Revision of Freedom of Information Act Regulations, 49769-49776 [2018-21548]

Agencies

• Council of the Inspectors General on Integrity and Efficiency

[Federal Register Volume 83, Number 192 (Wednesday, October 3, 2018)]
[Rules and Regulations]
[Pages 49769-49776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21548]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 83, No. 192 / Wednesday, October 3, 2018 / 
Rules and Regulations

[[Page 49769]]



COUNCIL OF THE INSPECTORS GENERAL ON INTEGRITY AND EFFICIENCY

5 CFR Part 9800

RIN 3219-AA01


Revision of Freedom of Information Act Regulations

AGENCY: Council of the Inspectors General on Integrity and Efficiency.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: The Council of the Inspectors General on Integrity and 
Efficiency (CIGIE) is issuing this interim final rule to amend its 
regulations under the Freedom of Information Act (FOIA) to incorporate 
certain changes made to FOIA by the FOIA Improvement Act of 2016. The 
rule also implements changes in accordance with the Inspector General 
Empowerment Act of 2016.

DATES: This interim final rule is effective October 3, 2018. Written 
comments may be submitted by November 2, 2018.

ADDRESSES: You may submit comments by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected].
     Fax: (202) 254-0162.
     Mail: Atticus J. Reaser, General Counsel, Council of the 
Inspectors General on Integrity and Efficiency, 1717 H Street NW, Suite 
825, Washington, DC 20006.
     Hand Delivery/Courier: Council of the Inspectors General 
on Integrity and Efficiency, 1717 H Street NW, Suite 825, Washington, 
DC 20006.

FOR FURTHER INFORMATION CONTACT: Atticus J. Reaser, General Counsel, 
CIGIE, (202) 292-2600.

SUPPLEMENTARY INFORMATION: 

Background Information

    This rule amends CIGIE's regulations under the Freedom of 
Information Act (FOIA) to incorporate certain changes made to FOIA, 5 
U.S.C. 552, by the FOIA Improvement Act of 2016, Public Law 114-185, 
130 Stat. 538 (June 30, 2016). The FOIA Improvement Act requires all 
agencies to review and update their FOIA regulations in accordance with 
its provisions. CIGIE is making changes to its regulations accordingly, 
including highlighting the electronic availability of records, 
notifying requesters of their right to seek assistance from the FOIA 
Public Liaison and the Office of Government Information Services, 
changing the time limit for appeals, and describing limitations on 
assessing search fees if the response time is delayed.
    Additionally, on December 16, 2016, the Inspector General 
Empowerment Act of 2016, Public Law 114-317, 130 Stat. 1595 (IGEA) was 
signed into law by the President thereby amending the Inspector General 
Act of 1978, as amended, 5 U.S.C. app., (Inspector General Act) and 
expanding CIGIE's records maintenance responsibilities to include 
maintenance of the records of CIGIE's Integrity Committee (IC) by 
CIGIE's Chairperson. IC records were previously maintained pursuant to 
the Inspector General Act by the Federal Bureau of Investigation (FBI). 
To conform to the IGEA and meet its obligations thereunder, CIGIE is 
amending its regulations implementing FOIA to reflect that CIGIE has a 
centralized FOIA program and requesters should no longer submit FOIA 
requests for IC-related records to the FBI.
    In addition, CIGIE is restructuring its regulations under FOIA to 
more closely conform to the format recommended by the Department of 
Justice Office of Information Policy. Accordingly, due to the 
restructuring and number of changes, CIGIE is reissuing its FOIA 
regulations in their entirety.
    In 2008, Congress established CIGIE as an independent entity within 
the executive branch to address integrity, economy, and effectiveness 
issues that transcend individual Government agencies; and increase the 
professionalism and effectiveness of personnel by developing policies, 
standards, and approaches to aid in the establishment of a well-trained 
and highly skilled workforce in the offices of the Inspectors General 
(OIG). CIGIE's membership is comprised of all Inspectors General whose 
offices are established under section 2 or section 8G of the Inspector 
General Act (i.e., those Inspectors General that are Presidentially-
appointed/Senate-confirmed and those that are appointed by agency 
heads) as well as the Controller of the Office of Federal Financial 
Management, a designated official of the FBI, the Director of the 
Office of Government Ethics, the Special Counsel of the Office of 
Special Counsel, the Deputy Director of the Office of Personnel 
Management, the Deputy Director for Management of the Office of 
Management and Budget (OMB), and the Inspectors General for the 
Intelligence Community, Central Intelligence Agency, Library of 
Congress, Capitol Police, Government Publishing Office, Government 
Accountability Office, and Architect of the Capitol. The Deputy 
Director for Management of OMB serves as the Executive Chairperson of 
CIGIE.

Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(d)(3), CIGIE has found that good cause 
exists for waiving the general notice of proposed rulemaking and public 
comment procedures as to these amendments and for issuing this interim 
final rule without a delayed effective date. The notice and comment 
procedures are being waived because most of the revisions are being 
made in accordance with the mandates of the FOIA Improvement Act of 
2016 and the IGEA and CIGIE is not exercising discretion on substantive 
matters in issuing these revisions.

Executive Orders 12866 and 13563

    In promulgating this rule, CIGIE has adhered to the regulatory 
philosophy and the applicable principles of regulation set forth in 
section 1 of Executive Order 12866, Regulatory Planning and Review. OMB 
has determined that this rule is not ``significant'' under Executive 
Order 12866.

Regulatory Flexibility Act

    These regulations will not have a significant economic impact on a 
substantial number of small entities. Therefore, a regulatory 
flexibility analysis as provided by the Regulatory Flexibility Act, as 
amended, is not required.

[[Page 49770]]

Paperwork Reduction Act

    These regulations impose no additional reporting and recordkeeping 
requirements. Therefore, clearance by OMB is not required.

Federalism (Executive Order 13132)

    This rule does not have Federalism implications, as set forth in 
Executive Order 13132. It will not have substantial direct effects on 
the States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 5 CFR Part 9800

    Administrative practice and procedure, Freedom of Information, 
Privacy.

0
Accordingly, for the reasons set forth in the preamble, 5 CFR part 9800 
is revised to read as follows:

PART 9800--FREEDOM OF INFORMATION ACT REGULATIONS

Sec.
9800.101 General provisions.
9800.102 Requirements for making FOIA requests.
9800.103 Consultations, referrals, and coordination.
9800.104 Timing of responses to requests.
9800.105 Responses to requests.
9800.106 Confidential commercial information.
9800.107 Administrative appeals.
9800.108 Preservation of records.
9800.109 Fees.
9800.110 Public reading room.
9800.111 Other rights and services.

    Authority: Section 11 of the Inspector General Act of 1978, as 
amended, 5 U.S.C. app.; Section 3 of the Inspector General 
Empowerment Act of 2016, Pub. L. 114-317, 130 Stat. 1595; 5 U.S.C. 
301, 552, 552a; 31 U.S.C. 9701.


Sec.  9800.101   General provisions.

    (a) In general. This part contains the rules that the Council of 
the Inspectors General on Integrity and Efficiency (CIGIE) follows in 
processing requests for records under the Freedom of Information Act 
(FOIA), 5 U.S.C. 552. These rules should be read in conjunction with 
the text of FOIA and the Uniform Freedom of Information Fee Schedule 
and Guidelines published by the Office of Management and Budget (OMB 
Guidelines). Requests made by individuals for records about themselves 
under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under part 
9801 as well as under this part.
    (b) Centralized system. CIGIE has a centralized system for 
processing FOIA requests, with one office receiving and coordinating 
the processing of all FOIA requests made to CIGIE.
    (c) Authority to grant or deny requests. The Executive Director of 
CIGIE, or designee, is authorized to grant or deny any requests for 
records that are maintained by CIGIE. For purposes of any request for 
records maintained by the CIGIE Integrity Committee (IC) established 
under section 11(d) of the Inspector General Act of 1978, as amended, 5 
U.S.C. app. (Inspector General Act), the designees are the IC 
Chairperson and IC Vice Chairperson.


Sec.  9800.102  Requirements for making FOIA requests.

    (a) Requests generally. (1) A request for CIGIE records under FOIA 
must be made in writing. The request must be sent by:
    (i) Regular mail addressed to: FOIA Officer, Council of the 
Inspectors General on Integrity and Efficiency, 1717 H Street NW, Suite 
825, Washington, DC 20006; or
    (ii) By fax sent to the FOIA Officer at (202) 254-0162; or
    (iii) By email to [email protected].
    (2) For the quickest handling, both the request letter and envelope 
or any fax cover sheet or email subject line should be clearly marked 
``FOIA Request.'' Whether sent by mail, fax, email, or other prescribed 
electronic method, a FOIA request will not be considered to have been 
received by CIGIE until it reaches the FOIA office.
    (3) A requester who is making a request for records about himself 
or herself, as a parent or guardian of a minor, or as the guardian of 
someone determined by a court to be incompetent, must comply with the 
verification of identity provisions set forth in part 9801.
    (4) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or 
by submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary). As an exercise of administrative 
discretion, CIGIE can require a requester to supply additional 
information if necessary to verify that a particular individual has 
consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable CIGIE personnel to locate 
them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may assist CIGIE in 
identifying the requested records, such as the date, title or name, 
author, recipient, subject matter of the record, case number, file 
designation, or reference number. In general, requesters should include 
as much detail as possible about the specific records or the types of 
records that they are seeking. Before making their requests, requesters 
may contact CIGIE's FOIA Public Liaison to discuss the records they are 
seeking and to receive assistance in describing the records. If after 
receiving a request CIGIE determines that it does not reasonably 
describe the records sought, CIGIE will inform the requester what 
additional information is needed to perfect the request or why the 
request is otherwise insufficient. CIGIE will toll the processing of 
the request when it notifies the requester that additional information 
is needed or that the request is otherwise insufficient. CIGIE may toll 
one time for this purpose. Requesters who are attempting to reformulate 
or modify such a request may discuss their request with CIGIE's FOIA 
Public Liaison. If the requester does not provide the additional 
information within 30 days, the request will be closed.
    (c) Preferred format. Requests may specify the preferred form or 
format (including electronic formats) for the records sought. CIGIE 
will accommodate the request if the record is readily reproducible in 
that form or format.
    (d) Requester contact information. Requesters must provide contact 
information, such as a telephone number, email address, and/or mailing 
address, to assist CIGIE in communicating with requester and providing 
released records.


Sec.  9800.103   Consultations, referrals, and coordination.

    (a) In general. When reviewing records located by CIGIE in response 
to a request, CIGIE will determine whether another agency of the 
Federal Government is better able to determine whether the record is 
exempt from disclosure under FOIA. As to any such record, CIGIE will 
proceed in one of the following ways:
    (1) Consultation. When records originated with CIGIE, but contain 
within them information of interest to another agency or office of the 
Federal Government, CIGIE will typically consult with that other agency 
prior to making a release determination.

[[Page 49771]]

    (2) Referral. (i) When CIGIE believes that a different agency of 
the Federal Government is best able to determine whether to disclose 
the record, CIGIE typically will refer the responsibility for 
responding to the request regarding that record to that agency. 
Ordinarily, the agency that originated the record will be presumed to 
be best able to make the disclosure determination. However, if CIGIE 
and the originating agency jointly agree that the former is in the best 
position to respond regarding the record, then the record may be 
handled as a consultation.
    (ii) Whenever CIGIE refers any part of the responsibility for 
responding to a request to another agency, it will 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(s) of 
the agency to which the record was referred, including that agency's 
FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the 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 or national security interests. For example, if CIGIE, in 
responding to a request for records on a living third party, locates 
within its files records originating with a law enforcement agency, and 
if the existence of that law enforcement interest in the third party 
was not publicly known, then to disclose that law enforcement interest 
could cause an unwarranted invasion of the personal privacy of the 
third party. Similarly, if CIGIE locates within its files material 
originating with an Intelligence Community agency, and the involvement 
of that agency in the matter is classified and not publicly 
acknowledged, then to disclose or give attribution to the involvement 
of that Intelligence Community agency could cause national security 
harms. In such instances, to avoid harm to an interest protected by an 
applicable exemption, CIGIE will 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 
will then usually be conveyed to the requester by CIGIE.
    (b) Timing of responses to received consultations and referrals. 
All consultations and referrals received by CIGIE will be handled 
according to the date that the first agency received the perfected FOIA 
request.
    (c) Agreements regarding consultations and referrals. CIGIE may 
establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.
    (d) Classified information. On receipt of any request involving 
classified information, CIGIE must determine whether the information is 
currently and properly classified in accordance with applicable 
classification rules. Whenever a request involves a record containing 
information that has been classified or may be appropriate for 
classification by another agency under any applicable Executive order 
concerning the classification of records, CIGIE must refer the 
responsibility for responding to the request regarding that information 
to the agency that classified the information, or that should consider 
the information for classification. Whenever CIGIE's record contains 
information that has been derivatively classified (for example, when it 
contains information classified by another agency), CIGIE must refer 
the responsibility for responding to that portion of the request to the 
agency that classified the underlying information.


Sec.  9800.104   Timing of responses to requests.

    (a) In general. Ordinarily, CIGIE will have 20 days (excepting 
Saturdays, Sundays, and legal public holidays) from when a request is 
received to determine whether to grant or deny the request and will 
respond to requests according to their order of receipt in each track 
as addressed in paragraph (b) of this section. In determining which 
records are responsive to a request, CIGIE ordinarily will include only 
records in its possession as of the date on which it begins its search 
for them. If any other date is used, CIGIE will inform the requester of 
that date.
    (b) Multitrack processing. (1) CIGIE processes requests using a 
multitrack processing system. There are four processing tracks: An 
expedited track, if the request qualifies; a simple track for 
relatively simple requests; a complex track for more complex and 
lengthy requests; and a remanded track, when a FOIA appeal is granted. 
After CIGIE assigns a request to a track for processing, CIGIE will 
notify the requester of that assignment.
    (2) CIGIE may provide requesters in its complex track with an 
opportunity to limit the scope of their requests to qualify for faster 
processing within the specified limits of the simple track.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in FOIA, and CIGIE extends the time limit 
on that basis, CIGIE will, before expiration of the 20-day period to 
respond, notify the requester in writing of the unusual circumstances 
involved and of the date by which processing of the request can be 
expected to be completed. Where the extension exceeds 10 working days, 
CIGIE will, as described by FOIA, provide the requester with an 
opportunity to modify the request or arrange an alternative time period 
for processing. CIGIE will make available its designated FOIA contact 
and its FOIA Public Liaison for this purpose. CIGIE will also alert 
requesters to the availability of the Office of Government Information 
Services to provide dispute resolution services.
    (d) Aggregating requests. For the purposes of satisfying unusual 
circumstances under FOIA, CIGIE may aggregate requests in cases where 
it reasonably appears that multiple requests, made either by a 
requester or by a group of requesters acting in concert, constitute a 
single request that would otherwise involve unusual circumstances. 
CIGIE will not aggregate multiple requests that involve unrelated 
matters.
    (e) Expedited processing. (1) Requests and appeals will be 
processed on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity that 
affect public confidence.
    (2) A request for expedited processing may be made at any time.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (e)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public

[[Page 49772]]

about the government activity involved in the request--one that extends 
beyond the public's right to know about government activity generally. 
The existence of numerous articles published on a given subject can be 
helpful in establishing the requirement that there be an ``urgency to 
inform'' the public on the topic. As a matter of administrative 
discretion, CIGIE may waive the formal certification requirement.
    (4) CIGIE will notify the requester within 10 calendar days of the 
receipt of a request for expedited processing of its decision whether 
to grant or deny expedited processing. If expedited processing is 
granted, the request will be given priority, placed in the processing 
track for expedited requests, and will be processed as soon as 
practicable. If a request for expedited processing is denied, any 
appeal of that decision will be acted on expeditiously.


Sec.  9800.105   Responses to requests.

    (a) In general. CIGIE will, to the extent practicable, communicate 
with requesters having access to the internet using electronic means, 
such as email.
    (b) Acknowledgments of requests. CIGIE will acknowledge the request 
in writing and assign it an individualized tracking number if it will 
take longer than 10 working days to process. CIGIE will include in the 
acknowledgment a brief description of the records sought to allow 
requesters to more easily keep track of their requests.
    (c) Grants of requests. Once CIGIE makes a determination to grant a 
request in full or in part, it will notify the requester in writing. 
CIGIE also will inform the requester of any fees charged under Sec.  
9800.109 and will disclose the requested records to the requester 
promptly upon payment of any applicable fees. CIGIE will inform the 
requester of the availability of the FOIA Public Liaison to offer 
assistance.
    (d) Adverse determinations of requests. When CIGIE makes an adverse 
determination denying a request in any respect, it will notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include decisions that: The requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject 
to FOIA; the requested record does not exist, cannot be located, or has 
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.
    (e) Content of denial. The denial will include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by CIGIE in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part or if providing an estimate would harm an interest protected by 
an applicable exemption; and
    (4) A statement that the denial may be appealed under Sec.  
9800.107 and a description of the requirements set forth therein.
    (5) A statement notifying the requester of the assistance available 
from the FOIA Public Liaison and the dispute resolution services 
offered by the Office of Government Information Services.
    (f) Markings on released documents. Markings on released documents 
must be clearly visible to the requester. Records disclosed in part 
will be marked to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted will also be indicated on the record, if 
technically feasible.
    (g) Use of record exclusions. (1) In the event that CIGIE 
identifies records that may be subject to exclusion from the 
requirements of FOIA pursuant to 5 U.S.C. 552(c), CIGIE will confer 
with the Department of Justice Office of Information Policy (OIP) to 
obtain approval to apply the exclusion.
    (2) Should CIGIE invoke an exclusion, it will maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.


Sec.  9800.106  Confidential commercial information.

    (a) Definitions--(1) Confidential commercial information means 
commercial or financial information obtained by CIGIE from a submitter 
that may be protected from disclosure under Exemption 4 of FOIA, 5 
U.S.C. 552(b)(4).
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides information either directly or 
indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, either at the time of submission or 
within a reasonable time thereafter, any portion of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations shall expire 10 years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (c) When notice to submitters is required. (1) CIGIE will promptly 
provide written notice to a submitter of confidential commercial 
information whenever records containing such information are requested 
under FOIA if, after reviewing the request, the responsive records, and 
any appeal by the requester, CIGIE determines that it may be required 
to disclose the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) CIGIE has a reason to believe that the requested information 
may be protected from disclosure under Exemption 4, but has not yet 
determined whether the information is protected from disclosure under 
that exemption or any other applicable exemption.
    (2) The notice will either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, notice may be made by posting or publishing the 
notice in a place or manner reasonably likely to accomplish it.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section will not apply if:
    (1) CIGIE determines that the information is exempt under FOIA;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than FOIA or by a regulation issued in accordance with the requirements 
of Executive Order 12600; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous, except that, in such a case, 
CIGIE will give the submitter written notice of any final decision to 
disclose the

[[Page 49773]]

information and must provide that notice within a reasonable number of 
days prior to a specified disclosure date.
    (e) Opportunity to object to disclosure. (1) CIGIE will specify a 
reasonable time period within which the submitter must respond to the 
notice referenced above. If a submitter has any objections to 
disclosure, it should provide CIGIE a detailed written statement that 
specifies all grounds for withholding the particular information under 
any exemption of FOIA. To rely on Exemption 4 as basis for 
nondisclosure, the submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is privileged or confidential.
    (2) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. Information received by CIGIE after the 
date of any disclosure decision shall not be considered by CIGIE. Any 
information provided by a submitter under this part may itself be 
subject to disclosure under FOIA.
    (f) Analysis of objections. CIGIE will consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose the requested information.
    (g) Notice of intent to disclose. Whenever CIGIE decides to 
disclose information over the objection of a submitter, CIGIE will 
provide the submitter written notice, which will include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which will be a reasonable time 
subsequent to the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, CIGIE will promptly notify the submitter.
    (i) Requester notification. CIGIE will 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.


Sec.  9800.107  Administrative appeals.

    (a) Appeals of adverse determinations. A requester may appeal a 
determination denying a FOIA request in any respect to the CIGIE 
Chairperson c/o Office of General Counsel, Council of the Inspectors 
General on Integrity and Efficiency, 1717 H Street NW, Suite 825, 
Washington, DC 20006. The appeal must be in writing, and must be 
submitted either by:
    (1) Regular mail sent to the address listed in this subsection, 
above; or
    (2) By fax sent to the FOIA Officer at (202) 254-0162; or
    (3) By email to [email protected].
    (b) Submission and content. The Office of General Counsel must 
receive the appeal within 90 calendar days of the date of the letter 
denying the request. For the quickest possible handling, the appeal 
letter and envelope or any fax cover sheet or email subject line should 
be clearly marked ``FOIA Appeal.'' The appeal letter must clearly 
identify the CIGIE determination (including the assigned FOIA request 
number, if known) being appealed.
    (c) Adjudication of appeals. (1) The CIGIE Chairperson or designee 
will act on all appeals under this section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (3) On receipt of any appeal involving classified information, 
CIGIE will take appropriate action to ensure compliance with applicable 
classification rules.
    (d) Decisions on appeals. Ordinarily, CIGIE will have 20 days 
(excepting Saturdays, Sundays, and legal public holidays) from receipt 
of the appeal to issue an appeal decision. 5 U.S.C. 552(a)(6)(A)(ii). 
CIGIE will provide its decision on an appeal in writing. A decision 
that upholds CIGIE's determination in whole or in part will contain a 
statement that identifies the reasons for the affirmance, including any 
FOIA exemptions applied. The decision will provide the requester with 
notification of the statutory right to file a lawsuit and will inform 
the requester of the dispute resolution services offered by the Office 
of Government Information Services of the National Archives and Records 
Administration as a non-exclusive alternative to litigation. If CIGIE's 
decision is remanded or modified on appeal, CIGIE will notify the 
requester of that determination in writing. CIGIE will then further 
process the request in accordance with that appeal determination and 
will respond directly to the requester.
    (e) Engaging in dispute resolution services provided by the Office 
of Government Information Services. Mediation is a voluntary process. 
If CIGIE agrees to participate in the mediation services provided by 
the Office of Government Information Services, it will actively engage 
as a partner to the process in an attempt to resolve the dispute.
    (f) When appeal is required. Before seeking review by a court of 
CIGIE's adverse determination, a requester generally must first submit 
a timely administrative appeal.


Sec.  9800.108   Preservation of records.

    CIGIE will preserve all correspondence pertaining to the requests 
that it receives under this part, as well as copies of all requested 
records, until disposition or destruction is authorized pursuant to 
title 44 of the United States Code and the relevant approved records 
retention schedule. Records shall not be disposed of or destroyed while 
they are the subject of a pending request, appeal, or lawsuit under 
FOIA.


Sec.  9800.109   Fees.

    (a) In general. CIGIE will charge for processing requests under 
FOIA in accordance with the provisions of this section and with the OMB 
Guidelines. To resolve any fee issues that arise under this section, 
CIGIE may contact a requester for additional information. CIGIE will 
ensure that searches, review, and duplication are conducted in the most 
efficient and the least expensive manner. CIGIE ordinarily will collect 
all applicable fees before sending copies of records to a requester. 
Requesters must pay fees by check or money order made payable to the 
Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. CIGIE's decision to place a requester in the commercial use 
category will be made on a case-by-case basis based on the requester's 
intended use of the information. CIGIE will notify requester if 
requester is placed in the commercial use category.
    (2) Direct costs are those expenses that an agency incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. For example, 
direct costs include the salary of the employee performing the work 
(i.e., the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating computers and other 
electronic equipment, such as photocopiers and scanners. Direct costs 
do not include overhead expenses, such as the costs of space, and of 
heating or lighting a facility.

[[Page 49774]]

    (3) Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with the requester's role at the 
educational institution. CIGIE may seek assurance from the requester 
that the request is in furtherance of scholarly research and will 
advise requesters of their placement in this category.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this section, and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. A requester in this 
category must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use. 
CIGIE will notify requester if requester is placed in the noncommercial 
scientific institution category.
    (6) Representative of the news media is any person or entity 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 that work to an audience. The term 
``news'' means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include television or radio stations that broadcast ``news'' 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. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity will be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, CIGIE will 
also consider a requester's past publication record in making this 
determination. CIGIE will notify requester if requester is placed in 
the representative of the news media category.
    (7) Review is the examination of a record located in response to a 
request 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 the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential commercial information submitter under Sec.  
9800.106, but it does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, CIGIE will 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, CIGIE will not add any additional costs to charges 
calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. Search fees will be charged for 
all other requesters, subject to the restrictions of paragraph (d) of 
this section. CIGIE may properly charge for time spent searching even 
if they do not locate any responsive records or if they determine that 
the records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees will be as follows: Professional--$10.00; and 
clerical/administrative--$4.75.
    (iii) Requesters will be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. Requesters will be notified of 
the costs associated with creating such a program and must agree to pay 
the associated costs before the costs may be incurred.
    (iv) For requests that require the retrieval of records stored by 
an agency at a Federal records center operated by National Archives and 
Records Administration, additional costs will be charged in accordance 
with the Transactional Billing Rate Schedule established by National 
Archives and Records Administration.
    (2) Duplication. Duplication fees will be charged to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. CIGIE will honor a requester's preference for receiving a 
record in a particular form or format where it is readily reproducible 
by CIGIE in the form or format requested. Where photocopies are 
supplied, CIGIE will provide one copy per request at a cost of five 
cents per page. For copies of records produced on tapes, disks, or 
other media, CIGIE will charge the direct costs of producing the copy, 
including operator time. Where paper documents must be scanned to 
comply with a requester's preference to receive the records in an 
electronic format, the requester shall pay the direct costs associated 
with scanning those materials. For other forms of duplication, CIGIE 
shall charge the direct costs.
    (3) Review. Review fees shall be charged to requesters who make 
commercial use requests. Review fees shall be assessed in connection 
with the initial review of the record, i.e., the review conducted by 
CIGIE to determine whether an exemption applies to a particular record 
or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with CIGIE's re-review of the records in order to 
consider the use of other exemptions may be assessed as review fees. 
Review fees shall be charged at the same rates as those charged for a 
search under paragraph (c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) No search fees will be 
charged for requests by educational institutions (unless the records 
are sought for a commercial use), noncommercial scientific 
institutions, or representatives of the news media.
    (2) If CIGIE fails to comply with FOIA's time limits in which to 
respond to a request, it may not charge search fees, or, in the 
instances of requests from requesters described in paragraph (d)(1) of 
this section, may not charge duplication fees, except as described in 
paragraphs (d)(2)(i) through (iii) of this section.

[[Page 49775]]

    (i) If CIGIE has determined that unusual circumstances, as defined 
by FOIA, apply and CIGIE provided timely written notice to the 
requester in accordance with FOIA, a failure to comply with the time 
limit will be excused for an additional 10 days.
    (ii) If CIGIE has determined that unusual circumstances as defined 
by FOIA apply, and more than 5,000 pages are necessary to respond to 
the request, CIGIE may charge search fees, or, in the case of 
requesters described in paragraph (d)(1) of this section, may charge 
duplication fees if the following steps are taken. CIGIE will have 
provided timely written notice of unusual circumstances to the 
requester in accordance with FOIA and CIGIE will have discussed with 
the requester via written mail, email, or telephone (or made not less 
than three 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). If this exception is satisfied, CIGIE may charge all 
applicable fees incurred in the processing of the request.
    (iii) If a court has determined that exceptional circumstances 
exist, as defined by FOIA, a failure to comply with the time limits 
will be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, 
CIGIE will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under paragraph (c) of this section is $25.00 or less for any request, 
no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. (1) When CIGIE 
determines or estimates that the fees to be assessed in accordance with 
this section will exceed $25.00, CIGIE will notify the requester of the 
actual or estimated amount of the fees, including a breakdown of the 
fees for search, review, or duplication, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. If 
only a portion of the fee can be estimated readily, CIGIE will advise 
the requester accordingly. If the requester is a noncommercial use 
requester, the notice will specify that the requester is entitled to 
the statutory entitlements of 100 pages of duplication at no charge 
and, if the requester is charged search fees, two hours of search time 
at no charge, and will advise the requester whether those entitlements 
have been provided.
    (2) In cases in which a requester has been notified that the actual 
or estimated fees exceed $25.00, the request shall not be considered 
received and further work will not be completed until the requester 
commits in writing to pay the actual or estimated total fee, or 
designates some amount of fees the requester is willing to pay, or in 
the case of a noncommercial use requester who has not yet been provided 
with the requester's statutory entitlements, designates that the 
requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. CIGIE is not required to accept 
payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but CIGIE estimates that the total fee will 
exceed that amount, CIGIE shall toll the processing of the request when 
it notifies the requester of the estimated fees in excess of the amount 
the requester has indicated a willingness to pay. CIGIE will inquire 
whether the requester wishes to revise the amount of fees the requester 
is willing to pay or modify the request. Once the requester responds, 
the time to respond will resume from where it was at the date of the 
notification.
    (4) CIGIE will make available their FOIA Public Liaison or other 
FOIA professional to assist any requester in reformulating a request to 
meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if CIGIE chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
shall be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (g) Charging interest. CIGIE may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges shall be assessed at the rate provided in 31 U.S.C. 
3717 and will accrue from the billing date until payment is received by 
CIGIE. CIGIE will follow the provisions of the Debt Collection Act of 
1982, Public Law 97-365, 96 Stat. 1749, as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (h) Aggregating requests. When CIGIE reasonably believes that a 
requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, CIGIE may aggregate those requests and charge 
accordingly. CIGIE may presume that multiple requests of this type made 
within a 30-day period have been made to avoid fees. For requests 
separated by a longer period, CIGIE will aggregate them only where 
there is a reasonable basis for determining that aggregation is 
warranted in view of all the circumstances involved. Multiple requests 
involving unrelated matters will not be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraph (i)(2) or (3) of this section, CIGIE will not require the 
requester to make an advance payment before work is commenced or 
continued on a request. Payment owed for work already completed (i.e., 
payment before copies are sent to a requester) is not an advance 
payment.
    (2) When CIGIE determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. CIGIE may 
elect to process the request prior to collecting fees when it receives 
a satisfactory assurance of full payment from a requester with a 
history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to CIGIE or another agency within 30 days of the 
billing date, CIGIE may require that the requester pay the full amount 
due, plus any applicable interest on that prior request, and CIGIE may 
require that the requester make an advance payment of the full amount 
of any anticipated fee before CIGIE begins to process a new request or 
continues to process a pending request or any pending appeal. Where 
CIGIE has a reasonable basis to believe that a requester has 
misrepresented the requester's identity to avoid paying outstanding 
fees, it may require that the requester provide proof of identity.
    (4) In cases in which CIGIE requires advance payment, the request 
shall not be considered received and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within 30 days after the date of CIGIE's fee 
determination, the request will be closed.

[[Page 49776]]

    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
CIGIE shall inform the requester of the contact information for that 
program.
    (k) Requirements for waiver or reduction of fees. (1) Requesters 
may seek a waiver of fees by submitting a written application 
demonstrating how 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 is not primarily in the commercial interest of the requester.
    (2) CIGIE will furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that 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 is not primarily in the commercial interest of the requester. In 
deciding whether this standard is satisfied CIGIE will consider the 
factors described in paragraphs (k)(2)(i) through (iii) of this 
section.
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. CIGIE will presume that a representative of the news media 
will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, CIGIE will consider the following criteria:
    (A) CIGIE must identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters must be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, CIGIE must 
determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (k)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. CIGIE ordinarily will presume that when a 
news media requester has satisfied the requirements of paragraphs 
(k)(2)(i) and (ii) of this section, the request is not primarily in the 
commercial interest of the requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return will not be presumed to primarily serve the public 
interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to CIGIE and should address the criteria 
referenced above. A requester may submit a fee waiver request at a 
later time so long as the underlying record request is pending or on 
administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester shall be required to pay any costs incurred up to the 
date the fee waiver request was received.


Sec.  9800.110  Public reading room.

    CIGIE maintains an electronic public reading room on its website, 
https://www.ignet.gov, which contains the records that FOIA requires be 
regularly made available for public inspection and copying, as well as 
additional records of interest to the public. CIGIE is responsible for 
determining which of its records must be made publicly available, for 
identifying additional records of interest to the public that are 
appropriate for public disclosure, and for posting and indexing such 
records. CIGIE must ensure that its website of posted records and 
indices is reviewed and updated on an ongoing basis. CIGIE's FOIA 
Public Liaison can assist individuals in locating records at CIGIE.


Sec.  9801.111  Other rights and services.

    Nothing in this part shall be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under FOIA.

    Dated: September 26, 2018.
Michael E. Horowitz,
Chairperson of the Council of the Inspectors General on Integrity and 
Efficiency.
[FR Doc. 2018-21548 Filed 10-2-18; 8:45 am]
BILLING CODE 6820-C9-P