Public Availability of Agency Records and Informational Materials, 5137-5147 [2020-00057]

Download as PDF Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations GENERAL SERVICES ADMINISTRATION 41 CFR Part 105–60 [GSPMR Case 2016–105–1; Docket No. 2016–0004, Sequence No. 1] RIN 3090–AJ74 Public Availability of Agency Records and Informational Materials Office of Administrative Services (OAS), General Services Administration (GSA). ACTION: Final rule. AGENCY: GSA is amending the General Services Administration’s regulations implementing the Freedom of Information Act (FOIA). The regulations are being updated to incorporate changes brought about by the amendments to FOIA under both statutory and nonstatutory authorities. Specifically, this rule amends GSA’s regulations under FOIA to incorporate certain changes made to FOIA by the FOIA Improvement Act of 2016. Additionally, the regulations are being updated to reflect developments in case law, recent guidance from the Department of Justice—Office of Information Policy for processing FOIA requests, technological advancements in how the FOIA is administered, and to update the cost figures used in calculating and charging search/or review fees. Finally, the revisions to the rule increase the amount of information that members of the public may receive from the agency without being charged processing fees through proactive agency disclosures. DATES: Effective: February 28, 2020. FOR FURTHER INFORMATION CONTACT: Mr. Travis S. Lewis, Director of GSA, OAS, Freedom of Information Act Requester Service Center, at 202–219–3078 or via email at travis.lewis@gsa.gov for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755. Please cite GSPMR Case 2016–105–1. SUPPLEMENTARY INFORMATION: SUMMARY: lotter on DSKBCFDHB2PROD with RULES I. Background GSA published a proposed rule in the Federal Register at 83 FR 28592 on June 20, 2018, to amend the General Services Administration rule to regulations implementing the Freedom of Information Act (FOIA). The FOIA provides that any person has a right, enforceable in Federal court, to obtain access to Federal agency records, except to the extent that such records (or portions of them) are VerDate Sep<11>2014 15:53 Jan 28, 2020 Jkt 250001 protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. FOIA thus established a statutory right of public access to Executive Branch information in the Federal Government. Part 105–60 of 41 CFR establishes the policies, responsibilities, and procedures for the release of GSA records that are under the jurisdiction of GSA to members of the public. These regulations apply to information found in all GSA agency organizations and components. This final rule revises GSA’s regulations under the FOIA to address changes to the language of several procedural provisions and to incorporate certain changes brought about by the amendments to FOIA under the FOIA Improvement Act of 2016 Public Law 114–185, 130 Stat. 538 (June 30, 2016). The final rule also incorporates changes to the language and structure of the current GSA regulations enumerated in 41 CFR part 105–60 to achieve the aforementioned updates. Please note that the final rule that applies to GSA’s FOIA Fee Schedule can be found in Subpart J—Fees. The revisions also increase the amount of information that members of the public may receive from the agency without being charged processing fees through proactive disclosures of agency records online in the GSA FOIA Reading Room. The FOIA Improvement Act of 2016 provides that agencies shall allow a minimum of 90 days for requesters to file an administrative appeal. The Act also requires that agencies notify requesters of the availability of dispute resolution services at various times throughout the FOIA process. Finally, the Act codifies the ‘‘foreseeable harm’’ standard. Additionally, GSA’s FOIA regulations are being updated to reflect developments in case law, technological changes in the administration of FOIA, executive guidance from the Department of Justice, other non-statutory authorities such as Presidential Executive Orders, including current cost figures to be used in calculating and charging fees. II. Discussion and Analysis GSA has reviewed the public comments in the development of the final rule. A discussion of the comments is provided as follows: A. Summary of Significant Changes There were no significant changes as a result of the comments received. PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 5137 B. Analysis of Public Comments Comment: The first respondent expressed that GSA should remove its references to the Office of Management and Budget’s (OMB) Uniform Freedom of Information Act Fee Schedule and Guidelines (‘‘OMB Guidelines’’) as both an authority for interpreting the FOIA and GSA’s implementing regulations, because the OMB Guidelines are now outdated. Response: Per the Freedom of Information Reform Act of 1986 (Pub. L. 99–570), all federal agencies subject to the FOIA are required to promulgate regulations implementing the FOIA’s amended fee and fee waiver provisions reflecting the OMB Guidelines. To date, there has not been a statutory amendment to the Freedom of Information Reform Act of 1986 (Pub. L. 99–570) nor any case precedent which has eliminated GSA’s requirement to promulgate regulations implementing the FOIA’s amended fee and fee waiver provisions reflecting the OMB Guidelines. GSA will continue to implement the OMB Guidelines accordingly. Comment: The second respondent expressed that streamlining the National Environmental Policy Act (NEPA) via a time/or page limit on NEPA documents will just create the need for more administrative paperwork and project management costs as government decision-makers struggle to meet these new requirements. This will thus divert time from the more important work of thinking about and discussing proposed NEPA related projects. Response: Responder’s comment does not make mention of nor concerns GSA’s FOIA regulations. This comment is not germane to GSA. III. Executive Orders 12866 and 13563—Regulatory Review Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. E:\FR\FM\29JAR1.SGM 29JAR1 5138 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations IV. Executive Order 13771 This rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866. V. Regulatory Flexibility Act This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is also exempt from the Administrative Procedure Act per 5 U.S.C. 553(a)(2), because it applies to agency management or personnel. VI. Small Business Regulatory Enforcement Fairness Act This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel. VII. Paperwork Reduction Act This final rule does not contain any information collection requirements that require approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. Chapter 35). VIII. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. List of Subjects in 41 CFR Part 105–60 Administrative practice and procedure, Records, Information, Confidential business information, Freedom of Information Act, Privacy Act. Dated: December 23, 2019. Emily W. Murphy, Administrator. For the reasons stated in the preamble, GSA revises 41 CFR part 105–60 to read as follows: PART 105–60—PUBLIC AVAILABILITY OF AGENCY RECORDS AND INFORMATIONAL MATERALS lotter on DSKBCFDHB2PROD with RULES Sec. Subpart A—General Policy 105–60.000 Scope of part. 105–60.001 General policy. Subpart B—Proactive Disclosures 105–60.100 Public availability of information. 15:53 Jan 28, 2020 Subpart D—Responding to Requests 105–60.300 Responsibility for responding to requests. 105–60.301 Acknowledging FOIA request 105–60.302 Responding to FOIA requests. 105–60.303 Consolation, referral, and coordination 105–60.304 Time requirements to respond to FOIA requests. 105.60.305 Unusual circumstances. 105.60.306 Expedited processing. Subpart E—Acknowledging the FOIA Request 105–60.400 Applying FOIA exemptions. Subpart F—Final Responses to the FOIA Request 105–60.500 Final response procedures and rules. Subpart G—Handling Confidential Commercial Information 105–60.600 Procedural and lawful considerations. 105–60.601 Submitter’s opportunity to object to disclosure. Subpart I—Appeals 105–60.700 Submitting an appeal. 105–60.701 Adjudication of appeals. 105–60.702 Requirements to preserve FOIA records. Subpart J—Fees 105–60.800 General provisions. 105–60.801 Definitions pertaining to fee assessments. 105–60.802 Fees to be charged. 105–60.803 Restrictions on charging fees. 105–60.804 Fee Schedule. 105–60.805 Anticipated fees. 105–60.806 Advanced payments. 105–60.807 Fee waivers and fee reductions. Subpart K—Other Rights and Services 105–60.900 Coda. Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 486(c). Subpart A—General Policy § 105–60.000 ■ VerDate Sep<11>2014 Subpart C—Requirements for Making Requests 105–60.200 Making a request. 105–60.201 Description of records sought. Jkt 250001 Scope of part. This part contains the rules that the U.S. General Services Administration, hereinafter GSA, follows in processing requests for records under the Freedom of Information Act (‘‘FOIA’’), 5 U.S.C. 552. The rules in this part should be read in conjunction with the text of the 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 in accordance with Privacy Act regulations as well as under this part. PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 § 105.60.001 General policy. (a) In compliance with the Freedom of Information Act (FOIA), as amended 5 U.S.C. 552, a positive and continuing obligation exists for GSA to make available to the fullest extent practicable upon request by members of the public, all records and informational materials that are generated, maintained, and controlled by GSA. (b) This subpart also covers exemptions from disclosure of these records; procedures for the public to inspect or obtain copies of GSA records. (c) The regulations promulgated in this subpart are consistent with amendments to 5 U.S.C. 552a as well as other applicable Federal laws germane to disclosure of information to the public. (d) This subpart applies to all GSA organizations, portfolios, business lines, regional offices and components. The aforementioned units may establish additional rules for processing FOIA requests due to unique program requirements; however, such rules shall be consistent with these rules and have the concurrence of the GSA Administrator and GSA Chief FOIA Officer. (e) Any internal GSA policies or procedures inconsistent with the policies and procedures promulgated in this subpart are superseded by this subpart to the extent of that inconsistency. (f) This subpart does not entitle any person to any service or to the disclosure of any GSA records that are not required to be disclosed under the FOIA. Subpart B—Proactive Disclosures § 105–60.100 information. Public availability of Records that FOIA in 5 U.S. Code section 552(a)(2) requires GSA to make available for public inspection in an electronic format can be accessed via GSA’s website at www.gsa.gov. Additionally, the GSA FOIA Reading Room, and the FOIA Online System. GSA is responsible for determining which of its records shall 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. These records shall be made available electronically via the GSA FOIA Reading Room. GSA shall ensure that its online FOIA Library of posted records and indices is reviewed and updated on an ongoing basis. GSA maintains a FOIA Requester Service Center, the office that oversees FOIA requests for all of GSA, and a FOIA E:\FR\FM\29JAR1.SGM 29JAR1 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations Public Liaison to assist individuals in locating records particular to an agency. A list of agency FOIA Public Liaisons is available at: http://www.foia.gov/. Subpart C—Requirements for Making Requests lotter on DSKBCFDHB2PROD with RULES § 105–60.200 Making a request. (a) To make a request for GSA records, a requester shall file their request to the GSA FOIA Requester Service Center via one of the following, via the FOIAonline website: (https://foiaonline.gov/ foiaonline/action/public/home). From FOIAonline you can submit FOIA requests to GSA and other participating FOIAonline agencies, track the status of requests, search for requests submitted by others, access previously released records, and generate agency-specific FOIA processing reports. (b) If it is not reasonably possible for a requester to submit an electronic request via FOIAonline, the requester shall submit their request via U.S. Mail to the following address: GSA FOIA Requester Service Center (H3), Room 7308, 1800 F Street NW, Washington, DC 20405. Fax: 202–501–2727. Alternatively, a FOIA requester may email its FOIA request to gsa.foia@ gsa.gov (Subject: FOIA Request via Email). (c) FOIA request description requirements: (1) The requester shall provide the following items of contact information when submitting a request to GSA: (i) Full name with honorific (Mr., Ms., Mrs., Dr., etc.); (ii) Complete mailing address; and (iii) Telephone number. (2) This requirement is applicable to both FOIA requests submitted electronically and via U.S. mail, respectively. (3) Although it is not a mandatory requirement, GSA also recommends the requester provide a personal/business email address for remittance as well. (d) A requester who is making a request for records about himself or herself shall comply with the verification of identity requirements as specified in paragraph (e) of this section. (e) Where a request for records pertains to another individual, a requester may receive access to the requested records by submitting: Either a notarized authorization signed by the individual permitting that he or she explicitly grants access to the requested records pursuant to the requirements set forth in 28 U.S.C. 1746 or by submitting proof that the individual is deceased (e.g., a copy of a death certificate or an obituary). As an exercise of VerDate Sep<11>2014 15:53 Jan 28, 2020 Jkt 250001 administrative discretion, GSA can require a requester to supply additional information such as a Certification of Identity Form in order to sufficiently verify the individual submitting the request and/or also verify that a particular individual has consented to disclosure. § 105–60.201 sought. Description of records (a) Requesters shall describe the records sought in sufficient detail to enable GSA personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include the following information in their FOIA request, which may help GSA identify the requested records the date/timeframe the requested information was created or occurred, title or name, author, recipient, subject matter of the record, case number, file designation, contract number, leasing identification number, or reference number and if known, the component of GSA housing the records. (b) Before submitting a FOIA request, requesters may contact the GSA FOIA Requester Service Center or GSA FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records. If after receiving a request, GSA determines that it does not reasonably describe the records sought, GSA shall inform the requester what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with their assigned Government Information Specialist or FOIA Public Liaison. If a request does not reasonably describe the records sought, GSA’s response to the request may be delayed. (c) In order to efficiently respond to FOIA requests within the required 20business-day timeframe per 5 U.S.C. 552(a)(6)(A), GSA may close an unperfected request 10 business days after GSA notifies the requester of the information needed to perfect the request. If the request does not reasonably describe the records sought, it is unperfected. A perfected FOIA request is a FOIA request for records that adequately describes the records sought, is made in accordance with GSA’s regulations, has been received by the GSA FOIA Requester Service center, and for which there is no remaining question about the payment or amount of applicable fees. (d) Requesters may specify whether they prefer to receive paper copies of the records or receive the records electronically. GSA shall accommodate PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 5139 the request if the record is readily reproducible in the requested form. Subpart D—Responding to Requests § 105–60.300 Responsibility for responding to FOIA requests. (a) The GSA FOIA Requester Service Center is responsible for managing all requests for records submitted to GSA from initial receipt of the FOIA request through the agency’s final decision to release in whole or in part, or withhold the requested records. (b) Upon receiving a request for records, the GSA FOIA Requester Service Center shall determine whether the requested records reside within GSA. If GSA does not have ownership of the requested records, the GSA FOIA Requester Service Center shall make a good faith effort to redirect the requester to the appropriate record location or/ entity that has control and ownership of the requested record, if known. (c) If GSA has possession of the requested records, the FOIA Requester Service Center shall work in coordination with the appropriate GSA component/or program office to fulfill the FOIA request in accordance with 5 U.S.C. 552. § 105–60.301 requests. Acknowledging FOIA (a) To the extent practicable, GSA shall communicate with requesters electronically via the FOIAonline web portal and/or email. (b) Upon receipt of a request, GSA shall send requesters an acknowledgement letter within 2 business days containing a brief description of the records sought so requesters may more easily keep track of their requests. (c) When a request is submitted via FOIAonline, the system automatically generates a tracking number, which allows for easy identification of each request. This tracking number shall be included in the acknowledgement letter. (d) When GSA receives a request not directly entered by the requester into FOIAonline (i.e., email, fax, standard mail, etc.) the FOIA Requester Service Center shall immediately upload the request into the FOIAonline system and it shall be assigned a tracking number that shall be communicated to the requester. § 105–60.302 requests. Responding to FOIA (a) GSA shall provide an estimated date by which the agency expects to provide a response to the requester. If a request involves a voluminous amount of material or searches in multiple locations, GSA may provide an interim E:\FR\FM\29JAR1.SGM 29JAR1 5140 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations response, meaning the agency releases the records on a rolling basis as the records are located and verified. (b) In determining which records are responsive to a request, the agency shall include only the records in its possession as of the date the agency receives the perfected FOIA request. If any other date is used, GSA shall inform the requester accordingly. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c) is not considered responsive to a request. (c) Pursuant to 5 U.S.C. 552, GSA is not required to perform the following in response to a FOIA request: (1) Answer questions or interrogatories posed as FOIA requests; (2) Issue guidance/or opinions; (3) Analyze and/or interpret documents for a requester; (4) Create records; (5) Conduct research; or (6) Initiate investigations. (d) The GSA Administrator and GSA Chief FOIA Officer and/or their assigned delegates are authorized to grant or deny any requests for records or portions thereof that are generated, maintained, or controlled by GSA. lotter on DSKBCFDHB2PROD with RULES § 105–60.303 Consultation, referral, and coordination. (a) All consultations and referrals received by GSA shall be handled according to the date the other agency received the perfected FOIA request. (b) GSA may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records. (c) When GSA is reviewing records located in response to a FOIA request, GSA shall determine whether another agency of the Federal Government is better able to determine if the records are releasable under the FOIA. As to any such record, GSA shall proceed in one of the following ways: (1) Consultation. When GSA receives a request for records that either originated with another agency or is a GSA record that includes information that originated with another agency, GSA should typically consult with that other agency prior to making a release determination. (2) Referral. (i) Whenever GSA receives a request for records that are known to be the primary responsibility of another agency, GSA shall refer the responsibility for responding to the request regarding records to that agency. Ordinarily, the agency that created the records is presumed to be the best agency to make the disclosure determination. However, if GSA and the originating agency jointly agree that GSA is in the best position to respond VerDate Sep<11>2014 15:53 Jan 28, 2020 Jkt 250001 regarding the record, then the responsive record(s) may be handled as a consultation. (ii) Whenever GSA refers any part of the responsibility for responding to a record request to another agency, GSA shall maintain documentation that the referral to the other agency has occurred, and shall notify the requester of the referral. The notification to the requester shall include both the name of the agency to which the record request was referred and the contact information for the agency’s FOIA office/or personnel. (iii) This referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could reasonably harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. If a non-law enforcement agency 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 GSA locates a record that originates 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. Records meeting these criteria shall be treated as a consultation. (iv) In such instances, in order to avoid a harm to an interest protected by an FOIA applicable exemption, GSA should 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 should then be conveyed to the requester by GSA. (4) Classified information. (i) On receipt of any request involving classified information, GSA shall 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, GSA shall refer request for records to the agency that classified the information or that should PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 consider the information for classification. (ii) Whenever GSA’s records contain information that has been derivatively classified (i.e., it contains information classified by another agency), GSA shall refer the responsibility for responding to that portion of the request to the agency that classified the information. § 105–60.304 Time requirements to respond to FOIA requests. (a) Upon receipt of perfected request via U.S. mail, email, or facsimile, the GSA FOIA Requester Service Center shall begin processing the request for records. Pursuant to 5 U.S.C. 552(a)(6)(A)(i), GSA has 20 business days (excluding Saturdays, Sundays, and Federal holidays) to inform the requester of the agency’s determination with respect to the request for records, unless in the alternative, the agency has negotiated a different timeframe based on scope and level of effort to prepare the FOIA request response. If a requester does not receive a response to their perfected FOIA request within the statutory timeframe requester may seek judicial review in the U.S. District Court in the district in which the requester resides or has a principal place of business, or where the records are situated, or in the U.S. District Court for the District of Columbia. (b) GSA shall to the greatest extent practicable respond to FOIA requests by order of receipt of the requests. (c) GSA shall designate a specific track for requests that are granted expedited processing, in accordance with the standards set forth in this subpart. GSA may also designate additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work or time needed to process the request. Among the factors GSA may consider are the number of records requested, the number of pages involved in processing the request, and the need for consultations or referrals. GSA shall advise requesters of the track into which their request falls upon request, and when appropriate, offer the requester an opportunity to narrow the scope and/or modify their requests. (d) GSA may aggregate requests in cases where it reasonably appears that multiple requests for records were submitted either by a requester or by a group of requesters acting in concert for the same, or similar information to ensure it is fulfilled in a timely manner. GSA cannot aggregate multiple requests for unrelated subject matters. E:\FR\FM\29JAR1.SGM 29JAR1 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations § 105–60.305 Unusual circumstances. Whenever GSA cannot meet the statutory time limit for processing a request because of ‘‘unusual circumstances,’’ as defined at 5 U.S.C. 552(a)(6)(A)(iii), GSA shall, before expiration of the 20-day statutory time period to respond to a request for records, notify the requester in writing of the unusual circumstances involved and of the date by which GSA estimates the processing of the request shall be completed. Where the extension of time is anticipated to exceed 10 business days, GSA shall provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. GSA shall make available its FOIA Public Liaison for this purpose. GSA shall also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services. lotter on DSKBCFDHB2PROD with RULES § 105–60.306 Expedited processing. (a) A request for expedited processing may be made at any time. In order to qualify for consideration for expedited processing, the request shall reasonably describe the records sought. Expedited requests should be described in sufficient detail to facilitate expedited processing. (b) A requester who seeks expedited processing shall submit a statement with their FOIA request, certified to be true and correct, explaining in detail the basis for making the request for expedited processing as described in paragraphs (c)(1) through (4) of this section. As a matter of administrative discretion, GSA may waive the formal certification requirement. (c) GSA may process requests and appeals on an expedited basis whenever it is determined that they involve: (1) 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; (2) 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; or (3) The loss of substantial due process rights; or (4) A matter of widespread and exceptional media interest in which there exist possible questions about the Government’s integrity that affect public confidence. (d) GSA shall notify the requester within 10 calendar days of its receipt of a request for expedited processing and of its decision whether to grant or deny VerDate Sep<11>2014 15:53 Jan 28, 2020 Jkt 250001 expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and processed as soon as practicable. If a request for expedited processing is denied, GSA shall act on any appeal of that decision within 3 business days. Subpart E—Acknowledging the FOIA Request § 105–60.400 Applying FOIA exemptions. (a) 5 U.S.C. 552(b)(1)–(9) of the Freedom of Information Act provides that the disclosure requirements of FOIA do not apply to matters that are: (1) Specifically authorized under the criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such executive order (see Executive Order No. 13,526); (2) Related solely to the internal personnel rules and practices of an agency; (3) Specifically exempted from disclosure by statute other than 5 U.S.C. 552(b)(1)–(9), provided that such statute: (i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; (ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) Trade secrets and commercial or financial information that could harm the competitive posture or business interests of a company; (5) Interagency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested; (6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information: (i) Could reasonably be expected to interfere with enforcement proceedings; (ii) Would deprive a person of a right to a fair trial or an impartial adjudication; (iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy; (iv) Reasonably be expected to disclose the identity of a confidential source, including a State, local, or PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 5141 foreign agency or authority or any private institution that furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source; (v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or (vi) Could reasonably be expected to endanger the life or physical safety of any individual; (8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) Geological and geophysical information and data, including maps, concerning wells. (b) GSA will provide any reasonably segregable portion of a record to a requester after redacting the portions of the requested records that are exempt under this section. Subpart F—Final Responses to the FOIA Request § 105–60.500 and rules. Final response procedures (a) Once GSA determines that it shall grant a request in full or in part, the requester shall be notified of the decision in writing as well. GSA shall also inform the requester of any fees charged under § 105–60.804 of this part and shall disclose the requested records to the requester promptly upon payment of any applicable fees. The agency shall inform the requester of the availability of its FOIA Public Liaison to offer assistance. (b) If GSA makes an adverse determination on any part of the FOIA request, it shall notify the requester of that determination in writing. Adverse determinations, or denials of requests, include determinations that: (1) The requested record is exempt from disclosure, in whole or in part; (2) The FOIA request does not reasonably describe the records sought; (3) The information requested is not subject to FOIA; (4) The requested record does not exist, cannot be located, or has been destroyed; or (5) The requested record is not readily reproducible in the form or format sought by the requester. E:\FR\FM\29JAR1.SGM 29JAR1 5142 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations (c) Records disclosed in part in response to a FOIA request shall be marked clearly to show the exemption under which the applicable portions of the responsive records were redacted unless doing so would harm an interest protected by an applicable exemption. (d) Adverse determinations also include denials involving fee waiver requests, denials for expedited processing, and the administrative closure of FOIA requests due to nonpayment of search and review fees for processing the FOIA request. (e) Any adverse determination of a FOIA request, in full or in part, shall be signed by the Chief FOIA Officer or his or her designee and shall include: (1) The name and title or position of the person responsible for the adverse determination; (2) A brief statement of the reasons for the adverse determination, including any FOIA exemption that is the basis for GSA’s decision; (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 subpart I of this part, and a description of the appeal requirements. (5) A statement notifying the requester of the assistance available from the agency’s FOIA Public Liaison and the dispute resolution services offered by OGIS. (f) Use of record exclusions pursuant to 5 U.S.C. 552(c): (1) In the event that GSA identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), GSA shall confer with Department of Justice, Office of Information Policy (OIP), to obtain approval to apply the exclusion. (2) If GSA invokes an exclusion, it shall maintain an administrative record of the process of invocation and approval of the exclusion by OIP. lotter on DSKBCFDHB2PROD with RULES Subpart G—Handling Confidential Commercial Information § 105–60.600 Procedural and lawful considerations. (a) Confidential commercial information means commercial or financial information obtained by GSA from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). VerDate Sep<11>2014 15:53 Jan 28, 2020 Jkt 250001 (b) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government. (c) A submitter of confidential commercial information shall use good faith efforts to designate by appropriate markings/or redact any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period. (d) When notice to submitters is required: (1) GSA shall promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if GSA 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) GSA 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. (2) The notice shall 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, GSA may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications. (e) The notice requirements of this section do not apply if: (1) GSA determines that the information is exempt under the FOIA, and therefore shall not be disclosed; (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 12,600 of June 23, 1987; or (4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous. In such a case, GSA shall give the submitter written notice of any final decision to disclose the information PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 within reasonable time prior to a specified disclosure date. § 105–60.601 Submitters opportunity to object to disclosure. (a) GSA shall provide a submitter with 10 business days, within which the submitter shall respond to the notice referenced in § 105–60.600. (b) If a submitter has any objections to disclosure, it should provide GSA a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as the basis for nondisclosure, the submitter shall explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential and the harm of the release of the information to the submitter. (c) 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. (d) GSA is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA. (e) GSA shall consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose the requested information. (f) Whenever GSA decides to disclose information over the objection of a submitter, the agency shall provide the submitter written notice, which shall 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 or copies of the records as the agency intends to release them; and (3) The specified disclosure date. (g) Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, GSA shall promptly notify the submitter. (h) GSA shall notify the 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. Subpart I—Appeals § 105–60.700 Submitting an appeal. (a) A requester may appeal any adverse determination (denial of access to records, denial of fee waiver, or E:\FR\FM\29JAR1.SGM 29JAR1 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations denial of expedited processing, etc.) to the GSA FOIA Requester Service Center which is designated as the agency’s FOIA Appeals Office. (b) The appeal shall include: (1) The FOIAonline tracking number; (2) The basis for disagreement with GSA’s adverse determination that is being appealed; and (3) A brief statement of the reasons he or she thinks GSA should release the records or provide expedited processing and enclose copies of the initial request and denial. (c) The requester may submit the appeal electronically to GSA.FOIA@ gsa.gov. The requester should mark the subject line of the electronic transmission, ‘‘Freedom of Information Act Appeal.’’ In the alternative, the requester may submit an appeal via facsimile to 202–501–2727, or via US mail to U.S. General Services Administration, FOIA Requester Service Center (H3), 1800 F Street NW, 7308, Washington, DC 20405–0001. If the appeal is submitted via US mail, the appeal letter must include the words ‘‘Freedom of Information Act Appeal’’ on both the face of the appeal letter and on the envelope. Failure to follow these procedures will delay processing of the appeal. (d) The GSA FOIA Officer must receive the requester’s appeal no later than 90 calendar days after receipt by the requester of any adverse determination by GSA with respect to the FOIA request. GSA has 20 business days after receipt of a proper appeal to issue a response to the requester’s appeal. The 20-workday time limit shall not begin until the GSA FOIA Officer receives the appeal. As noted in § 105.60.305 of this part, the GSA FOIA Officer may extend this time limit in unusual circumstances. GSA will process appeals of denials of expedited processing as soon as possible after receiving them. The GSA FOIA Officer may also extend the time limit in the event of unusual circumstances occur during the processing of appeals as well. lotter on DSKBCFDHB2PROD with RULES § 105–60.701 Adjudication of appeals. (a) The GSA Chief FOIA Officer or his or her designee shall act on behalf of GSA on all appeals under this section. (b) An appeal ordinarily shall not be adjudicated if the request that is the subject of the appeal becomes a matter of FOIA litigation. GSA shall administratively close the appeal if it becomes the subject of litigation and provide this notice to the requester in writing that the request has been administratively closed. (c) On receipt of any appeal involving classified information, GSA shall take VerDate Sep<11>2014 15:53 Jan 28, 2020 Jkt 250001 appropriate action to ensure compliance with applicable classification rules. (d) GSA shall provide its review and decision on any appeal in writing. Any decision that either upholds GSA’s original determination in whole or in part shall contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. (e) If GSA’s decision is remanded or modified on appeal, GSA shall notify the requester of that determination in writing. GSA shall then further process the request in accordance with that appeal determination and shall respond directly to the requester. If GSA affirms its original decision after timely receipt of an appeal, GSA shall inform the requester via writing as well. GSA shall inform the requester of their right to seek judicial review in the U.S. District Court in the district in which the requester resides or has a principal place of business, or where the records are situated, or in the U.S. District Court for the District of Columbia. GSA shall also inform the requester of the mediation services offered by the Office of Government Information Services (OGIS) of the National Archives and Records Administration (NARA) as a non-exclusive alternative to litigation. (f) Engaging in dispute resolution or mediation services provided by OGIS is a voluntary process. Mediation is a voluntary process. If GSA agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute. § 105–60.702 Requirements to preserve FOIA records. GSA shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 of the NARA. GSA shall not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under FOIA. Subpart J—Fees § 105–60.800 General provisions. (a) GSA shall charge for processing requests under the FOIA in accordance with the provisions of this section and with OMB Guidelines. For purposes of assessing fees, FOIA establishes three categories of requesters: (1) Commercial use requesters; (2) Noncommercial scientific or educational institutions or news media requesters; and PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 5143 (3) All other requesters. (b) Fees are assessed depending on the category GSA determines the requester falls under in subpart A of this part. Requesters may seek a fee waiver. GSA shall consider requests for fee waiver in accordance with the requirements in § 105–60.807 of this subpart. To resolve any fee issues that arise under this section, GSA may contact a requester for additional information. GSA shall ensure that searches, review, and duplication of FOIA records are conducted in the most efficient and the least expensive manner. (c) GSA shall collect all applicable fees before sending copies of records to a requester. Requesters pay fees by check, credit card, or money order made payable to the U.S. General Services Administration, or by another method as determined by GSA. § 105–60.801 Definitions pertaining to fee assessments. (a) A commercial use request is a request that asks for information that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. GSA’s decision to place a requester in the commercial use category shall be made on a case-by-case basis and is based on the requester’s intended use of the information. GSA shall notify requesters of their placement in this category. (b) Direct costs are those expenses that GSA incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order 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 sixteen (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 or the heating or lighting of a facility. (c) Duplication is reproducing a record to respond to a FOIA request. Duplicating records can occur via paper, audiovisual materials or electronic records. (d) An educational institution is any school that operates a program of scholarly research. A requester in this fee category shall show that the request is made in connection with his or her role at the educational institution. Agencies may seek verification from the requester that the request is in furtherance of scholarly research. E:\FR\FM\29JAR1.SGM 29JAR1 lotter on DSKBCFDHB2PROD with RULES 5144 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations (e) A noncommercial scientific institution is an institution that is not operated on a commercial basis. The term ‘commercial’ for purposes of this subpart is that which is defined in paragraph (a) 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 shall show that the request is authorized by a qualifying noncommercial institution, or educational institution of vocational and higher learning and where the records are sought to further scientific, or academic scholarly research, and are not for a commercial use. GSA shall advise requesters of their placement in this category. (f) Representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term ‘‘news’’ means information that is about current events or that would be of current interest to the public. Examples of news media entities 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 shall not be considered to be for a commercial use. ‘‘Freelance’’ journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, GSA can also consider a requester’s past publication record in making this determination. GSA shall advise requesters of their placement in this category. (g) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes the process of reviewing each individual record for possible redactions 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 § 105–60.601 of this part. It does VerDate Sep<11>2014 15:53 Jan 28, 2020 Jkt 250001 not include time spent resolving general legal or policy issues regarding the application of exemptions. (h) 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. § 105–60.802 Fees to be charged. In responding to FOIA requests, GSA shall charge the following fees unless a waiver or reduction of fees has been granted under § 105–60.807 of this subpart. Because the fee amounts provided below already account for the direct costs associated with a given fee type, GSA shall not add any additional costs to charges calculated under this section. (a) Search fees. (1) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. GSA shall charge search fees for all other requesters, subject to the rules and restrictions enumerated in this subpart. GSA may properly charge for time spent searching even if the GSA FOIA Requester Service Center does not locate any responsive records or if they determine that the records are entirely exempt from disclosure. (2) For each half hour (30 minutes) spent by GSA personnel searching for requested records, including electronic searches that do not require new programming, a $24.50 fee shall be assessed per the guidelines of the fee schedule enumerated in § 105–60.804 of this subpart. (3) GSA shall charge the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. GSA shall notify the requester of the costs associated with creating such a program, and the requester shall agree to pay the associated costs before the costs may be incurred. (4) For requests that require the retrieval of records stored by GSA at a Federal records center operated by the NARA, GSA shall charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA. (b) Duplication fees. (1) GSA shall charge duplication fees to all requesters, subject to the restrictions of § 105– 60.803 of this subpart. GSA shall honor a requester’s preference for receiving a record in a particular form or format where the agency can readily reproduce it in the form or format requested. PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 Where photocopies are supplied, GSA shall provide one copy per request at the cost of $0.10 per copy. For copies of records produced on tapes, disks, or other media, GSA shall charge the direct costs of producing the copy, including operator time. (2) Where paper documents shall be scanned in order to comply with a requester’s preference to receive the records in an electronic format, the requester shall also pay the direct costs associated with scanning those materials. For other forms of duplication, GSA shall charge the direct costs. (3) GSA determines the standard fee for duplication of records as follows: (i) Per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)— U.S. $0.10. (ii) Per copy prepared by any other method of duplication—actual direct cost of production. (c) Review fees. GSA shall charge review fees to requesters who make commercial use requests. Review fees shall be assessed based upon the initial review of the record (i.e., the review conducted by GSA to determine whether an exemption applies to a particular record or portion of a record). No charge shall be made for review during 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 GSA or another agency’s secondary 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 enumerated in the fee schedule of this section. § 105–60.803 fees. Restrictions on charging (a) When GSA determines that a requester is an educational institution, noncommercial scientific institution, or representative of the news media, and that the records are not sought for commercial use, GSA shall not charge search fees. (b) If GSA fails to comply with the time limits in which to respond to a request for agency records under FOIA, it will not charge search fees, or in the instances of requests from requesters described in paragraph (a) of this section, may not charge duplication fees, except as described in paragraphs (b)(1) through (3) of this section. GSA will charge duplication fees in accordance with § 105–60.802(b)(1) through (3) of this subpart. E:\FR\FM\29JAR1.SGM 29JAR1 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations (1) If GSA has determined that unusual circumstances, as defined by FOIA, apply and the agency provided timely written notice to the requester in accordance with FOIA, a failure to comply with the time limit shall be excused for an additional 10 business days. (2) If GSA has determined that unusual circumstances, as defined by the FOIA, apply and that more than 5,000 pages are necessary to respond to the request, GSA 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. GSA shall have provided timely written notice of unusual circumstances to the requester in accordance with FOIA and GSA shall 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, the component may charge all applicable fees incurred in the processing of the request. (3) If a court has determined that exceptional circumstances exist, as defined by FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order. (c) No search or review fees shall be charged for a half-hour period unless 5145 more than half of that period is required for search or review. (d) Except for requesters seeking records for a commercial use, GSA shall provide without charge: (1) The first 100 pages of duplication (or the cost equivalent for other media); and (2) The first 2 hours of search time. (e) No fee shall be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first 2 hours of search, is equal to or less than $49.00. § 105–60.804 Fee schedule. Table 1 to § 105–60.804 outlines the basic fee categories and applicable fees: TABLE 1 TO § 105–60.804—FEE REQUESTER CATEGORY TABLE Requester category Search fees Review fees Duplication fees Amount (a) Commercial use requester. Yes ................ Yes ................ $49.00/hour plus applicable duplication costs. (b) Educational and noncommercial scientific institutions. No .................. No .................. (c) Representative of news media. No .................. No .................. (d) All other requesters Yes (first 2 hours without charge). No .................. Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—OR, per copy prepared by any other method of duplication—actual direct cost of production. Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—OR, per copy prepared by any other method of duplication—actual direct cost of production. Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—OR, per copy prepared by any other method of duplication—actual direct cost of production. Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—OR, per copy prepared by any other method of duplication—actual direct cost of production. lotter on DSKBCFDHB2PROD with RULES Note 1 to § 105–60.804: GSA’s calculated hourly rate for manual search, computer operator/programmer time, and employee time spent reviewing records is set at a flat rate of 49.00 per hour. GSA charges for these FOIA services by the hour at $49.00 and half hour at $24.50. Note 2 to § 105–60.804: The fee schedule of this section does not apply to fees charged under any statute that specifically requires GSA 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, GSA shall inform the requester of the contact information for that program. Note 3 to § 105–60.804: If GSA utilizes a contractor or agency personnel outside of the FOIA Requester Service Center to perform any services described in this subpart, the standard fee is based on the equivalent hourly rates. VerDate Sep<11>2014 15:53 Jan 28, 2020 Jkt 250001 § 105–60.805 Anticipated fees. (a) When GSA determines or estimates that the fees to be assessed in accordance with this section shall exceed $49.00, the agency shall 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 via writing. If only a portion of the fee can be estimated readily, GSA shall advise the requester accordingly. If the request is not for noncommercial use, the notice shall 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, 2 hours of search time at no charge, PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 Eligible requesters not subject to fees other than duplication costs. Eligible requesters not subject to fees other than duplication costs. $49.00/hour plus applicable duplication costs. and shall advise the requester whether those entitlements have been provided. (b) If GSA notifies the requester that the actual or estimated fees are in excess of $49.00, the request shall not be considered received and further work shall 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 shall provide the commitment/or designate an exact dollar amount in writing the requester is willing to pay. E:\FR\FM\29JAR1.SGM 29JAR1 lotter on DSKBCFDHB2PROD with RULES 5146 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations GSA is not required to accept payments in installments. (c) If the requester has indicated a willingness to pay some designated amount of fees, but the agency estimates that the total fee shall exceed that amount, GSA 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. GSA shall inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester submits the new estimated fee, the time to respond shall resume from where it was at the date of the notification. (d) GSA’s FOIA Public Liaison and other FOIA professionals shall be available to assist any requester in reformulating a request to meet the requester’s needs at a lower cost. (e) Although not required to provide special services, if GSA 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. (f) GSA may charge interest on any unpaid bill starting on the 31st day following the date the requester is first billed. Interest charges shall be assessed at the rate provided in 31 U.S.C. 3717 and shall accrue from the billing date until payment is received by the agency. GSA shall 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. (g) When GSA reasonably believes that a requester or a group of requesters acting in concert are attempting to divide a single request into a series of requests for the purpose of avoiding fees, GSA may aggregate those requests and charge accordingly. GSA may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, GSA shall 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 cannot be aggregated. § 105–60.806 Advanced payments. (a) For requests other than those described in this subpart, GSA cannot require the requester to make an VerDate Sep<11>2014 15:53 Jan 28, 2020 Jkt 250001 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. (b) When GSA determines or estimates that a total fee to be charged under this section shall 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. GSA 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. (c) Where a requester has previously failed to pay a properly charged FOIA fee to GSA within 30 calendar days of the billing date, GSA may require that the delinquent requester pay the full amount due, plus any applicable interest on that prior request, and require that the requester make an advance payment of the full amount of any anticipated fee before the agency begins to process a new request or continues to process a pending request or any pending appeal. If GSA has a reasonable basis to believe that a requester has misrepresented the requester’s identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity. (d) In cases in which GSA requires advance payment, the request shall not be considered received and further work shall not be completed until the required payment is received. If the requester does not pay the advance payment within 10 business days after the date of GSA’s fee determination, the request shall be closed. § 105–60.807 reductions. Fee waivers and fee (a) Requests for a fee waiver shall be made when the FOIA request is first submitted to the agency 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 being reviewed per an 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 pay any costs incurred up to the date the fee waiver request was received. (b) Requirements for waiver or reduction of fees: (1) Requesters may seek a waiver of fees by submitting a written rationale as to how disclosure of the requested information is in the public interest PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 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; and (2) GSA shall furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (b)(2)(i) through (iii) of this section are satisfied: (i) Disclosure of the requested information would shed light on the operations or activities of the Government. The subject of the request shall concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated; and (ii) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met; and (A) Disclosure of the requested records shall 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 shall 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 shall be considered. GSA shall presume that a representative of the news media shall satisfy this consideration; (iii) The disclosure shall 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, GSA shall consider the following criteria: (A) GSA shall 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 shall be given an opportunity to provide explanatory information regarding this consideration. (B) If there is an identified commercial interest, GSA shall determine whether that is the primary interest furthered by the request. A E:\FR\FM\29JAR1.SGM 29JAR1 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations waiver or reduction of fees is justified when the requirements of paragraphs (b)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. GSA ordinarily shall presume that, when a news media requester has satisfied factors in paragraph (b)(1) of this section and this paragraph (b)(2), 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 shall not be presumed to primarily serve the public interest. (c) Where only some of the records to be released satisfy the requirements for a fee waiver, a waiver shall be granted for those records. Subpart K—Other Rights and Services § 105–60.900 Coda. Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA. [FR Doc. 2020–00057 Filed 1–28–20; 8:45 am] BILLING CODE 6820–FM–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1 and 73 [AU Docket No. 19–290; DA 19–1256; DA 19–1265] Auction of FM Broadcast Construction Permits Scheduled for April 28, 2020; Notice of Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 106; Auction 106 Freeze Announced for FM Minor Change Applications Federal Communications Commission. ACTION: Final action; requirements and procedures. AGENCY: This document summarizes public notices that announce the procedures and upfront payments amounts and minimum opening bids for the auction of certain FM broadcast construction permits as well as a temporary freeze on the filing of minor change applications for FM stations. The Auction 106 Procedures Public Notice summarized here is intended to familiarize applicants with the procedures and other requirements for participation in Auction 106. DATES: Applications to participate in Auction 106 must be submitted before 6 lotter on DSKBCFDHB2PROD with RULES SUMMARY: VerDate Sep<11>2014 15:53 Jan 28, 2020 Jkt 250001 p.m. Eastern Time (ET) on February 11, 2020. FM commercial and noncommercial educational minor change applications may not be filed during a period starting on January 29, 2020, and ending on February 11, 2020. Upfront payments for Auction 106 must be received by 6 p.m. ET on March 20, 2020. Bidding in Auction 106 is scheduled to start on April 28, 2020. FOR FURTHER INFORMATION CONTACT: For auction legal questions, Lynne Milne or Daniel Habif in the OEA Auctions Division at (202) 418–0660. For general auction questions, the Auction Hotline at (717) 338–2868. For FM Broadcast service questions, Lisa Scanlan, Thomas Nessinger, or James Bradshaw in the MB Audio Division at (202) 418–2700. To request materials in accessible formats (Braille, large print, electronic files, or audio format) for people with disabilities, send an email to fcc504@ fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418–0530 or (202) 418–0432 (TTY). SUPPLEMENTARY INFORMATION: This is a summary of the Auction 106 Procedures Public Notice, released on December 13, 2019, and the Auction 106 Freeze Public Notice, also released on December 13, 2019. The complete text of the Auction 106 Procedures Public Notice, including attachments and any related document, and the complete text of the Auction 106 Freeze Public Notice are available for public inspection and copying from 8 a.m. to 4:30 p.m. ET Monday through Thursday or from 8 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY–A257, Washington, DC 20554. These public notices and related documents also are available on the internet at the Commission’s website: www.fcc.gov/auction/106, or by using the search function for DA 19–1256 or DA 19–1265 on the Commission’s EDOCS web page at http://www.fcc.gov/ edocs/. I. General Information 1. Construction Permits in Auction 106. Auction 106 will offer 130 construction permits in the FM broadcast service for 130 new FM allotments, including 34 construction permits that were offered but not sold or were defaulted upon in prior auctions. These construction permits are for vacant FM allotments, reflecting FM channels added to the Table of FM Allotments pursuant to the Commission’s established rulemaking procedures, and assigned at the indicated communities specified in 47 CFR 73.202(b). Attachment A of the Auction 106 Procedures Public Notice PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 5147 lists the reference coordinates for each vacant FM allotment offered in Auction 106. Each Auction 106 applicant may submit in its FCC Form 175 a set of preferred site coordinates for any of its selected construction permits as an alternative to the reference coordinates for that vacant FM allotment. 2. The set of construction permits listed in Attachment A of the Auction 106 Procedures Public Notice is unchanged from the list of construction permits that were proposed for this auction in the Auction 106 Comment Public Notice. Two commenters request the addition of specific construction permits in Auction 106. Those requests cannot be granted because the underlying allotments must first be added to the Table of Allotments through separate administrative processes. Likewise, a third commenter’s request to delete a specific allocation from the Table of Allotments cannot be granted because it is beyond the scope of this proceeding. 3. Pursuant to the policies established in the Broadcast Competitive Bidding Order, applicants may apply for any vacant FM allotment listed in Attachment A. If two or more \FCC Forms 175 specify the same FM allotment in Auction 106, mutual exclusivity exists for auction purposes, and that construction permit must be awarded by competitive bidding procedures. Once mutual exclusivity exists for auction purposes, even if only one applicant is qualified to bid for a particular construction permit in Auction 106, that applicant is required to submit a bid in order to obtain the construction permit. 4. Media Bureau Freeze Public Notice. Pursuant to the Auction 106 Freeze Announced for FM Minor Change Applications Public Notice, DA 19–1265 (Dec. 13, 2019), the Media Bureau (MB) will not accept FM commercial and noncommercial educational (NCE) minor change applications filed during the Auction 106 short-form application (FCC Form 175) filing window. This freeze ensures that there will not be a mutual exclusivity conflict between stations proposed in an Auction 106 Form 175 and a minor change application. Accordingly, this freeze promotes a more certain and speedier auction process. 5. Auction Dates and Deadlines. The following dates and deadlines apply: Auction Tutorial Available (via internet): by January 22, 2020 FCC Form 175 Initial Filing Window Opens: January 29, 2020, 12:00 noon ET FCC Form 175 Initial Filing Deadline: February 11, 2020, 6:00 p.m. ET E:\FR\FM\29JAR1.SGM 29JAR1

Agencies

[Federal Register Volume 85, Number 19 (Wednesday, January 29, 2020)]
[Rules and Regulations]
[Pages 5137-5147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00057]



[[Page 5137]]

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GENERAL SERVICES ADMINISTRATION

41 CFR Part 105-60

[GSPMR Case 2016-105-1; Docket No. 2016-0004, Sequence No. 1]
RIN 3090-AJ74


Public Availability of Agency Records and Informational Materials

AGENCY: Office of Administrative Services (OAS), General Services 
Administration (GSA).

ACTION: Final rule.

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

SUMMARY: GSA is amending the General Services Administration's 
regulations implementing the Freedom of Information Act (FOIA). The 
regulations are being updated to incorporate changes brought about by 
the amendments to FOIA under both statutory and nonstatutory 
authorities. Specifically, this rule amends GSA's regulations under 
FOIA to incorporate certain changes made to FOIA by the FOIA 
Improvement Act of 2016. Additionally, the regulations are being 
updated to reflect developments in case law, recent guidance from the 
Department of Justice--Office of Information Policy for processing FOIA 
requests, technological advancements in how the FOIA is administered, 
and to update the cost figures used in calculating and charging search/
or review fees. Finally, the revisions to the rule increase the amount 
of information that members of the public may receive from the agency 
without being charged processing fees through proactive agency 
disclosures.

DATES: Effective: February 28, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. Travis S. Lewis, Director of GSA, 
OAS, Freedom of Information Act Requester Service Center, at 202-219-
3078 or via email at [email protected] for clarification of content. 
For information pertaining to status or publication schedules, contact 
the Regulatory Secretariat Division at 202-501-4755. Please cite GSPMR 
Case 2016-105-1.

SUPPLEMENTARY INFORMATION:

I. Background

    GSA published a proposed rule in the Federal Register at 83 FR 
28592 on June 20, 2018, to amend the General Services Administration 
rule to regulations implementing the Freedom of Information Act (FOIA).
    The FOIA provides that any person has a right, enforceable in 
Federal court, to obtain access to Federal agency records, except to 
the extent that such records (or portions of them) are protected from 
public disclosure by one of nine exemptions or by one of three special 
law enforcement record exclusions. FOIA thus established a statutory 
right of public access to Executive Branch information in the Federal 
Government. Part 105-60 of 41 CFR establishes the policies, 
responsibilities, and procedures for the release of GSA records that 
are under the jurisdiction of GSA to members of the public. These 
regulations apply to information found in all GSA agency organizations 
and components.
    This final rule revises GSA's regulations under the FOIA to address 
changes to the language of several procedural provisions and to 
incorporate certain changes brought about by the amendments to FOIA 
under the FOIA Improvement Act of 2016 Public Law 114-185, 130 Stat. 
538 (June 30, 2016).
    The final rule also incorporates changes to the language and 
structure of the current GSA regulations enumerated in 41 CFR part 105-
60 to achieve the aforementioned updates. Please note that the final 
rule that applies to GSA's FOIA Fee Schedule can be found in Subpart 
J--Fees. The revisions also increase the amount of information that 
members of the public may receive from the agency without being charged 
processing fees through proactive disclosures of agency records online 
in the GSA FOIA Reading Room.
    The FOIA Improvement Act of 2016 provides that agencies shall allow 
a minimum of 90 days for requesters to file an administrative appeal. 
The Act also requires that agencies notify requesters of the 
availability of dispute resolution services at various times throughout 
the FOIA process. Finally, the Act codifies the ``foreseeable harm'' 
standard. Additionally, GSA's FOIA regulations are being updated to 
reflect developments in case law, technological changes in the 
administration of FOIA, executive guidance from the Department of 
Justice, other non-statutory authorities such as Presidential Executive 
Orders, including current cost figures to be used in calculating and 
charging fees.

II. Discussion and Analysis

    GSA has reviewed the public comments in the development of the 
final rule. A discussion of the comments is provided as follows:

A. Summary of Significant Changes

    There were no significant changes as a result of the comments 
received.

B. Analysis of Public Comments

    Comment: The first respondent expressed that GSA should remove its 
references to the Office of Management and Budget's (OMB) Uniform 
Freedom of Information Act Fee Schedule and Guidelines (``OMB 
Guidelines'') as both an authority for interpreting the FOIA and GSA's 
implementing regulations, because the OMB Guidelines are now outdated.
    Response: Per the Freedom of Information Reform Act of 1986 (Pub. 
L. 99-570), all federal agencies subject to the FOIA are required to 
promulgate regulations implementing the FOIA's amended fee and fee 
waiver provisions reflecting the OMB Guidelines. To date, there has not 
been a statutory amendment to the Freedom of Information Reform Act of 
1986 (Pub. L. 99-570) nor any case precedent which has eliminated GSA's 
requirement to promulgate regulations implementing the FOIA's amended 
fee and fee waiver provisions reflecting the OMB Guidelines. GSA will 
continue to implement the OMB Guidelines accordingly.
    Comment: The second respondent expressed that streamlining the 
National Environmental Policy Act (NEPA) via a time/or page limit on 
NEPA documents will just create the need for more administrative 
paperwork and project management costs as government decision-makers 
struggle to meet these new requirements. This will thus divert time 
from the more important work of thinking about and discussing proposed 
NEPA related projects.
    Response: Responder's comment does not make mention of nor concerns 
GSA's FOIA regulations. This comment is not germane to GSA.

III. Executive Orders 12866 and 13563--Regulatory Review

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

[[Page 5138]]

IV. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

V. Regulatory Flexibility Act

    This final rule will not have a significant economic impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is 
also exempt from the Administrative Procedure Act per 5 U.S.C. 
553(a)(2), because it applies to agency management or personnel.

VI. Small Business Regulatory Enforcement Fairness Act

    This final rule is also exempt from Congressional review prescribed 
under 5 U.S.C. 801 since it relates solely to agency management and 
personnel.

VII. Paperwork Reduction Act

    This final rule does not contain any information collection 
requirements that require approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. Chapter 35).

VIII. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

List of Subjects in 41 CFR Part 105-60

    Administrative practice and procedure, Records, Information, 
Confidential business information, Freedom of Information Act, Privacy 
Act.

    Dated: December 23, 2019.
Emily W. Murphy,
Administrator.

0
For the reasons stated in the preamble, GSA revises 41 CFR part 105-60 
to read as follows:

PART 105-60--PUBLIC AVAILABILITY OF AGENCY RECORDS AND 
INFORMATIONAL MATERALS

Sec.
Subpart A--General Policy
105-60.000 Scope of part.
105-60.001 General policy.
Subpart B--Proactive Disclosures
105-60.100 Public availability of information.
Subpart C--Requirements for Making Requests
105-60.200 Making a request.
105-60.201 Description of records sought.
Subpart D--Responding to Requests
105-60.300 Responsibility for responding to requests.
105-60.301 Acknowledging FOIA request
105-60.302 Responding to FOIA requests.
105-60.303 Consolation, referral, and coordination
105-60.304 Time requirements to respond to FOIA requests.
105.60.305 Unusual circumstances.
105.60.306 Expedited processing.
Subpart E--Acknowledging the FOIA Request
105-60.400 Applying FOIA exemptions.
Subpart F--Final Responses to the FOIA Request
105-60.500 Final response procedures and rules.
Subpart G--Handling Confidential Commercial Information
105-60.600 Procedural and lawful considerations.
105-60.601 Submitter's opportunity to object to disclosure.
Subpart I--Appeals
105-60.700 Submitting an appeal.
105-60.701 Adjudication of appeals.
105-60.702 Requirements to preserve FOIA records.
Subpart J--Fees
105-60.800 General provisions.
105-60.801 Definitions pertaining to fee assessments.
105-60.802 Fees to be charged.
105-60.803 Restrictions on charging fees.
105-60.804 Fee Schedule.
105-60.805 Anticipated fees.
105-60.806 Advanced payments.
105-60.807 Fee waivers and fee reductions.
Subpart K--Other Rights and Services
105-60.900 Coda.

    Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 486(c).

Subpart A--General Policy


Sec.  105-60.000  Scope of part.

    This part contains the rules that the U.S. General Services 
Administration, hereinafter GSA, follows in processing requests for 
records under the Freedom of Information Act (``FOIA''), 5 U.S.C. 552. 
The rules in this part should be read in conjunction with the text of 
the 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 
in accordance with Privacy Act regulations as well as under this part.


Sec.  105.60.001  General policy.

    (a) In compliance with the Freedom of Information Act (FOIA), as 
amended 5 U.S.C. 552, a positive and continuing obligation exists for 
GSA to make available to the fullest extent practicable upon request by 
members of the public, all records and informational materials that are 
generated, maintained, and controlled by GSA.
    (b) This subpart also covers exemptions from disclosure of these 
records; procedures for the public to inspect or obtain copies of GSA 
records.
    (c) The regulations promulgated in this subpart are consistent with 
amendments to 5 U.S.C. 552a as well as other applicable Federal laws 
germane to disclosure of information to the public.
    (d) This subpart applies to all GSA organizations, portfolios, 
business lines, regional offices and components. The aforementioned 
units may establish additional rules for processing FOIA requests due 
to unique program requirements; however, such rules shall be consistent 
with these rules and have the concurrence of the GSA Administrator and 
GSA Chief FOIA Officer.
    (e) Any internal GSA policies or procedures inconsistent with the 
policies and procedures promulgated in this subpart are superseded by 
this subpart to the extent of that inconsistency.
    (f) This subpart does not entitle any person to any service or to 
the disclosure of any GSA records that are not required to be disclosed 
under the FOIA.

Subpart B--Proactive Disclosures


Sec.  105-60.100  Public availability of information.

    Records that FOIA in 5 U.S. Code section 552(a)(2) requires GSA to 
make available for public inspection in an electronic format can be 
accessed via GSA's website at www.gsa.gov. Additionally, the GSA FOIA 
Reading Room, and the FOIA Online System. GSA is responsible for 
determining which of its records shall 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. These records shall be made available electronically via the 
GSA FOIA Reading Room. GSA shall ensure that its online FOIA Library of 
posted records and indices is reviewed and updated on an ongoing basis. 
GSA maintains a FOIA Requester Service Center, the office that oversees 
FOIA requests for all of GSA, and a FOIA

[[Page 5139]]

Public Liaison to assist individuals in locating records particular to 
an agency. A list of agency FOIA Public Liaisons is available at: 
http://www.foia.gov/.

Subpart C--Requirements for Making Requests


Sec.  105-60.200  Making a request.

    (a) To make a request for GSA records, a requester shall file their 
request to the GSA FOIA Requester Service Center via one of the 
following, via the FOIAonline website: (https://foiaonline.gov/foiaonline/action/public/home). From FOIAonline you can submit FOIA 
requests to GSA and other participating FOIAonline agencies, track the 
status of requests, search for requests submitted by others, access 
previously released records, and generate agency-specific FOIA 
processing reports.
    (b) If it is not reasonably possible for a requester to submit an 
electronic request via FOIAonline, the requester shall submit their 
request via U.S. Mail to the following address: GSA FOIA Requester 
Service Center (H3), Room 7308, 1800 F Street NW, Washington, DC 20405. 
Fax: 202-501-2727. Alternatively, a FOIA requester may email its FOIA 
request to [email protected] (Subject: FOIA Request via Email).
    (c) FOIA request description requirements:
    (1) The requester shall provide the following items of contact 
information when submitting a request to GSA:
    (i) Full name with honorific (Mr., Ms., Mrs., Dr., etc.);
    (ii) Complete mailing address; and
    (iii) Telephone number.
    (2) This requirement is applicable to both FOIA requests submitted 
electronically and via U.S. mail, respectively.
    (3) Although it is not a mandatory requirement, GSA also recommends 
the requester provide a personal/business email address for remittance 
as well.
    (d) A requester who is making a request for records about himself 
or herself shall comply with the verification of identity requirements 
as specified in paragraph (e) of this section.
    (e) Where a request for records pertains to another individual, a 
requester may receive access to the requested records by submitting: 
Either a notarized authorization signed by the individual permitting 
that he or she explicitly grants access to the requested records 
pursuant to the requirements set forth in 28 U.S.C. 1746 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, GSA can require a requester to supply additional 
information such as a Certification of Identity Form in order to 
sufficiently verify the individual submitting the request and/or also 
verify that a particular individual has consented to disclosure.


Sec.  105-60.201  Description of records sought.

    (a) Requesters shall describe the records sought in sufficient 
detail to enable GSA personnel to locate them with a reasonable amount 
of effort. To the extent possible, requesters should include the 
following information in their FOIA request, which may help GSA 
identify the requested records the date/timeframe the requested 
information was created or occurred, title or name, author, recipient, 
subject matter of the record, case number, file designation, contract 
number, leasing identification number, or reference number and if 
known, the component of GSA housing the records.
    (b) Before submitting a FOIA request, requesters may contact the 
GSA FOIA Requester Service Center or GSA FOIA Public Liaison to discuss 
the records they seek and to receive assistance in describing the 
records. If after receiving a request, GSA determines that it does not 
reasonably describe the records sought, GSA shall inform the requester 
what additional information is needed or why the request is otherwise 
insufficient. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with their assigned Government 
Information Specialist or FOIA Public Liaison. If a request does not 
reasonably describe the records sought, GSA's response to the request 
may be delayed.
    (c) In order to efficiently respond to FOIA requests within the 
required 20-business-day timeframe per 5 U.S.C. 552(a)(6)(A), GSA may 
close an unperfected request 10 business days after GSA notifies the 
requester of the information needed to perfect the request. If the 
request does not reasonably describe the records sought, it is 
unperfected. A perfected FOIA request is a FOIA request for records 
that adequately describes the records sought, is made in accordance 
with GSA's regulations, has been received by the GSA FOIA Requester 
Service center, and for which there is no remaining question about the 
payment or amount of applicable fees.
    (d) Requesters may specify whether they prefer to receive paper 
copies of the records or receive the records electronically. GSA shall 
accommodate the request if the record is readily reproducible in the 
requested form.

Subpart D--Responding to Requests


Sec.  105-60.300  Responsibility for responding to FOIA requests.

    (a) The GSA FOIA Requester Service Center is responsible for 
managing all requests for records submitted to GSA from initial receipt 
of the FOIA request through the agency's final decision to release in 
whole or in part, or withhold the requested records.
    (b) Upon receiving a request for records, the GSA FOIA Requester 
Service Center shall determine whether the requested records reside 
within GSA. If GSA does not have ownership of the requested records, 
the GSA FOIA Requester Service Center shall make a good faith effort to 
redirect the requester to the appropriate record location or/entity 
that has control and ownership of the requested record, if known.
    (c) If GSA has possession of the requested records, the FOIA 
Requester Service Center shall work in coordination with the 
appropriate GSA component/or program office to fulfill the FOIA request 
in accordance with 5 U.S.C. 552.


Sec.  105-60.301  Acknowledging FOIA requests.

    (a) To the extent practicable, GSA shall communicate with 
requesters electronically via the FOIAonline web portal and/or email.
    (b) Upon receipt of a request, GSA shall send requesters an 
acknowledgement letter within 2 business days containing a brief 
description of the records sought so requesters may more easily keep 
track of their requests.
    (c) When a request is submitted via FOIAonline, the system 
automatically generates a tracking number, which allows for easy 
identification of each request. This tracking number shall be included 
in the acknowledgement letter.
    (d) When GSA receives a request not directly entered by the 
requester into FOIAonline (i.e., email, fax, standard mail, etc.) the 
FOIA Requester Service Center shall immediately upload the request into 
the FOIAonline system and it shall be assigned a tracking number that 
shall be communicated to the requester.


Sec.  105-60.302  Responding to FOIA requests.

    (a) GSA shall provide an estimated date by which the agency expects 
to provide a response to the requester. If a request involves a 
voluminous amount of material or searches in multiple locations, GSA 
may provide an interim

[[Page 5140]]

response, meaning the agency releases the records on a rolling basis as 
the records are located and verified.
    (b) In determining which records are responsive to a request, the 
agency shall include only the records in its possession as of the date 
the agency receives the perfected FOIA request. If any other date is 
used, GSA shall inform the requester accordingly. A record that is 
excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c) 
is not considered responsive to a request.
    (c) Pursuant to 5 U.S.C. 552, GSA is not required to perform the 
following in response to a FOIA request:
    (1) Answer questions or interrogatories posed as FOIA requests;
    (2) Issue guidance/or opinions;
    (3) Analyze and/or interpret documents for a requester;
    (4) Create records;
    (5) Conduct research; or
    (6) Initiate investigations.
    (d) The GSA Administrator and GSA Chief FOIA Officer and/or their 
assigned delegates are authorized to grant or deny any requests for 
records or portions thereof that are generated, maintained, or 
controlled by GSA.


Sec.  105-60.303  Consultation, referral, and coordination.

    (a) All consultations and referrals received by GSA shall be 
handled according to the date the other agency received the perfected 
FOIA request.
    (b) GSA may establish agreements with other agencies to eliminate 
the need for consultations or referrals with respect to particular 
types of records.
    (c) When GSA is reviewing records located in response to a FOIA 
request, GSA shall determine whether another agency of the Federal 
Government is better able to determine if the records are releasable 
under the FOIA. As to any such record, GSA shall proceed in one of the 
following ways:
    (1) Consultation. When GSA receives a request for records that 
either originated with another agency or is a GSA record that includes 
information that originated with another agency, GSA should typically 
consult with that other agency prior to making a release determination.
    (2) Referral. (i) Whenever GSA receives a request for records that 
are known to be the primary responsibility of another agency, GSA shall 
refer the responsibility for responding to the request regarding 
records to that agency. Ordinarily, the agency that created the records 
is presumed to be the best agency to make the disclosure determination. 
However, if GSA and the originating agency jointly agree that GSA is in 
the best position to respond regarding the record, then the responsive 
record(s) may be handled as a consultation.
    (ii) Whenever GSA refers any part of the responsibility for 
responding to a record request to another agency, GSA shall maintain 
documentation that the referral to the other agency has occurred, and 
shall notify the requester of the referral. The notification to the 
requester shall include both the name of the agency to which the record 
request was referred and the contact information for the agency's FOIA 
office/or personnel.
    (iii) This referral procedure is not appropriate where disclosure 
of the identity of the agency to which the referral would be made could 
reasonably harm an interest protected by an applicable exemption, such 
as the exemptions that protect personal privacy or national security 
interests. If a non-law enforcement agency 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 GSA locates a record that originates 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. Records meeting these criteria 
shall be treated as a consultation.
    (iv) In such instances, in order to avoid a harm to an interest 
protected by an FOIA applicable exemption, GSA should 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 should then be conveyed to the requester by GSA.
    (4) Classified information. (i) On receipt of any request involving 
classified information, GSA shall 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, GSA shall refer request for 
records to the agency that classified the information or that should 
consider the information for classification.
    (ii) Whenever GSA's records contain information that has been 
derivatively classified (i.e., it contains information classified by 
another agency), GSA shall refer the responsibility for responding to 
that portion of the request to the agency that classified the 
information.


Sec.  105-60.304  Time requirements to respond to FOIA requests.

    (a) Upon receipt of perfected request via U.S. mail, email, or 
facsimile, the GSA FOIA Requester Service Center shall begin processing 
the request for records. Pursuant to 5 U.S.C. 552(a)(6)(A)(i), GSA has 
20 business days (excluding Saturdays, Sundays, and Federal holidays) 
to inform the requester of the agency's determination with respect to 
the request for records, unless in the alternative, the agency has 
negotiated a different timeframe based on scope and level of effort to 
prepare the FOIA request response. If a requester does not receive a 
response to their perfected FOIA request within the statutory timeframe 
requester may seek judicial review in the U.S. District Court in the 
district in which the requester resides or has a principal place of 
business, or where the records are situated, or in the U.S. District 
Court for the District of Columbia.
    (b) GSA shall to the greatest extent practicable respond to FOIA 
requests by order of receipt of the requests.
    (c) GSA shall designate a specific track for requests that are 
granted expedited processing, in accordance with the standards set 
forth in this subpart. GSA may also designate additional processing 
tracks that distinguish between simple and more complex requests based 
on the estimated amount of work or time needed to process the request. 
Among the factors GSA may consider are the number of records requested, 
the number of pages involved in processing the request, and the need 
for consultations or referrals. GSA shall advise requesters of the 
track into which their request falls upon request, and when 
appropriate, offer the requester an opportunity to narrow the scope 
and/or modify their requests.
    (d) GSA may aggregate requests in cases where it reasonably appears 
that multiple requests for records were submitted either by a requester 
or by a group of requesters acting in concert for the same, or similar 
information to ensure it is fulfilled in a timely manner. GSA cannot 
aggregate multiple requests for unrelated subject matters.

[[Page 5141]]

Sec.  105-60.305  Unusual circumstances.

    Whenever GSA cannot meet the statutory time limit for processing a 
request because of ``unusual circumstances,'' as defined at 5 U.S.C. 
552(a)(6)(A)(iii), GSA shall, before expiration of the 20-day statutory 
time period to respond to a request for records, notify the requester 
in writing of the unusual circumstances involved and of the date by 
which GSA estimates the processing of the request shall be completed. 
Where the extension of time is anticipated to exceed 10 business days, 
GSA shall provide the requester with an opportunity to modify the 
request or arrange an alternative time period for processing the 
original or modified request. GSA shall make available its FOIA Public 
Liaison for this purpose. GSA shall also alert requesters to the 
availability of the Office of Government Information Services (OGIS) to 
provide dispute resolution services.


Sec.  105-60.306  Expedited processing.

    (a) A request for expedited processing may be made at any time. In 
order to qualify for consideration for expedited processing, the 
request shall reasonably describe the records sought. Expedited 
requests should be described in sufficient detail to facilitate 
expedited processing.
    (b) A requester who seeks expedited processing shall submit a 
statement with their FOIA request, certified to be true and correct, 
explaining in detail the basis for making the request for expedited 
processing as described in paragraphs (c)(1) through (4) of this 
section. As a matter of administrative discretion, GSA may waive the 
formal certification requirement.
    (c) GSA may process requests and appeals on an expedited basis 
whenever it is determined that they involve:
    (1) 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;
    (2) 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; or
    (3) The loss of substantial due process rights; or
    (4) A matter of widespread and exceptional media interest in which 
there exist possible questions about the Government's integrity that 
affect public confidence.
    (d) GSA shall notify the requester within 10 calendar days of its 
receipt of a request for expedited processing and of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request shall be given priority, placed in the 
processing track for expedited requests, and processed as soon as 
practicable. If a request for expedited processing is denied, GSA shall 
act on any appeal of that decision within 3 business days.

Subpart E--Acknowledging the FOIA Request


Sec.  105-60.400  Applying FOIA exemptions.

    (a) 5 U.S.C. 552(b)(1)-(9) of the Freedom of Information Act 
provides that the disclosure requirements of FOIA do not apply to 
matters that are:
    (1) Specifically authorized under the criteria established by an 
executive order to be kept secret in the interest of national defense 
or foreign policy and are in fact properly classified pursuant to such 
executive order (see Executive Order No. 13,526);
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute other than 5 
U.S.C. 552(b)(1)-(9), provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue;
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information that 
could harm the competitive posture or business interests of a company;
    (5) Interagency or intra-agency memorandums or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency, provided that the deliberative process privilege shall 
not apply to records created 25 years or more before the date on which 
the records were requested;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution that furnished information on a 
confidential basis, and, in the case of a record or information 
compiled by a criminal law enforcement authority in the course of a 
criminal investigation or by an agency conducting a lawful national 
security intelligence investigation, information furnished by a 
confidential source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial 
institutions; or
    (9) Geological and geophysical information and data, including 
maps, concerning wells.
    (b) GSA will provide any reasonably segregable portion of a record 
to a requester after redacting the portions of the requested records 
that are exempt under this section.

Subpart F--Final Responses to the FOIA Request


Sec.  105-60.500  Final response procedures and rules.

    (a) Once GSA determines that it shall grant a request in full or in 
part, the requester shall be notified of the decision in writing as 
well. GSA shall also inform the requester of any fees charged under 
Sec.  105-60.804 of this part and shall disclose the requested records 
to the requester promptly upon payment of any applicable fees. The 
agency shall inform the requester of the availability of its FOIA 
Public Liaison to offer assistance.
    (b) If GSA makes an adverse determination on any part of the FOIA 
request, it shall notify the requester of that determination in 
writing. Adverse determinations, or denials of requests, include 
determinations that:
    (1) The requested record is exempt from disclosure, in whole or in 
part;
    (2) The FOIA request does not reasonably describe the records 
sought;
    (3) The information requested is not subject to FOIA;
    (4) The requested record does not exist, cannot be located, or has 
been destroyed; or
    (5) The requested record is not readily reproducible in the form or 
format sought by the requester.

[[Page 5142]]

    (c) Records disclosed in part in response to a FOIA request shall 
be marked clearly to show the exemption under which the applicable 
portions of the responsive records were redacted unless doing so would 
harm an interest protected by an applicable exemption.
    (d) Adverse determinations also include denials involving fee 
waiver requests, denials for expedited processing, and the 
administrative closure of FOIA requests due to nonpayment of search and 
review fees for processing the FOIA request.
    (e) Any adverse determination of a FOIA request, in full or in 
part, shall be signed by the Chief FOIA Officer or his or her designee 
and shall include:
    (1) The name and title or position of the person responsible for 
the adverse determination;
    (2) A brief statement of the reasons for the adverse determination, 
including any FOIA exemption that is the basis for GSA's decision;
    (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 subpart I of 
this part, and a description of the appeal requirements.
    (5) A statement notifying the requester of the assistance available 
from the agency's FOIA Public Liaison and the dispute resolution 
services offered by OGIS.
    (f) Use of record exclusions pursuant to 5 U.S.C. 552(c):
    (1) In the event that GSA identifies records that may be subject to 
exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 
552(c), GSA shall confer with Department of Justice, Office of 
Information Policy (OIP), to obtain approval to apply the exclusion.
    (2) If GSA invokes an exclusion, it shall maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.

Subpart G--Handling Confidential Commercial Information


Sec.  105-60.600  Procedural and lawful considerations.

    (a) Confidential commercial information means commercial or 
financial information obtained by GSA from a submitter that may be 
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4).
    (b) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (c) A submitter of confidential commercial information shall use 
good faith efforts to designate by appropriate markings/or redact any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations expire 10 years after 
the date of the submission unless the submitter requests and provides 
justification for a longer designation period.
    (d) When notice to submitters is required:
    (1) GSA shall promptly provide written notice to the submitter of 
confidential commercial information whenever records containing such 
information are requested under the FOIA if GSA 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) GSA 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.
    (2) The notice shall 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, GSA may post or publish a notice in a place or 
manner reasonably likely to inform the submitters of the proposed 
disclosure, instead of sending individual notifications.
    (e) The notice requirements of this section do not apply if:
    (1) GSA determines that the information is exempt under the FOIA, 
and therefore shall not be disclosed;
    (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 12,600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous. In such a case, GSA shall 
give the submitter written notice of any final decision to disclose the 
information within reasonable time prior to a specified disclosure 
date.


Sec.  105-60.601  Submitters opportunity to object to disclosure.

    (a) GSA shall provide a submitter with 10 business days, within 
which the submitter shall respond to the notice referenced in Sec.  
105-60.600.
    (b) If a submitter has any objections to disclosure, it should 
provide GSA a detailed written statement that specifies all grounds for 
withholding the particular information under any exemption of the FOIA. 
In order to rely on Exemption 4 as the basis for nondisclosure, the 
submitter shall explain why the information constitutes a trade secret 
or commercial or financial information that is privileged or 
confidential and the harm of the release of the information to the 
submitter.
    (c) 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.
    (d) GSA is not required to consider any information received after 
the date of any disclosure decision. Any information provided by a 
submitter under this subpart may itself be subject to disclosure under 
the FOIA.
    (e) GSA shall consider a submitter's objections and specific 
grounds for nondisclosure in deciding whether to disclose the requested 
information.
    (f) Whenever GSA decides to disclose information over the objection 
of a submitter, the agency shall provide the submitter written notice, 
which shall 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 or copies of 
the records as the agency intends to release them; and
    (3) The specified disclosure date.
    (g) Whenever a requester files a lawsuit seeking to compel the 
disclosure of confidential commercial information, GSA shall promptly 
notify the submitter.
    (h) GSA shall notify the 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.

Subpart I--Appeals


Sec.  105-60.700  Submitting an appeal.

    (a) A requester may appeal any adverse determination (denial of 
access to records, denial of fee waiver, or

[[Page 5143]]

denial of expedited processing, etc.) to the GSA FOIA Requester Service 
Center which is designated as the agency's FOIA Appeals Office.
    (b) The appeal shall include:
    (1) The FOIAonline tracking number;
    (2) The basis for disagreement with GSA's adverse determination 
that is being appealed; and
    (3) A brief statement of the reasons he or she thinks GSA should 
release the records or provide expedited processing and enclose copies 
of the initial request and denial.
    (c) The requester may submit the appeal electronically to 
[email protected] The requester should mark the subject line of the 
electronic transmission, ``Freedom of Information Act Appeal.'' In the 
alternative, the requester may submit an appeal via facsimile to 202-
501-2727, or via US mail to U.S. General Services Administration, FOIA 
Requester Service Center (H3), 1800 F Street NW, 7308, Washington, DC 
20405-0001. If the appeal is submitted via US mail, the appeal letter 
must include the words ``Freedom of Information Act Appeal'' on both 
the face of the appeal letter and on the envelope. Failure to follow 
these procedures will delay processing of the appeal.
    (d) The GSA FOIA Officer must receive the requester's appeal no 
later than 90 calendar days after receipt by the requester of any 
adverse determination by GSA with respect to the FOIA request. GSA has 
20 business days after receipt of a proper appeal to issue a response 
to the requester's appeal. The 20-workday time limit shall not begin 
until the GSA FOIA Officer receives the appeal. As noted in Sec.  
105.60.305 of this part, the GSA FOIA Officer may extend this time 
limit in unusual circumstances. GSA will process appeals of denials of 
expedited processing as soon as possible after receiving them. The GSA 
FOIA Officer may also extend the time limit in the event of unusual 
circumstances occur during the processing of appeals as well.


Sec.  105-60.701  Adjudication of appeals.

    (a) The GSA Chief FOIA Officer or his or her designee shall act on 
behalf of GSA on all appeals under this section.
    (b) An appeal ordinarily shall not be adjudicated if the request 
that is the subject of the appeal becomes a matter of FOIA litigation. 
GSA shall administratively close the appeal if it becomes the subject 
of litigation and provide this notice to the requester in writing that 
the request has been administratively closed.
    (c) On receipt of any appeal involving classified information, GSA 
shall take appropriate action to ensure compliance with applicable 
classification rules.
    (d) GSA shall provide its review and decision on any appeal in 
writing. Any decision that either upholds GSA's original determination 
in whole or in part shall contain a statement that identifies the 
reasons for the affirmance, including any FOIA exemptions applied.
    (e) If GSA's decision is remanded or modified on appeal, GSA shall 
notify the requester of that determination in writing. GSA shall then 
further process the request in accordance with that appeal 
determination and shall respond directly to the requester. If GSA 
affirms its original decision after timely receipt of an appeal, GSA 
shall inform the requester via writing as well. GSA shall inform the 
requester of their right to seek judicial review in the U.S. District 
Court in the district in which the requester resides or has a principal 
place of business, or where the records are situated, or in the U.S. 
District Court for the District of Columbia. GSA shall also inform the 
requester of the mediation services offered by the Office of Government 
Information Services (OGIS) of the National Archives and Records 
Administration (NARA) as a non-exclusive alternative to litigation.
    (f) Engaging in dispute resolution or mediation services provided 
by OGIS is a voluntary process. Mediation is a voluntary process. If 
GSA agrees to participate in the mediation services provided by OGIS, 
it will actively engage as a partner to the process in an attempt to 
resolve the dispute.


Sec.  105-60.702  Requirements to preserve FOIA records.

    GSA shall preserve all correspondence pertaining to the requests 
that it receives under this subpart, as well as copies of all requested 
records, until disposition or destruction is authorized pursuant to 
title 44 of the United States Code or the General Records Schedule 4.2 
of the NARA. GSA shall not dispose of or destroy records while they are 
the subject of a pending request, appeal, or lawsuit under FOIA.

Subpart J--Fees


Sec.  105-60.800  General provisions.

    (a) GSA shall charge for processing requests under the FOIA in 
accordance with the provisions of this section and with OMB Guidelines. 
For purposes of assessing fees, FOIA establishes three categories of 
requesters:
    (1) Commercial use requesters;
    (2) Noncommercial scientific or educational institutions or news 
media requesters; and
    (3) All other requesters.
    (b) Fees are assessed depending on the category GSA determines the 
requester falls under in subpart A of this part. Requesters may seek a 
fee waiver. GSA shall consider requests for fee waiver in accordance 
with the requirements in Sec.  105-60.807 of this subpart. To resolve 
any fee issues that arise under this section, GSA may contact a 
requester for additional information. GSA shall ensure that searches, 
review, and duplication of FOIA records are conducted in the most 
efficient and the least expensive manner.
    (c) GSA shall collect all applicable fees before sending copies of 
records to a requester. Requesters pay fees by check, credit card, or 
money order made payable to the U.S. General Services Administration, 
or by another method as determined by GSA.


Sec.  105-60.801  Definitions pertaining to fee assessments.

    (a) A commercial use request is a request that asks for information 
that furthers a commercial, trade, or profit interest, which can 
include furthering those interests through litigation. GSA's decision 
to place a requester in the commercial use category shall be made on a 
case-by-case basis and is based on the requester's intended use of the 
information. GSA shall notify requesters of their placement in this 
category.
    (b) Direct costs are those expenses that GSA incurs in searching 
for and duplicating (and, in the case of commercial use requests, 
reviewing) records in order 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 sixteen (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 or the heating or lighting of a facility.
    (c) Duplication is reproducing a record to respond to a FOIA 
request. Duplicating records can occur via paper, audiovisual materials 
or electronic records.
    (d) An educational institution is any school that operates a 
program of scholarly research. A requester in this fee category shall 
show that the request is made in connection with his or her role at the 
educational institution. Agencies may seek verification from the 
requester that the request is in furtherance of scholarly research.

[[Page 5144]]

    (e) A noncommercial scientific institution is an institution that 
is not operated on a commercial basis. The term `commercial' for 
purposes of this subpart is that which is defined in paragraph (a) 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 shall 
show that the request is authorized by a qualifying noncommercial 
institution, or educational institution of vocational and higher 
learning and where the records are sought to further scientific, or 
academic scholarly research, and are not for a commercial use. GSA 
shall advise requesters of their placement in this category.
    (f) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities 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 shall not be considered to be for a 
commercial use. ``Freelance'' journalists who demonstrate a solid basis 
for expecting publication through a news media entity shall be 
considered as a representative of the news media. A publishing contract 
would provide the clearest evidence that publication is expected; 
however, GSA can also consider a requester's past publication record in 
making this determination. GSA shall advise requesters of their 
placement in this category.
    (g) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes the process of reviewing each 
individual record for possible redactions 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.  105-60.601 of 
this part. It does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (h) 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.


Sec.  105-60.802  Fees to be charged.

    In responding to FOIA requests, GSA shall charge the following fees 
unless a waiver or reduction of fees has been granted under Sec.  105-
60.807 of this subpart. Because the fee amounts provided below already 
account for the direct costs associated with a given fee type, GSA 
shall not add any additional costs to charges calculated under this 
section.
    (a) Search fees. (1) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. GSA shall charge search fees for 
all other requesters, subject to the rules and restrictions enumerated 
in this subpart. GSA may properly charge for time spent searching even 
if the GSA FOIA Requester Service Center does not locate any responsive 
records or if they determine that the records are entirely exempt from 
disclosure.
    (2) For each half hour (30 minutes) spent by GSA personnel 
searching for requested records, including electronic searches that do 
not require new programming, a $24.50 fee shall be assessed per the 
guidelines of the fee schedule enumerated in Sec.  105-60.804 of this 
subpart.
    (3) GSA shall charge the direct costs associated with conducting 
any search that requires the creation of a new computer program to 
locate the requested records. GSA shall notify the requester of the 
costs associated with creating such a program, and the requester shall 
agree to pay the associated costs before the costs may be incurred.
    (4) For requests that require the retrieval of records stored by 
GSA at a Federal records center operated by the NARA, GSA shall charge 
additional costs in accordance with the Transactional Billing Rate 
Schedule established by NARA.
    (b) Duplication fees. (1) GSA shall charge duplication fees to all 
requesters, subject to the restrictions of Sec.  105-60.803 of this 
subpart. GSA shall honor a requester's preference for receiving a 
record in a particular form or format where the agency can readily 
reproduce it in the form or format requested. Where photocopies are 
supplied, GSA shall provide one copy per request at the cost of $0.10 
per copy. For copies of records produced on tapes, disks, or other 
media, GSA shall charge the direct costs of producing the copy, 
including operator time.
    (2) Where paper documents shall be scanned in order to comply with 
a requester's preference to receive the records in an electronic 
format, the requester shall also pay the direct costs associated with 
scanning those materials. For other forms of duplication, GSA shall 
charge the direct costs.
    (3) GSA determines the standard fee for duplication of records as 
follows:
    (i) Per copy of each page (not larger than 8.5 x 14 inches) 
reproduced by photocopy or similar means (includes costs of personnel 
and equipment)--U.S. $0.10.
    (ii) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (c) Review fees. GSA shall charge review fees to requesters who 
make commercial use requests. Review fees shall be assessed based upon 
the initial review of the record (i.e., the review conducted by GSA to 
determine whether an exemption applies to a particular record or 
portion of a record). No charge shall be made for review during 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 GSA or another agency's secondary 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 enumerated in the fee schedule of this section.


Sec.  105-60.803  Restrictions on charging fees.

    (a) When GSA determines that a requester is an educational 
institution, noncommercial scientific institution, or representative of 
the news media, and that the records are not sought for commercial use, 
GSA shall not charge search fees.
    (b) If GSA fails to comply with the time limits in which to respond 
to a request for agency records under FOIA, it will not charge search 
fees, or in the instances of requests from requesters described in 
paragraph (a) of this section, may not charge duplication fees, except 
as described in paragraphs (b)(1) through (3) of this section. GSA will 
charge duplication fees in accordance with Sec.  105-60.802(b)(1) 
through (3) of this subpart.

[[Page 5145]]

    (1) If GSA has determined that unusual circumstances, as defined by 
FOIA, apply and the agency provided timely written notice to the 
requester in accordance with FOIA, a failure to comply with the time 
limit shall be excused for an additional 10 business days.
    (2) If GSA has determined that unusual circumstances, as defined by 
the FOIA, apply and that more than 5,000 pages are necessary to respond 
to the request, GSA 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. GSA shall have 
provided timely written notice of unusual circumstances to the 
requester in accordance with FOIA and GSA shall 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, the component may 
charge all applicable fees incurred in the processing of the request.
    (3) If a court has determined that exceptional circumstances exist, 
as defined by FOIA, a failure to comply with the time limits shall be 
excused for the length of time provided by the court order.
    (c) No search or review fees shall be charged for a half-hour 
period unless more than half of that period is required for search or 
review.
    (d) Except for requesters seeking records for a commercial use, GSA 
shall provide without charge:
    (1) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (2) The first 2 hours of search time.
    (e) No fee shall be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first 2 hours of 
search, is equal to or less than $49.00.


Sec.  105-60.804  Fee schedule.

    Table 1 to Sec.  105-60.804 outlines the basic fee categories and 
applicable fees:

                           Table 1 to Sec.   105-60.804--Fee Requester Category Table
----------------------------------------------------------------------------------------------------------------
       Requester category           Search fees        Review fees        Duplication fees           Amount
----------------------------------------------------------------------------------------------------------------
(a) Commercial use requester...  Yes..............  Yes..............  Yes, first 100 pages,   $49.00/hour plus
                                                                        or equivalent volume    applicable
                                                                        without charge. Then,   duplication
                                                                        U.S. $0.10. per copy    costs.
                                                                        of each page (not
                                                                        larger than 8.5 x 14
                                                                        inches) reproduced by
                                                                        photocopy or similar
                                                                        means (includes costs
                                                                        of personnel and
                                                                        equipment)--OR, per
                                                                        copy prepared by any
                                                                        other method of
                                                                        duplication--actual
                                                                        direct cost of
                                                                        production.
(b) Educational and              No...............  No...............  Yes, first 100 pages,   Eligible
 noncommercial scientific                                               or equivalent volume    requesters not
 institutions.                                                          without charge. Then,   subject to fees
                                                                        U.S. $0.10. per copy    other than
                                                                        of each page (not       duplication
                                                                        larger than 8.5 x 14    costs.
                                                                        inches) reproduced by
                                                                        photocopy or similar
                                                                        means (includes costs
                                                                        of personnel and
                                                                        equipment)--OR, per
                                                                        copy prepared by any
                                                                        other method of
                                                                        duplication--actual
                                                                        direct cost of
                                                                        production.
(c) Representative of news       No...............  No...............  Yes, first 100 pages,   Eligible
 media.                                                                 or equivalent volume    requesters not
                                                                        without charge. Then,   subject to fees
                                                                        U.S. $0.10. per copy    other than
                                                                        of each page (not       duplication
                                                                        larger than 8.5 x 14    costs.
                                                                        inches) reproduced by
                                                                        photocopy or similar
                                                                        means (includes costs
                                                                        of personnel and
                                                                        equipment)--OR, per
                                                                        copy prepared by any
                                                                        other method of
                                                                        duplication--actual
                                                                        direct cost of
                                                                        production.
(d) All other requesters.......  Yes (first 2       No...............  Yes, first 100 pages,   $49.00/hour plus
                                  hours without                         or equivalent volume    applicable
                                  charge).                              without charge. Then,   duplication
                                                                        U.S. $0.10. per copy    costs.
                                                                        of each page (not
                                                                        larger than 8.5 x 14
                                                                        inches) reproduced by
                                                                        photocopy or similar
                                                                        means (includes costs
                                                                        of personnel and
                                                                        equipment)--OR, per
                                                                        copy prepared by any
                                                                        other method of
                                                                        duplication--actual
                                                                        direct cost of
                                                                        production.
----------------------------------------------------------------------------------------------------------------


     Note 1 to Sec.  105-60.804:  GSA's calculated hourly rate for 
manual search, computer operator/programmer time, and employee time 
spent reviewing records is set at a flat rate of 49.00 per hour. GSA 
charges for these FOIA services by the hour at $49.00 and half hour 
at $24.50.


    Note 2 to Sec.  105-60.804:  The fee schedule of this section 
does not apply to fees charged under any statute that specifically 
requires GSA 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, GSA shall 
inform the requester of the contact information for that program.


    Note 3 to Sec.  105-60.804:  If GSA utilizes a contractor or 
agency personnel outside of the FOIA Requester Service Center to 
perform any services described in this subpart, the standard fee is 
based on the equivalent hourly rates.

Sec.  105-60.805  Anticipated fees.

    (a) When GSA determines or estimates that the fees to be assessed 
in accordance with this section shall exceed $49.00, the agency shall 
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 via writing. If only a portion of the fee can be 
estimated readily, GSA shall advise the requester accordingly. If the 
request is not for noncommercial use, the notice shall 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, 
2 hours of search time at no charge, and shall advise the requester 
whether those entitlements have been provided.
    (b) If GSA notifies the requester that the actual or estimated fees 
are in excess of $49.00, the request shall not be considered received 
and further work shall 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 shall provide the commitment/or designate an exact dollar 
amount in writing the requester is willing to pay.

[[Page 5146]]

GSA is not required to accept payments in installments.
    (c) If the requester has indicated a willingness to pay some 
designated amount of fees, but the agency estimates that the total fee 
shall exceed that amount, GSA 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. GSA shall 
inquire whether the requester wishes to revise the amount of fees the 
requester is willing to pay or modify the request. Once the requester 
submits the new estimated fee, the time to respond shall resume from 
where it was at the date of the notification.
    (d) GSA's FOIA Public Liaison and other FOIA professionals shall be 
available to assist any requester in reformulating a request to meet 
the requester's needs at a lower cost.
    (e) Although not required to provide special services, if GSA 
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.
    (f) GSA may charge interest on any unpaid bill starting on the 31st 
day following the date the requester is first billed. Interest charges 
shall be assessed at the rate provided in 31 U.S.C. 3717 and shall 
accrue from the billing date until payment is received by the agency. 
GSA shall 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.
    (g) When GSA reasonably believes that a requester or a group of 
requesters acting in concert are attempting to divide a single request 
into a series of requests for the purpose of avoiding fees, GSA may 
aggregate those requests and charge accordingly. GSA may presume that 
multiple requests of this type made within a 30-day period have been 
made in order to avoid fees. For requests separated by a longer period, 
GSA shall 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 
cannot be aggregated.


Sec.  105-60.806  Advanced payments.

    (a) For requests other than those described in this subpart, GSA 
cannot 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.
    (b) When GSA determines or estimates that a total fee to be charged 
under this section shall 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. GSA 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.
    (c) Where a requester has previously failed to pay a properly 
charged FOIA fee to GSA within 30 calendar days of the billing date, 
GSA may require that the delinquent requester pay the full amount due, 
plus any applicable interest on that prior request, and require that 
the requester make an advance payment of the full amount of any 
anticipated fee before the agency begins to process a new request or 
continues to process a pending request or any pending appeal. If GSA 
has a reasonable basis to believe that a requester has misrepresented 
the requester's identity in order to avoid paying outstanding fees, it 
may require that the requester provide proof of identity.
    (d) In cases in which GSA requires advance payment, the request 
shall not be considered received and further work shall not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 10 business days after the date of 
GSA's fee determination, the request shall be closed.


Sec.  105-60.807  Fee waivers and fee reductions.

    (a) Requests for a fee waiver shall be made when the FOIA request 
is first submitted to the agency 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 being 
reviewed per an 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 pay any costs incurred up to the date the fee 
waiver request was received.
    (b) Requirements for waiver or reduction of fees:
    (1) Requesters may seek a waiver of fees by submitting a written 
rationale as to 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; and
    (2) GSA shall furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that the factors described in paragraphs (b)(2)(i) through 
(iii) of this section are satisfied:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the Government. The subject of the request 
shall concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated; and
    (ii) Disclosure of the requested information is likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met; and
    (A) Disclosure of the requested records shall 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 shall 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 shall be 
considered. GSA shall presume that a representative of the news media 
shall satisfy this consideration;
    (iii) The disclosure shall 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, GSA shall consider the following criteria:
    (A) GSA shall 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 shall be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, GSA shall 
determine whether that is the primary interest furthered by the 
request. A

[[Page 5147]]

waiver or reduction of fees is justified when the requirements of 
paragraphs (b)(2)(i) and (ii) of this section are satisfied and any 
commercial interest is not the primary interest furthered by the 
request. GSA ordinarily shall presume that, when a news media requester 
has satisfied factors in paragraph (b)(1) of this section and this 
paragraph (b)(2), 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 shall not be presumed to primarily serve the public interest.
    (c) Where only some of the records to be released satisfy the 
requirements for a fee waiver, a waiver shall be granted for those 
records.

Subpart K--Other Rights and Services


Sec.  105-60.900  Coda.

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

[FR Doc. 2020-00057 Filed 1-28-20; 8:45 am]
BILLING CODE 6820-FM-P