accepts this comment and
the revised language can be found in
paragraph 1850.6(a).
The agency commenter recommended
that the Council modify paragraph
1850.6(c)(1) to include a requirement
that the Council Records Management
Officer provide the requester with a
unique tracking number, an estimated
date of completion (once the request is
perfected) and a fee estimate (when
applicable). The agency commenter also
suggested that the Council include in its
acknowledgment to the requester a brief
description of the subject of the request
to aid both the requester and the
Council in keeping track of multiple
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pending requests. The Council accepts
these comments and revised language
can be found in the final two sentences
of paragraph 1850.6(c)(1).
The agency commenter recommended
that the Council include in the list of
required elements in a denial letter a
description of the exemption(s) applied.
The Council accepts this comment and
the revised language can be found at
1850.6(e)(1).
The agency commenter also
recommended adding a new subsection
to paragraph 1850.6(e) that addresses
requirements under the FOIA to
indicate, if technically feasible, the
precise amount of information deleted
at the place in the record where the
deletion was made, and to indicate the
exemption under which a deletion is
made on the released portion of the
record unless including that information
would harm an interest protected by the
exemption. The Council accepts this
comment and the new subsection can be
found at 1850.6(e)(3).
One commenter suggested broadening
the language of paragraph 1850.6(h) to
provide more leeway to respond to a
request electronically rather than only
by mail. The Council accepts this
comment and paragraph 1850.6(h) has
been modified accordingly.
The same commenter suggested
revising subsection 1850.6(h)(3) to
clarify that retrieving data from a
database or running a report from a
database is permissible. The Council
accepts this comment and subsection
1850.6(h)(3) has been modified
accordingly.
One commenter asked whether
records will be transferred to another
agency in the future and how the public
will be informed of any such transfer.
Section 1850.6(f) of these regulations
discusses the Council’s procedures for
referring documents to another agency
when that other agency is the
originating agency. Whenever the
Council refers any part of the
responsibility for responding to a
request to another agency, it will notify
the requester of the referral and inform
the requester of the name of the agency
to which the record was referred,
including that agency’s FOIA contact
information. No change was made to the
regulations in response to this comment.
Section 1850.7 Appeals
One commenter suggested that the
Council remove requirements that an
appellant include in his/her appeal a
copy of the original request and the
initial determination. The commenter
suggested that these additional
requirements are beyond the strict
requirements of the statute and could
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create unnecessary burdens on potential
appellants, including possibly leading
to the rejection of an appeal based on
the failure to include such
documentation. The commenter also
pointed out that this sort of requirement
is rare among agencies. In the
alternative, the commenter suggested
that the Council could include language
encouraging but not requiring the
inclusion of such additional
documentation in an appeal. The
Council accepts this comment and has
revised section 1850.7(c) to remove this
requirement; instead the Council has
included language encouraging
submission of the original request and
initial determination when filing an
appeal. The Council is also clarifying in
section 1850.7(c) that the appellant may
submit as much or as little information
as he/she wishes, so long as the
determination that is being appealed is
clearly identified.
The agency commenter suggested that
the Council amend section 1850.7 to
add language discussing the Office of
Government Information Services
(OGIS) and the services provided by that
office. The Council accepts this
comment and has added a new
paragraph (3) to section 1850.7(f) that
contains language recommended by the
commenter and the Department of
Justice’s Office of Information Policy.
See https://www.justice.gov/oip/blog/
foia-post-2010-oip-guidance-notifyingrequesters-mediation-services-offeredogis.
Section 1850.9
Maintenance of Files
The agency commenter suggested
including language explaining how long
the Council will retain records related to
FOIA requests and why. The agency
commenter also suggested clarifying
that material responsive to a FOIA
request may not be disposed of or
destroyed while the request or related
appeal or lawsuit is pending even if
otherwise authorized for disposition
under an approved records retention
schedule. The Council accepts this
comment and new language was
incorporated into 1850.9.
One commenter asked whether
Council record schedules will be clear
for the public to understand. While
these regulations do not establish any
record retention schedules, the Council
does endeavor to make all its
regulations and internal processes clear
to the public. At this time the Council
uses the government-wide record
retention schedules promulgated by the
National Archives and Records
Administration (https://
www.archives.gov/records-mgmt/
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grs.html). No change was made to the
regulations in response to this comment.
Section 1850.10 Fees
One commenter noted that the rate
the Council intends to charge as a fee
when conducting reviews of records
includes the actual salary rate of the
employee involved plus 16 percent to
cover benefits and wondered whether
this was affordable for most U.S.
citizens. The review fee is only
applicable to commercial use requests
so most individual U.S. citizens would
not be subject to the fee. See section
1850.10(b)(4). Further, the FOIA directs
agencies to develop fee schedules that
reflect direct costs of search,
duplication, or review. The Council’s
review fee rate is based on the actual
time an employee spends reviewing
documents potentially responsive to a
request. These costs include salary and
attendant benefits. The Council has
calculated that 16 percent reasonably
represents the benefit costs of its
employees. No change was made to the
regulations in response to this comment.
One commenter asked whether the
Council would charge fees if the
Council does not process the FOIA
request in a timely manner. Consistent
with 5 U.S.C. 552(a)(4)(viii), no search
fee will be charged to a requester if the
Council does not comply with the
statutory time limits of the FOIA (5
U.S.C. 552(a)(6)) unless unusual or
exceptional circumstances apply to the
processing of the request. Further, no
duplication fees will be charged to
requesters in the fee category of a
representative of the news media or an
educational or noncommercial scientific
institution when the Council does not
comply with the statutory time limits of
the FOIA (5 U.S.C. 552(a)(6)) unless
unusual or exceptional circumstances
apply to the processing of the request.
Language related to not charging fees in
this these circumstances is already
included at section 1850.10(b)(5)(vi) and
(vii). No change was made to the
regulations in response to this comment.
Other
The Council also received one
comment that expressed general support
for the proposed regulations and noted
that the regulations strike a balance
between permitting access to
government records and protecting
potentially national security
information. No change was made to the
regulations in response to this comment.
In addition to the modifications
discussed above, the Council has made
minor formatting changes and corrected
typographical errors in the zip code for
the Council, the citation for one of the
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authorities under which the Council is
issuing this rule, and an internal crossreference in section 1850.6(f).
After considering public comments,
the Council now issues the regulations
as a final rule. The rule will take effect
on June 22, 2015.
III. Procedural Requirements
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) generally requires
agencies to prepare a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements under the Administrative
Procedure Act or any other statute,
unless the agency certifies that this
Interim Final Rule will not have a
significant economic impact on a
substantial number of small entities.
The Council hereby certifies that this
rule will 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 requesters. Thus, the fees the
Council assesses are typically nominal.
Further, the number of ‘‘small entities’’
that make FOIA requests is relatively
small compared to the number of
individuals who make such requests.
B. Paperwork Reduction Act
This rule does not contain a
‘‘collection of information’’ as defined
by the Paperwork Reduction Act of 1995
(44 U.S.C. 3507(d)).
Subpart A—Production or Disclosure Under
the Freedom of Information Act
1850.1 Purpose and scope.
1850.2 Definitions.
1850.3 General provisions.
1850.4 Public reading room.
1850.5 Requirements for making requests.
1850.6 Responding to requests.
1850.7 Appeals.
1850.8 Authority to determine.
1850.9 Maintenance of files.
1850.10 Fees.
1850.11 Requests for confidential treatment
of business information.
1850.12 Requests for access to confidential
commercial or financial information.
1850.13 Classified information.
Subpart B—Production or Disclosure Under
the Privacy Act
1850.31 Purpose and scope.
1850.32 Definitions.
1850.33 Procedures for requests pertaining
to individual records in a record system.
1850.34 Times, places, and requirements
for identification of individuals making
requests.
1850.35 Disclosure of requested
information to individuals.
1850.36 Special procedures: Medical
records.
1850.37 Request for correction or
amendment to record.
1850.38 Council review of request for
correction or amendment to record.
1850.39 Appeal of initial adverse agency
determination on correction or
amendment.
1850.40 Disclosure of record to person
other than the individual to whom it
pertains.
1850.41 Fees.
1850.42 Penalties.
Authority: 33 U.S.C. 1321(t); 5 U.S.C. 552;
5 U.S.C. 552a.
C. Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Subpart A—Production or Disclosure
Under the Freedom of Information Act
As an independent federal entity that
is composed of, in part, six federal
agencies, including the Departments of
Agriculture, Army, Commerce, and
Interior, the Department in which the
Coast Guard is operating, and the
Environmental Protection Agency, the
requirements of Executive Orders 12866
and 13563 are inapplicable to this rule.
§ 1850.1
List of Subjects in 40 CFR Part 1850
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Administrative practice and
procedure, Freedom of Information,
Privacy, Public information, Classified
information.
For the reasons set forth in the
preamble, the Gulf Coast Ecosystem
Restoration Council adds part 1850 to
40 CFR chapter VIII, to read as follows:
PART 1850—AVAILABILITY OF
RECORDS
Sec.
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Purpose and scope.
This subpart contains the regulations
of the Gulf Coast Ecosystem Restoration
Council (Council) implementing the
Freedom of Information Act (FOIA) (5
U.S.C. 552), as amended. These
regulations supplement the FOIA,
which provides more detail regarding
requesters’ rights and the records the
Council may release.
The regulations of this subpart
provide information concerning the
procedures by which records may be
obtained from the Council. Official
records of the Council made available
pursuant to the requirements of the
FOIA shall be furnished to members of
the public only as prescribed by this
subpart. Information routinely provided
to the public as part of a regular Council
activity (for example, press releases)
may be provided to the public without
following this subpart.
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The FOIA applies to third-party
requests for documents concerning the
general activities of the Government,
and of the Council in particular. When
a U.S. citizen or an individual lawfully
admitted for permanent residence
requests access to his or her own
records, he/she is making a first-person
Privacy Act request, not a FOIA request,
subject to subpart B of these rules. The
Council maintains records about
individuals under the individual’s name
or personal identifier. Although the
Council determines whether a request is
a FOIA request or a Privacy Act request,
the Council processes requests in
accordance with both laws. This
provides the greatest degree of lawful
access to requesters while safeguarding
individuals’ personal privacy.
§ 1850.2
Definitions.
(a) Commercial Use Request means a
request from or on behalf of one who
seeks information for a use or purpose
that furthers the commercial, trade, or
profit interests of the requester or the
person on whose behalf the request is
made.
(b) Confidential Commercial
Information means commercial or
financial information, obtained by the
Council from a submitter, that may
contain information exempt from
release under Exemption 4 of FOIA, 5
U.S.C. 552(b)(4).
(c) Council means to the Gulf Coast
Ecosystem Restoration Council.
(d) Days, unless stated as ‘‘calendar
days,’’ are business days and do not
include Saturday, Sunday, or federal
holidays.
(e) Direct costs means those expenses
the Council actually incurs in searching
for and duplicating (and, in the case of
commercial requesters, reviewing)
documents in response to a request
made under § 1850.5. Direct costs
include, for example, the labor costs 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 duplicating
machinery. Not included in direct costs
are overhead expenses such as costs of
space and heating or lighting of the
facility in which the documents are
stored.
(f) Duplication means the making a
copy of a document, or other
information contained in it, necessary to
respond to a FOIA request. Copies may
take the form of paper, microfilm,
audio-visual materials, or electronic
records, among others. The Council
shall honor a requester’s specified
preference of form or format of
disclosure if the record is readily
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reproducible with reasonable efforts in
the requested form or format.
(g) Educational institution means a
preschool, a public or private
elementary or secondary school, or an
institution of undergraduate higher
education, graduate higher education,
professional education, or an institution
of vocational education that operates a
program of scholarly research.
(h) Fee category means one of the
three categories that agencies place
requesters in for the purpose of
determining whether a requester will be
charged fees for search, review and
duplication. The three fee categories are:
(1) Commercial requesters;
(2) Non-commercial scientific or
educational institutions or news media
requesters; and
(3) All other requesters.
(i) Fee waiver means the waiver or
reduction of processing fees if a
requester can demonstrate that certain
statutory standards are satisfied,
including that the information is in the
public interest and is not requested for
a commercial interest.
(j) FOIA Public Liaison means an
agency official who is responsible for
assisting in reducing delays, increasing
transparency and understanding of the
status of requests, and assisting in the
resolution of disputes.
(k) News means information about
current events or that would be of
current interest to the public.
(l) Noncommercial scientific
institution means an institution that is
not operated on a ‘‘commercial’’ basis
(as that term is used in this section) and
which is operated solely for the purpose
of conducting scientific research, the
results of which are not intended to
promote any particular product or
industry.
(m) Perfected request means a written
FOIA request that meets all of the
criteria set forth in § 1850.5.
(n) Reading room means a location
where records are available for review
pursuant to 5 U.S.C. 552(a)(2).
(o) Records under the FOIA include
all Government records, regardless of
format, medium or physical
characteristics, and electronic records
and information, audiotapes,
videotapes, Compact Disks, DVDs, and
photographs.
(p) Records Management Officer
means the person designated by the
Executive Director of the Council to
oversee all aspects of the Council’s
records management program, including
FOIA.
(q) Representative of the news media,
or news media requester, means any
person or entity organized and operated
to publish or broadcast news to the
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public that actively 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 the work to an audience.
Examples of news-media entities are
television or radio stations broadcasting
to the public at large, and publishers of
periodicals that disseminate ‘‘news’’
and make their products available
through a variety of means to the
general public including news
organizations that disseminate solely on
the Internet. To be in this category, a
requester must not be seeking the
requested records for a commercial use.
A request for records that supports the
news-dissemination function of the
requester shall not be considered to be
for a commercial use. 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 be the
clearest proof, but the Council shall also
look to the past publication record of a
requester in making this determination.
The Council’s decision to grant a
requester media status will be made on
a case-by-case basis based upon the
requester’s intended use of the material.
(r) Requester means any person,
partnership, corporation, association, or
foreign or State or local government,
which has made a request to access a
Council record under FOIA.
(s) Requester category means one of
the three categories in which agencies
place requesters to determine whether
the agency will charge a requester fees
for search, review, and duplication. The
categories include commercial
requesters, non-commercial scientific or
educational institutions or news media
requesters, and all other requesters.
(t) 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.
Review time includes processing any
record for disclosure, such as doing all
that is necessary to prepare the record
for disclosure, including the process of
redacting it and marking any applicable
exemptions. Review costs are
recoverable even if a record ultimately
is not disclosed. Review time includes
time spent obtaining and considering
any formal objection to disclosure made
by a business submitter under § 1850.12
but does not include time spent
resolving general legal or policy issues
regarding the application of exemptions.
(u) Search means the process of
looking for and retrieving documents or
information that is responsive to a
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request. Search time includes page-bypage or line-by-line identification of
information within documents and also
includes reasonable efforts to locate and
retrieve information from records
maintained in electronic form or format.
(v) Submitter means any person or
entity from whom the Council obtains
confidential commercial information,
directly or indirectly.
(w) Unusual circumstances include
situations in which the Council must:
(1) Search for and collect the
requested agency records from field
facilities or other establishments that are
separate from the office processing the
request;
(2) Search for, collect, and
appropriately examine a voluminous
amount of separate and distinct records
that are the subject of a single request;
or
(3) Consult with another Federal
agency having a substantial interest in
the determination of the FOIA request.
§ 1850.3
General provisions.
The Council shall prepare an annual
report to the Attorney General of the
United States regarding its FOIA
activities in accordance with 5 U.S.C.
552(e).
§ 1850.4
Public reading room.
The Council maintains an electronic
public reading room on its Web site,
https://www.restorethegulf.gov, which
contains the records FOIA requires the
Council to make available for public
inspection and copying, as well as
additional records of interest to the
public.
§ 1850.5 Requirements for making
requests.
(a) Type of records made available.
The Council shall make available upon
request, pursuant to the procedures in
this section and subject to the
exceptions set forth in FOIA, all records
of the Council that are not available
under § 1850.4. The Council’s policy is
to make discretionary disclosures of
records or information otherwise
exempt from disclosure under FOIA
unless the Council reasonably foresees
that such disclosure would harm an
interest protected by one or more FOIA
exemptions, or otherwise prohibited by
law. This policy does not create any
enforceable right in court.
(b) Procedures for requesting records.
A request for records shall reasonably
describe the records in a way that
enables Council staff to identify and
produce the records with reasonable
effort. The requester should include as
much specific information as possible
regarding dates, titles, and names of
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individuals. In cases where the request
requires production of voluminous
records, or is not reasonably described,
a Council representative may suggest
the requester, or the individual acting
on the requester’s behalf, to verify the
scope of the request and, if possible,
narrow the request. Once narrowed, the
Council will process the request. All
requests must be submitted in writing
(including by email, fax or mail) to the
Council’s Records Management Officer.
Requesters shall clearly mark a request
as a ‘‘Freedom of Information Act
Request’’ or ‘‘FOIA Request’’ on the
front of the envelope or in the subject
line of the email.
(c) Contents of request. The request, at
minimum, shall contain the following
information:
(1) The name, telephone number, and
non-electronic address of the requester;
(2) Whether the requested information
is intended for commercial use, or
whether the requester represents an
education or noncommercial scientific
institution, or news media; and
(3) A statement agreeing to pay the
applicable fees, identifying any fee
limitation desired, or requesting a
waiver or reduction of fees that satisfies
§ 1850.10(j)(1) to (3).
(d) Perfected requests. The requester
must meet all the requirements in this
section to perfect a request. The Council
will only process perfected requests.
(e) Requests by an individual for
Council records pertaining to that
individual. An individual who wishes
to inspect or obtain copies of Council
records that pertain to that individual
must file a request in accordance with
subpart B of this part.
(f) Requests for Council records
pertaining to another individual. Where
a request for records pertains to a third
party, a requester may receive greater
access by submitting a notarized
authorization signed by that individual
or a declaration by that individual made
in compliance with the requirements set
forth in 28 U.S.C. 1746, authorizing
disclosure of the records to the
requester, or by submitting proof the
individual is deceased (e.g. a copy of the
death certificate or an obituary). The
Council may require a requester to
supply additional information if
necessary to verify that a particular
individual has consented to disclosure.
(g) Requesters may submit a request
for records, expedited processing or
waiver of fees by writing directly to the
Records Management Officer via email
at FOIArequest@restorethegulf.gov, or
first class United States mail at 500
Poydras Street, Suite 1117, New
Orleans, LA 70130.
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(h) Any Council officer or employee
who receives a written Freedom of
Information Act request shall promptly
forward it to the Records Management
Officer. Any Council officer or
employee who receives an oral request
under the Freedom of Information Act
shall inform the person making the
request that it must be in writing and
also inform such person of the
provisions of this subpart.
§ 1850.6
Responding to requests.
(a) Receipt and processing. The date
of receipt for any request, including one
that is addressed incorrectly or that is
referred to the Council by another
agency, is the date the Council actually
receives the request. The Council
normally will process requests in the
order they are received. However, in the
Records Management Officer’s
discretion, the Council may use two or
more processing tracks by
distinguishing between simple and
more complex requests based on the
number of pages involved, or some
other measure of the amount of work
and/or time needed to process the
request, and whether the request
qualifies for expedited processing as
defined by paragraph (d) of this section.
When using multi-track processing, the
Records Management Officer may
provide requesters in the complex
track(s) with an opportunity to limit the
scope of their requests to qualify for the
simple track and faster processing.
(b) Authorization. The Records
Management Officer and other persons
designated by the Council’s Executive
Director are solely authorized to grant or
deny any request for Council records.
(c) Timing. (1) When a requester
submits a request in accordance with
§ 1850.5, the Records Management
Officer shall inform the requester of the
determination concerning that request
within 20 days from receipt of the
request, unless ‘‘unusual
circumstances’’ exist, as defined in
§ 1850.2(w). The Records Management
Officer also shall provide requesters
with a unique tracking number, an
estimated date of completion (once the
request is perfected), and a fee estimate
(when applicable). The Records
Management Officer shall also include
in the Council’s acknowledgment letter
a brief description of the subject of the
request.
(2) When additional time is required
as a result of ‘‘unusual circumstances,’’
as defined in § 1850.2(w), the Records
Management Officer shall, within the
statutory 20 day period, issue to the
requester a brief written statement of the
reason for the delay and an indication
of the date on which it is expected that
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29543
a determination as to disclosure will be
forthcoming. If more than 10 additional
days are needed, the requester shall be
notified and provided an opportunity to
limit the scope of the request or to
arrange for an alternate time frame for
processing the request.
(3) The Council may toll the statutory
time period to issue its determination
on a FOIA request one time during the
processing of the request to obtain
clarification from the requester. The
statutory time period to issue the
determination on disclosure is tolled
until the Council receives the
information reasonably requested from
the requester. The Council may also toll
the statutory time period to issue the
determination to clarify with the
requester issues regarding fees. There is
no limit on the number of times the
agency may request clarifying fee
information from the requester.
(d) Expedited processing. (1) A
requester may request expedited
processing by submitting a statement,
certified to be true and correct to the
best of that person’s knowledge and
belief, that demonstrates a compelling
need for records, as defined in 5 U.S.C.
552(a)(6)(E)(v).
(2) The Records Management Officer
will notify a requester of the
determination to grant or deny a request
for expedited processing within ten
days of receipt of the request. If the
Records Management Officer grants the
request for expedited processing, the
Council staff shall process the request as
soon as practicable subject to
§ 1850.10(d) and (e). If the Records
Management Officer denies the request
for expedited processing, the requester
may file an appeal in accordance with
the process described in § 1850.7.
(3) The Council staff will give
expedited treatment to a request when
the Records Management Officer
determines the requester has established
one of the following:
(i) Circumstances in which the lack of
expedited treatment reasonably could be
expected to pose an imminent threat to
the life or physical safety of an
individual;
(ii) An urgency to inform the public
about an actual or alleged Federal
Government activity, if made by an
individual primarily engaged in
disseminating information;
(iii) The loss of substantial due
process rights;
(iv) A matter of widespread and
exceptional media interest raising
possible questions about the Federal
government’s integrity which affects
public confidence; or
(4) These procedures for expedited
processing also apply to requests for
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expedited processing of administrative
appeals.
(e) Denials. If the Records
Management Officer denies the request
in whole or part, the Records
Management Officer will inform the
requester in writing and include the
following:
(1) A brief statement of the reason(s)
for the denial, including applicable
FOIA exemption(s) and a description of
those exemptions;
(2) An estimate of the volume of
records or information withheld;
(3) If technically feasible, the precise
amount of information deleted at the
place in the record where the deletion
was made, and the exemption under
which a deletion is made on the
released portion of the record, unless
including that information would harm
an interest protected by the exemption;
(4) The name and title or position of
the person responsible for the denial of
the request;
(5) The requester’s right to appeal any
such denial and the title and address of
the official to whom such appeal is to
be addressed; and
(6) The requirement that the appeal be
received within 45 days of the date of
the denial.
(f) Referrals to another agency. (1)
When the Council receives a request for
a record (or a portion thereof) in its
possession that originated with another
Federal agency subject to the FOIA, the
Council shall, except as provided in
paragraph (f)(4) of this section, refer the
record to that agency for direct response
to the requester. However, if the Council
and the originating agency jointly agree
that the Council is in the best position
to respond regarding the record, then
the record may be handled as a
consultation.
(2) Whenever the Council refers any
part of the responsibility for responding
to a request to another agency, it shall
document the referral, maintain a copy
of the record that it refers, and notify the
requester of the referral and inform the
requester of the name of the agency to
which the record was referred,
including that agency’s FOIA contact
information.
(3) The Council’s response to an
appeal will advise the requester that the
2007 FOIA amendments created the
Office of Government Information
Services (OGIS) to offer mediation
services to resolve disputes between
FOIA requesters and Federal agencies as
a non-exclusive alternative to litigation.
A requester may contact OGIS in any of
the following ways: Office of
Government Information Services,
National Archives and Records
Administration, 8601 Adelphi Road—
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OGIS, College Park, MD 20740,
ogis.archives.gov, Email: ogis@nara.gov,
Telephone: 202–741–5770, Facsimile:
202–741–5769, Toll-free: 1–877–684–
6448.
(4) The referral procedure is not
appropriate where disclosure of the
identity of the agency, typically a law
enforcement agency or Intelligence
Community agency, to which the
referral would be made could harm an
interest protected by an applicable
exemption, such as the exemptions that
protect personal privacy and national
security interests. In such instances, in
order to avoid harm to an interest
protected by an applicable exemption,
the Council shall coordinate with the
originating agency to seek its views on
the disclosability of the record. The
release determination for the record that
is the subject of the coordination shall
then be conveyed to the requester by the
Council.
(g) Consulting with another agency. In
instances where a record is requested
that originated with the Council and
another agency has a significant interest
in the record (or a portion thereof), the
Council shall consult with that agency
before responding to a requester. When
the Council receives a request for a
record (or a portion thereof) in its
possession that originated with another
agency that is not subject to the FOIA,
the Council shall consult with that
agency before responding to the
requester.
(h) Providing responsive records. (1)
Council staff shall send a copy of
records or portions of records
responsive to the request to the
requester by regular United States mail
to the address indicated in the request
or by email to the email address
provided by the requester, unless the
requester makes other acceptable
arrangements or the Council deems it
appropriate to send the records by other
means. The Council shall provide a
copy of the record in any form or format
requested if the record is readily
reproducible in that form or format. The
Council need not provide more than one
copy of any record to a requester.
(2) The Records Management Officer
shall provide any reasonably segregable
portion of a record that is responsive to
the request after redacting those
portions that are exempt under FOIA or
this section.
(3) The Council is not required to
create, compile, prepare or obtain from
outside the Council a record to satisfy
a request. Retrieving data from a
Council database or running a report
from a database is permissible.
(i) Prohibition against disclosure.
Except as provided in this subpart, no
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member or employee of the Council
shall disclose or permit the disclosure of
any non-public information of the
Council to any person (other than
Council members, employees, or agents
properly entitled to such information for
the performance of their official duties),
unless required by law to do so.
§ 1850.7
Appeals.
(a) Requesters may administratively
appeal an adverse determination
regarding a request by writing directly
to the General Counsel via email at
GeneralCounsel@restorethegulf.gov or
first class United States mail at 500
Poydras Street, Suite 1117, New
Orleans, LA 70130. Administrative
appeals sent to other individuals or
addresses are not considered perfected.
An adverse determination is a denial of
a request and includes decisions that:
The requested record is exempt, in
whole or in part; the information
requested is not a record subject to the
FOIA; the requested record does not
exist, cannot be located, or has
previously been destroyed; or the
requested record is not readily
reproducible in the form or format
sought by the requester. Adverse
determinations also include denials
involving fees or fee waiver matters or
denials of requests for expedited
processing.
(b) FOIA administrative appeals must
be in writing and should contain the
phrase ‘‘FOIA Appeal’’ on the front of
the envelope or in the subject line of the
electronic mail.
(c) Appellants are encouraged to
include a copy of the original request
and the initial denial (if any) in the
appeal. The appeal letter may include as
much or as little related information as
the appellant wishes, as long as it
clearly identifies the component
determination (including the assigned
request number, if known) that is being
appealed.
(d) Requesters submitting an
administrative appeal of an adverse
determination must ensure that the
Council receives the appeal within 45
days of the date of the denial letter.
(e) Upon receipt of an administrative
appeal, Council staff shall inform the
requester within 20 days of the
determination on that appeal.
(f) The determination on an appeal
shall be in writing and, when it denies
the appeal, in whole or in part, the letter
to the requester shall include:
(1) A brief explanation of the basis for
the denial, including a list of the
applicable FOIA exemptions and a
description of how they apply;
(2) A statement that the decision is
final for the Council;
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(3) Notification that judicial review of
the denial is available in the district
court of the United States in the district
in which the requester resides, or has
his or her principal place of business, or
in which the agency records are located,
or in the District of Columbia; and
(4) The name and title or position of
the official responsible for denying the
appeal.
§ 1850.8
Authority to determine.
The Records Management Officer or
Council Executive Director, when
receiving a request pursuant to these
regulations, shall grant or deny such
request. That decision shall be final,
subject only to administrative appeal as
provided in § 1850.7. The Council
General Counsel shall deny or grant an
administrative appeal requested under
§ 1850.7.
§ 1850.9
Maintenance of files.
§ 1850.10
The Records Management Officer
shall maintain files containing all
material required to be retained by or
furnished to them under this subpart.
The Council shall preserve all
correspondence pertaining to the FOIA
requests that it receives, as well as
copies of all requested records, until a
General Records Schedule (GRS)
published by the National Archives and
Records Administration (NARA) or
another NARA-approved records
schedule authorizes the office to dispose
of or destroy the records. All materials
identified as responsive to a FOIA
request will be retained while the
request or a related appeal or lawsuit is
pending even otherwise authorized for
disposal or destruction under a GRS or
other NARA-approved records schedule.
The material shall be filed by a unique
tracking number.
29545
Fees.
(a) Generally. Except as provided
elsewhere in this section, the Records
Management Officer shall assess fees
where applicable in accordance with
this section for search, review, and
duplication of records requested. The
Records Management Officer shall also
have authority to furnish documents
without any charge or at a reduced
charge if disclosure of the information is
in the public interest because it is likely
to contribute significantly to public
understanding of the operations or
activities of the government and is not
primarily in the commercial interest of
the requester.
(b)(1) Fee schedule; waiver of fees.
The fees applicable to a request for
Council records pursuant to § 1850.5 are
set forth in the following uniform fee
schedule:
Service
Rate
(i) Manual search ......................................................................................
Actual salary rate of employee involved, plus 16 percent of salary rate
to cover benefits.
Actual direct cost, including operator time.
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(ii) Computerized search ..........................................................................
(iii) Duplication of records:
(A) Paper copy reproduction .............................................................
(B) Other reproduction (e.g., computer disk or printout, microfilm,
microfiche, or microform).
(iv) Review of records (including redaction) .............................................
(2) Search. (i) The Council shall
charge search fees for all requests,
subject to the limitations of paragraph
(b)(5) of this section. The Records
Management Officer shall charge for
time spent searching for responsive
records, even if no responsive record is
located or if the Records Management
Officer withholds records located as
entirely exempt from disclosure. Search
fees shall equal the direct costs of
conducting the search by the Council
employee involved, plus 16 percent of
the salary rate to cover benefits.
(ii) For computer searches of records,
the Council will charge requesters the
direct costs of conducting the search. In
accordance with paragraph (f) of this
section, however, the Council will
charge certain requesters no search fee
and certain other requesters are entitled
to the cost equivalent of two hours of
manual search time without charge.
These direct costs include the costs
attributable to the salary of an operator/
programmer performing a computer
search.
(3) Duplication. The Council will
charge duplication fees to all requesters,
subject to the limitations of paragraph
(b)(5) of this section. The fee for a paper
photocopy of a record (no more than
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$0.05 per page.
Actual direct cost, including operator time.
Actual salary rate of employee involved, plus 16 percent of salary rate
to cover benefits.
one copy of which need be supplied) is
5 cents per page. The Records
Management Officer will charge the
requester for the direct costs, including
operator time, of making copies
produced by computer, such as tapes or
printouts. The Records Management
Officer will charge a requester the direct
costs of providing other forms of
duplication.
(4) Review. The Council will charge
review fees to requesters who make a
commercial use request. Review fees
generally are limited to the initial record
review, i.e., the review done when the
Records Management Officer determines
whether an exemption applies to a
particular record at the initial request
level. The Council will not charge a
requester for additional review at the
administrative appeal level. Review fees
consist of the direct costs of conducting
the review by the Council employee
involved, plus 16 percent of the salary
rate to cover benefits.
(5) Limitations on charging fees. (i)
The Council will not charge a search fee
for requests from educational
institutions, noncommercial scientific
institutions, or representatives of the
news media.
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(ii) The Council will not charge a
search fee or review fee for a quarterhour period unless more than half of
that period is required for search or
review.
(iii) The Council will not charge a fee
to a requester whenever the total fee
calculated under this paragraph is $25
or less for the request.
(iv) Except for requesters seeking
records for a commercial use, the
Council will provide without charge the
first 100 pages of duplication (or the
cost equivalent) and the first two hours
of search.
(v) The provisions of paragraphs
(b)(5)(iii) and (iv) of this section work
together. This means that for requesters
other than those seeking records for a
commercial use, no fee shall be charged
unless the cost of search is in excess of
two hours plus the cost of duplication
in excess of 100 pages totals more than
$25.
(vi) No search fees shall be charged to
a requester when the Council does not
comply with the statutory time limits at
5 U.S.C. 552(a)(6) in which to respond
to a request, unless unusual or
exceptional circumstances (as those
terms are defined by the FOIA) apply to
the processing of the request.
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(vii) No duplication fees shall be
charged to requesters in the fee category
of a representative of the news media or
an educational or noncommercial
scientific institution when the Council
does not comply with the statutory time
limits at 5 U.S.C. 552(a)(6) in which to
respond to a request, unless unusual or
exceptional circumstances (as those
terms are defined by the FOIA) apply to
the processing of the request.
(c) Payment procedures. All
requesters shall pay the applicable fee
before the Council sends copies of the
requested records, unless the Records
Management Official grants a fee
waiver. Requesters must pay fees by
check or money order made payable to
the ‘‘Treasury of the United States.’’
Checks and money orders should be
mailed to 500 Poydras Street, Suite
1117, New Orleans, LA 70130.
(d) Advance notification of fees. If the
estimated charges exceed $25, the
Records Management Officer shall
notify the requester of the estimated
amount, unless the requester has
indicated a willingness to pay fees as
high as those anticipated. Upon receipt
of such notice, the requester may confer
with the Records Management Officer to
reformulate the request to lower the
costs. Council staff shall suspend
processing the request until the
requester provides the Records
Management Officer with a written
guarantee that the requester will make
payment upon completion of processing
(i.e., upon completion of the search,
review and duplication, but prior the
Council sending copies of the requested
records to the requester).
(e) Advance payment. The Records
Management Officer shall require
advance payment of any fee estimated to
exceed $250. The Records Management
Officer also shall require full payment
in advance where a requester has
previously failed to pay a fee in a timely
fashion. If an advance payment of an
estimated fee exceeds the actual total fee
by $1 or more, the Council shall refund
the difference to the requester. The
Council shall suspend the processing of
the request and the statutory time
period for responding to the request
until the Records Management Officer
receives the required payment.
(f) Categories of uses. The fees
assessed depend upon the fee category.
In determining which category is
appropriate, the Records Management
Officer shall look to the identity of the
requester and the intended use set forth
in the request for records. Where a
requester’s description of the use is
insufficient to make a determination,
the Records Management Officer may
seek additional clarification before
categorizing the request.
(1) Commercial use requester: The
fees for search, duplication, and review
apply.
(2) Educational institutions, noncommercial scientific institutions, or
representatives of the news media
requesters: The fees for duplication
apply. The Council will provide the first
100 pages of duplication free of charge.
(3) All other requesters: The fees for
search and duplication apply. The
Council will provide the first two hours
of search time and the first 100 pages of
duplication free of charge.
Chargeable fees
(i) Commercial Use Requesters ...............................................................
(ii) Education and Non-commercial Scientific Institution Requesters ......
(iii) Representatives of the News Media ..................................................
(iv) All Other Requesters ..........................................................................
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Category
Search, Review, and Duplication.
Duplication (excluding the cost of the first 100 pages).
Duplication (excluding the cost of the first 100 pages).
Search and Duplication (excluding the cost of the first 2 hours of
search and first 100 pages of duplication).
(g) Nonproductive search. The
Council may charge fees for search even
if no responsive documents are found.
(h) Interest charges. The Records
Management Officer may assess interest
charges on any unpaid bill starting on
the 31st calendar day following the date
the Council sent the bill to the
requester. The Council will charge
interest at the rate prescribed in 31
U.S.C. 3717 on fees payable in
accordance with this section. The
Council will follow the provisions of the
Debt Collection Act of 1982 (Pub. L. 97–
365, 96 Stat. 1749), as amended, and its
administrative procedures, including
the use of consumer reporting agencies,
collection agencies, and offset.
(i) Aggregated requests. A requester
may not file multiple requests at the
same time solely in order to avoid
payment of fees. If the Council
reasonably believes that a request, or a
group of requesters acting in concert, is
attempting to break down a request into
a series of requests for the purpose of
evading the assessment of fees, the
Council may aggregate any such
requests and charge accordingly. The
Records Management Officer may
reasonably presume that one requester
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making multiple requests on the same
topic within a 30-day period has done
so to avoid fees.
(j) Waiver or reduction of fees. To seek
a waiver, a requester shall include the
request for waiver or reduction of fees,
and the justification for such based on
the factors set forth in this paragraph,
with the request for records to which it
pertains. If a requester requests a waiver
or reduction and has not indicated in
writing an agreement to pay the
applicable fees, the time for responding
to the request for Council records shall
not begin until the Records Management
Officer makes a determination regarding
the request for a waiver or reduction of
fees.
(1) Records responsive to a request
shall be furnished without charge, or at
a reduced rate below that established in
paragraph (b) of this section, where the
Council determines, after consideration
of 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
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(ii) Disclosure of the information is
not primarily in the commercial interest
of the requester.
(2) In deciding whether 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, the
Council 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. The disclosure
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of information that already is in the
public domain, in either the same or a
substantially identical form, would not
be likely to contribute to such an
understanding.
(iii) The contribution to an
understanding of the subject by the
public: Whether disclosure of the
requested information will 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
as well as his or her ability and
intention to effectively convey
information to the public shall be
considered. It shall be presumed that a
representative of the news media will
satisfy this consideration. Merely
providing information to media sources
is insufficient to satisfy 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
prior to disclosure must be significantly
enhanced by the disclosure.
(3) To determine whether disclosure
of the requested information is
primarily in the commercial interest of
the requester, the Council 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 Council shall consider
any commercial interest of the requester
(with reference to the definition of
‘‘commercial use request’’ in
§ 1850.2(b)), or of any person on whose
behalf the requester may be acting, that
would be furthered by the requested
disclosure. Requesters shall be given an
opportunity to provide explanatory
information regarding this
consideration.
(ii) The primary interest in disclosure:
Whether any identified commercial
interest of the requester is sufficiently
great, in comparison with the public
interest in disclosure, that disclosure if
‘‘primarily in the commercial interest of
the requester.’’ A fee waiver or
reduction is justified if the public
interest standard (paragraph (j)(1)(i) of
this section) is satisfied and the public
interest is greater than any identified
commercial interest in disclosure. The
Council shall presume that if a news
media requester has satisfied the public
interest standard, the public interest is
the primary interest served by
disclosure to that requester. Disclosure
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to data brokers or others who merely
compile and market Government
information for direct economic return
shall not be presumed to primarily serve
the public interest.
(4) A request for a waiver or reduction
of fees shall include a clear statement of
how the request satisfies the criteria set
forth in paragraphs (j)(2) and (3) of this
section, insofar as they apply to each
request. The burden shall be on the
requester to present evidence or
information in support of a request for
a waiver or reduction of fees.
(5) Where only some of the records to
be released satisfy the requirements for
a fee waiver, a waiver shall be granted
for those records.
(6) The Records Management Officer
shall make a determination on the
request for a waiver or reduction of fees
and shall notify the requester
accordingly. A denial may be appealed
to the General Counsel in accordance
with § 1850.7.
§ 1850.11 Requests for confidential
treatment of business information.
(a) Submission of request. Any
submitter of information to the Council
who desires confidential treatment of
business information pursuant to 5
U.S.C. 552(b)(4) shall file a request for
confidential treatment with the Council
at the time the information is submitted
or within a reasonable time after
submission. These designations will
expire ten years after the date of
submission unless the submitter
requests, and provides justification for,
a longer period.
(b) Form of request. Each request for
confidential treatment of business
information shall state in reasonable
detail the facts supporting the
commercial or financial nature of the
business information and the legal
justification under which the business
information should be protected.
Conclusory statements indicating that
release of the information would cause
competitive harm generally are not
sufficient to justify confidential
treatment.
(c) Designation and separation of
confidential material. A submitter shall
clearly mark all information it considers
confidential as ‘‘PROPRIETARY’’ or
‘‘BUSINESS CONFIDENTIAL’’ in the
submission and shall separate
information so marked from other
information submitted. Failure by the
submitter to segregate confidential
commercial or financial information
from other material may result in release
of the nonsegregated material to the
public without notice to the submitter.
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§ 1850.12 Requests for access to
confidential commercial or financial
information.
(a) Notice to submitters. The Council
shall provide a submitter with prompt
notice of a FOIA request or
administrative appeal that seeks its
business information whenever required
under paragraph (b) of this section,
except as provided in paragraph (e) of
this section, in order to give the
submitter an opportunity under
paragraph (c) of this section to object to
disclosure of any specified portion of
that information. The notice shall either
describe the business information
requested or include copies of the
requested records containing the
information. If notification of a large
number of submitters is required,
notification may be made by posting or
publishing the notice in a place
reasonably likely to accomplish
notification.
(b) When notice is required. Notice
shall be given to the submitter
whenever:
(1) The submitter has designated the
information in good faith as protected
from disclosure under FOIA exemption
(b)(4); or
(2) The Council has reason to believe
that the information may be protected
from disclosure under FOIA exemption
(b)(4).
(c) Opportunity to object to disclosure.
The Council shall allow a submitter
seven days from the date of receipt of
the written notice described in
paragraph (a) of this section to provide
the Council with a statement of any
objection to disclosure. The statement
must identify any portions of the
information the submitter requests to be
withheld under FOIA exemption (b)(4),
and describe how each qualifies for
protection under the exemption: That is,
why the information is a trade secret, or
commercial or financial information
that is privileged or confidential. If a
submitter fails to respond to the notice
within the time frame specified, the
submitter will be considered to have no
objection to disclosure of the
information. Information a submitter
provides under this paragraph may itself
be subject to disclosure under the FOIA.
(d) Notice of intent to disclose. The
Council shall consider a submitter’s
objections and specific grounds under
the FOIA for nondisclosure in deciding
whether to disclose business
information. If the Council decides to
disclose business information over a
submitter’s objection, the Council shall
give the submitter written notice via
certified mail, return receipt requested,
or similar means, which shall include:
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(1) A statement of reason(s) why the
submitter’s objections to disclosure
were not sustained;
(2) A description of the business
information to be disclosed; and
(3) A statement that the Council
intends to disclose the information
seven days from the date the submitter
receives the notice.
(e) Exceptions to notice requirements.
The notice requirements of paragraphs
(a) and (d) of this section shall not apply
if:
(1) The Council determines that the
information is exempt and will be
withheld under a FOIA exemption,
other than exemption (b)(4);
(2) The information has been lawfully
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 Executive Order 12600;
or
(4) The designation made by the
submitter under this section or
§ 1850.11 appears obviously frivolous,
except that, in such a case, the Council
shall provide the submitter written
notice of any final decision to disclose
the information seven days from the
date the submitter receives the notice.
(f) Notice to requester. The Council
shall notify a requester whenever it
provides the submitter with notice and
an opportunity to object to disclosure;
whenever it notifies the submitter of its
intent to disclose the requested
information; and whenever a submitter
files a lawsuit to prevent the disclosure
of the information.
(g) Notice of lawsuits. Whenever a
requester files a lawsuit seeking to
compel the disclosure of confidential
commercial information, the Council
shall promptly notify the submitter.
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§ 1850.13
Classified information.
In processing a request for
information classified under Executive
Order 13526 or any other Executive
Order concerning the classification of
records, the information shall be
reviewed to determine whether it
should remain classified. Ordinarily the
Council or other Federal agency that
classified the information should
conduct the review, except that if a
record contains information that has
been derivatively classified by the
Council because it contains information
classified by another agency, the
Council shall refer the responsibility for
responding to the request to the agency
that classified the underlying
information. Information determined to
no longer require classification shall not
be withheld on the basis of FOIA
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exemption (b)(1) (5 U.S.C. 552(b)(1)),
but should be reviewed to assess
whether any other FOIA exemption
should be invoked. Appeals involving
classified information shall be
processed in accordance with § 1850.7.
Subpart B—Production or Disclosure
Under the Privacy Act
§ 1850.31
Purpose and scope.
This subpart contains the regulations
of the Gulf Coast Ecosystem Restoration
Council (Council) implementing the
Privacy Act of 1974, 5 U.S.C. 552a. It
sets forth the basic responsibilities of
the Council under the Privacy Act (the
Act) and offers guidance to members of
the public who wish to exercise any of
the rights established by the Act with
regard to records maintained by the
Council. Council records that are
contained in a government-wide system
of records established by the U.S. Office
of Personnel Management (OPM), the
General Services Administration (GSA),
the Merit Systems Protection Board
(MSPB), the Office of Government
Ethics (OGE), Equal Employment
Opportunity Commission (EEOC) or the
Department of Labor (DOL) for which
those agencies have published systems
notices are subject to the publishing
agency’s Privacy Act regulations. Where
the government-wide systems notices
permit access to these records through
the employing agency, an individual
should submit requests for access to, for
amendment of or for an accounting of
disclosures to the Council in accordance
with § 1850.33.
§ 1850.32
Definitions.
(a) For purposes of this subpart, the
terms individual, maintain, record, and
system of records shall have the
meanings set forth in 5 U.S.C. 552a(a).
(b) Working days are business days
and do not include Saturday, Sunday, or
federal holidays.
§ 1850.33 Procedures for requests
pertaining to individual records in a record
system.
(a) Any person who wishes to be
notified if a system of records
maintained by the Council contains any
record pertaining to him or her, or to
request access to such record or to
request an accounting of disclosures
made of such record, shall submit a
written request, either in person or by
mail, in accordance with the
instructions set forth in the system
notice published in the Federal
Register. The request shall include:
(1) The name of the individual
making the request;
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(2) The name of the system of records
(as set forth in the system notice to
which the request relates);
(3) Any other information specified in
the system notice;
(4) When the request is for access to
records, a statement indicating whether
the requester desires to make a personal
inspection of the records or be supplied
with copies by mail; and
(5) Any additional information
required by § 1850.34 for proper
verification of identity or authority to
access the information.
(b) Requests pertaining to records
contained in a system of records
established by the Council and for
which the Council has published a
system notice should be submitted to
the person or office indicated in the
system notice. Requests pertaining to
Council records contained in the
government-wide systems of records
listed below should be submitted as
follows:
(1) For systems OPM/GOVT–1
(General Personnel Records), OPM/
GOVT–2 (Employee Performance File
System Records), OPM/GOVT–3
(Records of Adverse Actions and
Actions Based on Unacceptable
Performance), GSA/GOVT–4
(Contracted Travel Services Program),
OPM/GOVT–5 (Recruiting, Examining
and Placement Records), OPM/GOVT–6
(Personnel Research and Test Validation
Records), OPM/GOVT–7 (Applicant
Race, Sex, National Origin, and
Disability Status Records), OPM/GOVT–
9 (Files on Position Classification
Appeals, Job Grading Appeals and
Retained Grade or Pay Appeals), OPM/
GOVT–10 (Employee Medical File
System Records) and DOL/ESA–13
(Office of Workers’ Compensation
Programs, Federal Employees’
Compensation File), or any other
government-wide system of record not
specifically listed, to the
restorecouncil@restorethegulf.gov]; and
(2) For systems OGE/GOVT–1
(Executive Branch Public Financial
Disclosure Reports and Other Ethics
Program Records), OGE/GOVT–2
(Confidential Statements of
Employment and Financial Interests)
and MSPB/GOVT–1 (Appeal and Case
Records), to the General Counsel at
restorecouncil@restorethegulf.gov.
(c) Any person whose request for
access under paragraph (a) of this
section is denied, may appeal that
denial in accordance with § 1850.39.
§ 1850.34 Times, places, and requirements
for identification of individuals making
requests.
(a) If a person submitting a request for
access under § 1850.33 has asked that
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the Council authorize a personal
inspection of records pertaining to that
person, and the appropriate Council
official has granted that request, the
requester shall present himself or
herself at the time and place specified
in the Council’s response or arrange
another, mutually convenient time with
the appropriate Council official.
(b) Prior to personal inspection of the
records, the requester shall present
sufficient personal identification (e.g.,
driver’s license, employee identification
card, social security card, credit cards).
If the requester is unable to provide
such identification, the requester shall
complete and sign in the presence of a
Council official a signed statement
asserting his or her identity and
stipulating that he or she understands
that knowingly or willfully seeking or
obtaining access to records about
another individual under false pretenses
is a misdemeanor punishable by fine up
to $5,000.
(c) Any person who has requested
access under § 1850.3 to records through
personal inspection, and who wishes to
be accompanied by another person or
persons during this inspection, shall
submit a written statement authorizing
disclosure of the record in such person’s
or persons’ presence.
(d) If an individual submitting a
request by mail under § 1850.33 wishes
to have copies furnished by mail, he or
she must include with the request a
signed and notarized statement asserting
his or her identity and stipulating that
he or she understands that knowingly or
willfully seeking or obtaining access to
records about another individual under
false pretenses is a misdemeanor
punishable by fine up to $5,000.
(e) A request filed by the parent of any
minor or the legal guardian of any
incompetent person shall: State the
relationship of the requester to the
individual to whom the record pertains;
present sufficient identification; and, if
not evident from information already
available to the Council, present
appropriate proof of the relationship or
guardianship.
(f) A person making a request
pursuant to a power of attorney must
possess a specific power of attorney to
make that request.
(g) No verification of identity will be
required where the records sought are
publicly available under the Freedom of
Information Act.
§ 1850.35 Disclosure of requested
information to individuals.
(a) Upon receipt of request for
notification as to whether the Council
maintains a record about an individual
and/or request for access to such record:
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(1) The appropriate Council official
shall acknowledge such request in
writing within 10 working days of
receipt of the request. Wherever
practicable, the acknowledgement
should contain the notification and/or
determination required in paragraph
(a)(2) of this section.
(2) The appropriate Council official
shall provide, within 30 working days of
receipt of the request, written
notification to the requester as to the
existence of the records and/or a
determination as to whether or not
access will be granted. In some cases,
such as where records have to be
recalled from the Federal Records
Center, notification and/or a
determination of access may be delayed.
In the event of such a delay, the Council
official shall inform the requester of this
fact, the reasons for the delay, and an
estimate of the date on which
notification and/or a determination will
be forthcoming.
(3) If access to a record is granted, the
determination shall indicate when and
where the record will be available for
personal inspection. If a copy of the
record has been requested, the Council
official shall mail that copy or retain it
at the Council to present to the
individual, upon receipt of a check or
money order in an amount computed
pursuant to § 1850.41.
(4) When access to a record is to be
granted, the appropriate Council official
will normally provide access within 30
working days of receipt of the request
unless, for good cause shown, he or she
is unable to do so, in which case the
requester shall be informed within 30
working days of receipt of the request as
to those reasons and when it is
anticipated that access will be granted.
(5) The Council shall not deny any
request under § 1850.33 concerning the
existence of records about the requester
in any system of records it maintains, or
any request for access to such records,
unless that system is exempted from the
requirements of 5 U.S.C. 552a.
(6) If the Council receives a request
pursuant to § 1850.33 for access to
records in a system of records it
maintains which is so exempt, the
appropriate Council official shall deny
the request.
(b) Upon request, the appropriate
Council official shall make available an
accounting of disclosures pursuant to 5
U.S.C. 552a(c)(3), unless that system is
exempted from the requirements of 5
U.S.C. 552a.
(c) If a request for access to records is
denied pursuant to paragraph (a) or (b)
of this section, the determination shall
specify the reasons for the denial and
advise the individual how to appeal the
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29549
denial in accordance with § 1850.39. All
appeals must be submitted in writing to
the General Counsel at
GeneralCounsel@restorethegulf.gov.
(d) Nothing in 5 U.S.C. 552a or this
subpart allows an individual access to
any information compiled in reasonable
anticipation of a civil action or
proceeding.
§ 1850.36
records.
Special procedures: Medical
In the event the Council receives a
request pursuant to § 1850.33 for access
to medical records (including
psychological records) and the
appropriate Council official determines
disclosure could be harmful to the
individual to whom they relate, he or
she may refuse to disclose the records
directly to the requester but shall
transmit them to a physician designated
by that individual.
§ 1850.37 Request for correction or
amendment to record.
(a) Any person who wishes to request
correction or amendment of any record
pertaining to him or her that is
contained in a system of records
maintained by the Council, shall submit
that request in writing in accordance
with the instructions set forth in the
system notice for that system of records.
If the request is submitted by mail, the
envelope should be clearly labeled
‘‘Personal Information Amendment.’’
The request shall include:
(1) The name of the individual
making the request;
(2) The name of the system of records
as set forth in the system notice to
which the request relates;
(3) A description of the nature (e.g.,
modification, addition or deletion) and
substance of the correction or
amendment requested; and
(4) Any other information specified in
the system notice.
(b) Any person submitting a request
pursuant to paragraph (a) of this section
shall include sufficient information in
support of that request to allow the
Council to apply the standards set forth
in 5 U.S.C. 552a(e) requiring the Council
to maintain accurate, relevant, timely,
and complete information.
(c) All requests to amend pertaining to
personnel records described in
§ 1850.33(b) shall conform to the
requirements of paragraphs (a) and (b) of
this section and may be directed to the
appropriate officials as indicated in
§ 1850.33(b). Such requests may also be
directed to the system manager
specified in the OPM’s systems notices.
(d) Any person whose request under
paragraph (a) of this section is denied
may appeal that denial in accordance
with § 1850.39.
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§ 1850.38 Council review of request for
correction or amendment to record.
(a) When the Council receives a
request for amendment or correction
under § 1850.37(a), the appropriate
Council official shall acknowledge that
request in writing within 10 working
days of receipt. He or she shall promptly
either:
(1) Determine to grant all or any
portion of a request for correction or
amendment; and:
(i) Advise the individual of that
determination;
(ii) Make the requested correction or
amendment; and
(iii) Inform any person or agency
outside the Council to whom the record
has been disclosed, and where an
accounting of that disclosure is
maintained in accordance with 5 U.S.C.
552a(c), of the occurrence and substance
of the correction or amendments; or
(2) Inform the requester of the refusal
to amend the record in accordance with
the request; the reason for the refusal;
and the procedures whereby the
requester can appeal the refusal to the
General Counsel of the Council in
accordance with § 1850.39.
(b) If the Council official informs the
requester of the determination within
the 10-day deadline, a separate
acknowledgement is not required.
(c) In conducting the review of a
request for correction or amendment,
the Council official shall be guided by
the requirements of 5 U.S.C. 552a(e).
(d) In the event that the Council
receives a notice of correction or
amendment from another agency that
pertains to records maintained by the
Council, the Council shall make the
appropriate correction or amendment to
its records and comply with paragraph
(a)(1)(iii) of this section.
(e) Requests for amendment or
correction of records maintained in the
government-wide systems of records
listed in § 1850.35(c) shall be governed
by the appropriate agency’s regulations
cited in that paragraph.
tkelley on DSK3SPTVN1PROD with RULES
§ 1850.39 Appeal of initial adverse agency
determination on correction or amendment.
(a) If a request for correction or
amendment of a record in a system of
records maintained by the Council is
denied, the requester may appeal the
determination in writing to the General
Counsel at GeneralCounsel@
restorethegulf.gov.
(b) The General Counsel shall make a
final determination with regard to an
appeal submitted under paragraph (a) of
this section not later than 30 working
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Jkt 235001
days from the date on which the
individual requests a review, unless for
good cause shown, this 30-day period is
extended and the requester is notified of
the reasons for the extension and of the
estimated date on which a final
determination will be made. Such
extensions will be used only in
exceptional circumstances and will not
normally exceed 30 working days.
(c) In conducting the review of an
appeal submitted under paragraph (a) of
this section, the General Counsel shall
be guided by the requirements of 5
U.S.C. 552a(e).
(d) If the General Counsel determines
to grant all or any portion of a request
on an appeal submitted under paragraph
(a) of this section, he or she shall so
inform the requester, and the
appropriate Council official shall
comply with the procedures set forth in
§ 1850.38(a)(1)(ii) and (iii).
(e) If the General Counsel determines
in accordance with paragraphs (b) and
(c) of this section not to grant all or any
portion of a request on an appeal
submitted under paragraph (a) of this
section, he or she shall inform the
requester:
(1) Of this determination and the
reasons for it;
(2) Of the requester’s right to file a
concise statement of reasons for
disagreement with the determination of
the General Counsel;
(3) That such statements of
disagreement will be made available to
anyone to whom the record is
subsequently disclosed, together with (if
the General Counsel deems it
appropriate) a brief statement
summarizing the General Counsel’s
reasons for refusing to amend the
record;
(4) That prior recipients of the
disputed record will be provided with a
copy of the statement of disagreement
together with (if the General Counsel
deems it appropriate) a brief statement
of the General Counsel’s reasons for
refusing to amend the record, to the
extent that an accounting of disclosure
is maintained under 5 U.S.C. 552a(c);
and
(5) Of the requester’s right to file a
civil action in Federal district court to
seek a review of the determination of
the General Counsel in accordance with
5 U.S.C. 552a(g).
(f) The General Counsel shall ensure
that any statements of disagreement
submitted by a requester are made
available or distributed in accordance
with paragraphs (e)(3) and (4) of this
section.
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§ 1850.40 Disclosure of record to person
other than the individual to whom it
pertains.
The Counsel shall not disclose any
record which is contained in a system
of records it maintains, by any means of
communication to any person or to
another agency, except pursuant to a
written request by, or with the prior
written consent of the individual to
whom the record pertains, unless the
disclosure is authorized by one or more
provisions of 5 U.S.C. 552a(b).
§ 1850.41
Fees.
(a) No fee shall be charged for
searches necessary to locate records. No
charge shall be made if the total fees
authorized are less than $1.00. Fees
shall be charged for services rendered
under this subpart as follows:
(1) For copies made by photocopy—
$0.05 per page (maximum of 10 copies).
For copies prepared by computer, such
as tapes or printouts, the Council will
charge the direct cost incurred by the
agency, including operator time. For
other forms of duplication, the Council
will charge the actual costs of that
duplication.
(2) For attestation of documents—
$25.00 per authenticating affidavit or
declaration.
(3) For certification of documents—
$50.00 per authenticating affidavit or
declaration.
(b) All required fees shall be paid in
full prior to issuance of requested copies
of records. Requesters must pay fees by
check or money order made payable to
the ‘‘Treasury of the United States.’’
§ 1850.42
Penalties.
The criminal penalties which have
been established for violations of the
Privacy Act of 1974 are set forth in 5
U.S.C. 552a(i). Penalties are applicable
to any officer or employee of the
Council; to contractors and employees
of such contractors who enter into
contracts with the Council, and who are
considered to be employees of the
Council within the meaning of 5 U.S.C.
552a(m); and to any person who
knowingly and willfully requests or
obtains any record concerning an
individual from the Council under false
pretenses.
Will D. Spoon,
Program Analyst, Gulf Coast Ecosystem
Restoration Council.
[FR Doc. 2015–12459 Filed 5–21–15; 8:45 am]
BILLING CODE 3510–EA–P
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Agencies
- GULF COAST ECOSYSTEM RESTORATION COUNCIL
[Federal Register Volume 80, Number 99 (Friday, May 22, 2015)]
[Rules and Regulations]
[Pages 29539-29550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12459]
=======================================================================
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GULF COAST ECOSYSTEM RESTORATION COUNCIL
40 CFR Part 1850
[Docket Number: 105002015-1111-05]
Procedures for Disclosure of Records Under the Freedom of
Information Act and Privacy Act
AGENCY: Gulf Coast Ecosystem Restoration Council.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule sets forth the Gulf Coast Ecosystem Restoration
Council's (Council) regulations regarding the Freedom of Information
Act (FOIA), Privacy Act (PA), and declassification and public
availability of national security information. The FOIA and PA require
each agency to promulgate regulations implementing the provisions of
those laws and this Final Rule fulfills that mandate, facilitating
public access to Council records.
DATES: This rule becomes effective on June 22, 2015.
ADDRESSES: The Council posted all comments on the proposed FOIA and PA
regulations on its Web site, https://www.restorethegulf.gov/, without
change, including any business or personal information provided, such
as names, addresses, email addresses, or telephone numbers. All
comments received are part of the public record and subject to public
disclosure.
FOR FURTHER INFORMATION CONTACT: Jeffrey Roberson at 202-482-1315.
SUPPLEMENTARY INFORMATION:
I. Background
The RESTORE Act, Public Law 112-141 (July 6, 2012), codified at 33
U.S.C. 1321(t) and note, makes funds available for the restoration and
protection of the Gulf Coast Region through a new trust fund in the
Treasury of the United States, known as the Gulf Coast Restoration
Trust Fund (Trust Fund). The Trust Fund will contain 80 percent of the
administrative and civil penalties paid by the responsible parties
after July 6, 2012, under the Federal Water Pollution Control Act in
connection with the Deepwater Horizon oil spill. These funds will be
invested and made available through five components of the RESTORE Act.
Two of the five components, the Comprehensive Plan and Spill Impact
Components, are administered by the Council, an independent federal
entity created by the RESTORE Act. Under the Comprehensive Plan
Component (33 U.S.C. 1321(t)(2)), 30 percent of funds in the Trust Fund
(plus interest) are available to develop a Comprehensive Plan to
restore the ecosystem and the economy of the Gulf Coast Region. Under
the Spill Impact Component (33 U.S.C. 1321(t)(3)), 30 percent of funds
in the Trust Fund will be disbursed to the five Gulf Coast States
(Alabama, Florida, Louisiana, Mississippi, and Texas) or their
administrative agents based on an allocation formula established by the
Council by regulation based on criteria in the RESTORE Act.
II. Public Comments and Summary of Changes to Final Rule
On February 9, 2015, the Council proposed a draft rule implementing
its obligations to make records available under the Freedom of
Information Act (FOIA) and Privacy Act (PA). 80 FR 6934. The FOIA
regulations govern third-party requests for information controlled by
the Council. The PA regulations govern first-party requests for his or
her own information. The Council provided a public comment period of 30
days and received comments from four separate commenters, three
citizens and one Federal agency. The recommendations contained in the
four comments are summarized below section by section, along with the
Council's responses to the recommendations. The Council also posted all
comments on its Web site, https://www.restorethegulf.gov/, without
change, including any business or personal information provided, such
as names, addresses, email addresses, or telephone numbers. All
comments received are part of the public record and subject to public
disclosure.
Section-by-Section Analysis
Section 1850.1 Purpose and Scope
The agency commenter suggested that the Council include language
clarifying the intersection of FOIA and the PA. The Council accepts
this comment and the suggested language can be found in the last
paragraph of section 1850.1.
Section 1850.2 Definitions
The agency commenter suggested adding three new definitions: FOIA
public liaison, requester category, and fee waiver. The Council accepts
this comment and the definitions can be found at new paragraphs
1850.2(i), (j), and (s).
Section 1850.4 Public Reading Room
One commenter asked whether documents will be placed online for the
public to access without request. The Council is committed to making
documents of interest to the public available online in its public
reading room on its Web site, https://www.restorethegulf.gov. This
commitment is documented in section 1850.4 of these regulations. No
change was made to the regulations in response to this comment.
Section 1850.5 Requirements for Making Requests
The agency commenter suggested that the Council's wording of
paragraph 1850.5(b) where the Council describes its process for
contacting a requester to narrow the scope of a request has a negative
connotation. The agency commenter suggested alternative text that the
Council has incorporated into paragraph 1850.5(b).
The agency commenter also suggested adding two paragraphs to the
end of section 1850.5 to help explain the interaction of the Council's
FOIA and PA regulations and the effect on a request for Council records
pertaining to another individual of submitting proof of death or a
notarized authorization to access records by that individual. The
Council accepts this comment and the paragraphs can be found at new
paragraphs 1850.5(e) and (f).
Section 1850.6 Responding to Records
The agency commenter suggested consistency edits to paragraph
1850.6(a) to keep the terminology of simple and complex track
processing consistent. The Council accepts this comment and the revised
language can be found in paragraph 1850.6(a).
The agency commenter recommended that the Council modify paragraph
1850.6(c)(1) to include a requirement that the Council Records
Management Officer provide the requester with a unique tracking number,
an estimated date of completion (once the request is perfected) and a
fee estimate (when applicable). The agency commenter also suggested
that the Council include in its acknowledgment to the requester a brief
description of the subject of the request to aid both the requester and
the Council in keeping track of multiple
[[Page 29540]]
pending requests. The Council accepts these comments and revised
language can be found in the final two sentences of paragraph
1850.6(c)(1).
The agency commenter recommended that the Council include in the
list of required elements in a denial letter a description of the
exemption(s) applied. The Council accepts this comment and the revised
language can be found at 1850.6(e)(1).
The agency commenter also recommended adding a new subsection to
paragraph 1850.6(e) that addresses requirements under the FOIA to
indicate, if technically feasible, the precise amount of information
deleted at the place in the record where the deletion was made, and to
indicate the exemption under which a deletion is made on the released
portion of the record unless including that information would harm an
interest protected by the exemption. The Council accepts this comment
and the new subsection can be found at 1850.6(e)(3).
One commenter suggested broadening the language of paragraph
1850.6(h) to provide more leeway to respond to a request electronically
rather than only by mail. The Council accepts this comment and
paragraph 1850.6(h) has been modified accordingly.
The same commenter suggested revising subsection 1850.6(h)(3) to
clarify that retrieving data from a database or running a report from a
database is permissible. The Council accepts this comment and
subsection 1850.6(h)(3) has been modified accordingly.
One commenter asked whether records will be transferred to another
agency in the future and how the public will be informed of any such
transfer. Section 1850.6(f) of these regulations discusses the
Council's procedures for referring documents to another agency when
that other agency is the originating agency. Whenever the Council
refers any part of the responsibility for responding to a request to
another agency, it will notify the requester of the referral and inform
the requester of the name of the agency to which the record was
referred, including that agency's FOIA contact information. No change
was made to the regulations in response to this comment.
Section 1850.7 Appeals
One commenter suggested that the Council remove requirements that
an appellant include in his/her appeal a copy of the original request
and the initial determination. The commenter suggested that these
additional requirements are beyond the strict requirements of the
statute and could create unnecessary burdens on potential appellants,
including possibly leading to the rejection of an appeal based on the
failure to include such documentation. The commenter also pointed out
that this sort of requirement is rare among agencies. In the
alternative, the commenter suggested that the Council could include
language encouraging but not requiring the inclusion of such additional
documentation in an appeal. The Council accepts this comment and has
revised section 1850.7(c) to remove this requirement; instead the
Council has included language encouraging submission of the original
request and initial determination when filing an appeal. The Council is
also clarifying in section 1850.7(c) that the appellant may submit as
much or as little information as he/she wishes, so long as the
determination that is being appealed is clearly identified.
The agency commenter suggested that the Council amend section
1850.7 to add language discussing the Office of Government Information
Services (OGIS) and the services provided by that office. The Council
accepts this comment and has added a new paragraph (3) to section
1850.7(f) that contains language recommended by the commenter and the
Department of Justice's Office of Information Policy. See https://www.justice.gov/oip/blog/foia-post-2010-oip-guidance-notifying-requesters-mediation-services-offered-ogis.
Section 1850.9 Maintenance of Files
The agency commenter suggested including language explaining how
long the Council will retain records related to FOIA requests and why.
The agency commenter also suggested clarifying that material responsive
to a FOIA request may not be disposed of or destroyed while the request
or related appeal or lawsuit is pending even if otherwise authorized
for disposition under an approved records retention schedule. The
Council accepts this comment and new language was incorporated into
1850.9.
One commenter asked whether Council record schedules will be clear
for the public to understand. While these regulations do not establish
any record retention schedules, the Council does endeavor to make all
its regulations and internal processes clear to the public. At this
time the Council uses the government-wide record retention schedules
promulgated by the National Archives and Records Administration (https://www.archives.gov/records-mgmt/grs.html). No change was made to the
regulations in response to this comment.
Section 1850.10 Fees
One commenter noted that the rate the Council intends to charge as
a fee when conducting reviews of records includes the actual salary
rate of the employee involved plus 16 percent to cover benefits and
wondered whether this was affordable for most U.S. citizens. The review
fee is only applicable to commercial use requests so most individual
U.S. citizens would not be subject to the fee. See section
1850.10(b)(4). Further, the FOIA directs agencies to develop fee
schedules that reflect direct costs of search, duplication, or review.
The Council's review fee rate is based on the actual time an employee
spends reviewing documents potentially responsive to a request. These
costs include salary and attendant benefits. The Council has calculated
that 16 percent reasonably represents the benefit costs of its
employees. No change was made to the regulations in response to this
comment.
One commenter asked whether the Council would charge fees if the
Council does not process the FOIA request in a timely manner.
Consistent with 5 U.S.C. 552(a)(4)(viii), no search fee will be charged
to a requester if the Council does not comply with the statutory time
limits of the FOIA (5 U.S.C. 552(a)(6)) unless unusual or exceptional
circumstances apply to the processing of the request. Further, no
duplication fees will be charged to requesters in the fee category of a
representative of the news media or an educational or noncommercial
scientific institution when the Council does not comply with the
statutory time limits of the FOIA (5 U.S.C. 552(a)(6)) unless unusual
or exceptional circumstances apply to the processing of the request.
Language related to not charging fees in this these circumstances is
already included at section 1850.10(b)(5)(vi) and (vii). No change was
made to the regulations in response to this comment.
Other
The Council also received one comment that expressed general
support for the proposed regulations and noted that the regulations
strike a balance between permitting access to government records and
protecting potentially national security information. No change was
made to the regulations in response to this comment.
In addition to the modifications discussed above, the Council has
made minor formatting changes and corrected typographical errors in the
zip code for the Council, the citation for one of the
[[Page 29541]]
authorities under which the Council is issuing this rule, and an
internal cross-reference in section 1850.6(f).
After considering public comments, the Council now issues the
regulations as a final rule. The rule will take effect on June 22,
2015.
III. Procedural Requirements
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally
requires agencies to prepare a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements under the
Administrative Procedure Act or any other statute, unless the agency
certifies that this Interim Final Rule will not have a significant
economic impact on a substantial number of small entities. The Council
hereby certifies that this rule will 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 requesters. Thus, the fees
the Council assesses are typically nominal. Further, the number of
``small entities'' that make FOIA requests is relatively small compared
to the number of individuals who make such requests.
B. Paperwork Reduction Act
This rule does not contain a ``collection of information'' as
defined by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)).
C. Regulatory Planning and Review (Executive Orders 12866 and 13563)
As an independent federal entity that is composed of, in part, six
federal agencies, including the Departments of Agriculture, Army,
Commerce, and Interior, the Department in which the Coast Guard is
operating, and the Environmental Protection Agency, the requirements of
Executive Orders 12866 and 13563 are inapplicable to this rule.
List of Subjects in 40 CFR Part 1850
Administrative practice and procedure, Freedom of Information,
Privacy, Public information, Classified information.
For the reasons set forth in the preamble, the Gulf Coast Ecosystem
Restoration Council adds part 1850 to 40 CFR chapter VIII, to read as
follows:
PART 1850--AVAILABILITY OF RECORDS
Sec.
Subpart A--Production or Disclosure Under the Freedom of Information
Act
1850.1 Purpose and scope.
1850.2 Definitions.
1850.3 General provisions.
1850.4 Public reading room.
1850.5 Requirements for making requests.
1850.6 Responding to requests.
1850.7 Appeals.
1850.8 Authority to determine.
1850.9 Maintenance of files.
1850.10 Fees.
1850.11 Requests for confidential treatment of business information.
1850.12 Requests for access to confidential commercial or financial
information.
1850.13 Classified information.
Subpart B--Production or Disclosure Under the Privacy Act
1850.31 Purpose and scope.
1850.32 Definitions.
1850.33 Procedures for requests pertaining to individual records in
a record system.
1850.34 Times, places, and requirements for identification of
individuals making requests.
1850.35 Disclosure of requested information to individuals.
1850.36 Special procedures: Medical records.
1850.37 Request for correction or amendment to record.
1850.38 Council review of request for correction or amendment to
record.
1850.39 Appeal of initial adverse agency determination on correction
or amendment.
1850.40 Disclosure of record to person other than the individual to
whom it pertains.
1850.41 Fees.
1850.42 Penalties.
Authority: 33 U.S.C. 1321(t); 5 U.S.C. 552; 5 U.S.C. 552a.
Subpart A--Production or Disclosure Under the Freedom of
Information Act
Sec. 1850.1 Purpose and scope.
This subpart contains the regulations of the Gulf Coast Ecosystem
Restoration Council (Council) implementing the Freedom of Information
Act (FOIA) (5 U.S.C. 552), as amended. These regulations supplement the
FOIA, which provides more detail regarding requesters' rights and the
records the Council may release.
The regulations of this subpart provide information concerning the
procedures by which records may be obtained from the Council. Official
records of the Council made available pursuant to the requirements of
the FOIA shall be furnished to members of the public only as prescribed
by this subpart. Information routinely provided to the public as part
of a regular Council activity (for example, press releases) may be
provided to the public without following this subpart.
The FOIA applies to third-party requests for documents concerning
the general activities of the Government, and of the Council in
particular. When a U.S. citizen or an individual lawfully admitted for
permanent residence requests access to his or her own records, he/she
is making a first-person Privacy Act request, not a FOIA request,
subject to subpart B of these rules. The Council maintains records
about individuals under the individual's name or personal identifier.
Although the Council determines whether a request is a FOIA request or
a Privacy Act request, the Council processes requests in accordance
with both laws. This provides the greatest degree of lawful access to
requesters while safeguarding individuals' personal privacy.
Sec. 1850.2 Definitions.
(a) Commercial Use Request means a request from or on behalf of one
who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is made.
(b) Confidential Commercial Information means commercial or
financial information, obtained by the Council from a submitter, that
may contain information exempt from release under Exemption 4 of FOIA,
5 U.S.C. 552(b)(4).
(c) Council means to the Gulf Coast Ecosystem Restoration Council.
(d) Days, unless stated as ``calendar days,'' are business days and
do not include Saturday, Sunday, or federal holidays.
(e) Direct costs means those expenses the Council actually incurs
in searching for and duplicating (and, in the case of commercial
requesters, reviewing) documents in response to a request made under
Sec. 1850.5. Direct costs include, for example, the labor costs 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 duplicating machinery. Not included in direct costs are
overhead expenses such as costs of space and heating or lighting of the
facility in which the documents are stored.
(f) Duplication means the making a copy of a document, or other
information contained in it, necessary to respond to a FOIA request.
Copies may take the form of paper, microfilm, audio-visual materials,
or electronic records, among others. The Council shall honor a
requester's specified preference of form or format of disclosure if the
record is readily
[[Page 29542]]
reproducible with reasonable efforts in the requested form or format.
(g) Educational institution means a preschool, a public or private
elementary or secondary school, or an institution of undergraduate
higher education, graduate higher education, professional education, or
an institution of vocational education that operates a program of
scholarly research.
(h) Fee category means one of the three categories that agencies
place requesters in for the purpose of determining whether a requester
will be charged fees for search, review and duplication. The three fee
categories are:
(1) Commercial requesters;
(2) Non-commercial scientific or educational institutions or news
media requesters; and
(3) All other requesters.
(i) Fee waiver means the waiver or reduction of processing fees if
a requester can demonstrate that certain statutory standards are
satisfied, including that the information is in the public interest and
is not requested for a commercial interest.
(j) FOIA Public Liaison means an agency official who is responsible
for assisting in reducing delays, increasing transparency and
understanding of the status of requests, and assisting in the
resolution of disputes.
(k) News means information about current events or that would be of
current interest to the public.
(l) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis (as that term is used in this
section) and which is operated solely for the purpose of conducting
scientific research, the results of which are not intended to promote
any particular product or industry.
(m) Perfected request means a written FOIA request that meets all
of the criteria set forth in Sec. 1850.5.
(n) Reading room means a location where records are available for
review pursuant to 5 U.S.C. 552(a)(2).
(o) Records under the FOIA include all Government records,
regardless of format, medium or physical characteristics, and
electronic records and information, audiotapes, videotapes, Compact
Disks, DVDs, and photographs.
(p) Records Management Officer means the person designated by the
Executive Director of the Council to oversee all aspects of the
Council's records management program, including FOIA.
(q) Representative of the news media, or news media requester,
means any person or entity organized and operated to publish or
broadcast news to the public that actively 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
the work to an audience. Examples of news-media entities are television
or radio stations broadcasting to the public at large, and publishers
of periodicals that disseminate ``news'' and make their products
available through a variety of means to the general public including
news organizations that disseminate solely on the Internet. To be in
this category, a requester must not be seeking the requested records
for a commercial use. A request for records that supports the news-
dissemination function of the requester shall not be considered to be
for a commercial use. 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 be the clearest proof, but the Council shall also look
to the past publication record of a requester in making this
determination. The Council's decision to grant a requester media status
will be made on a case-by-case basis based upon the requester's
intended use of the material.
(r) Requester means any person, partnership, corporation,
association, or foreign or State or local government, which has made a
request to access a Council record under FOIA.
(s) Requester category means one of the three categories in which
agencies place requesters to determine whether the agency will charge a
requester fees for search, review, and duplication. The categories
include commercial requesters, non-commercial scientific or educational
institutions or news media requesters, and all other requesters.
(t) 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. Review time includes processing any record for
disclosure, such as doing all that is necessary to prepare the record
for disclosure, including the process of redacting it and marking any
applicable exemptions. Review costs are recoverable even if a record
ultimately is not disclosed. Review time includes time spent obtaining
and considering any formal objection to disclosure made by a business
submitter under Sec. 1850.12 but does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
(u) Search means the process of looking for and retrieving
documents or information that is responsive to a request. Search time
includes page-by-page or line-by-line identification of information
within documents and also includes reasonable efforts to locate and
retrieve information from records maintained in electronic form or
format.
(v) Submitter means any person or entity from whom the Council
obtains confidential commercial information, directly or indirectly.
(w) Unusual circumstances include situations in which the Council
must:
(1) Search for and collect the requested agency records from field
facilities or other establishments that are separate from the office
processing the request;
(2) Search for, collect, and appropriately examine a voluminous
amount of separate and distinct records that are the subject of a
single request; or
(3) Consult with another Federal agency having a substantial
interest in the determination of the FOIA request.
Sec. 1850.3 General provisions.
The Council shall prepare an annual report to the Attorney General
of the United States regarding its FOIA activities in accordance with 5
U.S.C. 552(e).
Sec. 1850.4 Public reading room.
The Council maintains an electronic public reading room on its Web
site, https://www.restorethegulf.gov, which contains the records FOIA
requires the Council to make available for public inspection and
copying, as well as additional records of interest to the public.
Sec. 1850.5 Requirements for making requests.
(a) Type of records made available. The Council shall make
available upon request, pursuant to the procedures in this section and
subject to the exceptions set forth in FOIA, all records of the Council
that are not available under Sec. 1850.4. The Council's policy is to
make discretionary disclosures of records or information otherwise
exempt from disclosure under FOIA unless the Council reasonably
foresees that such disclosure would harm an interest protected by one
or more FOIA exemptions, or otherwise prohibited by law. This policy
does not create any enforceable right in court.
(b) Procedures for requesting records. A request for records shall
reasonably describe the records in a way that enables Council staff to
identify and produce the records with reasonable effort. The requester
should include as much specific information as possible regarding
dates, titles, and names of
[[Page 29543]]
individuals. In cases where the request requires production of
voluminous records, or is not reasonably described, a Council
representative may suggest the requester, or the individual acting on
the requester's behalf, to verify the scope of the request and, if
possible, narrow the request. Once narrowed, the Council will process
the request. All requests must be submitted in writing (including by
email, fax or mail) to the Council's Records Management Officer.
Requesters shall clearly mark a request as a ``Freedom of Information
Act Request'' or ``FOIA Request'' on the front of the envelope or in
the subject line of the email.
(c) Contents of request. The request, at minimum, shall contain the
following information:
(1) The name, telephone number, and non-electronic address of the
requester;
(2) Whether the requested information is intended for commercial
use, or whether the requester represents an education or noncommercial
scientific institution, or news media; and
(3) A statement agreeing to pay the applicable fees, identifying
any fee limitation desired, or requesting a waiver or reduction of fees
that satisfies Sec. 1850.10(j)(1) to (3).
(d) Perfected requests. The requester must meet all the
requirements in this section to perfect a request. The Council will
only process perfected requests.
(e) Requests by an individual for Council records pertaining to
that individual. An individual who wishes to inspect or obtain copies
of Council records that pertain to that individual must file a request
in accordance with subpart B of this part.
(f) Requests for Council records pertaining to another individual.
Where a request for records pertains to a third party, a requester may
receive greater access by submitting a notarized authorization signed
by that individual or a declaration by that individual made in
compliance with the requirements set forth in 28 U.S.C. 1746,
authorizing disclosure of the records to the requester, or by
submitting proof the individual is deceased (e.g. a copy of the death
certificate or an obituary). The Council may require a requester to
supply additional information if necessary to verify that a particular
individual has consented to disclosure.
(g) Requesters may submit a request for records, expedited
processing or waiver of fees by writing directly to the Records
Management Officer via email at FOIArequest@restorethegulf.gov, or
first class United States mail at 500 Poydras Street, Suite 1117, New
Orleans, LA 70130.
(h) Any Council officer or employee who receives a written Freedom
of Information Act request shall promptly forward it to the Records
Management Officer. Any Council officer or employee who receives an
oral request under the Freedom of Information Act shall inform the
person making the request that it must be in writing and also inform
such person of the provisions of this subpart.
Sec. 1850.6 Responding to requests.
(a) Receipt and processing. The date of receipt for any request,
including one that is addressed incorrectly or that is referred to the
Council by another agency, is the date the Council actually receives
the request. The Council normally will process requests in the order
they are received. However, in the Records Management Officer's
discretion, the Council may use two or more processing tracks by
distinguishing between simple and more complex requests based on the
number of pages involved, or some other measure of the amount of work
and/or time needed to process the request, and whether the request
qualifies for expedited processing as defined by paragraph (d) of this
section. When using multi-track processing, the Records Management
Officer may provide requesters in the complex track(s) with an
opportunity to limit the scope of their requests to qualify for the
simple track and faster processing.
(b) Authorization. The Records Management Officer and other persons
designated by the Council's Executive Director are solely authorized to
grant or deny any request for Council records.
(c) Timing. (1) When a requester submits a request in accordance
with Sec. 1850.5, the Records Management Officer shall inform the
requester of the determination concerning that request within 20 days
from receipt of the request, unless ``unusual circumstances'' exist, as
defined in Sec. 1850.2(w). The Records Management Officer also shall
provide requesters with a unique tracking number, an estimated date of
completion (once the request is perfected), and a fee estimate (when
applicable). The Records Management Officer shall also include in the
Council's acknowledgment letter a brief description of the subject of
the request.
(2) When additional time is required as a result of ``unusual
circumstances,'' as defined in Sec. 1850.2(w), the Records Management
Officer shall, within the statutory 20 day period, issue to the
requester a brief written statement of the reason for the delay and an
indication of the date on which it is expected that a determination as
to disclosure will be forthcoming. If more than 10 additional days are
needed, the requester shall be notified and provided an opportunity to
limit the scope of the request or to arrange for an alternate time
frame for processing the request.
(3) The Council may toll the statutory time period to issue its
determination on a FOIA request one time during the processing of the
request to obtain clarification from the requester. The statutory time
period to issue the determination on disclosure is tolled until the
Council receives the information reasonably requested from the
requester. The Council may also toll the statutory time period to issue
the determination to clarify with the requester issues regarding fees.
There is no limit on the number of times the agency may request
clarifying fee information from the requester.
(d) Expedited processing. (1) A requester may request expedited
processing by submitting a statement, certified to be true and correct
to the best of that person's knowledge and belief, that demonstrates a
compelling need for records, as defined in 5 U.S.C. 552(a)(6)(E)(v).
(2) The Records Management Officer will notify a requester of the
determination to grant or deny a request for expedited processing
within ten days of receipt of the request. If the Records Management
Officer grants the request for expedited processing, the Council staff
shall process the request as soon as practicable subject to Sec.
1850.10(d) and (e). If the Records Management Officer denies the
request for expedited processing, the requester may file an appeal in
accordance with the process described in Sec. 1850.7.
(3) The Council staff will give expedited treatment to a request
when the Records Management Officer determines the requester has
established one of the following:
(i) Circumstances in which the lack of expedited treatment
reasonably could be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by an individual primarily engaged
in disseminating information;
(iii) The loss of substantial due process rights;
(iv) A matter of widespread and exceptional media interest raising
possible questions about the Federal government's integrity which
affects public confidence; or
(4) These procedures for expedited processing also apply to
requests for
[[Page 29544]]
expedited processing of administrative appeals.
(e) Denials. If the Records Management Officer denies the request
in whole or part, the Records Management Officer will inform the
requester in writing and include the following:
(1) A brief statement of the reason(s) for the denial, including
applicable FOIA exemption(s) and a description of those exemptions;
(2) An estimate of the volume of records or information withheld;
(3) If technically feasible, the precise amount of information
deleted at the place in the record where the deletion was made, and the
exemption under which a deletion is made on the released portion of the
record, unless including that information would harm an interest
protected by the exemption;
(4) The name and title or position of the person responsible for
the denial of the request;
(5) The requester's right to appeal any such denial and the title
and address of the official to whom such appeal is to be addressed; and
(6) The requirement that the appeal be received within 45 days of
the date of the denial.
(f) Referrals to another agency. (1) When the Council receives a
request for a record (or a portion thereof) in its possession that
originated with another Federal agency subject to the FOIA, the Council
shall, except as provided in paragraph (f)(4) of this section, refer
the record to that agency for direct response to the requester.
However, if the Council and the originating agency jointly agree that
the Council is in the best position to respond regarding the record,
then the record may be handled as a consultation.
(2) Whenever the Council refers any part of the responsibility for
responding to a request to another agency, it shall document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral and inform the requester of the name of the
agency to which the record was referred, including that agency's FOIA
contact information.
(3) The Council's response to an appeal will advise the requester
that the 2007 FOIA amendments created the Office of Government
Information Services (OGIS) to offer mediation services to resolve
disputes between FOIA requesters and Federal agencies as a non-
exclusive alternative to litigation. A requester may contact OGIS in
any of the following ways: Office of Government Information Services,
National Archives and Records Administration, 8601 Adelphi Road--OGIS,
College Park, MD 20740, ogis.archives.gov, Email: ogis@nara.gov,
Telephone: 202-741-5770, Facsimile: 202-741-5769, Toll-free: 1-877-684-
6448.
(4) The referral procedure is not appropriate where disclosure of
the identity of the agency, typically a law enforcement agency or
Intelligence Community agency, to which the referral would be made
could harm an interest protected by an applicable exemption, such as
the exemptions that protect personal privacy and national security
interests. In such instances, in order to avoid harm to an interest
protected by an applicable exemption, the Council shall coordinate with
the originating agency to seek its views on the disclosability of the
record. The release determination for the record that is the subject of
the coordination shall then be conveyed to the requester by the
Council.
(g) Consulting with another agency. In instances where a record is
requested that originated with the Council and another agency has a
significant interest in the record (or a portion thereof), the Council
shall consult with that agency before responding to a requester. When
the Council receives a request for a record (or a portion thereof) in
its possession that originated with another agency that is not subject
to the FOIA, the Council shall consult with that agency before
responding to the requester.
(h) Providing responsive records. (1) Council staff shall send a
copy of records or portions of records responsive to the request to the
requester by regular United States mail to the address indicated in the
request or by email to the email address provided by the requester,
unless the requester makes other acceptable arrangements or the Council
deems it appropriate to send the records by other means. The Council
shall provide a copy of the record in any form or format requested if
the record is readily reproducible in that form or format. The Council
need not provide more than one copy of any record to a requester.
(2) The Records Management Officer shall provide any reasonably
segregable portion of a record that is responsive to the request after
redacting those portions that are exempt under FOIA or this section.
(3) The Council is not required to create, compile, prepare or
obtain from outside the Council a record to satisfy a request.
Retrieving data from a Council database or running a report from a
database is permissible.
(i) Prohibition against disclosure. Except as provided in this
subpart, no member or employee of the Council shall disclose or permit
the disclosure of any non-public information of the Council to any
person (other than Council members, employees, or agents properly
entitled to such information for the performance of their official
duties), unless required by law to do so.
Sec. 1850.7 Appeals.
(a) Requesters may administratively appeal an adverse determination
regarding a request by writing directly to the General Counsel via
email at GeneralCounsel@restorethegulf.gov or first class United States
mail at 500 Poydras Street, Suite 1117, New Orleans, LA 70130.
Administrative appeals sent to other individuals or addresses are not
considered perfected. An adverse determination is a denial of a request
and includes decisions that: The requested record is exempt, in whole
or in part; the information requested is not a record subject to the
FOIA; the requested record does not exist, cannot be located, or has
previously been destroyed; or the requested record is not readily
reproducible in the form or format sought by the requester. Adverse
determinations also include denials involving fees or fee waiver
matters or denials of requests for expedited processing.
(b) FOIA administrative appeals must be in writing and should
contain the phrase ``FOIA Appeal'' on the front of the envelope or in
the subject line of the electronic mail.
(c) Appellants are encouraged to include a copy of the original
request and the initial denial (if any) in the appeal. The appeal
letter may include as much or as little related information as the
appellant wishes, as long as it clearly identifies the component
determination (including the assigned request number, if known) that is
being appealed.
(d) Requesters submitting an administrative appeal of an adverse
determination must ensure that the Council receives the appeal within
45 days of the date of the denial letter.
(e) Upon receipt of an administrative appeal, Council staff shall
inform the requester within 20 days of the determination on that
appeal.
(f) The determination on an appeal shall be in writing and, when it
denies the appeal, in whole or in part, the letter to the requester
shall include:
(1) A brief explanation of the basis for the denial, including a
list of the applicable FOIA exemptions and a description of how they
apply;
(2) A statement that the decision is final for the Council;
[[Page 29545]]
(3) Notification that judicial review of the denial is available in
the district court of the United States in the district in which the
requester resides, or has his or her principal place of business, or in
which the agency records are located, or in the District of Columbia;
and
(4) The name and title or position of the official responsible for
denying the appeal.
Sec. 1850.8 Authority to determine.
The Records Management Officer or Council Executive Director, when
receiving a request pursuant to these regulations, shall grant or deny
such request. That decision shall be final, subject only to
administrative appeal as provided in Sec. 1850.7. The Council General
Counsel shall deny or grant an administrative appeal requested under
Sec. 1850.7.
Sec. 1850.9 Maintenance of files.
The Records Management Officer shall maintain files containing all
material required to be retained by or furnished to them under this
subpart. The Council shall preserve all correspondence pertaining to
the FOIA requests that it receives, as well as copies of all requested
records, until a General Records Schedule (GRS) published by the
National Archives and Records Administration (NARA) or another NARA-
approved records schedule authorizes the office to dispose of or
destroy the records. All materials identified as responsive to a FOIA
request will be retained while the request or a related appeal or
lawsuit is pending even otherwise authorized for disposal or
destruction under a GRS or other NARA-approved records schedule. The
material shall be filed by a unique tracking number.
Sec. 1850.10 Fees.
(a) Generally. Except as provided elsewhere in this section, the
Records Management Officer shall assess fees where applicable in
accordance with this section for search, review, and duplication of
records requested. The Records Management Officer shall also have
authority to furnish documents without any charge or at a reduced
charge if disclosure of the information is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is
not primarily in the commercial interest of the requester.
(b)(1) Fee schedule; waiver of fees. The fees applicable to a
request for Council records pursuant to Sec. 1850.5 are set forth in
the following uniform fee schedule:
------------------------------------------------------------------------
Service Rate
------------------------------------------------------------------------
(i) Manual search...................... Actual salary rate of employee
involved, plus 16 percent of
salary rate to cover benefits.
(ii) Computerized search............... Actual direct cost, including
operator time.
(iii) Duplication of records:
(A) Paper copy reproduction........ $0.05 per page.
(B) Other reproduction (e.g., Actual direct cost, including
computer disk or printout, operator time.
microfilm, microfiche, or
microform).
(iv) Review of records (including Actual salary rate of employee
redaction). involved, plus 16 percent of
salary rate to cover benefits.
------------------------------------------------------------------------
(2) Search. (i) The Council shall charge search fees for all
requests, subject to the limitations of paragraph (b)(5) of this
section. The Records Management Officer shall charge for time spent
searching for responsive records, even if no responsive record is
located or if the Records Management Officer withholds records located
as entirely exempt from disclosure. Search fees shall equal the direct
costs of conducting the search by the Council employee involved, plus
16 percent of the salary rate to cover benefits.
(ii) For computer searches of records, the Council will charge
requesters the direct costs of conducting the search. In accordance
with paragraph (f) of this section, however, the Council will charge
certain requesters no search fee and certain other requesters are
entitled to the cost equivalent of two hours of manual search time
without charge. These direct costs include the costs attributable to
the salary of an operator/programmer performing a computer search.
(3) Duplication. The Council will charge duplication fees to all
requesters, subject to the limitations of paragraph (b)(5) of this
section. The fee for a paper photocopy of a record (no more than one
copy of which need be supplied) is 5 cents per page. The Records
Management Officer will charge the requester for the direct costs,
including operator time, of making copies produced by computer, such as
tapes or printouts. The Records Management Officer will charge a
requester the direct costs of providing other forms of duplication.
(4) Review. The Council will charge review fees to requesters who
make a commercial use request. Review fees generally are limited to the
initial record review, i.e., the review done when the Records
Management Officer determines whether an exemption applies to a
particular record at the initial request level. The Council will not
charge a requester for additional review at the administrative appeal
level. Review fees consist of the direct costs of conducting the review
by the Council employee involved, plus 16 percent of the salary rate to
cover benefits.
(5) Limitations on charging fees. (i) The Council will not charge a
search fee for requests from educational institutions, noncommercial
scientific institutions, or representatives of the news media.
(ii) The Council will not charge a search fee or review fee for a
quarter-hour period unless more than half of that period is required
for search or review.
(iii) The Council will not charge a fee to a requester whenever the
total fee calculated under this paragraph is $25 or less for the
request.
(iv) Except for requesters seeking records for a commercial use,
the Council will provide without charge the first 100 pages of
duplication (or the cost equivalent) and the first two hours of search.
(v) The provisions of paragraphs (b)(5)(iii) and (iv) of this
section work together. This means that for requesters other than those
seeking records for a commercial use, no fee shall be charged unless
the cost of search is in excess of two hours plus the cost of
duplication in excess of 100 pages totals more than $25.
(vi) No search fees shall be charged to a requester when the
Council does not comply with the statutory time limits at 5 U.S.C.
552(a)(6) in which to respond to a request, unless unusual or
exceptional circumstances (as those terms are defined by the FOIA)
apply to the processing of the request.
[[Page 29546]]
(vii) No duplication fees shall be charged to requesters in the fee
category of a representative of the news media or an educational or
noncommercial scientific institution when the Council does not comply
with the statutory time limits at 5 U.S.C. 552(a)(6) in which to
respond to a request, unless unusual or exceptional circumstances (as
those terms are defined by the FOIA) apply to the processing of the
request.
(c) Payment procedures. All requesters shall pay the applicable fee
before the Council sends copies of the requested records, unless the
Records Management Official grants a fee waiver. Requesters must pay
fees by check or money order made payable to the ``Treasury of the
United States.'' Checks and money orders should be mailed to 500
Poydras Street, Suite 1117, New Orleans, LA 70130.
(d) Advance notification of fees. If the estimated charges exceed
$25, the Records Management Officer shall notify the requester of the
estimated amount, unless the requester has indicated a willingness to
pay fees as high as those anticipated. Upon receipt of such notice, the
requester may confer with the Records Management Officer to reformulate
the request to lower the costs. Council staff shall suspend processing
the request until the requester provides the Records Management Officer
with a written guarantee that the requester will make payment upon
completion of processing (i.e., upon completion of the search, review
and duplication, but prior the Council sending copies of the requested
records to the requester).
(e) Advance payment. The Records Management Officer shall require
advance payment of any fee estimated to exceed $250. The Records
Management Officer also shall require full payment in advance where a
requester has previously failed to pay a fee in a timely fashion. If an
advance payment of an estimated fee exceeds the actual total fee by $1
or more, the Council shall refund the difference to the requester. The
Council shall suspend the processing of the request and the statutory
time period for responding to the request until the Records Management
Officer receives the required payment.
(f) Categories of uses. The fees assessed depend upon the fee
category. In determining which category is appropriate, the Records
Management Officer shall look to the identity of the requester and the
intended use set forth in the request for records. Where a requester's
description of the use is insufficient to make a determination, the
Records Management Officer may seek additional clarification before
categorizing the request.
(1) Commercial use requester: The fees for search, duplication, and
review apply.
(2) Educational institutions, non-commercial scientific
institutions, or representatives of the news media requesters: The fees
for duplication apply. The Council will provide the first 100 pages of
duplication free of charge.
(3) All other requesters: The fees for search and duplication
apply. The Council will provide the first two hours of search time and
the first 100 pages of duplication free of charge.
------------------------------------------------------------------------
Category Chargeable fees
------------------------------------------------------------------------
(i) Commercial Use Requesters.......... Search, Review, and
Duplication.
(ii) Education and Non-commercial Duplication (excluding the cost
Scientific Institution Requesters. of the first 100 pages).
(iii) Representatives of the News Media Duplication (excluding the cost
of the first 100 pages).
(iv) All Other Requesters.............. Search and Duplication
(excluding the cost of the
first 2 hours of search and
first 100 pages of
duplication).
------------------------------------------------------------------------
(g) Nonproductive search. The Council may charge fees for search
even if no responsive documents are found.
(h) Interest charges. The Records Management Officer may assess
interest charges on any unpaid bill starting on the 31st calendar day
following the date the Council sent the bill to the requester. The
Council will charge interest at the rate prescribed in 31 U.S.C. 3717
on fees payable in accordance with this section. The Council will
follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-
365, 96 Stat. 1749), as amended, and its administrative procedures,
including the use of consumer reporting agencies, collection agencies,
and offset.
(i) Aggregated requests. A requester may not file multiple requests
at the same time solely in order to avoid payment of fees. If the
Council reasonably believes that a request, or a group of requesters
acting in concert, is attempting to break down a request into a series
of requests for the purpose of evading the assessment of fees, the
Council may aggregate any such requests and charge accordingly. The
Records Management Officer may reasonably presume that one requester
making multiple requests on the same topic within a 30-day period has
done so to avoid fees.
(j) Waiver or reduction of fees. To seek a waiver, a requester
shall include the request for waiver or reduction of fees, and the
justification for such based on the factors set forth in this
paragraph, with the request for records to which it pertains. If a
requester requests a waiver or reduction and has not indicated in
writing an agreement to pay the applicable fees, the time for
responding to the request for Council records shall not begin until the
Records Management Officer makes a determination regarding the request
for a waiver or reduction of fees.
(1) Records responsive to a request shall be furnished without
charge, or at a reduced rate below that established in paragraph (b) of
this section, where the Council determines, after consideration of 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) In deciding whether 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, the Council 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. The
disclosure
[[Page 29547]]
of information that already is in the public domain, in either the same
or a substantially identical form, would not be likely to contribute to
such an understanding.
(iii) The contribution to an understanding of the subject by the
public: Whether disclosure of the requested information will 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 as well
as his or her ability and intention to effectively convey information
to the public shall be considered. It shall be presumed that a
representative of the news media will satisfy this consideration.
Merely providing information to media sources is insufficient to
satisfy 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 prior to disclosure
must be significantly enhanced by the disclosure.
(3) To determine whether disclosure of the requested information is
primarily in the commercial interest of the requester, the Council 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 Council shall consider any commercial
interest of the requester (with reference to the definition of
``commercial use request'' in Sec. 1850.2(b)), or of any person on
whose behalf the requester may be acting, that would be furthered by
the requested disclosure. Requesters shall be given an opportunity to
provide explanatory information regarding this consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently great, in
comparison with the public interest in disclosure, that disclosure if
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified if the public interest standard (paragraph
(j)(1)(i) of this section) is satisfied and the public interest is
greater than any identified commercial interest in disclosure. The
Council shall presume that if a news media requester has satisfied the
public interest standard, the public interest is the primary interest
served by disclosure to that requester. Disclosure to data brokers or
others who merely compile and market Government information for direct
economic return shall not be presumed to primarily serve the public
interest.
(4) A request for a waiver or reduction of fees shall include a
clear statement of how the request satisfies the criteria set forth in
paragraphs (j)(2) and (3) of this section, insofar as they apply to
each request. The burden shall be on the requester to present evidence
or information in support of a request for a waiver or reduction of
fees.
(5) Where only some of the records to be released satisfy the
requirements for a fee waiver, a waiver shall be granted for those
records.
(6) The Records Management Officer shall make a determination on
the request for a waiver or reduction of fees and shall notify the
requester accordingly. A denial may be appealed to the General Counsel
in accordance with Sec. 1850.7.
Sec. 1850.11 Requests for confidential treatment of business
information.
(a) Submission of request. Any submitter of information to the
Council who desires confidential treatment of business information
pursuant to 5 U.S.C. 552(b)(4) shall file a request for confidential
treatment with the Council at the time the information is submitted or
within a reasonable time after submission. These designations will
expire ten years after the date of submission unless the submitter
requests, and provides justification for, a longer period.
(b) Form of request. Each request for confidential treatment of
business information shall state in reasonable detail the facts
supporting the commercial or financial nature of the business
information and the legal justification under which the business
information should be protected. Conclusory statements indicating that
release of the information would cause competitive harm generally are
not sufficient to justify confidential treatment.
(c) Designation and separation of confidential material. A
submitter shall clearly mark all information it considers confidential
as ``PROPRIETARY'' or ``BUSINESS CONFIDENTIAL'' in the submission and
shall separate information so marked from other information submitted.
Failure by the submitter to segregate confidential commercial or
financial information from other material may result in release of the
nonsegregated material to the public without notice to the submitter.
Sec. 1850.12 Requests for access to confidential commercial or
financial information.
(a) Notice to submitters. The Council shall provide a submitter
with prompt notice of a FOIA request or administrative appeal that
seeks its business information whenever required under paragraph (b) of
this section, except as provided in paragraph (e) of this section, in
order to give the submitter an opportunity under paragraph (c) of this
section to object to disclosure of any specified portion of that
information. The notice shall either describe the business information
requested or include copies of the requested records containing the
information. If notification of a large number of submitters is
required, notification may be made by posting or publishing the notice
in a place reasonably likely to accomplish notification.
(b) When notice is required. Notice shall be given to the submitter
whenever:
(1) The submitter has designated the information in good faith as
protected from disclosure under FOIA exemption (b)(4); or
(2) The Council has reason to believe that the information may be
protected from disclosure under FOIA exemption (b)(4).
(c) Opportunity to object to disclosure. The Council shall allow a
submitter seven days from the date of receipt of the written notice
described in paragraph (a) of this section to provide the Council with
a statement of any objection to disclosure. The statement must identify
any portions of the information the submitter requests to be withheld
under FOIA exemption (b)(4), and describe how each qualifies for
protection under the exemption: That is, why the information is a trade
secret, or commercial or financial information that is privileged or
confidential. If a submitter fails to respond to the notice within the
time frame specified, the submitter will be considered to have no
objection to disclosure of the information. Information a submitter
provides under this paragraph may itself be subject to disclosure under
the FOIA.
(d) Notice of intent to disclose. The Council shall consider a
submitter's objections and specific grounds under the FOIA for
nondisclosure in deciding whether to disclose business information. If
the Council decides to disclose business information over a submitter's
objection, the Council shall give the submitter written notice via
certified mail, return receipt requested, or similar means, which shall
include:
[[Page 29548]]
(1) A statement of reason(s) why the submitter's objections to
disclosure were not sustained;
(2) A description of the business information to be disclosed; and
(3) A statement that the Council intends to disclose the
information seven days from the date the submitter receives the notice.
(e) Exceptions to notice requirements. The notice requirements of
paragraphs (a) and (d) of this section shall not apply if:
(1) The Council determines that the information is exempt and will
be withheld under a FOIA exemption, other than exemption (b)(4);
(2) The information has been lawfully 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 Executive
Order 12600; or
(4) The designation made by the submitter under this section or
Sec. 1850.11 appears obviously frivolous, except that, in such a case,
the Council shall provide the submitter written notice of any final
decision to disclose the information seven days from the date the
submitter receives the notice.
(f) Notice to requester. The Council shall notify a requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
(g) Notice of lawsuits. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, the Council shall promptly notify the submitter.
Sec. 1850.13 Classified information.
In processing a request for information classified under Executive
Order 13526 or any other Executive Order concerning the classification
of records, the information shall be reviewed to determine whether it
should remain classified. Ordinarily the Council or other Federal
agency that classified the information should conduct the review,
except that if a record contains information that has been derivatively
classified by the Council because it contains information classified by
another agency, the Council shall refer the responsibility for
responding to the request to the agency that classified the underlying
information. Information determined to no longer require classification
shall not be withheld on the basis of FOIA exemption (b)(1) (5 U.S.C.
552(b)(1)), but should be reviewed to assess whether any other FOIA
exemption should be invoked. Appeals involving classified information
shall be processed in accordance with Sec. 1850.7.
Subpart B--Production or Disclosure Under the Privacy Act
Sec. 1850.31 Purpose and scope.
This subpart contains the regulations of the Gulf Coast Ecosystem
Restoration Council (Council) implementing the Privacy Act of 1974, 5
U.S.C. 552a. It sets forth the basic responsibilities of the Council
under the Privacy Act (the Act) and offers guidance to members of the
public who wish to exercise any of the rights established by the Act
with regard to records maintained by the Council. Council records that
are contained in a government-wide system of records established by the
U.S. Office of Personnel Management (OPM), the General Services
Administration (GSA), the Merit Systems Protection Board (MSPB), the
Office of Government Ethics (OGE), Equal Employment Opportunity
Commission (EEOC) or the Department of Labor (DOL) for which those
agencies have published systems notices are subject to the publishing
agency's Privacy Act regulations. Where the government-wide systems
notices permit access to these records through the employing agency, an
individual should submit requests for access to, for amendment of or
for an accounting of disclosures to the Council in accordance with
Sec. 1850.33.
Sec. 1850.32 Definitions.
(a) For purposes of this subpart, the terms individual, maintain,
record, and system of records shall have the meanings set forth in 5
U.S.C. 552a(a).
(b) Working days are business days and do not include Saturday,
Sunday, or federal holidays.
Sec. 1850.33 Procedures for requests pertaining to individual records
in a record system.
(a) Any person who wishes to be notified if a system of records
maintained by the Council contains any record pertaining to him or her,
or to request access to such record or to request an accounting of
disclosures made of such record, shall submit a written request, either
in person or by mail, in accordance with the instructions set forth in
the system notice published in the Federal Register. The request shall
include:
(1) The name of the individual making the request;
(2) The name of the system of records (as set forth in the system
notice to which the request relates);
(3) Any other information specified in the system notice;
(4) When the request is for access to records, a statement
indicating whether the requester desires to make a personal inspection
of the records or be supplied with copies by mail; and
(5) Any additional information required by Sec. 1850.34 for proper
verification of identity or authority to access the information.
(b) Requests pertaining to records contained in a system of records
established by the Council and for which the Council has published a
system notice should be submitted to the person or office indicated in
the system notice. Requests pertaining to Council records contained in
the government-wide systems of records listed below should be submitted
as follows:
(1) For systems OPM/GOVT-1 (General Personnel Records), OPM/GOVT-2
(Employee Performance File System Records), OPM/GOVT-3 (Records of
Adverse Actions and Actions Based on Unacceptable Performance), GSA/
GOVT-4 (Contracted Travel Services Program), OPM/GOVT-5 (Recruiting,
Examining and Placement Records), OPM/GOVT-6 (Personnel Research and
Test Validation Records), OPM/GOVT-7 (Applicant Race, Sex, National
Origin, and Disability Status Records), OPM/GOVT-9 (Files on Position
Classification Appeals, Job Grading Appeals and Retained Grade or Pay
Appeals), OPM/GOVT-10 (Employee Medical File System Records) and DOL/
ESA-13 (Office of Workers' Compensation Programs, Federal Employees'
Compensation File), or any other government-wide system of record not
specifically listed, to the restorecouncil@restorethegulf.gov]; and
(2) For systems OGE/GOVT-1 (Executive Branch Public Financial
Disclosure Reports and Other Ethics Program Records), OGE/GOVT-2
(Confidential Statements of Employment and Financial Interests) and
MSPB/GOVT-1 (Appeal and Case Records), to the General Counsel at
restorecouncil@restorethegulf.gov.
(c) Any person whose request for access under paragraph (a) of this
section is denied, may appeal that denial in accordance with Sec.
1850.39.
Sec. 1850.34 Times, places, and requirements for identification of
individuals making requests.
(a) If a person submitting a request for access under Sec. 1850.33
has asked that
[[Page 29549]]
the Council authorize a personal inspection of records pertaining to
that person, and the appropriate Council official has granted that
request, the requester shall present himself or herself at the time and
place specified in the Council's response or arrange another, mutually
convenient time with the appropriate Council official.
(b) Prior to personal inspection of the records, the requester
shall present sufficient personal identification (e.g., driver's
license, employee identification card, social security card, credit
cards). If the requester is unable to provide such identification, the
requester shall complete and sign in the presence of a Council official
a signed statement asserting his or her identity and stipulating that
he or she understands that knowingly or willfully seeking or obtaining
access to records about another individual under false pretenses is a
misdemeanor punishable by fine up to $5,000.
(c) Any person who has requested access under Sec. 1850.3 to
records through personal inspection, and who wishes to be accompanied
by another person or persons during this inspection, shall submit a
written statement authorizing disclosure of the record in such person's
or persons' presence.
(d) If an individual submitting a request by mail under Sec.
1850.33 wishes to have copies furnished by mail, he or she must include
with the request a signed and notarized statement asserting his or her
identity and stipulating that he or she understands that knowingly or
willfully seeking or obtaining access to records about another
individual under false pretenses is a misdemeanor punishable by fine up
to $5,000.
(e) A request filed by the parent of any minor or the legal
guardian of any incompetent person shall: State the relationship of the
requester to the individual to whom the record pertains; present
sufficient identification; and, if not evident from information already
available to the Council, present appropriate proof of the relationship
or guardianship.
(f) A person making a request pursuant to a power of attorney must
possess a specific power of attorney to make that request.
(g) No verification of identity will be required where the records
sought are publicly available under the Freedom of Information Act.
Sec. 1850.35 Disclosure of requested information to individuals.
(a) Upon receipt of request for notification as to whether the
Council maintains a record about an individual and/or request for
access to such record:
(1) The appropriate Council official shall acknowledge such request
in writing within 10 working days of receipt of the request. Wherever
practicable, the acknowledgement should contain the notification and/or
determination required in paragraph (a)(2) of this section.
(2) The appropriate Council official shall provide, within 30
working days of receipt of the request, written notification to the
requester as to the existence of the records and/or a determination as
to whether or not access will be granted. In some cases, such as where
records have to be recalled from the Federal Records Center,
notification and/or a determination of access may be delayed. In the
event of such a delay, the Council official shall inform the requester
of this fact, the reasons for the delay, and an estimate of the date on
which notification and/or a determination will be forthcoming.
(3) If access to a record is granted, the determination shall
indicate when and where the record will be available for personal
inspection. If a copy of the record has been requested, the Council
official shall mail that copy or retain it at the Council to present to
the individual, upon receipt of a check or money order in an amount
computed pursuant to Sec. 1850.41.
(4) When access to a record is to be granted, the appropriate
Council official will normally provide access within 30 working days of
receipt of the request unless, for good cause shown, he or she is
unable to do so, in which case the requester shall be informed within
30 working days of receipt of the request as to those reasons and when
it is anticipated that access will be granted.
(5) The Council shall not deny any request under Sec. 1850.33
concerning the existence of records about the requester in any system
of records it maintains, or any request for access to such records,
unless that system is exempted from the requirements of 5 U.S.C. 552a.
(6) If the Council receives a request pursuant to Sec. 1850.33 for
access to records in a system of records it maintains which is so
exempt, the appropriate Council official shall deny the request.
(b) Upon request, the appropriate Council official shall make
available an accounting of disclosures pursuant to 5 U.S.C. 552a(c)(3),
unless that system is exempted from the requirements of 5 U.S.C. 552a.
(c) If a request for access to records is denied pursuant to
paragraph (a) or (b) of this section, the determination shall specify
the reasons for the denial and advise the individual how to appeal the
denial in accordance with Sec. 1850.39. All appeals must be submitted
in writing to the General Counsel at GeneralCounsel@restorethegulf.gov.
(d) Nothing in 5 U.S.C. 552a or this subpart allows an individual
access to any information compiled in reasonable anticipation of a
civil action or proceeding.
Sec. 1850.36 Special procedures: Medical records.
In the event the Council receives a request pursuant to Sec.
1850.33 for access to medical records (including psychological records)
and the appropriate Council official determines disclosure could be
harmful to the individual to whom they relate, he or she may refuse to
disclose the records directly to the requester but shall transmit them
to a physician designated by that individual.
Sec. 1850.37 Request for correction or amendment to record.
(a) Any person who wishes to request correction or amendment of any
record pertaining to him or her that is contained in a system of
records maintained by the Council, shall submit that request in writing
in accordance with the instructions set forth in the system notice for
that system of records. If the request is submitted by mail, the
envelope should be clearly labeled ``Personal Information Amendment.''
The request shall include:
(1) The name of the individual making the request;
(2) The name of the system of records as set forth in the system
notice to which the request relates;
(3) A description of the nature (e.g., modification, addition or
deletion) and substance of the correction or amendment requested; and
(4) Any other information specified in the system notice.
(b) Any person submitting a request pursuant to paragraph (a) of
this section shall include sufficient information in support of that
request to allow the Council to apply the standards set forth in 5
U.S.C. 552a(e) requiring the Council to maintain accurate, relevant,
timely, and complete information.
(c) All requests to amend pertaining to personnel records described
in Sec. 1850.33(b) shall conform to the requirements of paragraphs (a)
and (b) of this section and may be directed to the appropriate
officials as indicated in Sec. 1850.33(b). Such requests may also be
directed to the system manager specified in the OPM's systems notices.
(d) Any person whose request under paragraph (a) of this section is
denied may appeal that denial in accordance with Sec. 1850.39.
[[Page 29550]]
Sec. 1850.38 Council review of request for correction or amendment to
record.
(a) When the Council receives a request for amendment or correction
under Sec. 1850.37(a), the appropriate Council official shall
acknowledge that request in writing within 10 working days of receipt.
He or she shall promptly either:
(1) Determine to grant all or any portion of a request for
correction or amendment; and:
(i) Advise the individual of that determination;
(ii) Make the requested correction or amendment; and
(iii) Inform any person or agency outside the Council to whom the
record has been disclosed, and where an accounting of that disclosure
is maintained in accordance with 5 U.S.C. 552a(c), of the occurrence
and substance of the correction or amendments; or
(2) Inform the requester of the refusal to amend the record in
accordance with the request; the reason for the refusal; and the
procedures whereby the requester can appeal the refusal to the General
Counsel of the Council in accordance with Sec. 1850.39.
(b) If the Council official informs the requester of the
determination within the 10-day deadline, a separate acknowledgement is
not required.
(c) In conducting the review of a request for correction or
amendment, the Council official shall be guided by the requirements of
5 U.S.C. 552a(e).
(d) In the event that the Council receives a notice of correction
or amendment from another agency that pertains to records maintained by
the Council, the Council shall make the appropriate correction or
amendment to its records and comply with paragraph (a)(1)(iii) of this
section.
(e) Requests for amendment or correction of records maintained in
the government-wide systems of records listed in Sec. 1850.35(c) shall
be governed by the appropriate agency's regulations cited in that
paragraph.
Sec. 1850.39 Appeal of initial adverse agency determination on
correction or amendment.
(a) If a request for correction or amendment of a record in a
system of records maintained by the Council is denied, the requester
may appeal the determination in writing to the General Counsel at
GeneralCounsel@restorethegulf.gov.
(b) The General Counsel shall make a final determination with
regard to an appeal submitted under paragraph (a) of this section not
later than 30 working days from the date on which the individual
requests a review, unless for good cause shown, this 30-day period is
extended and the requester is notified of the reasons for the extension
and of the estimated date on which a final determination will be made.
Such extensions will be used only in exceptional circumstances and will
not normally exceed 30 working days.
(c) In conducting the review of an appeal submitted under paragraph
(a) of this section, the General Counsel shall be guided by the
requirements of 5 U.S.C. 552a(e).
(d) If the General Counsel determines to grant all or any portion
of a request on an appeal submitted under paragraph (a) of this
section, he or she shall so inform the requester, and the appropriate
Council official shall comply with the procedures set forth in Sec.
1850.38(a)(1)(ii) and (iii).
(e) If the General Counsel determines in accordance with paragraphs
(b) and (c) of this section not to grant all or any portion of a
request on an appeal submitted under paragraph (a) of this section, he
or she shall inform the requester:
(1) Of this determination and the reasons for it;
(2) Of the requester's right to file a concise statement of reasons
for disagreement with the determination of the General Counsel;
(3) That such statements of disagreement will be made available to
anyone to whom the record is subsequently disclosed, together with (if
the General Counsel deems it appropriate) a brief statement summarizing
the General Counsel's reasons for refusing to amend the record;
(4) That prior recipients of the disputed record will be provided
with a copy of the statement of disagreement together with (if the
General Counsel deems it appropriate) a brief statement of the General
Counsel's reasons for refusing to amend the record, to the extent that
an accounting of disclosure is maintained under 5 U.S.C. 552a(c); and
(5) Of the requester's right to file a civil action in Federal
district court to seek a review of the determination of the General
Counsel in accordance with 5 U.S.C. 552a(g).
(f) The General Counsel shall ensure that any statements of
disagreement submitted by a requester are made available or distributed
in accordance with paragraphs (e)(3) and (4) of this section.
Sec. 1850.40 Disclosure of record to person other than the individual
to whom it pertains.
The Counsel shall not disclose any record which is contained in a
system of records it maintains, by any means of communication to any
person or to another agency, except pursuant to a written request by,
or with the prior written consent of the individual to whom the record
pertains, unless the disclosure is authorized by one or more provisions
of 5 U.S.C. 552a(b).
Sec. 1850.41 Fees.
(a) No fee shall be charged for searches necessary to locate
records. No charge shall be made if the total fees authorized are less
than $1.00. Fees shall be charged for services rendered under this
subpart as follows:
(1) For copies made by photocopy--$0.05 per page (maximum of 10
copies). For copies prepared by computer, such as tapes or printouts,
the Council will charge the direct cost incurred by the agency,
including operator time. For other forms of duplication, the Council
will charge the actual costs of that duplication.
(2) For attestation of documents--$25.00 per authenticating
affidavit or declaration.
(3) For certification of documents--$50.00 per authenticating
affidavit or declaration.
(b) All required fees shall be paid in full prior to issuance of
requested copies of records. Requesters must pay fees by check or money
order made payable to the ``Treasury of the United States.''
Sec. 1850.42 Penalties.
The criminal penalties which have been established for violations
of the Privacy Act of 1974 are set forth in 5 U.S.C. 552a(i). Penalties
are applicable to any officer or employee of the Council; to
contractors and employees of such contractors who enter into contracts
with the Council, and who are considered to be employees of the Council
within the meaning of 5 U.S.C. 552a(m); and to any person who knowingly
and willfully requests or obtains any record concerning an individual
from the Council under false pretenses.
Will D. Spoon,
Program Analyst, Gulf Coast Ecosystem Restoration Council.
[FR Doc. 2015-12459 Filed 5-21-15; 8:45 am]
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