Revision of Regulations Governing Freedom of Information Act Requests, 13554-13562 [2017-01602]

Agencies

• Court Services and Offender Supervision Agency for the District of Columbia

[Federal Register Volume 82, Number 48 (Tuesday, March 14, 2017)]
[Rules and Regulations]
[Pages 13554-13562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01602]


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COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR THE DISTRICT OF 
COLUMBIA

28 CFR Part 802

RIN 3225-AA12


Revision of Regulations Governing Freedom of Information Act 
Requests

AGENCY: Court Services and Offender Supervision Agency for the District 
of Columbia.

ACTION: Interim final rule.

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SUMMARY: This interim final rule updates and clarifies the procedures 
for submitting Freedom of Information Act (FOIA) requests as required 
under the FOIA Improvement Act of 2016 (the 2016 Act) which was signed 
into law by the President on June 30, 2016. This rule makes the 
procedural changes necessitated by the 2016 Act, including

[[Page 13555]]

requirements that agencies provide a minimum of 90 days for requesters 
to file an administrative appeal and that agencies provide dispute 
resolution services during the FOIA process. The 2016 Act also adds two 
new elements to agency Annual FOIA Reports. The rule codifies the 
``foreseeable harm'' standard implemented by the 2016 Act. The 
principal changes that were required to the Court Services and Offender 
Supervision Agency for the District of Columbia's (``CSOSA'') current 
regulations are discussed below.
    Congress mandated that agencies make changes to their regulations 
within 180 days of the law taking effect. Because the changes are 
mandated by Congress and are non-controversial, CSOSA is publishing 
this rule as an interim final rule.

DATES: This interim final rule is effective March 14, 2017.

FOR FURTHER INFORMATION CONTACT: Sheila Stokes, General Counsel, Court 
Services and Offender Supervision Agency for the District of Columbia, 
633 Indiana Ave. NW., Room 1380, Washington, DC 20004; telephone: 202-
220-5797; email: Sheila.stokes@csosa.gov.

SUPPLEMENTARY INFORMATION: The 2016 Act (Pub. L. 114-185) required 
agencies to update their regulations on FOIA compliance. The 2016 Act 
addresses procedural issues to help improve the FOIA process across all 
Federal agencies. It requires agencies to establish a minimum of 90 
days for requesters to file administrative appeals, to establish 
additional dispute resolution services, and to codify the Department of 
Justice's ``foreseeable harm'' standard, which only allows agencies to 
withhold information if the agency reasonably foresees that disclosure 
would harm an interest protected by a FOIA exemption or the disclosure 
is prohibited by law.
    CSOSA was established within the Executive Branch of the Federal 
Government by the National Capital Revitalization and Self-Government 
Improvement Act of 1997, Public Law 105-33, 111 Stat. 251, 712 (D.C. 
Code 24-1232, 24-1233). On August 4, 2000, CSOSA was certified by the 
Attorney General as an independent Federal agency.
    CSOSA is amending its regulations on the process for requesting 
information under the Freedom of Information Act to comply with the 
2016 Act. This includes the process for requests to the District of 
Columbia Pretrial Services Agency (``PSA''), an independent entity 
within CSOSA. CSOSA provides supervisory and treatment services to 
individuals on probation, parole, and supervised release for District 
of Columbia Code violations. CSOSA also provides supervisory and 
treatment services to offenders from other jurisdictions in accordance 
with the Interstate Parole and Probation Compact. PSA supervises, 
monitors, and provides treatment services to defendants in the U.S. 
District Court and the United States Court of Appeals for the District 
of Columbia Circuit and to individuals on pretrial release for District 
of Columbia Code violations.

I. Background

    CSOSA is revising its FOIA regulations to comply with the 2016 Act. 
The following is a description of the changes.
    CSOSA has updated its regulations at Sec.  802.1 to provide 
additional information about the FOIA process at CSOSA.
    CSOSA has updated its regulations at Sec.  802.2 to include a 
designation of its Chief FOIA Officer and statement that the Chief FOIA 
Officer will be responsible for naming the FOIA Public Liaison.
    CSOSA has updated its regulations by adding a new Sec.  802.3 and 
renumbering the remaining sections. The new Sec.  802.3 reinforces 
CSOSA's commitment to transparency and explains what information and 
records are available for public inspection. It also speaks to the 
preservation of records during a request, appeal, or lawsuit under FOIA 
and CSOSA's disposition and destruction schedule as allowed by the 
National Archives and Records Administration.
    In the renumbered new Sec.  802.4 CSOSA, which discusses the 
guidelines for disclosure, added information on the applicable 
exemptions and/or exclusions to disclosure.
    In the renumbered new Sec.  802.5 CSOSA added an additional 
definition.
    In the renumbered new Sec.  802.6 CSOSA inserted information about 
the new FOIA Public Liaison, its role, and the ability to seek dispute 
resolution from the Office of Government Information Services. In 
addition, CSOSA added directions for requesting information, the 
timelines for the release of information, and waiver of fee requests. 
CSOSA added information about requests for modifications, denials, and 
exceptional circumstances for agency non-compliance with deadlines set 
by law. CSOSA also added information about withholding information due 
to foreseeable harm, a standard that was codified by the 2016 Act. 
Finally, CSOSA added information about how requesters can file 
administrative appeals of agency decisions.
    The old Sec.  802.7 was deleted. In the new Sec.  802.7 CSOSA 
inserted information of what occurs if the documents requested were 
created more than 25 years prior to the request for information and how 
CSOSA staff should handle requests for non-Federal agency records that 
are part of CSOSA records.
    In Sec.  802.8 CSOSA added information about expedited processing 
and how to determine if there is a compelling need for expediting 
processing.
    The new fee provisions of the 2016 Act were incorporated into Sec.  
802.10, which include the inability of an agency to assign any search 
fees if it has failed to follow the deadlines set by the law. Unusual 
circumstances where more than 5,000 pages are required to comply with 
the request, fees may be charged by an agency if timely notice is 
supplied to the requestor. Any court actions may excuse any timeliness 
issues if a court sets its own time frames.

II. Procedural Issues and Regulatory Review

    Administrative Procedure Act (APA): This action is taken under the 
requirements of the FOIA Improvement Act of 2016, Public Law 114-185, 
to publish regulations complying with the law by December 30, 2016 in 
the Federal Register. Because this rule pertains to explicit changes 
mandated by Congress, CSOSA is issuing the rule as final without 
general notice of proposed rulemaking and without any delay in its 
effectiveness. Any interested person, however, who wishes to submit 
comments on the rule may do so by writing or emailing the agency at the 
addresses given above in the FOR FURTHER INFORMATION CONTACT caption.
    Executive Order 12866 and 13563 (Regulatory Planning and Review): 
CSOSA does not anticipate that this interim final rule will have 
significant economic impact, raise novel issues, and/or have any other 
significant impacts because it simply incorporates the provisions of 
the FOIA Improvement Act of 2016 into the current CSOSA FOIA 
regulations. Thus this interim final rule is not a significant 
regulatory action under 3(f) of Executive Order 12866 and does not 
require an assessment of potential costs and benefits under 6(a)(3) of 
the Order.
    Regulatory Flexibility Act (RFA): The Regulatory Flexibility Act 
does not apply. This interim final rule will not directly regulate 
small entities. CSOSA, therefore, does not need to perform a regulatory 
flexibility analysis of small entity impacts.

[[Page 13556]]

    Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA): CSOSA has determined that this interim final rule does not 
impose a significant impact on a substantial number of small entities 
under the RFA; therefore, CSOSA is not required to produce any 
Compliance Guides for Small Entities as mandated by the SBREFA.
    Congressional Review Act: CSOSA has determined that this interim 
final rule is not a major rule under the Congressional Review Act, as 
it is unlikely to result in an annual effect on the economy of $100 
million or more; is unlikely to result in a major increase in costs or 
prices for consumers, individual industries, federal, state, or local 
government agencies or geographic regions; and is unlikely to have a 
significant adverse effect on competition, employment, investment, 
productivity, or innovation, or on the ability of U.S.-based 
enterprises to compete in domestic and export markets.
    Unfunded Mandates Reform Act (UMRA): This revision does not impose 
any federal mandates on state, local, or tribal governments, or on the 
private sector within the meaning of the UMRA.
    National Environmental Policy Act (NEPA): This interim final rule 
will have no physical impact upon the environment and, therefore, will 
not require any further review under NEPA.
    Paperwork Reduction Act (PRA): The Paperwork Reduction Act does not 
apply because the rule does not impose information collection 
requirements that require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501, et seq.
    Executive Order 13132 (Federalism): This final revision does not 
have new federalism implications under Executive Order 13132.
    Executive Order 12988 (Civil Justice Reform): This interim final 
rule meets applicable standards of 3(a) and 3(b)(2) of Executive Order 
12988 and CSOSA has determined that the interim final rule will not 
unduly burden the Federal court system.
    Plain Language: E.O. 12866 and E.O. 13563 require regulations to be 
written in a manner that is easy to understand. CSOSA has concluded 
that it has drafted this interim final rule in plain language.
    Assessment of Federal Regulations and Policies on Families: Section 
654 of the Treasury and General Government Appropriations Act, enacted 
as part of the Omnibus Consolidated and Emergency Supplemental 
Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681) requires 
the assessment of the impact of this rule on family well-being. CSOSA 
has assessed this interim final rule and determined that the rule will 
not have a negative effect on families.
    Executive Order 13175 (Indian Tribal Governments): CSOSA reviewed 
this interim final rule under the terms of E.O. 13175 and has 
determined that the rule will not have tribal implications.
    Executive Order 12630 (Government Actions and Interference With 
Constitutionally Protected Property Rights): CSOSA has determined that 
this interim final rule is not subject to E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights, because it does not involve implementation of a policy with 
takings implications.
    Executive Order 13211 (Energy Supply): This CSOSA interim final 
rule was drafted and reviewed in accordance with E.O. 13211, Energy 
Supply. CSOSA has determined that this interim final rule will not have 
a significant adverse effect on the supply, distribution, or use of 
energy and is not subject to E.O. 13211.

List of Subjects in 28 CFR Part 802

    Administrative practice and procedure, Freedom of information, 
Government employees, Privacy, Probation and parole.

Authority and Issuance

    For the reasons stated in the preamble, the Court Services and 
Offender Supervision Agency for the District of Columbia amends 28 CFR 
part 802 as set forth below:

PART 802--DISCLOSURE OF RECORDS

0
1. Revise the authority citation for part 802 to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a; Pub. L. 105-33, 111 Stat. 
251, 712 (DC Code 24-1232, 24-1233); Pub. L. 114-185, 130 Stat. 538 
(Jun. 30, 2016).


0
2. Revise Sec.  802.1 to read as follows:


Sec.  802.1  Introduction.

    (a) This part contains regulations of the Court Services and 
Offender Supervision Agency for the District of Columbia (``CSOSA'' or 
``Agency'') and the District of Columbia Pretrial Services Agency 
(``PSA'' or ``Agency''), which implement the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, and the Privacy Act (PA), 5 U.S.C. 552a. The 
Agency provides for the disclosure and production of records in 
response to FOIA/PA requests, a demand from a court, or other non-
congressional authority in connection with a proceeding to which the 
Agency is not a party. Due to CSOSA's nature as a federal agency with a 
local mission connected to the District of Columbia, exemption 
protections, including exclusions, are allowed under the FOIA and other 
safeguard requirements may be applied under the PA.
    (b) It is the policy of CSOSA that all employees of CSOSA and PSA 
(collectively the ``Agency'') are to submit all FOIA/PA requests to the 
Office of General Counsel (``OGC''). The OGC shall make release 
determinations under either the FOIA/PA pursuant to the procedures set 
forth in sections Sec. Sec.  802.6, 802.7, 802.8, 802.14, 802.15, and 
802.16.

0
3. Revise subpart B to read as follows:

Subpart B--Freedom of Information Act

Sec.
802.2 Purpose and scope.
802.3 Information and records for public inspection.
802.4 Guidelines for disclosure.
802.5 Definitions.
802.6 Freedom of Information Act requests.
802.7 Documents from other agencies.
802.8 Expedited processing.
802.9 Business information.
802.10 Fee schedule.


Sec.  802.2  Purpose and scope.

    (a) The purpose of this subpart is to establish procedures for the 
release of records in the custody, possession or control of the Agency 
pursuant to the provisions of the FOIA as amended by the FOIA 
Improvement Act of 2016 (Pub. L. 114-185).
    (b) The Director of CSOSA has designated the General Counsel to be 
the Chief FOIA Officer as defined in 5 U.S.C. 552(j).
    (c) The Chief FOIA Officer shall designate at least one FOIA Public 
Liaison as defined in 5 U.S.C 552(j)(2)(H) and 552(l) for assisting in 
reducing delays, increasing transparency, understanding the status of 
requests, and assisting in the resolution of disputes.


Sec.  802.3  Information and records for public inspection.

    (a) Public inspection. In accordance with this section, CSOSA makes 
the following information and materials available for public inspection 
pursuant to 5 U.S.C. 552:
    (1) The Agency's publications in the Federal Register for the 
guidance of the public.
    (2) Final opinions, including concurring and dissenting opinions, 
as well as orders, made in the adjudication of cases.

[[Page 13557]]

    (3) The Agency's policy statements that have been adopted by the 
Agency and are not published in the Federal Register.
    (4) Administrative staff manuals and instructions to staff that 
affect a member of the public.
    (5) Copies of all records, regardless of format, that have become 
or are likely to become the subject of subsequent requests for 
substantially the same records or have been requested three or more 
times; and these available records exclude first party requests.
    (6) Reports available for public inspection shall be available:
    (i) In a timely manner;
    (ii) With raw statistical data in electronic format;
    (iii) In a general index;
    (iv) Without charge, license, or registration requirement;
    (v) In an aggregated, searchable format;
    (vi) In a format that may be downloaded in bulk; and
    (vii) Which include, but are not limited to the:
    (A) Chief FOIA Officer Report;
    (B) Annual FOIA Report; and
    (C) Quarterly FOIA Report.
    (7) An index of all major information systems of the agency.
    (8) A description of major information and record locator systems 
maintained by the agency.
    (9) A handbook for obtaining various types of categories of public 
information from the Agency pursuant to chapter 35 of Title 44 of the 
United States Code, and under this section.
    (b) Preservation of records. (1) All agency correspondence as well 
as copies of all requested records shall be preserved until disposition 
or destruction is authorized pursuant to Title 44 of the United States 
Code or the General Records Schedule 4.2 of the National Archives and 
Records Administration (NARA).
    (2) The agency will not dispose of or destroy records while they 
are the subject of a pending request, appeal, or lawsuit under the 
FOIA.


Sec.  802.4  Guidelines for disclosure.

    (a) The authority to release, partially release, or deny access to 
records and information under the FOIA is limited to the Chief FOIA 
Officer, FOIA Public Liaison, and his or her designee.
    (b) An Agency record will be released in response to a written 
request, unless a valid legal exemption and/or exclusion to disclosure 
is asserted.
    (1) Any applicable exemption and/or exclusion to disclosure, which 
is provided under the FOIA in 5 U.S.C. 552, may be asserted. The 
applicable exemptions and/or exclusions to disclosure are as follows:
    (i) Exclusions. (A) Where the subject of a criminal investigation 
or proceeding is unaware of the existence of records concerning a 
pending investigation and disclosure of such records would interfere 
with the investigation.
    (B) Where there are informant records maintained by a criminal law 
enforcement agency and the individual's status as an informant is not 
known.
    (C) Where there are classified FBI records pertaining to foreign 
intelligence, counterintelligence or international terrorism records.
    (ii) Exemptions. (A) Information that is classified to protect 
national security.
    (B) Information related solely to the internal personnel rules and 
practices of an agency.
    (C) Information that is prohibited from disclosure by another 
federal law.
    (D) Trade secrets or commercial or financial information that is 
confidential or privileged.
    (E) Privileged communications within or between agencies, 
including:
    (1) Deliberative process privilege;
    (2) Attorney-work product privilege; and
    (3) Attorney-client privilege.
    (F) Information that, if disclosed, would invade another 
individual's personal privacy.
    (G) Information compiled for law enforcement purposes that:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings.
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication.
    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy.
    (4) Could reasonably be expected to disclose the identity of a 
confidential source.
    (5) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions.
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (H) Information that concerns the supervision of financial 
institutions.
    (I) Geological information on wells.
    (2) A record must exist and be in the possession and control of the 
Agency at the time of the request to be considered subject to this part 
and the FOIA. There is no obligation to create, compile, or obtain a 
record to satisfy a FOIA request.


Sec.  802.5  Definitions.

    As used in this subpart, the following terms have the following 
meanings:
    (a) Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C. 
552(f).
    (b) Appeal means a request for a review of the agency's 
determination with regard to a fee waiver, category of requester, 
expedited processing, or denial in whole or in part of a request for 
access to a record or records.
    (c) Business information means trade secrets or other commercial or 
financial information.
    (d) Business submitter means any entity which provides business 
information to the Agency and which has a proprietary interest in the 
information.
    (e) Computer software means tools by which records are created, 
stored, and retrieved. Normally, computer software, including source 
code, object code, and listings of source and object codes, regardless 
of medium, are not agency records. Proprietary (or copyrighted) 
software is not an agency record.
    (f) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt 
from release under Exemption 4 of the Freedom of Information Act, 5 
U.S.C. 552(b)(4), because disclosure could reasonably be expected to 
cause substantial competitive harm.
    (g) Duplication refers to the process of making a copy of a record 
in order to respond to a FOIA request. Such copies can take the form of 
paper copy, microform, audio-visual materials, or machine-readable 
documentation (e.g., magnetic tape or disk), among others.
    (h) Electronic records mean those records and information which are 
created, stored, and retrievable by electronic means. This ordinarily 
does not include computer software, which is a tool by which to create, 
store, or retrieve electronic records.
    (i) Record is defined pursuant to 44 U.S.C. 3301.
    (j) Request means any request for records made pursuant to 5 U.S.C. 
552(a)(3).
    (k) Requester means any person who makes a request for access to 
records.
    (l) Review for fee purposes, refers to the process of examining 
records located in response to a commercial use request to determine 
whether any portion of any record located is permitted to be withheld. 
It also includes processing any records for disclosure; e.g., doing all 
that is necessary to excise them and otherwise prepare them for 
release.
    (m) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material

[[Page 13558]]

within records. Searches may be done manually or by automated means.


Sec.  802.6  Freedom of Information Act requests.

    (a) Submission and processing procedures.(1) Requests for any 
record (including policy) ordinarily will be processed pursuant to the 
Freedom of Information Act, 5 U.S.C. 552. Your request must be made in 
writing and addressed to the FOIA Public Liaison Officer, Office of the 
General Counsel FOIA Office, Court Services and Offender Supervision 
Agency for the District of Columbia, 633 Indiana Avenue NW., 12th 
Floor, Washington, DC 20004. The requester should clearly mark on the 
face of the letter and the envelope ``Freedom of Information Act 
Request.''
    (2) Your request will be considered received as of the date it is 
received by CSOSA's FOIA Office.
    (3) Generally, all FOIA requests will be processed in the 
approximate order of receipt, unless the requester shows exceptional 
circumstances exist to justify an expedited response (see Sec.  802.8).
    (4) You must describe the records that you seek in enough detail to 
enable Agency personnel to locate them with a reasonable amount of 
effort. Whenever possible, your request should include specific 
information about each record sought, such as the date, title or name, 
author, recipient and subject matter of the record. As a general rule, 
the more specific you are about the records or type of records that you 
want, the more likely the Agency will be able to locate the records in 
response to your request. If a determination is made that your request 
does not reasonably describe records, the Agency will tell you either 
what additional information is needed or why your request is otherwise 
insufficient. You will be given the opportunity to discuss your request 
so that you may modify it to meet the requirements of this section.
    (5)(i) Requests by offender/defendant for offender's records. (A) 
An offender/defendant making a FOIA/PA request must provide his or her 
full name, current address, and date of birth. In addition, the 
requester must provide with the request his or her signature, which 
must be either notarized or sworn under penalty of perjury pursuant to 
28 U.S.C. 1746, and dated within three (3) months of the date of the 
request.
    (B) To assist in properly identifying requested records, the OGC 
and/or FOIA Office may request that the offender/defendant provide his/
her DCDC or PDID number.
    (ii) Requests for offender records on behalf of an offender/
defendant. (A) A request for records made by an authorized 
representative of an offender/defendant will only be released with the 
subject's written authorization with appropriate releases. This 
authorization and releases must be dated within thirty (30) days of the 
date of the request letter and must be signed by the offender/
defendant.
    (B) To assist in properly identifying requested records, the OGC 
and/or FOIA Office may request that the offender/defendant provided 
his/her DCDC or PDID number.
    (6) You must state in your request a firm agreement to pay the fees 
for search, duplication, and review as may ultimately be determined. 
The agreement may state the upper limit (but not less than $10.00) that 
the requester is willing to pay for processing the request. A request 
that fees be waived or reduced may accompany the agreement to pay fees 
and will be considered to the extent that such request is made in 
accordance with Sec.  802.4(b) and provides supporting information to 
be measured against the fee waiver standard set forth in Sec.  
802.9(g). The requester shall be notified in writing of the decision to 
grant or deny the fee waiver. If a requester has an outstanding balance 
of search, review, or duplication fees due for FOIA request processing, 
the requirements of this paragraph (a)(6) are not met until the 
requester has remitted the outstanding balance due.
    (b) Release determination--(1) Notification. You will be notified 
of the decision on the request within twenty (20) days after its 
receipt (excluding Saturdays, Sundays, and legal public holidays).
    (i) The twenty (20) day period shall be tolled if:
    (A) The Agency needs clarification and/or more information from the 
requester; or
    (B) Clarification is needed with the requester regarding fee 
assessment.
    (C) The agency's receipt of the requester's response to the 
agency's request for information or clarification ends the tolling 
period.
    (ii) The twenty (20) day period shall be extended for ten (10) 
additional working days with written notice to the requester for 
unusual circumstances.
    (A) Unusual circumstances means, but only to the extent reasonably 
necessary to the proper processing of particular requests--
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.
    (B) The written notice to the requester for unusual circumstances 
shall:
    (1) Notify the person making the request if the request cannot be 
processed within the time limit specified;
    (2) Provide the person an opportunity to limit the scope of the 
request so that it may be processed within that time limit or an 
opportunity to arrange with the agency an alternative time frame for 
processing the request or a modified request;
    (3) Make available the Agency's FOIA Public Liaison Officer, who 
shall assist in the resolution of any disputes between the requester 
the Agency; and
    (4) Notify the requester of the right of the requester to seek 
dispute resolution services from the Office of Government Information 
Services.
    (iii) When the Agency fails to comply with the applicable time 
limit provisions of paragraph (b) of this section, if the Agency can 
show exceptional circumstances exist and that the Agency is exercising 
due diligence in responding to the request, the Agency may be allowed 
additional time to complete its review of the records.
    (A) For purposes of this paragraph (b)(1)(iii), the term 
``exceptional circumstances'' does not include a delay that results 
from a predictable agency workload of requests under this section, 
unless the agency demonstrates reasonable progress in reducing its 
backlog of pending requests.
    (B) Refusal by a person to reasonably modify the scope of a request 
or arrange an alternative time frame for processing a request (or a 
modified request) after being given an opportunity to do so by the 
Agency to whom the person made the request shall be considered as a 
factor in determining whether exceptional circumstances exist for 
purposes of this paragraph (b)(1)(iii).
    (2) Denial in whole or in part. If it is determined that the 
request for records should be denied in whole or in part, the requester 
shall be notified by mail with a letter stating the basis for partial 
or whole denial. The letter of notification shall:

[[Page 13559]]

    (i) Be signed by the Chief FOIA Officer or his or her designee;
    (ii) State the exemptions relied on to not release the information;
    (A) Advise the requester of the reason of adverse determination and 
the right to administrative appeal in accordance with paragraph (c) of 
this section;
    (B) Advise the right of such person to seek assistance from the 
FOIA Public Liaison Officer of the agency; and
    (C) Advise the right of such person to seek assistance from the 
Office of Government Information Services;
    (iii) If technically feasible, indicate the amount of information 
deleted at the place in the record where such deletion is made (unless 
providing such indication would harm an interest protected by the 
exemption relied upon to deny such material);
    (iv) If a document contains information exempt from disclosure, any 
reasonably segregable portion of the record will be provided to you 
after deletion of the exempt portions;
    (v) An agency shall--
    (A) Withhold information under this section only if--
    (1) The agency reasonably foresees that disclosure would harm an 
interest protected by an exemption described in paragraph (b) of this 
section; or
    (2) Disclosure is prohibited by law; and
    (B) Partially withhold information under this section only if--
    (1) Partial disclosure of information is possible whenever the 
agency determines that a full disclosure of a requested record is not 
possible; and
    (2) Take reasonable steps necessary to segregate and release 
nonexempt information; and
    (vi) Nothing in this paragraph (b)(2) requires disclosure of 
information that is otherwise prohibited from disclosure by law, or 
otherwise exempted from disclosure by statute.
    (3) No records found. If it is determined, after a thorough search 
for records by the responsible official or his delegate, that no 
records have been found to exist, the Chief FOIA Officer or his/her 
designee will so notify the requester in writing. The letter of 
notification will advise the requester of his or her right to 
administratively appeal within ninety (90) of the determination that no 
records exist (i.e., to challenge the adequacy of the search for 
responsive records) in accordance with paragraph (c) of this section. 
The response shall specify the official or office to which the appeal 
shall be submitted for review.
    (c) Administrative appeal. (1) A requester may appeal an initial 
determination when:
    (i) Access to records has been denied in whole or in part;
    (ii) There has been an adverse determination of the requester's 
category as provided in Sec.  802.10(d);
    (iii) Inadequacy of the FOIA search;
    (iv) A request for fee waiver or reduction has been denied; or
    (v) It has been determined that no responsive records exist.
    (2) Appeals must be made within ninety (90) days of the receipt of 
the letter with an adverse determination. Both the envelope and the 
letter of appeal should be sent to the Office of the General Counsel, 
Court Services and Offender Supervision Agency for the District of 
Columbia, 633 Indiana Avenue NW., 13th Floor, Washington, DC 20004 and 
must be clearly marked ``Freedom of Information Act (FOIA) Appeal.''
    (3) The General Counsel will make an appeal determination within 
twenty (20) days (excluding Saturdays, Sundays, and holidays) from the 
date of receipt of the appeal. However, for a good reason, this time 
limit may be extended up to an additional ten (10) days. If, after 
review, the General Counsel determines that additional information 
should be released, it will accompany the appeal response. If, after 
review, the General Counsel determines to uphold the initial review, we 
will inform you.


Sec.  802.7  Documents from other agencies.

    (a) Documents from or relating to Federal agencies. (1) When a 
request for records includes a document that originated from another 
Federal agency, the document will be referred to the originating 
Federal agency for release determination, unless the information 
requested is for records created 25 years or more before the date on 
which the records were requested, in which case CSOSA will release them 
without referral and/or consultation with the other federal agency. The 
requester will be informed of the referral. This is not a denial of a 
FOIA request; thus, no appeal rights accrue to the requester.
    (2) When a FOIA request is received for a record created by the 
Agency that includes information by another Federal agency, the record 
will be sent to the other Federal agency that has equities in the 
record. The consultation will request that the other Federal agency 
review and provide recommendations on disclosure. The Agency will not 
release any such record without prior consultation with the other 
Federal agency that has equities in the record.
    (b) Documents from non-Federal agencies. When a request for records 
includes a document from a non-Federal agency, CSOSA staff must make a 
release determination.
    (1) A release determination on the records from non-Federal 
agencies shall be analyzed on a case-by-case to determine if CSOSA or 
the non-Federal agency is best able to decide a record's sensitivity, 
and in turn its exemption status, in which case:
    (i) The requester will be re-routed to submit a separate FOIA 
request to the non-Federal agency; or
    (ii) CSOSA will consult with the non-Federal agency only if the 
non-Federal agency will provide a consultation within five (5) business 
days.
    (2) [Reserved]


Sec.  802.8  Expedited processing.

    (a) Requests and appeals will be taken out of order and given 
expedited treatment whenever CSOSA's FOIA Office determines that they 
involve:
    (1) Circumstances in which the person requesting the records 
demonstrates a compelling need.
    (i) For purposes of this paragraph (a)(1), the term ``compelling 
need'' means--
    (A) Failure to obtain requested records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (B) A person is primarily engaged in disseminating information and 
the urgency to inform the public concerning actual or alleged Federal 
Government activity is a matter of widespread and exceptional media 
interest in which there exist possible questions about the government's 
integrity.
    (1) With respect to a request made by a person primarily engaged in 
disseminating information that affect public confidence, the requester 
must adequately explain the matter or activity and why it is necessary 
to provide the records being sought on an expedited basis.
    (i) A person ``primarily engaged in disseminating information'' 
does not include individuals who are engaged only incidentally in the 
dissemination of information.
    (ii) The standard of ``widespread and exceptional media interest'' 
requires that the records requested pertain to a matter of current 
exigency to the American public and that delaying a response to a 
request for records would compromise a significant recognized interest 
to and throughout the general public. The requester must adequately 
explain the matter or activity and why it is necessary to provide the 
records being sought on an expedited basis.
    (2) [Reserved]
    (ii) [Reserved]

[[Page 13560]]

    (2) [Reserved]
    (b) If a requester seeks expedited processing, the requester must 
submit a statement, certified to be true and correct to the best of 
your knowledge and belief. The statement must be in the form prescribed 
by 28 U.S.C. 1746, ``I declare under penalty of perjury that the 
foregoing is true and correct to the best of my knowledge and belief. 
Executed on [date].''
    (c) The determination as to whether to grant or deny the request 
for expedited processing will be made, and the requester notified, 
within ten (10) days after the date of the request. Because a decision 
to take a FOIA request out of order delays other requests, simple 
fairness demands that such a decision be made by the FOIA Public 
Liaison Officer only upon careful scrutiny of truly exceptional 
circumstances. The decision will be made solely based on the 
information contained in the initial letter requesting expedited 
processing.
    (d) Appeals of initial determinations to deny expedited processing 
must be made promptly. Both the envelope and the letter of appeal 
should be sent to the Office of the General Counsel, Court Services and 
Offender Supervision Agency for the District of Columbia, 633 Indiana 
Avenue NW., 12th Floor, Washington, DC 20004 and must be clearly marked 
``Expedited Processing Appeal.''
    (e) The OGC or his or designee will make an appeal determination 
regarding expedited processing as soon as practicable.


Sec.  802.9  Business information.

    (a) In general. Business information provided to the Agency by a 
business submitter will be disclosed pursuant to the FOIA, unless 
exemptions and/or exclusions apply. Any claim of confidentiality must 
be supported by a statement by an authorized representative of the 
company providing specific justification that the information in 
question is in fact confidential commercial or financial information 
and has not been disclosed to the public.
    (b) Notice to business submitters. The Agency will provide a 
business submitter with prompt written notice of receipt of a request 
or appeal encompassing its business information whenever required in 
accordance with paragraph (c) of this section, and except as is 
provided in paragraph (g) of this section. Such written notice shall 
either describe the exact nature of the business information requested 
or provide copies of the records or portions of records containing the 
business information.
    (c) When notice is required. (1) Notice of a request for business 
information falling within paragraph (c)(2)(i) or (ii) of this section 
will be required for a period of not more than ten years after the date 
of submission unless the business submitter had requested, and provided 
acceptable justification for, a specific notice period of greater 
duration.
    (2) The Agency shall provide a business submitter with notice of 
receipt of a request or appeal whenever:
    (i) The business submitter has in good faith designated the 
information as commercially or financially sensitive information; or
    (ii) The Agency has reason to believe that disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm.
    (d) Opportunity to object to disclosure. (1) Through the notice 
described in paragraph (b) of this section, the Agency shall afford a 
business submitter ten (10) days from the date of the notice (exclusive 
of Saturdays, Sundays, and legal public holidays) to provide a detailed 
statement of any objection to disclosure. Such statement shall specify 
why the business submitter believes the information is considered to be 
a trade secret or commercial or financial information that is 
privileged or confidential. Information provided by a business 
submitter pursuant to this paragraph might itself be subject to 
disclosure under the FOIA.
    (2) When notice is given to a submitter under this section, the 
requester shall be advised that such notice has been given to the 
submitter. The requester shall be further advised that a delay in 
responding to the request may be considered a denial of access to 
records and that the requester may proceed with an administrative 
appeal or seek judicial review, if appropriate. However, the requester 
will be invited to agree to a voluntary extension of time so that staff 
may review the business submitter's objection to disclose.
    (e) Notice of intent to disclose. The Agency will consider 
carefully a business submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose business 
information. Whenever a decision to disclose business information over 
the objection of a business submitter is made, the Agency shall forward 
to the business submitter a written notice which shall include:
    (1) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date which is not less than five (5) 
days (exclusive of Saturdays, Sundays, and legal public holidays) after 
the notice of the final decision to release the requested information 
has been mailed to the submitter.
    (f) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of business information covered by 
paragraph (c) of this section, the Agency shall promptly notify the 
business submitter.
    (g) Exception to notice requirement. The notice requirements of 
this section shall not apply if:
    (1) The Agency determines that the information shall not be 
disclosed;
    (2) The information lawfully has been published or otherwise made 
available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).


Sec.  802.10  Fee schedule.

    (a) Fees. The fees described in this section conform to the Office 
of Management and Budget Uniform Freedom of Information Act Fee 
Schedule and Guidelines. They reflect direct costs for search, review 
(in the case of commercial requesters), and duplication of documents, 
collection of which is permitted by the FOIA. However, for each of 
these categories, the fees may be limited, waived, or reduced for the 
reasons given below or for other reasons.
    (b) Types of cost. The term direct costs means those expenditures 
the agency actually makes in searching for, review (in the case of 
commercial requesters), and duplicating documents to respond to a FOIA 
request.
    (c) Types of fees. Fees shall be charged in accordance with the 
schedule contained in paragraph (i) of this section for services 
rendered in responding to requests for records, unless any one of the 
following applies:
    (1) Services were performed without charge; or
    (2) The fees were waived or reduced in accordance with paragraph 
(f) of this section.
    (d) Categories of fees. Specific levels of fees are prescribed for 
each of the following categories of requesters:
    (1) Commercial use requesters. These requesters are assessed 
charges, which recover the full direct costs of searching for, 
reviewing, and duplicating the records sought. Commercial use 
requesters are not entitled to two hours of free search time or 100 
free pages of duplication of documents. Moreover,

[[Page 13561]]

when a request is received for disclosure that is primarily in the 
commercial interest of the requester, the Agency is not required to 
consider a request for a waiver or reduction of fees based upon the 
assertion that disclosure would be in the public interest. The Agency 
may recover the cost of searching for and reviewing records even if 
there is ultimately no disclosure of records, or no records are 
located.
    (2) Educational and non-commercial scientific institution 
requesters. Records shall be provided to requesters in these categories 
for the cost of duplication alone, excluding charges for the first 100 
pages. To be eligible, requesters must show that the request is made 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use, but are sought in furtherance of 
scholarly (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research. These categories do not include requesters who 
want records for use in meeting individual academic research or study 
requirements.
    (3) Requesters who are representatives of the news media. Records 
shall be provided to requesters in this category for the cost of 
duplication alone, excluding charges for the first 100 pages.
    (4) All other requesters. Requesters who do not fit any of the 
categories described in paragraphs (d)(1) through (3) of this section 
shall be charged fees that will recover the full direct cost of 
searching for and duplicating records that are responsive to the 
request, except that the first 100 pages of duplication and the first 
two hours of search time shall be furnished without charge. The Agency 
may recover the cost of searching for records even if there is 
ultimately no disclosure of records, or no records are located. 
Requests from persons for records about themselves filed in a systems 
of records shall continue to be treated under the fee provisions of the 
Privacy Act of 1974 which permit fees only for duplication.
    (e) Fee waiver determination. Where the initial request includes a 
request for reduction or waiver of fees, the responsible official shall 
determine whether to grant the request for reduction or waiver before 
processing the request and notify the requester of this decision. If 
the decision does not waive all fees, the responsible official shall 
advise the requester of the fact that fees shall be assessed and, if 
applicable, payment must be made in advance pursuant to paragraph (g) 
of this section.
    (f) Waiver or reduction of fees. (1) Fees may be waived or reduced 
on a case-by-case basis in accordance with this paragraph (f)(1) by the 
official who determines the availability of the records, provided such 
waiver or reduction has been requested in writing. Fees shall be waived 
or reduced by this official when it is determined, based upon the 
submission of the requester, that a waiver or reduction of the fees is 
in the public interest because furnishing the information 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. Fee waiver/reduction requests shall be 
evaluated against the current fee waiver policy guidance issued by the 
Department of Justice.
    (2) Appeals from denials of requests for waiver or reduction of 
fees shall be decided in accordance with the criteria set forth in this 
section by the official authorized to decide appeals from denials of 
access to records. Appeals shall be addressed in writing to the Office 
of the General Counsel, Court Services and Offender Supervision Agency 
for the District of Columbia, Office of the General Counsel, 633 
Indiana Avenue NW., 13th Floor, Washington, DC 20004 within thirty (30) 
days of the denial of the initial request for waiver or reduction and 
shall be decided within twenty (20) days (excluding Saturdays, Sundays 
and holidays).
    (3) Appeals from an adverse determination of the requester's 
category as described in paragraphs (d)(1) through (3) of this section 
shall be decided by the official authorized to decide appeals from 
denials of access to records and shall be based upon a review of the 
requester's submission and the Agency's own records. Appeals shall be 
addressed in writing to the office or officer specified in paragraph 
(d)(2) of this section within thirty (30) days of the receipt of the 
Agency's determination of the requester's category and shall be decided 
within twenty (20) days (excluding Saturdays, Sundays, and holidays).
    (g) Advance notice of fees. (1) When the fees for processing the 
request are estimated to exceed the limit set by the requester, and 
that amount is less than $250.00, the requester shall be notified of 
the estimated costs. The requester must provide an agreement to pay the 
estimated costs; however, the requester will also be given an 
opportunity to reformulate the request in an attempt to reduce fees.
    (2) If the requester has failed to state a limit and the costs are 
estimated to exceed $250.00, the requester shall be notified of the 
estimated costs and must pre-pay such amount prior to the processing of 
the request, or provide satisfactory assurance of full payment if the 
requester has a history of prompt payment of FOIA fees. The requester 
will also be given an opportunity to reformulate the request in an 
attempt to reduce fees.
    (h) Form of payment. (1) Payment may be made by check or money 
order payable to the Treasury of the United States.
    (2) The Agency reserves the right to request prepayment after a 
request is processed and before documents are released in the following 
circumstances.
    (i) When costs are estimated or determined to exceed $250.00, the 
Agency shall either obtain satisfactory assurance of full payment of 
the estimated cost where the requester has a history of prompt payment 
of FOIA fees or require the requester to make an advance payment of the 
entire estimated or determined fee before continuing to process the 
request.
    (ii) If a requester has previously failed to pay a fee within 
thirty (30) days of the date of the billing, the requester shall be 
required to pay the full amount owed plus any applicable interest, and 
to make an advance payment of the full amount of the estimated fee 
before the Agency begins to process a new request or the pending 
request. Whenever interest is charged, the Agency shall begin assessing 
interest on the 31st day following the day on which billing was sent. 
Interest shall be at the rate prescribed in 31 U.S.C. 3717.
    (i) Amounts to be charged for specific services. The fees for 
services performed by an employee of the Agency shall be imposed and 
collected as set forth in this paragraph (i).
    (1) Duplicating records. All requesters, except commercial 
requesters, shall receive the first 100 pages duplicated without 
charge; the first two hours of search time free; or charge which total 
$10.00 or less. Fees for the copies are to be calculated as follows:
    (i) The duplication cost is calculated by multiplying the number of 
pages in excess of 100 by $0.25.
    (ii) Photographs, films, and other materials--actual cost of 
duplication.
    (iii) Other types of duplication services not mentioned above--
actual cost.
    (iv) Material provided to a private contractor for copying shall be 
charged to the requester at the actual cost charged by the private 
contractor.
    (2) Search services. The cost of search time is calculated by 
multiplying the number of quarter hours in excess of

[[Page 13562]]

two hours by the following rates for the staff conducting the search:
    (i) $7.00 per quarter hour for clerical staff;
    (ii) $10.00 per quarter hour for professional staff; and
    (iii) $14.00 per quarter hour for managerial personnel.
    (3) Only fees in excess of $10.00 will be assessed. This means that 
the total cost must be greater than $10.00, either for the cost of the 
search (for time in excess of two hours), for the cost of duplication 
(for pages in excess of 100), or for both costs combined.
    (j) Searches for electronic records. The Agency shall charge for 
actual direct cost of the search, including computer search time, runs, 
and the operator's salary. The fee for computer output shall be actual 
direct costs. For requesters in the ``all other'' category, when the 
cost of the search (including the operator time and the cost of 
operating the computer to process a request) equals the equivalent 
dollar amount of two hours of the salary of the person performing the 
search (i.e., the operator), the charge for the computer search will 
begin.
    (k) Aggregating requests. When the Agency reasonably believes that 
a requester or group of requesters is attempting to break a request 
down into a series of requests for the purpose of evading the 
assessment of fees, the Agency shall aggregate any such requests and 
charge accordingly.
    (l) The agency shall not assess any search fees (or in the case of 
an educational or noncommercial scientific institution, or a 
representative of the news media--duplication fees) under this 
paragraph (l) if the agency has failed to comply with any time limit 
under 5 U.S.C. 552(a)(6) and Sec.  802.6(b)(1).
    (1) If an agency has determined that unusual circumstances apply 
(as the term is defined in 5 U.S.C. 552(a)(6)(B)) and the agency 
provided a timely written notice to the requester in accordance with 5 
U.S.C. 552(a)(6)(B), a failure described in 5 U.S.C. 552(a)(6)(B) is 
excused for an additional 10 days. If the agency fails to comply with 
the extended time limit, the agency may not assess any search fees (or 
in the case of a requester as described under this paragraph (l)(1), 
duplication fees).
    (2) If an agency has determined that unusual circumstances apply 
and more than 5,000 pages are necessary to respond to the request, an 
agency may charge search fees (or in the case of a requester described 
under paragraph (l)(1) of this section, duplication fees) if the agency 
has provided a timely written notice to the requester in accordance 
with 5 U.S.C. 552(a)(6)(B) and the agency has discussed with the 
requester via written mail, electronic mail, or telephone (or made not 
less than 3 good-faith attempts to do so) how the requester could 
effectively limit the scope of the request in accordance with 5 U.S.C. 
552(a)(6)(B)(ii).
    (3) If a court has determined that exceptional circumstances exist 
(as that term is defined in 5 U.S.C. 552(a)(6)(C)), a failure described 
in 5 U.S.C. 552(a)(6)(B) shall be excused for the length of time 
provided by the court order.

    Dated: January 18, 2017.
Nancy M. Ware,
Director.
[FR Doc. 2017-01602 Filed 3-13-17; 8:45 am]
BILLING CODE 3129-04-P