Public Access to Information, 13104-13118 [2020-03844]

Download as PDF 13104 Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules after it becomes the final action of the Department. PART 60–30—RULES OF PRACTICE FOR ADMINISTRATIVE PROCEEDINGS TO ENFORCE EQUAL OPPORTUNITY UNDER EXECUTIVE ORDER 11246 91. The authority citation for part 60– 30 continues to read as follows: ■ Authority: Executive Order 11246, as amended, 30 FR 12319, 32 FR 14303, as amended by E.O. 12086; 29 U.S.C. 793, as amended, and 38 U.S.C. 4212, as amended. [FR Doc. 2020–04018 Filed 3–5–20; 8:45 am] BILLING CODE 4510–HL–P 92. Revise § 60–30.29 to read as follows: DEPARTMENT OF STATE § 60–30.29 22 CFR Part 171 ■ Record. After expiration of the time for filing briefs and exceptions, the Administrative Review Board, United States Department of Labor, shall make a decision, which shall be the Administrative order, on the basis of the record. The record shall consist of the record for recommended decision, the rulings and recommended decision of the Administrative Law Judge and the exceptions and briefs filed subsequent to the Administrative Law Judge’s decision. ■ 93. Revise § 60–30.30 to read as follows: § 60–30.30 Administrative Order. After expiration of the time for filing, the Administrative Review Board, United States Department of Labor, shall make a decision which shall be served on all parties. If the Administrative Review Board, United States Department of Labor, concludes that the defendant has violated the Executive Order, the equal opportunity clause, or the regulations, an Administrative Order shall be issued enjoining the violations, and requiring the contractor to provide whatever remedies are appropriate, and imposing whatever sanctions are appropriate, or any of the above. In any event, failure to comply with the Administrative Order shall result in the immediate cancellation, termination, and suspension of the respondent’s contracts and/or debarment of the respondent from further contracts. ■ 94. Revise § 60–30.37 to read as follows: § 60–30.37 lotter on DSKBCFDHB2PROD with PROPOSALS after the expiration of the time for filing exceptions, the Administrative Law Judge’s recommended decision shall become a final Administrative Order which shall become effective on the 31st day after expiration of the time for filing exceptions. Except as to specific time periods required in this subsection, 41 CFR 60–30.30 shall be applicable to this section. Final Administrative Order. After expiration of the time for filing exceptions, the Administrative Review Board, United States Department of Labor, shall issue an Administrative Order which shall be served on all parties. Unless the Administrative Review Board, United States Department of Labor, issues an Administrative Order within 30 days VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 [Public Notice 10955] RIN 1400–AE00 Public Access to Information Department of State. Proposed rule. AGENCY: ACTION: The Department of State (the Department) proposes to revise its regulations of May 6, 2016, governing the availability to the public of information that is under the control of the Department. There have been changes in the law governing disclosure of such information, including the Freedom of Information Act Improvement Act of 2016. This proposed rule reflects changes in the FOIA and consequent changes in the Department’s procedures since the last revision of the Department’s regulations on public access to information. DATES: The Department of State will accept comments on this proposed rule until May 5, 2020. ADDRESSES: You may submit comments by any of the following methods, and you must include the Regulatory Information Number (RIN) in the subject line of your message. • Mail (paper, disk, or CD–ROM submissions): Director, Office of Information Programs and Services, Room B–266, U.S. Department of State, 2201 C Street NW, Washington, DC 20520. • Fax: (202) 485–1669. • Persons with access to the internet may view this rule and submit comments by going to www.regulations.gov and searching for docket number DOS–2019–0042. Inspection of public comments: All comments received before the close of the comment period will be available for public inspection, including any personally identifiable or confidential business or financial information that is included in a comment. The Department SUMMARY: PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 of State will post all comments received before the close of the comment period at www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Alice Kottmyer, Attorney-Adviser, Office of the Legal Adviser, kottmyeram@state.gov, 202–647–2318. SUPPLEMENTARY INFORMATION: This proposed rule implements the Freedom of Information Act (FOIA) Improvement Act of 2016, Public Law 114–185, and updates the Department’s FOIA regulations at 22 CFR part 171. The following is a summary of the substantive changes. The proposed rule, in § 171.4, provides updated procedures and addresses for submitting FOIA requests to the Department, including procedures for requesting information about the requester and requests for visa information. Subpart B of the proposed rule (§ 171.10 through § 171.17) contains the rules governing the processing of a FOIA request. Proposed § 171.11 covers the Department’s initial processing of a request; it clarifies the information that is to be provided as part of a request, the Department’s process for responding to requests, and consultation and referral with respect to requests. Proposed § 171.12 covers the timing of responses to a request, including multi-track processing, expedited processing, and ‘‘unusual circumstances’’ (as defined in the FOIA) that might affect the Department’s ability to respond. Proposed § 171.13 covers responses to requests, including the procedures upon denial of a request. The proposed updates add a provision for consultation with the Department of Justice’s Office of Information Policy with respect to invocation of a FOIA exclusion. Proposed § 171.14 modifies the Department’s process with respect to reviews of business information, including procedures for the business owner of the information to object to the release of the information. Proposed § 171.15 revises the timeline for submission of appeals to 90 days and provides for information to be given to requesters about dispute resolution services at various stages of the processing of a request, in accordance with the FOIA Improvement Act of 2016. Proposed § 171.16 provides updates on the fees to be charged for FOIA requests, including how fees are calculated. This proposed section provides an updated explanation of the term, ‘‘representative of the news media.’’ Subpart C contains the rule’s Privacy Act provisions. There are minor changes throughout this subpart. E:\FR\FM\06MRP1.SGM 06MRP1 Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules In Subpart D, the proposed rule adds information about processing of requests for confidential financial disclosure reports. Finally, the proposed rule makes numerous minor changes throughout, to conform more closely to the Department of Justice’s Template for Agency FOIA Regulations. Regulatory Findings Administrative Procedure Act The Department is publishing this rule under the provisions of 5 U.S.C. 553, with a 60-day public comment period. Regulatory Flexibility Act The Department of State, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Unfunded Mandates 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 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. lotter on DSKBCFDHB2PROD with PROPOSALS Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreignbased companies in domestic and import markets. Executive Order 12988—Civil Justice Reform The Department has reviewed this regulation in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. Executive Orders 12372 and 13132— Federalism This regulation will not have substantial direct effects on the States, on the relationship between the national VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking. Executive Orders 12866 and 13563— Improving Regulation and Regulatory Review The Department has considered this rule in light of these Executive Orders and affirms that this regulation is consistent with the guidance therein. The benefits of this rulemaking for the public include, but are not limited to, providing an up-to-date procedure for requesting information from the Department that is consistent with the FOIA Improvement Act of 2016. The Department is aware of no more than a minimal cost to the public from this rulemaking. Executive Order 13771—Reducing Regulation and Controlling Regulatory Costs This rule is not subject to the requirements of Executive Order 13771 because it is expected to result in no more than de minimis costs. Paperwork Reduction Act This rule does not impose or revise any reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. List of Subjects in 22 CFR Part 171 Administrative practice and procedure, Freedom of information, Privacy. For the reasons set forth in the preamble, revise 22 CFR part 171 to read as follows: PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 13105 PART 171—PUBLIC ACCESS TO INFORMATION Subpart A—General Policy and Procedures Sec. 171.1 General provisions. 171.2 Types of records maintained. 171.3 Records available on the Department’s website. 171.4 Requests for information—types and how made. 171.5 Archival records. Subpart B—Freedom of Information Act Provisions 171.10 Purpose and scope. 171.11 Processing requests. 171.12 Timing of responses to requests. 171.13 Responses to requests. 171.14 Business information. 171.15 Administrative appeals. 171.16 Fees to be charged. 171.17 Preservation of records. Subpart C—Privacy Act Provisions 171.20 Purpose and scope. 171.21 Definitions. 171.22 Request for access to records. 171.23 Request to amend or correct records. 171.24 Request for an accounting of record disclosures. 171.25 Appeals from denials of PA amendment requests. 171.26 Exemptions. Subpart D—Access to Financial Disclosure Reports 171.30 Purpose and scope. 171.31 Requests for Public Financial Disclosure Reports—OGE Form 278. 171.32 Denial of Public Access to Confidential Financial Disclosure Reports—OGE Form 450. Authority: 22 U.S.C. 2651a; 5 U.S.C. 552, 552a; 5 U.S.C. app. 107(a); E.O. 12600 (52 FR 23781); Pub. L. 114–185; Pub. L. 95–521, 92 Stat. 1824 (codified as amended at 5 U.S.C. app. 101–505); 5 CFR part 2634. Subpart A—General Policy and Procedures § 171.1 General provisions. (a) This part contains the rules that the Department of State and the Foreign Service Grievance Board (FSGB), an independent body, follow in processing requests for records under the Freedom of Information Act (FOIA), as amended, 5 U.S.C. 552, and the Privacy Act of 1974 (PA), as amended, 5 U.S.C. 552a. These rules should be read in conjunction with the text of the FOIA, the PA, and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (‘‘OMB Guidelines’’). (b) Definitions. (1) For purposes of subparts A and B of this part, record means information regardless of its physical form or characteristics— including information created, stored, E:\FR\FM\06MRP1.SGM 06MRP1 13106 Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules and retrievable by electronic means— that is created or obtained by the Department and under the control of the Department at the time of the request, including information maintained for the Department by an entity under government contract for records management purposes. It does not include records that are not already in existence and that would have to be created specifically to respond to a request. (2) For purposes of subparts A and B of this part, control means the Department’s legal authority over a record, taking into account the ability of the Department to use and dispose of the record, the intent of the record’s creator to retain or relinquish control over the record, the extent to which Department personnel have read or relied upon the record, and the degree to which the record has been integrated into the Department’s record-keeping systems or files. (3) For purposes of this part, Department means the United States Department of State, including its field offices, Foreign Service posts abroad, and its components. This part does not address FOIA requests to the U.S. Agency for International Development (USAID); such requests should be submitted as described at www.usaid.gov/foia-requests. (4) For purposes of subparts A and B of this part, component means the offices that respond directly to requests concerning records under their jurisdiction: the Office of the Inspector General; the Bureau of Consular Affairs’ Directorates for Visa Services, Passport Services, and Overseas Citizens Services; the Bureau of Diplomatic Security; the Bureau of Human Resources; the Office of Medical Services; and the Foreign Service Grievance Board. lotter on DSKBCFDHB2PROD with PROPOSALS § 171.2 Types of records maintained. Most of the records maintained by the Department pertain to the formulation and execution of U.S. foreign policy. The Department also maintains certain records that pertain to individuals, such as applications for U.S. passports, applications for U.S. visas, records on consular assistance given abroad by U.S. Foreign Service posts to U.S. citizens and legal permanent residents, and records on Department employees. Further information on the types of records maintained by the Department may be obtained by reviewing the Department’s records disposition schedules, which are available on the Department’s FOIA website at www.foia.state.gov. VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 § 171.3 Records available on the Department’s website. (a) Information that is required to be published in the Federal Register under 5 U.S.C. 552(a)(1) is regularly updated by the Department and found on its public website: www.state.gov. See also 22 CFR part 5. Records that are required by the FOIA to be made available for public inspection in an electronic format under 5 U.S.C. 552(a)(2) also are available on the Department’s public website. Included on the Department’s FOIA home page, www.foia.state.gov, are links to other sites where Department information may be available and to the Department’s records disposition schedules. Also available on the FOIA website are certain records released by the Department pursuant to requests under the FOIA and compilations of records reviewed and released in certain special projects. Links to the Department’s Privacy Act Systems of Records Notices are available at www.state.gov/privacy. In addition, see 22 CFR part 173 regarding materials disseminated abroad by the Department. (b) The Department’s Office of Inspector General (OIG) is responsible for determining which of its records are required to be made publicly available on its website at www.stateoig.gov. OIG will ensure that its website of posted records and indices is reviewed and updated on an ongoing basis. § 171.4 Requests for information—types and how made. (a) General Information. (1) Requests for records made in accordance with this part must be made in writing. FOIA requests may be made to the Office of Information Programs and Services (A/ GIS/IPS) by email to foiarequest@ state.gov, through the Department’s FOIA website (www.foia.state.gov), by fax to (202) 261–8579, or by mail to the address below. PA requests must be made in writing and signed, and the requester’s signature must be either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. See § 171.22(a). PA requests may be made to A/GIS/IPS by email to foiarequest@ state.gov, by fax to (202) 261–8579, or by mail. FOIA and PA requests made by mail should be addressed to: Office of Information Programs and Services (A/ GIS/IPS), Room B–266, U.S. Department of State, 2201 C Street NW, Washington, DC 20520. (2) Requests for passport records covered under PA System of Records Notice 26 (available at www.state.gov/ system-of-records-notices-privacy-office/ ) must be made in writing, and may be submitted directly to the Law PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 Enforcement Liaison Division of the Passport Services directorate (PPT) of the Bureau of Consular Affairs by mailing the request to U.S. Department of State, Office of Law Enforcement Liaison, FOIA Officer, 44132 Mercure Circle, P.O. Box 1227, Sterling, VA 20166–1227. Requests for passport records and information that do not need to be certified may also be emailed to PPT-Public-FOIARequests@state.gov. (3) Requests for records of the OIG must be made in writing, and may be submitted via email to foia@ stateoig.gov, by fax to 703–284–1866, or by mail addressed to FOIA Officer, Officer of General Counsel, Office of Inspector General, U.S. Department of State, 1700 N. Moore Street, Suite 800, Arlington, VA 22209. Submission by email is preferred. Guidance and contact information is available on the OIG’s website at www.stateoig.gov/foiarequest. (4) The Office of Information Programs and Services, the Law Enforcement Liaison Division of the Passport Services directorate, and the OIG are the only Department components authorized to accept FOIA and PA requests submitted to the Department. (5) The requester should provide the specific citation to the authority under which he or she is requesting information (e.g., the FOIA, the PA, or Mandatory Declassification Review (MDR) under the current Executive Order on classification). This will facilitate the processing of the request. When individual U.S. citizens and lawful permanent residents request access to records about themselves, the Department processes responsive records maintained in Privacy Act systems of records under both the FOIA and the PA to provide requesters with the greatest degree of access to the records. Information in such records will be withheld only if it is exempt from access under both laws; if the information is exempt under only one of the laws, it will be released. Responsive records that are not maintained in a Privacy Act system of records are processed only under the FOIA. (6) A requester who requests records about himself or herself, including passport records, must comply with the verification of identity requirements as set forth in § 171.22 (the Privacy Act Provisions) in order for the request to be processed under the PA. (7) Where a request for records pertains to a third party or to a requester’s own records outside of a request under the Privacy Act, a requester may receive greater access by submitting a notarized authorization signed by the person whose records are E:\FR\FM\06MRP1.SGM 06MRP1 lotter on DSKBCFDHB2PROD with PROPOSALS Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules requested, or by submitting a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by the person whose records are requested, authorizing disclosure of the records to the requester, or by submitting proof that the third party is deceased (e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, the Department may require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure or is deceased. (8) Requests for visa information. The Immigration and Nationality Act, as amended, section 222(f) (8 U.S.C. 1202(f)), provides that the records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States must be considered confidential and shall be used only for certain enumerated purposes, including the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States. As a result, information subject to release in response to a request for visa records about an individual may be limited. Requests for visa records should include the following information for the applicant and, if applicable, the petitioner: Full name, as well as any aliases used; current address; email; and date and place of birth (including city, state, and country). Additional information describing the records sought will assist the Department in properly identifying the responsive records and in processing the request. Attorneys or other legal representatives requesting visa information on behalf of a visa applicant should submit a statement with the request signed by the applicant (and the petitioner if the records sought pertain to a petition) authorizing release of the requested visa information to the representative. Alternatively, requestors may submit a DS–4240 to certify their identity and to provide authorization by the applicant (and the petitioner if the records sought pertain to a petition) to release the requested information to the legal representative. Forms created by other Federal agencies will not be accepted. (b) Description of records sought. Although no particular format is required, a request must reasonably describe the Department record(s) that the requester seeks. Requesters must describe the records sought in sufficient detail to enable agency personnel to locate them with a reasonable amount of effort. To the extent possible, requesters VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 should include specific information that may assist the Department in identifying the requested record(s), such as the date, title or name, author, recipient, subject matter, case number, file designation reference number, or timeframe. If after receiving a request the Department determines that the request does not reasonably describe the records sought, the Department will inform the requester that the request is insufficient and may ask for additional information. Requests should also specify the records sought; failure to do so may delay the agency’s response. Any records provided in response to a request will be provided in the form or format requested if a releasable form of the records is readily reproducible in that form or format. Requesters must provide contact information, such as their phone number, email address, and/or mailing address, to assist the Department in communicating with them and providing released records. (c) While the Department makes every effort to provide the greatest possible access to all requested records regardless of the statute(s) under which the information is requested, the following guidance is provided for the benefit of requesters: (1) The Freedom of Information Act applies to requests for records concerning the general activities of government and of the Department in particular (see subpart B of this part). (2) The Privacy Act applies to requests from U.S. citizens or legal permanent resident aliens for records about them that are maintained by the Department in a system of records retrievable by the individual’s name or personal identifier (see subpart C of this part). § 171.5 Archival records. The Department ordinarily transfers records designated as historically significant to the National Archives when they are 25 years old. Accordingly, requests for some Department records 25 years old or older should be submitted to the National Archives by mail addressed to Special Access and FOIA Staff, National Archives at College Park, 8601 Adelphi Road, Room 5500, College Park, MD 20740–6001; by fax to (301) 837–1864; or by email to specialaccess_foia@ nara.gov. The Department’s website, www.foia.state.gov, has additional information regarding archival records. Subpart B—Freedom of Information Act Provisions § 171.10 Purpose and scope. This subpart contains the rules the Department follows under the Freedom PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 13107 of Information Act (FOIA) as amended, 5 U.S.C. 552. The rules should be read together with the FOIA, which provides additional information about access to records and contains the specific exemptions that are applicable for withholding information; the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Guidelines); and information located at www.foia.state.gov. The Department processes requests for records maintained in a Privacy Act (PA) system of records under the FOIA as well. As a result, requests that seek such records are also subject to this subpart. § 171.11 Processing requests. (a) In general. (1) The Office of Information Programs and Services (A/ GIS/IPS) is responsible for initial action on all FOIA requests for Department records, with two exceptions: Requests seeking records under the purview of the Office of Inspector General (OIG), which receives and processes requests for OIG records (see § 171.4(a)(3)); and requests seeking records under the purview of the Law Enforcement Liaison Division of the Passport Services directorate of the Bureau of Consular Affairs (CA), which receives and processes requests for certain consular records (see § 171.4(a)(2)). (2) For requests for which A/GIS/IPS is responsible for initial action, A/GIS/ IPS will issue all initial decisions on whether a request is valid (or has subsequently been perfected), and whether to grant or deny requests for a fee waiver or for expedited processing. (3) After A/GIS/IPS takes initial action, all requests for records coming under the jurisdiction of the following components are processed by those components, although A/GIS/IPS may provide review and coordination support to these components in some situations: The Bureau of Consular Affairs’ Directorates for Visa Services, Passport Services, and Overseas Citizens Services; the Bureau of Diplomatic Security; the Bureau of Human Resources; and the Office of Medical Services. Additionally, the Foreign Service Grievance Board (FSGB), as an independent body, processes all FOIA requests seeking access to its records and responds directly to requesters. (b) Receipt of request. The Department is in receipt of a request when it reaches A/GIS/IPS, OIG, or PPT, depending on which office is the proper recipient. At that time, the Department must send an acknowledgement letter to the requester that identifies the date of receipt of the request in the proper office (A/GIS/IPS, OIG, or PPT), and the E:\FR\FM\06MRP1.SGM 06MRP1 lotter on DSKBCFDHB2PROD with PROPOSALS 13108 Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules case tracking number. When one of these offices determines that a request was misdirected within the Department, that office must promptly route the request to the proper office(s) within the Department. (c) Cut-off date and exclusions. In determining which records are responsive to a request, the Department ordinarily will include only records in its possession as of the date of initiation of the search for responsive records, unless the requester has specified an earlier cut-off date. 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. (d) Consultation, referral, and coordination. When reviewing records located in response to a request, the component processing the request will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, the component must proceed in one of the following ways: (1) Consultation. When records originated with the Department, but contain within them information of interest to another agency or other Federal Government office, the component processing the request should typically consult with that other entity prior to making a release determination. (2) Referral. (i) When the component processing the request believes that a different Department component or other Federal Government agency is better able to determine whether to disclose the record, the component processing the request typically should refer the responsibility for responding to the request regarding that record to that component or agency, as long as the referral is to an entity subject to the FOIA. Ordinarily, the agency that originated the record will be presumed to be best able to make the disclosure determination. However, if the component processing the request and the originating agency jointly agree that the former is in the better position to respond regarding the record, then the record may be handled as a consultation. (ii) Whenever the component processing the request refers any part of the responsibility for responding to a request to another entity, the component must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name(s) of the entity to which the record was referred, including that entity’s FOIA contact information. VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 (3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the component or agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a nonlaw enforcement component 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 a component locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harm. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the component that received the request should coordinate with the originating component or agency to seek its views on the whether the record may be disclosed. The release determination for the record that is the subject of the coordination will be conveyed to the requester by the component that originally received the request. (e) Timing of responses to consultations and referrals. All consultations and referrals received by the Department will be handled according to the date that the perfected FOIA request was received by the first agency. (f) Agreements regarding consultations and referrals. The Department may make agreements with other agencies to eliminate, reduce, or streamline the need for consultations or referrals for particular types of records. § 171.12 Timing of responses to requests. (a) In general. The Department ordinarily will respond to requests in the order received. In instances involving misdirected requests that are re-routed pursuant to § 171.11(b), the response time will commence on the date that the request is received by the proper office that is designated to receive requests (A/GIS/IPS, OIG or PPT), but in any event not later than 10 working days after the request is first received by any of these three offices. (b) Multi-track processing. The Department has a specific track for requests that are granted expedited PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 processing, in accordance with the standards that are set forth in paragraph (d) of this section. An intake office (A/ GIS/IPS, OIG, or PPT) may also designate additional processing tracks that, for example, distinguish between simple and more complex requests based on the estimated amount of work and/or time needed to process the request. Among the factors that may also be considered are the number of records requested, the number of pages involved in processing the request, and the need for consultations or referrals. The Department must advise requesters of the track in which their request falls and, when appropriate, should offer the requesters an opportunity to narrow their request so that it can be placed in a different processing track. (c) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of ‘‘unusual circumstances,’’ as defined in the FOIA, and the Department extends the time limit on that basis, the Department must, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved. Where the extension exceeds 10 working days, the Department must, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or a modified request. The Department must make available its designated FOIA contact and its FOIA Public Liaison for this purpose. In the written notice to the requester, the Department must also alert the requester to the availability of the Office of Government Information Services to provide dispute resolution services. (d) Expedited processing. (1) The Department must process requests and appeals on an expedited basis whenever the Department determines that: (i) Failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (ii) With respect to a request made by a person primarily engaged in disseminating information, there exists an urgency to inform the public concerning actual or alleged Federal Government activity; or (iii) Failure to release the information would impair substantial due process rights or harm substantial humanitarian interests. (2) A request for expedited processing may be made at the time of the initial request for records or at any later time. Requests for expedited processing must be submitted to the office responsible E:\FR\FM\06MRP1.SGM 06MRP1 lotter on DSKBCFDHB2PROD with PROPOSALS Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules for receiving the FOIA request (A/GIS/ IPS, OIG, or PPT). When making a request for expedited processing of an administrative appeal, the request must be submitted to A/GIS/IPS, or OIG in the case of appeals of OIG decisions (see § 171.15). A Department FOIA office that receives a misdirected request for expedited processing must forward it promptly to the correct office responsible for receiving requests (A/ GIS/IPS, OIG, or PPT) for its determination. The time period for making the determination on the request for expedited processing commences on the date that the correct office receives the request, provided that the Department will be considered to have received the request for expedited processing no more than 10 working days after the request for expedited processing is received by A/GIS/IPS, OIG, or PPT. (3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (d)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester’s sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public’s right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an ‘‘urgency to inform’’ the public on the topic. As a matter of administrative discretion, the Department may waive the formal certification requirement. (4) A notice of the determination whether to grant expedited processing must be provided to the requester within 10 calendar days of the date of the receipt of the request for expedited processing in the appropriate office (whether A/GIS/IPS, OIG, or PPT). If expedited processing is granted, the request must 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, the Department must act on any appeal of that decision expeditiously. § 171.13 Responses to requests. (a) In general. The Department will, to the extent practicable, communicate VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 with requesters having access to the internet using electronic means, such as email or a web portal. (b) Acknowledgment of requests. The Department must acknowledge the request in writing and assign it an individualized tracking number if it will take longer than 10 working days to process. The Department must include in the acknowledgment a brief description of the records sought to allow requesters to more easily keep track of their requests. The Department may in its discretion divide a multi-part request into multiple requests in order to facilitate processing. (c) Estimated dates of completion and interim responses. Upon request, the Department will provide an estimated date by which the Department expects to provide a response to the requester. If a request involves a voluminous amount of material, or searches in multiple locations, the agency may provide interim responses, releasing the records on a rolling basis. (d) Grants of requests. Once the Department makes a determination to grant a request in full or in part, it must notify the requester in writing. The Department also must inform the requester of any fees charged under § 171.16 and must disclose the requested records to the requester promptly upon payment of any applicable fees. The Department must inform the requester of the availability of the FOIA Public Liaison to offer assistance. (e) Adverse determinations of requests. If the Department makes an adverse determination denying a request in any respect, it must notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that: The requested record is exempt from disclosure, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing. (f) Content of denial. The denial must be signed by the head of the component processing the request, or designee, and must include: (1) The name and title or position of the person responsible for the denial; (2) A brief statement of the reasons for the denial, including any FOIA PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 13109 exemption applied in denying the request; (3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption; and (4) A statement that the denial may be appealed under § 171.15, and a description of the requirements set forth therein. (5) A statement notifying the requester of the assistance available from the Department’s FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services of the National Archives and Records Administration. (g) Markings on released documents. Markings on released documents must be clearly visible to the requester. Records disclosed in part must be marked to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted must also be indicated on the record, if technically feasible. (h) Use of record exclusions. (1) In the event that the Department identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), A/GIS/IPS or OIG must confer with the Department of Justice, Office of Information Policy to obtain approval to apply the exclusion. (2) Any time the Department invokes an exclusion, it must maintain an administrative record of the process of invocation and approval of the exclusion by OIP. § 171.14 Business information. (a) Definitions. The following definitions apply for purposes of this section: (1) Business information means commercial or financial information obtained by the Department from a submitter that may be exempt from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). (2) Submitter means any person or entity from which the Department obtains business information, directly or indirectly. The term includes corporations, partnerships, and sole proprietorships; state, local, and tribal governments; foreign governments, NGOs and educational institutions. This E:\FR\FM\06MRP1.SGM 06MRP1 lotter on DSKBCFDHB2PROD with PROPOSALS 13110 Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules term does not include another Federal Government entity. (b) Designation of business information. A submitter of business information must use good-faith efforts to designate by appropriate markings at the time of submission any portions of its submission that it considers exempt from disclosure under FOIA Exemption 4. These designations expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period. (c) Notice to submitters. (1) The Department must provide a submitter with prompt written notice whenever records containing its business information are requested under the FOIA if the agency determines that it may be required to disclose the records, provided: (i) The information has been designated in good faith by the submitter as information considered exempt from disclosure under Exemption 4; or (ii) The Department has reason to believe that the requested information may be exempt from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure. (2) The notice must either describe the business information requested or include a copy of the requested records or record portions containing the information. In cases involving a voluminous number of submitters, the Department 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. (d) When notice is not required. The notice requirements of this section do not apply if: (1) The Department determines that the information is exempt from disclosure under the FOIA, and therefore will 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 statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such a case, the Department must give the submitter written notice of any final decision to disclose the information a reasonable number of days prior to a specified disclosure date. (e) Opportunity to object to disclosure. The Department must allow a submitter VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 a reasonable time to respond to the notice described in paragraph (c) of this section and must specify that time period in the notice. If a submitter has any objections to disclosure, it should provide the Department 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 basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential. In the event that a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. The Department is not required to consider any information received after any disclosure decision. Information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA. (f) Notice of intent to disclose. The Department will consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever the Department decides to disclose information over the objection of a submitter, it must give the submitter written notice, which must include: (1) A statement of the reason(s) 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 Department intends to release them; and (3) A specified disclosure date, which must be a reasonable time after the notice. (g) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of business information, the Department must promptly notify the submitter. (h) Notice to requester. The Department must notify the requester whenever it provides a submitter with notice and an opportunity to object to disclosure; whenever it notifies a submitter of its intent to disclose requested information; and whenever a submitter files a lawsuit seeking to prevent the disclosure of the requested information. § 171.15 Administrative appeals. (a) Requirements for making an appeal. (1) Requesters may appeal any adverse determinations made on their FOIA request by the Department. Examples of adverse determinations are provided in § 171.13(d). The requester must make the appeal in writing and to be considered timely it must be PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days after the date of the adverse determination. The appeal must clearly identify the component’s determination that is being appealed and the assigned request number. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, ‘‘Freedom of Information Act Appeal.’’ (2) To appeal any adverse determinations made by A/GIS/IPS or a component other than OIG, requesters must submit an administrative appeal to the A/GIS/IPS FOIA Appeals Office using any of the following methods: By mail to the Appeals Officer, Office of Information Programs and Services (A/ GIS/IPS), Room B–266, U.S. Department of State, 2201 C Street NW, Washington, DC 20520; by fax to (202) 261–8579; or by email to foiarequest@state.gov. (3) To appeal any adverse determinations made by OIG, requesters must submit an administrative appeal to OIG via email to foia@stateoig.gov, by fax to 703–284–1866, or by mail addressed to the FOIA Officer, Officer of General Counsel, Office of Inspector General, U.S. Department of State, 1700 N Moore Street, Suite 800, Arlington, VA 22209. Contact information for OIG is available on OIG’s FOIA website at www.stateoig.gov/foiaappeals. For those cases in which both A/GIS/IPS and OIG provided written denials to the requester, the requester may administratively appeal to both A/GIS/ IPS and OIG and each office will handle its respective portion of the appeal. (4) To appeal any adverse determinations made by the FSGB, requesters must submit an administrative appeal to A/GIS/IPS using the methods listed above in paragraph (2). A/GIS/IPS will assign a tracking number to the appeal and forward it to the FSGB, which is an independent body, for adjudication. (b) Adjudication of appeals. (1) The A/GIS/IPS Director or designee will act on behalf of the Assistant Secretary for Administration on all appeals of A/GIS/ IPS FOIA determinations under this section. Likewise, the General Counsel of OIG or his/her designee will act on behalf of the Inspector General on all appeals of OIG FOIA determinations under this section. (2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation. E:\FR\FM\06MRP1.SGM 06MRP1 Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules (c) Decisions on appeals. The Department must provide its decision on an appeal in writing. A decision that upholds the Department’s determination in whole or in part must include a brief statement of the reason for the affirmance, including any FOIA exemptions applied. The decision must inform the requester that the decision represents the final decision of the Department; must advise the requester of the statutory right to file a lawsuit; and must inform the requester of the dispute resolution services offered by the Office of Government Information Services of the National Archives and Records Administration (OGIS) as a non-exclusive alternative to litigation. If a decision is remanded or modified on appeal, the requester will be notified in writing. The appropriate component will then further process the request in accordance with that appeal determination and respond directly to the requester. (d) Engaging in dispute resolution services provided by OGIS. Dispute resolution is a voluntary process. If a component agrees to participate in the dispute resolution services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute. (e) When appeal is required. Before seeking review by a court of the Department’s adverse determination, a requester must first submit a timely administrative appeal. lotter on DSKBCFDHB2PROD with PROPOSALS § 171.16 Fees to be charged. (a) In general. (1) The Department will charge fees for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. For purposes of assessing fees, the FOIA establishes three categories of requesters: (i) Commercial use requesters, (ii) Non-commercial scientific or educational institutions or news media requesters, and (iii) All other requesters. Different fees are assessed depending on the category. (2) Requesters may seek a fee waiver. The Department considers fee waivers in accordance with the requirements set forth below. To resolve any issues that arise under this section, the Department may contact a requester for additional information. The Department must use the most efficient and least costly methods to comply with requests for records made under the FOIA. The Department shall attempt to notify the requester if fees are estimated to exceed $25.00, unless the requester has expressed a willingness to pay fees as high as those anticipated. Such notification shall include a breakdown VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 of the fees for search, review, and duplication. The Department ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States, or by another method as determined by the Department. (b) Definitions. For purposes of this section: (1) Commercial use request is a request that asks for information for a use or purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. The Department’s decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester’s intended use of the information. The Department will notify requesters of their placement in this category. (2) Direct costs are those expenses the Department incurs in searching for, duplicating, and, in the case of commercial use requests, reviewing records in response to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. The term does not include overhead expenses such as the costs of space, and of heating or lighting of a facility. (3) Duplication is reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others. (4) Educational institution is any school that operates a program of scholarly research. A requester in this category must show that the request is made in connection with the requester’s role at the educational institution. The Department may seek verification from the requester that the request is in furtherance of scholarly research. The Department will advise requesters of their placement in this category. (5) Non-commercial scientific institution is an institution that is not operated on a ‘‘commercial’’ basis, as defined in paragraph (b)(1) of this section and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 13111 that the records are sought to further scientific research and are not for a commercial use. The Department will advise requesters of their placement in this category. (6) 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 newsdissemination 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, the Department shall also consider a requester’s past publication record in making this determination. The Department will advise requesters of their placement in this category. (7) 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 processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a business information submitter under § 171.14 but it does not include time spent resolving general legal or policy issues regarding the application of exemptions. (8) Search is the process of looking for, identifying, and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records. (c) Charging fees. In responding to FOIA requests, the Department will E:\FR\FM\06MRP1.SGM 06MRP1 lotter on DSKBCFDHB2PROD with PROPOSALS 13112 Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules charge the following fees unless a waiver or reduction of fees has been granted under paragraph (j) of this section. Because the fee amounts provided below already account for the direct costs associated with a given fee type, the Department should not add any additional costs to charges calculated under this section. (1) Search. (i) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. Search fees shall be charged for all other requesters, subject to restrictions of paragraph (j) of this section. The Department may properly charge for time spent searching even if responsive records are not located, or if records are determined to be entirely exempt from disclosure. (ii) For each hour spent by personnel searching for requested records, the fees shall be as stated at the following website: foia.state.gov/Request/ Guide.aspx (section VII, ‘‘Fees’’) and www.stateoig.gov/foiafees for OIG requested records. (iii) For requests that require the retrieval of records stored by the Department at a Federal records center operated by the National Archives and Records Administration (NARA), the Department will charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA. (2) Review. The Department will charge review fees to requesters who make commercial use requests. Review fees will be assessed in connection with the initial review of the record, i.e., the review conducted to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with the Department’s re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees shall be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section. (3) Duplication. The Department will charge duplication fees to all requesters, subject to the restrictions of paragraph (d) of this section. The Department must honor a requester’s preference for receiving a record in a particular form or format where it is readily reproducible by the Department in the form or format requested. The Department charges the direct costs of producing the copy, including operator time. Where paper documents must be VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 scanned in order to comply with a requester’s preference to receive the records in an electronic format, the requester must also pay the direct costs associated with scanning those materials. Duplication fees are as stated at the following website: foia.state.gov/ Request/Guide.aspx (section VII, ‘‘Fees’’). (d) Restrictions on charging fees. (1) The Department will not charge search fees for requests by educational institutions, non-commercial scientific institutions, or representatives of the news media, unless the records are sought for a commercial use. (2) If the Department fails to comply with the FOIA’s time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(i) through (iii) of this section. (i) If the Department has determined that unusual circumstances as defined by the FOIA apply and the agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit is excused for an additional 10 days. (ii) If the Department has determined that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the Department 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. The Department must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA, and the Department must 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 Department may charge all applicable fees incurred in the processing of the request. (iii) If a court has determined that exceptional circumstances exist as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order. (3) Except for requesters seeking records for a commercial use, the Department must provide without charge: (i) The first 100 pages of duplication (or the cost equivalent for other media); and (ii) The first two hours of search. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 (4) When, after deducting the 100 free pages (or its cost equivalent) and the first two hours of search, the total fee calculated under paragraph (c) of this section is $25.00 or less, no fee will be charged. (5) Apart from the stated provisions regarding waiver or reduction of fees, see paragraph (j) of this section, the Department may in its sole discretion decide to not assess fees or to reduce them if it is in the best interests of the government not to do so. (e) Notice of anticipated fees in excess of $25.00. (1) When the Department determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the Department must notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review, or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the Department will advise the requester accordingly. If the request is not for commercial use, the notice will specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and will advise the requester whether those entitlements have been provided. (2) In cases in which the Department has notified the requester that the actual or estimated fees are in excess of $25.00, the request will not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay; or in the case of a noncommercial use requester who has not yet been provided with the requester’s statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. The Department is not required to accept payments in installments. (3) If the requester has indicated a willingness to pay some designated amount of fees, but the Department estimates that the total fee will exceed that amount, the Department will 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. The Department will inquire whether the requester wishes to revise E:\FR\FM\06MRP1.SGM 06MRP1 lotter on DSKBCFDHB2PROD with PROPOSALS Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification. (4) The Department must make available its FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester’s needs at a lower cost. (f) Charges for other services. Although not required to provide special services, if a component chooses to do so as a matter of administrative discretion, the direct costs of providing the service shall be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail. (g) Charging interest. The Department may charge interest on any unpaid bill starting on the 31st day following the date the bill was sent to the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and shall accrue from the date of the billing until payment is received by the Department. The fact that a fee has been received by the Department within the thirty-day grace period, even if not processed, shall stay the accrual of interest. The Department must follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97–365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset. (h) Aggregating requests. When the Department reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, the Department may aggregate those requests and charge accordingly. The Department may presume that multiple requests of this type made within a 30day period have been made in order to avoid fees. For requests separated by a longer period, components will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters cannot be aggregated. (i) Advance payments. (1) For requests other than those described in paragraphs (i)(2) or (i)(3) of this section, the Department cannot require a 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 VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 copies are sent to the requester) is not advance payment. (2) When the Department estimates or determines that a total fee to be charged under this section will exceed $250, 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. The Department may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment. (3) Where a requester has previously failed to pay a properly charged FOIA fee to any component within 30 calendar days of the date of its billing, the Department may require the requester to pay the full amount due, plus any applicable interest on that prior request, and to make an advance payment of the full amount of any anticipated fee before the Department begins to process a new request or continues to process a pending request or any appeal from that requester. Where the Department 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. Additionally, if a requester has failed to pay a fee properly charged by another U.S. Government agency in a FOIA case, the Department may require proof that such fee has been paid before processing a new or pending request from that requester. (4) In cases in which the Department requires advance payment, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the Department’s fee determination, the request will be closed. (j) Requirements for waiver or reduction of fees. (1) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. (2) The Department must 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 (j)(2)(i) through (iii) of this section are satisfied: PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 13113 (i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated. (ii) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met: (A) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public’s understanding. (B) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester’s expertise in the subject area as well as the requester’s ability and intention to effectively convey information to the public shall be considered. The Department will presume that a representative of the news media satisfies this consideration. (iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the information is primarily in the commercial interest of the requester, the Department will consider the following factors: (A) The Department must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration. (B) If there is an identified commercial interest, the Department must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirement of paragraphs (j)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. The Department ordinarily will presume that when a news media requester has satisfied the requirements of paragraphs (j)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. E:\FR\FM\06MRP1.SGM 06MRP1 13114 Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest. (3) Where only some of the records to be released satisfy the requirements for a waiver or reduction of fees, a waiver or reduction must be granted for those records. (4) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Department and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester must pay any costs incurred up to the date the fee waiver request was received. § 171.17 Preservation of records The Department must 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 and applicable records disposition schedules, including the General Records Schedule 4.2 of the National Archives and Records Administration. The Department must not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA. Subpart C—Privacy Act Provisions lotter on DSKBCFDHB2PROD with PROPOSALS § 171.20 Purpose and scope. This subpart contains the rules that the Department follows when implementing certain provisions of the Privacy Act of 1974 (PA), as amended, 5 U.S.C. 552a. These rules should be read together with the statute. The rules in this subpart apply to all records in systems of records maintained by the Department that are retrieved by an individual’s name or personal identifier. They describe the procedures by which individuals may request access to records about themselves, request amendment or correction of those records, and request an accounting of disclosures of those records by the Department. If any records retrieved pursuant to an access request under the PA are found to be exempt from access under that Act, they will be processed for possible disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. No fees shall be charged when an individual requests VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 access to or amendment of his or her own PA records. § 171.21 Definitions. As used in this subpart, the following definitions shall apply: (a) Individual means a citizen or a legal permanent resident alien (LPR) of the United States. (b) Maintain includes maintain, collect, use, or disseminate. (c) Record means any item, collection, or grouping of information about an individual that is maintained by the Department and that contains the individual’s name or the identifying number, symbol, or other identifying particular assigned to the individual, such as a fingerprint, voice print, or photograph. (d) System of records means a group of any records under the control of the Department from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to an individual. § 171.22 Request for access to records. (a) In general. Requests for access to records under the PA must be made in writing and sent to the Office of Information Programs and Services, the Office of Passport Services within the Bureau of Consular Affairs, or the Office of Inspector General at the addresses given in § 171.4. The Director of the Office of Information Programs and Services (A/GIS/IPS) is responsible for acting on all PA requests for Department records except for requests received directly by the Office of Inspector General, which processes its own requests for information, and the Office of Passport Services within the Bureau of Consular Affairs, which receives directly and processes its own PA requests for information as described in PA System of Record Notice STATE–26. All processing of PA requests coming under the jurisdiction of the Directorates for Visa Services and Overseas Citizens Services in the Bureau of Consular Affairs, the Bureau of Diplomatic Security, the Bureau of Human Resources, the Office of Medical Services, and the Foreign Service Grievance Board (FSGB) are handled by those bureaus or offices. (b) Description of records sought. Requests for access should describe the requested record(s) in sufficient detail to permit identification of the record(s). At a minimum, requests should include the individual’s full name (including maiden name, if appropriate) and any other names used, current complete mailing address, and date and place of birth (city, state and country). Helpful PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 information includes the approximate time period of the record and the circumstances that give the individual reason to believe that the Department maintains a record under the individual’s name or personal identifier, and, if known, the system of records in which the record is maintained. In certain instances, it may be necessary for the Department to request additional information from the requester, either to ensure a full search, or to ensure that a record retrieved does in fact pertain to the individual. (c) Verification of personal identity. The Department will require reasonable identification of individuals requesting records about themselves under the PA’s access provisions to ensure that records are only accessed by the proper persons. Requesters must state their full name, current address, citizenship or legal permanent resident alien status, and date and place of birth (city, state, and country). The request must be signed, and the requester’s signature must be either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. If the requester seeks records under another name the requester has used, a statement, under penalty of perjury, that the requester has also used the other name must be included. Requesters seeking access to copies of the Passport Services’ passport records must meet the requirements in paragraph (d) of this section. (d) Special requirements for passport records. Given the sensitive nature of passport records and their use, requesters seeking access to copies of passport records from Passport Services under the PA must submit a letter that is either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746, which includes the full name at birth and any subsequent name changes of the individual whose records are being requested (if submitting the request on behalf of a minor, provide the representative’s full name as well); the date and place of birth of the individual whose records are being requested; the requester’s current mailing address; and, if available, daytime telephone number and email address; the date or estimated date the passport(s) was issued; the passport number of the person whose records are being sought, if known; and any other information that will help to locate the records. The requester must also include a clear copy of both sides of the requester’s valid government-issued photo identification, e.g., a driver’s license. (e) Authorized third party access. The Department shall process all properly authorized third party requests, as E:\FR\FM\06MRP1.SGM 06MRP1 lotter on DSKBCFDHB2PROD with PROPOSALS Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules described in this section, under the PA. In the absence of proper authorization from the individual to whom the records pertain, the Department will process third party requests under the FOIA. The Department’s form, DS–4240, may be used to certify identity and provide third party authorization. Forms created by other Federal agencies will not be accepted. (1) Parents and guardians of minor children. Upon presentation of acceptable documentation of the parental or guardian relationship, a parent or guardian of a U.S. citizen or LPR minor (an unmarried person under the age of 18) may, on behalf of the minor, request records under the PA pertaining to the minor. In any case, U.S. citizen or LPR minors may request such records on their own behalf. (i) Verification of parentage or guardianship of minor children. When making a request as the parent or guardian of a minor child, for access to records about that individual, a requester must establish: (A) The identity of the individual who is the subject of the records, by stating the name, current address, date and place of birth; (B) The requester’s own identity, as required in paragraph (c) of this section; (C) That the requester is the parent of that individual, which the requester may prove by providing a copy of the individual’s birth certificate showing parentage, or by providing a court order establishing guardianship; and (D) That the requester is acting on behalf of that individual in making the request. (2) Guardians of incompetent adults. A guardian of an individual who has been declared by a court to be incompetent may act for and on behalf of the incompetent individual upon presentation of appropriate documentation of the guardian relationship. (i) Verification of guardianship of incompetent adult. When making a request as the guardian of someone determined by a court to be incompetent, for access to records about that individual, a requester must establish: (A) The identity of the individual who is the subject of the records, by stating the name, current address, date and place of birth; (B) The requester’s own identity, as required in paragraph (c) of this section; (C) That the requester is the guardian of that individual, which the requester may prove by providing a copy of a court order establishing guardianship; and VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 (D) That the requester is acting on behalf of that individual in making the request. (2) Authorized representatives or designees. When an individual wishes to authorize the Department to permit a third party access to his or her records, the individual to whom the records pertain must submit, in addition to the identity verification information described in paragraph (c) (or paragraph (d) of this section if the request is for passport records), a signed statement from the individual to whom the records pertain, either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746, giving the Department authorization to release records about the individual to the third party. The designated third party must submit identity verification information described in paragraph (c) of this section. Third party requesters seeking access to copies of the Passport Office’s records must submit a clear copy of both sides of a valid government-issued photo identification (e.g., a driver’s license) in addition to the other information described above. (f) Referrals and consultations. If the Department determines that records retrieved as responsive to the request were created by another agency, it ordinarily will refer the records to the originating agency for direct response to the requester. If the Department determines that Department records retrieved as responsive to the request are of interest to another agency, it may consult with the other agency before responding to the request. The Department may make agreements with other agencies to eliminate the need for consultations or referrals for particular types of records. (g) Records relating to civil actions. Nothing in this subpart entitles an individual to access to any information compiled in reasonable anticipation of a civil action or proceeding. (h) Time limits. The Department will acknowledge the request promptly and furnish the requested information as soon as possible thereafter. § 171.23 Request to amend or correct records. (a) An individual has the right to request that the Department amend a record pertaining to the individual that the individual believes is not accurate, relevant, timely, or complete. (b) Requests to amend records must be in writing and mailed or delivered to A/ GIS/IPS or OIG at the address given in § 171.4, with ATTENTION: PRIVACY ACT AMENDMENT REQUEST written on the envelope. A/GIS/IPS or OIG will coordinate the review of the request PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 13115 with the appropriate offices under its purview. The Department will require verification of personal identity as provided in § 171.22(c) before it will initiate action to amend a record. Amendment requests should contain, at a minimum, identifying information needed to locate the record in question, a description of the specific correction requested, and an explanation of why the existing record is not accurate, relevant, timely, or complete. The request must be signed, and the requester’s signature must be either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. The requester should submit as much pertinent documentation, other information, and explanation as possible to support the request for amendment. (c) All requests for amendments to records shall be acknowledged within 10 working days. (d) In reviewing a record in response to a request to amend, the Department shall review the record to determine if it is accurate, relevant, timely, and complete. (e) If the Department agrees with an individual’s request to amend a record, it shall: (1) Advise the individual in writing of its decision; (2) Amend the record accordingly; and (3) If an accounting of disclosure has been made, advise all previous recipients of the record of the amendment and its substance. (f) If the Department denies an individual’s request to amend a record, it shall advise the individual in writing of its decision and the reason for the refusal, and the procedures for the individual to request further review. See § 171.25. § 171.24 Request for an accounting of record disclosures. (a) How made. Except where accountings of disclosures are not required to be kept, as set forth in paragraph (b) of this section, or where accountings of disclosures do not need to be provided to a requesting individual pursuant to 5 U.S.C. 552a(c)(3), an individual has a right to request an accounting of any disclosure that the Department has made to another person, organization, or agency of any record about such individual, provided that the disclosed records are maintained in a system of records. This accounting shall contain the date, nature, and purpose of each disclosure as well as the name and address of the recipient of the disclosure. Any request for accounting should identify each E:\FR\FM\06MRP1.SGM 06MRP1 13116 Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules particular record in question and may be made by writing directly to A/GIS/ IPS at the address given in § 171.4. (b) Where accountings not required. The Department is not required to keep an accounting of disclosures in the case of: (1) Disclosures made to employees within the Department who have a need for the record in the performance of their duties; and (2) Disclosures required under the FOIA. lotter on DSKBCFDHB2PROD with PROPOSALS § 171.25 Appeals from denials of PA amendment requests. (a) If the Department denies a request for amendment of such records, the requester shall be informed of the reason for the denial and of the right to appeal the denial within 90 working days of the date of the Department’s denial letter. (b) For decisions made by A/GIS/IPS, requesters should submit their appeal to the A/GIS/IPS FOIA Appeals Office. The contact information for A/GIS/IPS is contained in the FOIA Reference Guide, which is available at www.state.gov. Appeals can be submitted by mail or email to foiarequest@state.gov. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, ‘‘Privacy Act Appeal.’’ (c) For decisions made by OIG, requesters should submit their appeal to the OIG. The contact information for OIG is available at www.stateoig.gov/ foiaappeals. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, ‘‘Privacy Act Appeal.’’ (d) Appellants should submit an administrative appeal of any denial, in whole or in part, of a request for access to FSGB records under the PA to A/GIS/ IPS at the above address. A/GIS/IPS will assign a tracking number to the appeal and forward it to the FSGB, which is an independent body, for adjudication. (e) A/GIS/IPS or OIG will decide appeals from denials of PA amendment requests within 30 working days from the date when the appeal is received, unless an extension of that period for good cause shown is needed. (f) Decisions will be made in writing, and appellants will receive notification of the decision. A reversal will result in reprocessing of the request in accordance with that decision. An affirmance will include a brief statement of the reason for the affirmance and will inform the appellant that the decision represents the final decision of the Department and of the right to seek VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 judicial review of the decision, when applicable. (g) If the decision is that a record shall be amended in accordance with the appellant’s request, A/GIS/IPS or OIG shall direct the office under its purview that is responsible for the record to amend the record, advise all previous recipients of the record of the amendment and its substance (if an accounting of previous disclosures has been made), and so advise the individual in writing. (h) If the decision is that the amendment request is denied, in addition to the notification required by paragraph (f) of this section, A/GIS/IPS or OIG shall advise the appellant: (1) Of the right to file a concise Statement of Disagreement stating the reasons for disagreement with the decision of the Department; (2) Of the procedures for filing the Statement of Disagreement; (3) That any Statement of Disagreement that is filed will be made available to anyone to whom the record is subsequently disclosed, together with, at the discretion of the Department, a brief statement by the Department summarizing its reasons for refusing to amend the record; (4) That prior recipients of the disputed record will be provided a copy of any statement of disagreement, to the extent that an accounting of disclosures was maintained. (i) If the appellant files a Statement of Disagreement under paragraph (h) of this section, the Department will clearly annotate the record so that the fact that the record is disputed is apparent to anyone who may subsequently access the record. When the disputed record is subsequently disclosed, the Department will note the dispute and provide a copy of the Statement of Disagreement. The Department may also include a brief summary of the reasons for not amending the record. Copies of the Department’s statement shall be treated as part of the individual’s record for granting access; however, it will not be subject to amendment by an individual under this part. § 171.26 Exemptions. Systems of records maintained by the Department are authorized to be exempt from certain provisions of the PA under both general and specific exemptions set forth in the Act. In utilizing these exemptions, the Department is exempting only those portions of systems that are necessary for the proper functioning of the Department and that are consistent with the PA. Where compliance would not interfere with or adversely affect the law enforcement PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 process, and/or where it may be appropriate to permit individuals to contest the accuracy of the information collected, the applicable exemption may be waived, either partially or totally, by the Department or the OIG, in the sole discretion of the Department or the OIG, as appropriate. Records exempt under 5 U.S.C. 552a(j) or (k) by the originator of the record remain exempt if subsequently incorporated into any Department system of records, provided the reason for the exemption remains valid and necessary. (a) General exemptions. If exempt records are the subject of an access request, the Department will advise the requester of their existence and of the name and address of the source agency, unless that information is itself exempt from disclosure. (1) Individuals may not have access to records maintained by the Department that are maintained or originated by the Central Intelligence Agency under 5 U.S.C. 552a(j)(1). (2) In accordance with 5 U.S.C. 552a(j)(2), individuals may not have access to records maintained or originated by an agency or component thereof that performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of: (i) Information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (ii) Information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (iii) Reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision. The reason for invoking these exemptions is to ensure effective criminal law enforcement processes. Records maintained by the Department in the following systems of records are exempt from all of the provisions of the PA except paragraphs (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (e)(7), (e)(9), (e)(10), and (e)(11), and (i) of this section, to the extent to which they meet the criteria of section (j)(2) of 5 U.S.C. 552a. The names of the systems correspond to those published E:\FR\FM\06MRP1.SGM 06MRP1 lotter on DSKBCFDHB2PROD with PROPOSALS Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules in the Federal Register by the Department. Office of Inspector General Investigation Management System. STATE–53. Information Access Program Records. STATE–35. Risk Analysis and Management. STATE–78. Security Records. STATE–36. (b) Specific exemptions. Portions of the following systems of records are exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), and (4), (G), (H), and (I), and (f). The names of the systems correspond to those published in the Federal Register by the Department. (1) Exempt under 5 U.S.C. 552a(k)(1). Records contained within the following systems of records are exempt under this section to the extent that they are subject to the provisions of 5 U.S.C. 552(b)(1). (i) Board of Appellate Review Records. STATE–02. (ii) Congressional Correspondence. STATE–43. (iii) Congressional Travel Records. STATE–44. (iii) Coordinator for the Combating of Terrorism Records. STATE–06. (iv) External Research Records. STATE–10. (v) Extradition Records. STATE–11. (vi) Family Advocacy Case Records. STATE–75. (vii) Foreign Assistance Inspection Records. STATE–48. (viii) Human Resources Records. STATE–31. (ix) Information Access Programs Records. STATE–35. (x) Intelligence and Research Records. STATE–15. (xi) International Organizations Records. STATE–17. (xii) Law of the Sea Records. STATE– 19. (xiii) Legal Case Management Records. STATE–21. (xiv) Munitions Control Records. STATE–42. (xv) Overseas Citizens Services Records. STATE–05. (xvi) Passport Records. STATE–26. (xvii) Personality Cross Reference Index to the Secretariat Automated Data Index. STATE–28. (xviii) Personality Index to the Central Foreign Policy Records. STATE–29. (xix) Personnel Payroll Records. STATE–30. (xx) Office of Inspector General Investigation Management System. STATE–53. (xxi) Records of the Office of the Assistant Legal Adviser for International Claims and Investment Disputes. STATE–54. VerDate Sep<11>2014 18:04 Mar 05, 2020 Jkt 250001 (xxii) Risk Analysis and Management Records. STATE–78. Rover Records. STATE–41. (xxiii) Records of Domestic Accounts Receivable. STATE–23. (xxiv) Records of the Office of White House Liaison. STATE–34. (xxv) Refugee Records. STATE–59. (xxvi) Security Records. STATE–36. (xxvii) Visa Records. STATE–39. (2) Exempt under 5 U.S.C. 552a(k)(2). Records contained within the following systems of records are exempt under this section to the extent that they consist of investigatory material compiled for law enforcement purposes, subject to the limitations set forth in 5 U.S.C. 552a(k)(2). (i) Board of Appellate Review Records. STATE–02. (ii) Coordinator for the Combating of Terrorism Records. STATE–06. (iii) Extradition Records. STATE–11. (iv) Family Advocacy Case Records. STATE–75 (v) Foreign Assistance Inspection Records. STATE–48. (vi) Garnishment of Wages Records. STATE–61. (vii) Information Access Program Records. STATE–35. (viii) Intelligence and Research Records. STATE–15. (ix) Munitions Control Records. STATE–42. (x) Overseas Citizens Services Records. STATE–05. (xi) Passport Records. STATE–26. (xii) Personality Cross Reference Index to the Secretariat Automated Data Index. STATE–28. (xiii) Personality Index to the Central Foreign Policy Records. STATE–29. (xiv) Office of Foreign Missions Records, STATE–81. (xv) Office of Inspector General Investigation Management System. STATE–53. (xvi) Risk Analysis and Management Records. STATE–78. (xvii) Security Records. STATE–36. (xviii) Visa Records. STATE–39. (3) Exempt under 5 U.S.C. 552a(k)(3). Records contained within the following systems of records are exempt under this section to the extent that they are maintained in connection with providing protective services pursuant to 18 U.S.C. 3056. (i) Extradition Records. STATE–11. (ii) Information Access Programs Records. STATE–35. (iii) Intelligence and Research Records. STATE–15. (iv) Overseas Citizens Services Records. STATE–05. (v) Passport Records. STATE–26. (vi) Personality Cross-Reference Index to the Secretariat Automated Data Index. STATE–28. PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 13117 (vii) Personality Index to the Central Foreign Policy Records. STATE–29. Security Records. STATE–36. (viii) Visa Records. STATE–39. (4) Exempt under 5 U.S.C. 552a(k)(4). Records contained within the following systems of records are exempt under this section to the extent that they are required by statute to be maintained and are used solely as statistical records. (i) Foreign Service Institute Records. STATE–14. (ii) Human Resources Records. STATE–31. (iii) Information Access Programs Records. STATE–35. (iv) Overseas Citizens Services Records, STATE–05 (v) Personnel Payroll Records. STATE–30. (vi) Security Records. STATE–36. (5) Exempt under 5 U.S.C. 552a(k)(5). Records contained within the following systems of records are exempt under this section to the extent that they consist of investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that disclosure of such material would reveal the identity of a confidential informant. (i) Records Maintained by the Office of Civil Rights. STATE–09. (ii) Foreign Assistance Inspection Records. STATE–48. (iii) Foreign Service Grievance Board Records. STATE–13. (iv) Human Resources Records. STATE–31. (v) Information Access Programs Records. STATE–35. (vi) Legal Adviser Attorney Employment Application Records. STATE–20. (vii) Overseas Citizens Services Records. STATE–25. (viii) Personality Cross-Reference Index to the Secretariat Automated Data Index. STATE–28. (ix) Office of Inspector General Investigation Management System. STATE–53. (x) Records of the Office of White House Liaison. STATE–34. (xi) Risk Analysis and Management Records. STATE–78. (xii) Rover Records. STATE–41. (xiii) Security Records. STATE–36. (xiv) Senior Personnel Appointments Records. STATE–47. (6) Exempt under 5 U.S.C. 552a(k)(6). Records contained within the following systems of records are exempt under this section to the extent that they consist of testing or examination material used solely to determine E:\FR\FM\06MRP1.SGM 06MRP1 13118 Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed Rules individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process. (i) Foreign Service Institute Records. STATE–14. (ii) Human Resources Records. STATE–31. (iii) Information Access Programs Records. STATE–35. (iv) Records Maintained by the Office of Civil Rights. STATE–09 (v) Security Records. STATE–36. (7) Exempt under 5 U.S.C. 552a(k)(7). Records contained within the following systems of records are exempt under this section to the extent that they consist of evaluation material used to determine potential for promotion in the armed services, but only to the extent that such disclosure would reveal the identity of a confidential informant. (i) Overseas Citizens Services Records. STATE–25. (ii) Human Resources Records. STATE–31. (iii) Information Access Programs Records. STATE–35. (iv) Personality Cross-Reference Index to the Secretariat Automated Data Index. STATE–28. (v) Personality Index to the Central Foreign Policy Records. STATE–29. Subpart D—Access to Financial Disclosure Reports § 171.30 Purpose and scope. lotter on DSKBCFDHB2PROD with PROPOSALS § 171.31 Requests for Public Financial Disclosure Reports—OGE Form 278 Requests for access to public financial disclosure reports filed with the Department should be made by submitting the information required by 5 CFR 2634.603(c) or a completed Office of Government Ethics request form, OGE Form 201, to OGE201Request@state.gov or the Office of the Assistant Legal Adviser for Ethics and Financial 18:04 Mar 05, 2020 Jkt 250001 § 171.32 Denial of Public Access to Confidential Financial Disclosure Reports— OGE Form 450 No member of the public shall have access to confidential financial disclosure reports filed pursuant to 5 CFR 2634, Subpart I, except pursuant to the order of a Federal court or as otherwise provided under the Privacy Act. See 5 U.S.C. 552a. Carrie Cabelka, Assistant Secretary, Bureau of Administration, Department of State. [FR Doc. 2020–03844 Filed 3–5–20; 8:45 am] BILLING CODE 4710–24–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG–100814–19] RIN 1545–BP23 Meals and Entertainment Expenses Under Section 274; Change of Hearing Date Internal Revenue Service (IRS), Treasury. ACTION: Change of date of public hearing on proposed rulemaking. AGENCY: This subpart sets forth the process by which persons may request access to public financial disclosure reports filed with the Department in accordance with sections 101 and 103(l) of the Ethics in Government Act of 1978, 5 U.S.C. app. 101 and 103(l), as amended. The retention, public availability, and improper use of these reports are governed by 5 U.S.C. app. 105 and 5 CFR 2634.603. It also sets forth the restrictions on access to confidential financial disclosure reports filed under 5 CFR 2634, Subpart I, in accordance with sections 107(a) of the Ethics in Government Act of 1978, 5 U.S.C. app. 107(a) and 5 CFR 2634.604. VerDate Sep<11>2014 Disclosure, U.S. Department of State, 2201 C Street NW, Washington, DC 20520. The OGE Form 201 may be obtained by visiting www.oge.gov or writing to the address above. This document changes the date of a public hearing on proposed regulations that provide guidance under section 274 of the Internal Revenue Code (Code) regarding certain statutory amendments made to section 274 by 2017 legislation. DATES: The public hearing originally scheduled for Tuesday, April 7, 2020, at 10 a.m. is rescheduled for Wednesday, April 29, 2020, at 10 a.m. Outlines of topics to be discussed at the public hearing must be received by April 13, 2020. Written or electronic comments must be received by April 13, 2020. ADDRESSES: The public hearing is being held in the IRS Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue NW, Washington, DC 20224. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Send hard copy submissions to CC:PA: LPD:PR (REG–100814–19), Room 5205, Internal Revenue Service, SUMMARY: PO 00000 Frm 00043 Fmt 4702 Sfmt 9990 P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submit electronic submissions via the Federal eRulemaking Portal at www.regulations.gov (indicate IRS and REG–100814–19). FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, call Patrick Clinton of the Office of Associate Chief Counsel (Income Tax and Accounting), (202) 317–7005; concerning the submission of comments, the hearing, or to be placed on the building access list to attend the hearing, call Regina Johnson, (202) 317– 6901 (not toll-free numbers), or email fdms.database@irscounsel.treas.gov. A notice of proposed rulemaking appeared on the Federal Register on Wednesday, February 26, 2020 (85 FR 11020), announced that a public hearing on proposed regulations regarding certain statutory amendments made to section 274 by 2017 legislation, would be held on Tuesday, April 7, 2020, beginning at 10 a.m. in the auditorium of the Internal Revenue Service Building at 1111 Constitution Avenue NW, Washington, DC. The date of the public hearing has been changed. The hearing is now scheduled for Wednesday, April 29, 2020, beginning at 10 a.m. in the auditorium of the Internal Revenue Service at 1111 Constitution Avenue NW, Washington, DC. Outlines of topics to be discussed at the public hearing must be received by April 13, 2020. Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this document. SUPPLEMENTARY INFORMATION: Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration). [FR Doc. 2020–04561 Filed 3–5–20; 8:45 am] BILLING CODE 4830–01–P E:\FR\FM\06MRP1.SGM 06MRP1

Agencies

[Federal Register Volume 85, Number 45 (Friday, March 6, 2020)]
[Proposed Rules]
[Pages 13104-13118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03844]


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DEPARTMENT OF STATE

22 CFR Part 171

[Public Notice 10955]
RIN 1400-AE00


Public Access to Information

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: The Department of State (the Department) proposes to revise 
its regulations of May 6, 2016, governing the availability to the 
public of information that is under the control of the Department. 
There have been changes in the law governing disclosure of such 
information, including the Freedom of Information Act Improvement Act 
of 2016. This proposed rule reflects changes in the FOIA and consequent 
changes in the Department's procedures since the last revision of the 
Department's regulations on public access to information.

DATES: The Department of State will accept comments on this proposed 
rule until May 5, 2020.

ADDRESSES: You may submit comments by any of the following methods, and 
you must include the Regulatory Information Number (RIN) in the subject 
line of your message.
     Mail (paper, disk, or CD-ROM submissions): Director, 
Office of Information Programs and Services, Room B-266, U.S. 
Department of State, 2201 C Street NW, Washington, DC 20520.
     Fax: (202) 485-1669.
     Persons with access to the internet may view this rule and 
submit comments by going to www.regulations.gov and searching for 
docket number DOS-2019-0042.
    Inspection of public comments: All comments received before the 
close of the comment period will be available for public inspection, 
including any personally identifiable or confidential business or 
financial information that is included in a comment. The Department of 
State will post all comments received before the close of the comment 
period at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Alice Kottmyer, Attorney-Adviser, 
Office of the Legal Adviser, [email protected], 202-647-2318.

SUPPLEMENTARY INFORMATION: This proposed rule implements the Freedom of 
Information Act (FOIA) Improvement Act of 2016, Public Law 114-185, and 
updates the Department's FOIA regulations at 22 CFR part 171. The 
following is a summary of the substantive changes.
    The proposed rule, in Sec.  171.4, provides updated procedures and 
addresses for submitting FOIA requests to the Department, including 
procedures for requesting information about the requester and requests 
for visa information.
    Subpart B of the proposed rule (Sec.  171.10 through Sec.  171.17) 
contains the rules governing the processing of a FOIA request. Proposed 
Sec.  171.11 covers the Department's initial processing of a request; 
it clarifies the information that is to be provided as part of a 
request, the Department's process for responding to requests, and 
consultation and referral with respect to requests. Proposed Sec.  
171.12 covers the timing of responses to a request, including multi-
track processing, expedited processing, and ``unusual circumstances'' 
(as defined in the FOIA) that might affect the Department's ability to 
respond. Proposed Sec.  171.13 covers responses to requests, including 
the procedures upon denial of a request. The proposed updates add a 
provision for consultation with the Department of Justice's Office of 
Information Policy with respect to invocation of a FOIA exclusion. 
Proposed Sec.  171.14 modifies the Department's process with respect to 
reviews of business information, including procedures for the business 
owner of the information to object to the release of the information.
    Proposed Sec.  171.15 revises the timeline for submission of 
appeals to 90 days and provides for information to be given to 
requesters about dispute resolution services at various stages of the 
processing of a request, in accordance with the FOIA Improvement Act of 
2016. Proposed Sec.  171.16 provides updates on the fees to be charged 
for FOIA requests, including how fees are calculated. This proposed 
section provides an updated explanation of the term, ``representative 
of the news media.''
    Subpart C contains the rule's Privacy Act provisions. There are 
minor changes throughout this subpart.

[[Page 13105]]

    In Subpart D, the proposed rule adds information about processing 
of requests for confidential financial disclosure reports.
    Finally, the proposed rule makes numerous minor changes throughout, 
to conform more closely to the Department of Justice's Template for 
Agency FOIA Regulations.

Regulatory Findings

Administrative Procedure Act

    The Department is publishing this rule under the provisions of 5 
U.S.C. 553, with a 60-day public comment period.

Regulatory Flexibility Act

    The Department of State, in accordance with the Regulatory 
Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and, by 
approving it, certifies that this rule will not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates 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 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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and import markets.

Executive Order 12988--Civil Justice Reform

    The Department has reviewed this regulation in light of Executive 
Order 12988 to eliminate ambiguity, minimize litigation, establish 
clear legal standards, and reduce burden.

Executive Orders 12372 and 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to require consultations or warrant the 
preparation of a federalism summary impact statement. The regulations 
implementing Executive Order 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
regulation.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Executive Orders 12866 and 13563--Improving Regulation and Regulatory 
Review

    The Department has considered this rule in light of these Executive 
Orders and affirms that this regulation is consistent with the guidance 
therein. The benefits of this rulemaking for the public include, but 
are not limited to, providing an up-to-date procedure for requesting 
information from the Department that is consistent with the FOIA 
Improvement Act of 2016. The Department is aware of no more than a 
minimal cost to the public from this rulemaking.

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    This rule is not subject to the requirements of Executive Order 
13771 because it is expected to result in no more than de minimis 
costs.

Paperwork Reduction Act

    This rule does not impose or revise any reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

List of Subjects in 22 CFR Part 171

    Administrative practice and procedure, Freedom of information, 
Privacy.

    For the reasons set forth in the preamble, revise 22 CFR part 171 
to read as follows:

PART 171--PUBLIC ACCESS TO INFORMATION

Subpart A--General Policy and Procedures
Sec.
171.1 General provisions.
171.2 Types of records maintained.
171.3 Records available on the Department's website.
171.4 Requests for information--types and how made.
171.5 Archival records.
Subpart B--Freedom of Information Act Provisions
171.10 Purpose and scope.
171.11 Processing requests.
171.12 Timing of responses to requests.
171.13 Responses to requests.
171.14 Business information.
171.15 Administrative appeals.
171.16 Fees to be charged.
171.17 Preservation of records.
Subpart C--Privacy Act Provisions
171.20 Purpose and scope.
171.21 Definitions.
171.22 Request for access to records.
171.23 Request to amend or correct records.
171.24 Request for an accounting of record disclosures.
171.25 Appeals from denials of PA amendment requests.
171.26 Exemptions.
Subpart D--Access to Financial Disclosure Reports
171.30 Purpose and scope.
171.31 Requests for Public Financial Disclosure Reports--OGE Form 
278.
171.32 Denial of Public Access to Confidential Financial Disclosure 
Reports--OGE Form 450.

    Authority:  22 U.S.C. 2651a; 5 U.S.C. 552, 552a; 5 U.S.C. app. 
107(a); E.O. 12600 (52 FR 23781); Pub. L. 114-185; Pub. L. 95-521, 
92 Stat. 1824 (codified as amended at 5 U.S.C. app. 101-505); 5 CFR 
part 2634.

Subpart A--General Policy and Procedures


Sec.  171.1   General provisions.

    (a) This part contains the rules that the Department of State and 
the Foreign Service Grievance Board (FSGB), an independent body, follow 
in processing requests for records under the Freedom of Information Act 
(FOIA), as amended, 5 U.S.C. 552, and the Privacy Act of 1974 (PA), as 
amended, 5 U.S.C. 552a. These rules should be read in conjunction with 
the text of the FOIA, the PA, and the Uniform Freedom of Information 
Fee Schedule and Guidelines published by the Office of Management and 
Budget (``OMB Guidelines'').
    (b) Definitions. (1) For purposes of subparts A and B of this part, 
record means information regardless of its physical form or 
characteristics--including information created, stored,

[[Page 13106]]

and retrievable by electronic means--that is created or obtained by the 
Department and under the control of the Department at the time of the 
request, including information maintained for the Department by an 
entity under government contract for records management purposes. It 
does not include records that are not already in existence and that 
would have to be created specifically to respond to a request.
    (2) For purposes of subparts A and B of this part, control means 
the Department's legal authority over a record, taking into account the 
ability of the Department to use and dispose of the record, the intent 
of the record's creator to retain or relinquish control over the 
record, the extent to which Department personnel have read or relied 
upon the record, and the degree to which the record has been integrated 
into the Department's record-keeping systems or files.
    (3) For purposes of this part, Department means the United States 
Department of State, including its field offices, Foreign Service posts 
abroad, and its components. This part does not address FOIA requests to 
the U.S. Agency for International Development (USAID); such requests 
should be submitted as described at www.usaid.gov/foia-requests.
    (4) For purposes of subparts A and B of this part, component means 
the offices that respond directly to requests concerning records under 
their jurisdiction: the Office of the Inspector General; the Bureau of 
Consular Affairs' Directorates for Visa Services, Passport Services, 
and Overseas Citizens Services; the Bureau of Diplomatic Security; the 
Bureau of Human Resources; the Office of Medical Services; and the 
Foreign Service Grievance Board.


Sec.  171.2   Types of records maintained.

    Most of the records maintained by the Department pertain to the 
formulation and execution of U.S. foreign policy. The Department also 
maintains certain records that pertain to individuals, such as 
applications for U.S. passports, applications for U.S. visas, records 
on consular assistance given abroad by U.S. Foreign Service posts to 
U.S. citizens and legal permanent residents, and records on Department 
employees. Further information on the types of records maintained by 
the Department may be obtained by reviewing the Department's records 
disposition schedules, which are available on the Department's FOIA 
website at www.foia.state.gov.


Sec.  171.3   Records available on the Department's website.

    (a) Information that is required to be published in the Federal 
Register under 5 U.S.C. 552(a)(1) is regularly updated by the 
Department and found on its public website: www.state.gov. See also 22 
CFR part 5. Records that are required by the FOIA to be made available 
for public inspection in an electronic format under 5 U.S.C. 552(a)(2) 
also are available on the Department's public website. Included on the 
Department's FOIA home page, www.foia.state.gov, are links to other 
sites where Department information may be available and to the 
Department's records disposition schedules. Also available on the FOIA 
website are certain records released by the Department pursuant to 
requests under the FOIA and compilations of records reviewed and 
released in certain special projects. Links to the Department's Privacy 
Act Systems of Records Notices are available at www.state.gov/privacy. 
In addition, see 22 CFR part 173 regarding materials disseminated 
abroad by the Department.
    (b) The Department's Office of Inspector General (OIG) is 
responsible for determining which of its records are required to be 
made publicly available on its website at www.stateoig.gov. OIG will 
ensure that its website of posted records and indices is reviewed and 
updated on an ongoing basis.


Sec.  171.4   Requests for information--types and how made.

    (a) General Information. (1) Requests for records made in 
accordance with this part must be made in writing. FOIA requests may be 
made to the Office of Information Programs and Services (A/GIS/IPS) by 
email to [email protected], through the Department's FOIA website 
(www.foia.state.gov), by fax to (202) 261-8579, or by mail to the 
address below. PA requests must be made in writing and signed, and the 
requester's signature must be either notarized or made under penalty of 
perjury pursuant to 28 U.S.C. 1746. See Sec.  171.22(a). PA requests 
may be made to A/GIS/IPS by email to [email protected], by fax to 
(202) 261-8579, or by mail. FOIA and PA requests made by mail should be 
addressed to: Office of Information Programs and Services (A/GIS/IPS), 
Room B-266, U.S. Department of State, 2201 C Street NW, Washington, DC 
20520.
    (2) Requests for passport records covered under PA System of 
Records Notice 26 (available at www.state.gov/system-of-records-notices-privacy-office/) must be made in writing, and may be submitted 
directly to the Law Enforcement Liaison Division of the Passport 
Services directorate (PPT) of the Bureau of Consular Affairs by mailing 
the request to U.S. Department of State, Office of Law Enforcement 
Liaison, FOIA Officer, 44132 Mercure Circle, P.O. Box 1227, Sterling, 
VA 20166-1227. Requests for passport records and information that do 
not need to be certified may also be emailed to [email protected].
    (3) Requests for records of the OIG must be made in writing, and 
may be submitted via email to [email protected], by fax to 703-284-
1866, or by mail addressed to FOIA Officer, Officer of General Counsel, 
Office of Inspector General, U.S. Department of State, 1700 N. Moore 
Street, Suite 800, Arlington, VA 22209. Submission by email is 
preferred. Guidance and contact information is available on the OIG's 
website at www.stateoig.gov/foiarequest.
    (4) The Office of Information Programs and Services, the Law 
Enforcement Liaison Division of the Passport Services directorate, and 
the OIG are the only Department components authorized to accept FOIA 
and PA requests submitted to the Department.
    (5) The requester should provide the specific citation to the 
authority under which he or she is requesting information (e.g., the 
FOIA, the PA, or Mandatory Declassification Review (MDR) under the 
current Executive Order on classification). This will facilitate the 
processing of the request. When individual U.S. citizens and lawful 
permanent residents request access to records about themselves, the 
Department processes responsive records maintained in Privacy Act 
systems of records under both the FOIA and the PA to provide requesters 
with the greatest degree of access to the records. Information in such 
records will be withheld only if it is exempt from access under both 
laws; if the information is exempt under only one of the laws, it will 
be released. Responsive records that are not maintained in a Privacy 
Act system of records are processed only under the FOIA.
    (6) A requester who requests records about himself or herself, 
including passport records, must comply with the verification of 
identity requirements as set forth in Sec.  171.22 (the Privacy Act 
Provisions) in order for the request to be processed under the PA.
    (7) Where a request for records pertains to a third party or to a 
requester's own records outside of a request under the Privacy Act, a 
requester may receive greater access by submitting a notarized 
authorization signed by the person whose records are

[[Page 13107]]

requested, or by submitting a declaration made in compliance with the 
requirements set forth in 28 U.S.C. 1746 by the person whose records 
are requested, authorizing disclosure of the records to the requester, 
or by submitting proof that the third party is deceased (e.g., a copy 
of a death certificate or an obituary). As an exercise of 
administrative discretion, the Department may require a requester to 
supply additional information if necessary in order to verify that a 
particular individual has consented to disclosure or is deceased.
    (8) Requests for visa information. The Immigration and Nationality 
Act, as amended, section 222(f) (8 U.S.C. 1202(f)), provides that the 
records of the Department of State and of diplomatic and consular 
offices of the United States pertaining to the issuance or refusal of 
visas or permits to enter the United States must be considered 
confidential and shall be used only for certain enumerated purposes, 
including the formulation, amendment, administration, or enforcement of 
the immigration, nationality, and other laws of the United States. As a 
result, information subject to release in response to a request for 
visa records about an individual may be limited. Requests for visa 
records should include the following information for the applicant and, 
if applicable, the petitioner: Full name, as well as any aliases used; 
current address; email; and date and place of birth (including city, 
state, and country). Additional information describing the records 
sought will assist the Department in properly identifying the 
responsive records and in processing the request. Attorneys or other 
legal representatives requesting visa information on behalf of a visa 
applicant should submit a statement with the request signed by the 
applicant (and the petitioner if the records sought pertain to a 
petition) authorizing release of the requested visa information to the 
representative. Alternatively, requestors may submit a DS-4240 to 
certify their identity and to provide authorization by the applicant 
(and the petitioner if the records sought pertain to a petition) to 
release the requested information to the legal representative. Forms 
created by other Federal agencies will not be accepted.
    (b) Description of records sought. Although no particular format is 
required, a request must reasonably describe the Department record(s) 
that the requester seeks. Requesters must describe the records sought 
in sufficient detail to enable agency personnel to locate them with a 
reasonable amount of effort. To the extent possible, requesters should 
include specific information that may assist the Department in 
identifying the requested record(s), such as the date, title or name, 
author, recipient, subject matter, case number, file designation 
reference number, or timeframe. If after receiving a request the 
Department determines that the request does not reasonably describe the 
records sought, the Department will inform the requester that the 
request is insufficient and may ask for additional information. 
Requests should also specify the records sought; failure to do so may 
delay the agency's response. Any records provided in response to a 
request will be provided in the form or format requested if a 
releasable form of the records is readily reproducible in that form or 
format. Requesters must provide contact information, such as their 
phone number, email address, and/or mailing address, to assist the 
Department in communicating with them and providing released records.
    (c) While the Department makes every effort to provide the greatest 
possible access to all requested records regardless of the statute(s) 
under which the information is requested, the following guidance is 
provided for the benefit of requesters:
    (1) The Freedom of Information Act applies to requests for records 
concerning the general activities of government and of the Department 
in particular (see subpart B of this part).
    (2) The Privacy Act applies to requests from U.S. citizens or legal 
permanent resident aliens for records about them that are maintained by 
the Department in a system of records retrievable by the individual's 
name or personal identifier (see subpart C of this part).


Sec.  171.5   Archival records.

    The Department ordinarily transfers records designated as 
historically significant to the National Archives when they are 25 
years old. Accordingly, requests for some Department records 25 years 
old or older should be submitted to the National Archives by mail 
addressed to Special Access and FOIA Staff, National Archives at 
College Park, 8601 Adelphi Road, Room 5500, College Park, MD 20740-
6001; by fax to (301) 837-1864; or by email to 
[email protected]. The Department's website, 
www.foia.state.gov, has additional information regarding archival 
records.

Subpart B--Freedom of Information Act Provisions


Sec.  171.10   Purpose and scope.

    This subpart contains the rules the Department follows under the 
Freedom of Information Act (FOIA) as amended, 5 U.S.C. 552. The rules 
should be read together with the FOIA, which provides additional 
information about access to records and contains the specific 
exemptions that are applicable for withholding information; the Uniform 
Freedom of Information Fee Schedule and Guidelines published by the 
Office of Management and Budget (OMB Guidelines); and information 
located at www.foia.state.gov. The Department processes requests for 
records maintained in a Privacy Act (PA) system of records under the 
FOIA as well. As a result, requests that seek such records are also 
subject to this subpart.


Sec.  171.11   Processing requests.

    (a) In general. (1) The Office of Information Programs and Services 
(A/GIS/IPS) is responsible for initial action on all FOIA requests for 
Department records, with two exceptions: Requests seeking records under 
the purview of the Office of Inspector General (OIG), which receives 
and processes requests for OIG records (see Sec.  171.4(a)(3)); and 
requests seeking records under the purview of the Law Enforcement 
Liaison Division of the Passport Services directorate of the Bureau of 
Consular Affairs (CA), which receives and processes requests for 
certain consular records (see Sec.  171.4(a)(2)).
    (2) For requests for which A/GIS/IPS is responsible for initial 
action, A/GIS/IPS will issue all initial decisions on whether a request 
is valid (or has subsequently been perfected), and whether to grant or 
deny requests for a fee waiver or for expedited processing.
    (3) After A/GIS/IPS takes initial action, all requests for records 
coming under the jurisdiction of the following components are processed 
by those components, although A/GIS/IPS may provide review and 
coordination support to these components in some situations: The Bureau 
of Consular Affairs' Directorates for Visa Services, Passport Services, 
and Overseas Citizens Services; the Bureau of Diplomatic Security; the 
Bureau of Human Resources; and the Office of Medical Services. 
Additionally, the Foreign Service Grievance Board (FSGB), as an 
independent body, processes all FOIA requests seeking access to its 
records and responds directly to requesters.
    (b) Receipt of request. The Department is in receipt of a request 
when it reaches A/GIS/IPS, OIG, or PPT, depending on which office is 
the proper recipient. At that time, the Department must send an 
acknowledgement letter to the requester that identifies the date of 
receipt of the request in the proper office (A/GIS/IPS, OIG, or PPT), 
and the

[[Page 13108]]

case tracking number. When one of these offices determines that a 
request was misdirected within the Department, that office must 
promptly route the request to the proper office(s) within the 
Department.
    (c) Cut-off date and exclusions. In determining which records are 
responsive to a request, the Department ordinarily will include only 
records in its possession as of the date of initiation of the search 
for responsive records, unless the requester has specified an earlier 
cut-off date. 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.
    (d) Consultation, referral, and coordination. When reviewing 
records located in response to a request, the component processing the 
request will determine whether another agency of the Federal Government 
is better able to determine whether the record is exempt from 
disclosure under the FOIA. As to any such record, the component must 
proceed in one of the following ways:
    (1) Consultation. When records originated with the Department, but 
contain within them information of interest to another agency or other 
Federal Government office, the component processing the request should 
typically consult with that other entity prior to making a release 
determination.
    (2) Referral. (i) When the component processing the request 
believes that a different Department component or other Federal 
Government agency is better able to determine whether to disclose the 
record, the component processing the request typically should refer the 
responsibility for responding to the request regarding that record to 
that component or agency, as long as the referral is to an entity 
subject to the FOIA. Ordinarily, the agency that originated the record 
will be presumed to be best able to make the disclosure determination. 
However, if the component processing the request and the originating 
agency jointly agree that the former is in the better position to 
respond regarding the record, then the record may be handled as a 
consultation.
    (ii) Whenever the component processing the request refers any part 
of the responsibility for responding to a request to another entity, 
the component must document the referral, maintain a copy of the record 
that it refers, and notify the requester of the referral and inform the 
requester of the name(s) of the entity to which the record was 
referred, including that entity's FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the component or agency 
to which the referral would be made could harm an interest protected by 
an applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. For example, if a non-law 
enforcement component 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 a component 
locates within its files material originating with an Intelligence 
Community agency, and the involvement of that agency in the matter is 
classified and not publicly acknowledged, then to disclose or give 
attribution to the involvement of that Intelligence Community agency 
could cause national security harm. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, the 
component that received the request should coordinate with the 
originating component or agency to seek its views on the whether the 
record may be disclosed. The release determination for the record that 
is the subject of the coordination will be conveyed to the requester by 
the component that originally received the request.
    (e) Timing of responses to consultations and referrals. All 
consultations and referrals received by the Department will be handled 
according to the date that the perfected FOIA request was received by 
the first agency.
    (f) Agreements regarding consultations and referrals. The 
Department may make agreements with other agencies to eliminate, 
reduce, or streamline the need for consultations or referrals for 
particular types of records.


Sec.  171.12   Timing of responses to requests.

    (a) In general. The Department ordinarily will respond to requests 
in the order received. In instances involving misdirected requests that 
are re-routed pursuant to Sec.  171.11(b), the response time will 
commence on the date that the request is received by the proper office 
that is designated to receive requests (A/GIS/IPS, OIG or PPT), but in 
any event not later than 10 working days after the request is first 
received by any of these three offices.
    (b) Multi-track processing. The Department has a specific track for 
requests that are granted expedited processing, in accordance with the 
standards that are set forth in paragraph (d) of this section. An 
intake office (A/GIS/IPS, OIG, or PPT) may also designate additional 
processing tracks that, for example, distinguish between simple and 
more complex requests based on the estimated amount of work and/or time 
needed to process the request. Among the factors that may also be 
considered are the number of records requested, the number of pages 
involved in processing the request, and the need for consultations or 
referrals. The Department must advise requesters of the track in which 
their request falls and, when appropriate, should offer the requesters 
an opportunity to narrow their request so that it can be placed in a 
different processing track.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and the Department extends the 
time limit on that basis, the Department must, before expiration of the 
20-day period to respond, notify the requester in writing of the 
unusual circumstances involved. Where the extension exceeds 10 working 
days, the Department must, as described by the FOIA, provide the 
requester with an opportunity to modify the request or arrange an 
alternative time period for processing the original or a modified 
request. The Department must make available its designated FOIA contact 
and its FOIA Public Liaison for this purpose. In the written notice to 
the requester, the Department must also alert the requester to the 
availability of the Office of Government Information Services to 
provide dispute resolution services.
    (d) Expedited processing. (1) The Department must process requests 
and appeals on an expedited basis whenever the Department determines 
that:
    (i) Failure to obtain requested records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) With respect to a request made by a person primarily engaged 
in disseminating information, there exists an urgency to inform the 
public concerning actual or alleged Federal Government activity; or
    (iii) Failure to release the information would impair substantial 
due process rights or harm substantial humanitarian interests.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. Requests for 
expedited processing must be submitted to the office responsible

[[Page 13109]]

for receiving the FOIA request (A/GIS/IPS, OIG, or PPT). When making a 
request for expedited processing of an administrative appeal, the 
request must be submitted to A/GIS/IPS, or OIG in the case of appeals 
of OIG decisions (see Sec.  171.15). A Department FOIA office that 
receives a misdirected request for expedited processing must forward it 
promptly to the correct office responsible for receiving requests (A/
GIS/IPS, OIG, or PPT) for its determination. The time period for making 
the determination on the request for expedited processing commences on 
the date that the correct office receives the request, provided that 
the Department will be considered to have received the request for 
expedited processing no more than 10 working days after the request for 
expedited processing is received by A/GIS/IPS, OIG, or PPT.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (d)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public about the government activity involved in the 
request--one that extends beyond the public's right to know about 
government activity generally. The existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on the 
topic. As a matter of administrative discretion, the Department may 
waive the formal certification requirement.
    (4) A notice of the determination whether to grant expedited 
processing must be provided to the requester within 10 calendar days of 
the date of the receipt of the request for expedited processing in the 
appropriate office (whether A/GIS/IPS, OIG, or PPT). If expedited 
processing is granted, the request must 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, the 
Department must act on any appeal of that decision expeditiously.


Sec.  171.13   Responses to requests.

    (a) In general. The Department will, to the extent practicable, 
communicate with requesters having access to the internet using 
electronic means, such as email or a web portal.
    (b) Acknowledgment of requests. The Department must acknowledge the 
request in writing and assign it an individualized tracking number if 
it will take longer than 10 working days to process. The Department 
must include in the acknowledgment a brief description of the records 
sought to allow requesters to more easily keep track of their requests. 
The Department may in its discretion divide a multi-part request into 
multiple requests in order to facilitate processing.
    (c) Estimated dates of completion and interim responses. Upon 
request, the Department will provide an estimated date by which the 
Department expects to provide a response to the requester. If a request 
involves a voluminous amount of material, or searches in multiple 
locations, the agency may provide interim responses, releasing the 
records on a rolling basis.
    (d) Grants of requests. Once the Department makes a determination 
to grant a request in full or in part, it must notify the requester in 
writing. The Department also must inform the requester of any fees 
charged under Sec.  171.16 and must disclose the requested records to 
the requester promptly upon payment of any applicable fees. The 
Department must inform the requester of the availability of the FOIA 
Public Liaison to offer assistance.
    (e) Adverse determinations of requests. If the Department makes an 
adverse determination denying a request in any respect, it must notify 
the requester of that determination in writing. Adverse determinations, 
or denials of requests, include decisions that: The requested record is 
exempt from disclosure, in whole or in part; the request does not 
reasonably describe the records sought; the information requested is 
not a record subject to the FOIA; the requested record does not exist, 
cannot be located, or has been destroyed; or the requested record is 
not readily reproducible in the form or format sought by the requester. 
Adverse determinations also include denials involving fees or fee 
waiver matters or denials of requests for expedited processing.
    (f) Content of denial. The denial must be signed by the head of the 
component processing the request, or designee, and must include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part or if providing an estimate would harm an interest protected by 
an applicable exemption; and
    (4) A statement that the denial may be appealed under Sec.  171.15, 
and a description of the requirements set forth therein.
    (5) A statement notifying the requester of the assistance available 
from the Department's FOIA Public Liaison and the dispute resolution 
services offered by the Office of Government Information Services of 
the National Archives and Records Administration.
    (g) Markings on released documents. Markings on released documents 
must be clearly visible to the requester. Records disclosed in part 
must be marked to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted must also be indicated on the record, if 
technically feasible.
    (h) Use of record exclusions. (1) In the event that the Department 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), A/GIS/IPS or OIG 
must confer with the Department of Justice, Office of Information 
Policy to obtain approval to apply the exclusion.
    (2) Any time the Department invokes an exclusion, it must maintain 
an administrative record of the process of invocation and approval of 
the exclusion by OIP.


Sec.  171.14   Business information.

    (a) Definitions. The following definitions apply for purposes of 
this section:
    (1) Business information means commercial or financial information 
obtained by the Department from a submitter that may be exempt from 
disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity from which the Department 
obtains business information, directly or indirectly. The term includes 
corporations, partnerships, and sole proprietorships; state, local, and 
tribal governments; foreign governments, NGOs and educational 
institutions. This

[[Page 13110]]

term does not include another Federal Government entity.
    (b) Designation of business information. A submitter of business 
information must use good-faith efforts to designate by appropriate 
markings at the time of submission any portions of its submission that 
it considers exempt from disclosure under FOIA Exemption 4. These 
designations expire ten years after the date of the submission unless 
the submitter requests, and provides justification for, a longer 
designation period.
    (c) Notice to submitters. (1) The Department must provide a 
submitter with prompt written notice whenever records containing its 
business information are requested under the FOIA if the agency 
determines that it may be required to disclose the records, provided:
    (i) The information has been designated in good faith by the 
submitter as information considered exempt from disclosure under 
Exemption 4; or
    (ii) The Department has reason to believe that the requested 
information may be exempt from disclosure under Exemption 4, but has 
not yet determined whether the information is protected from 
disclosure.
    (2) The notice must either describe the business information 
requested or include a copy of the requested records or record portions 
containing the information. In cases involving a voluminous number of 
submitters, the Department 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.
    (d) When notice is not required. The notice requirements of this 
section do not apply if:
    (1) The Department determines that the information is exempt from 
disclosure under the FOIA, and therefore will 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 statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such a case, the 
Department must give the submitter written notice of any final decision 
to disclose the information a reasonable number of days prior to a 
specified disclosure date.
    (e) Opportunity to object to disclosure. The Department must allow 
a submitter a reasonable time to respond to the notice described in 
paragraph (c) of this section and must specify that time period in the 
notice. If a submitter has any objections to disclosure, it should 
provide the Department 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 basis for 
nondisclosure, the submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is privileged or confidential. In the event that a submitter fails to 
respond to the notice within the time specified in it, the submitter 
will be considered to have no objection to disclosure of the 
information. The Department is not required to consider any information 
received after any disclosure decision. Information provided by a 
submitter under this subpart may itself be subject to disclosure under 
the FOIA.
    (f) Notice of intent to disclose. The Department will consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever the 
Department decides to disclose information over the objection of a 
submitter, it must give the submitter written notice, which must 
include:
    (1) A statement of the reason(s) 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 Department intends to release them; and
    (3) A specified disclosure date, which must be a reasonable time 
after the notice.
    (g) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the 
Department must promptly notify the submitter.
    (h) Notice to requester. The Department must notify the requester 
whenever it provides a submitter with notice and an opportunity to 
object to disclosure; whenever it notifies a submitter of its intent to 
disclose requested information; and whenever a submitter files a 
lawsuit seeking to prevent the disclosure of the requested information.


Sec.  171.15   Administrative appeals.

    (a) Requirements for making an appeal. (1) Requesters may appeal 
any adverse determinations made on their FOIA request by the 
Department. Examples of adverse determinations are provided in Sec.  
171.13(d). The requester must make the appeal in writing and to be 
considered timely it must be postmarked, or in the case of electronic 
submissions, transmitted, within 90 calendar days after the date of the 
adverse determination. The appeal must clearly identify the component's 
determination that is being appealed and the assigned request number. 
To facilitate handling, the requester should mark both the appeal 
letter and envelope, or subject line of the electronic transmission, 
``Freedom of Information Act Appeal.''
    (2) To appeal any adverse determinations made by A/GIS/IPS or a 
component other than OIG, requesters must submit an administrative 
appeal to the A/GIS/IPS FOIA Appeals Office using any of the following 
methods: By mail to the Appeals Officer, Office of Information Programs 
and Services (A/GIS/IPS), Room B-266, U.S. Department of State, 2201 C 
Street NW, Washington, DC 20520; by fax to (202) 261-8579; or by email 
to [email protected].
    (3) To appeal any adverse determinations made by OIG, requesters 
must submit an administrative appeal to OIG via email to 
[email protected], by fax to 703-284-1866, or by mail addressed to the 
FOIA Officer, Officer of General Counsel, Office of Inspector General, 
U.S. Department of State, 1700 N Moore Street, Suite 800, Arlington, VA 
22209. Contact information for OIG is available on OIG's FOIA website 
at www.stateoig.gov/foiaappeals. For those cases in which both A/GIS/
IPS and OIG provided written denials to the requester, the requester 
may administratively appeal to both A/GIS/IPS and OIG and each office 
will handle its respective portion of the appeal.
    (4) To appeal any adverse determinations made by the FSGB, 
requesters must submit an administrative appeal to A/GIS/IPS using the 
methods listed above in paragraph (2). A/GIS/IPS will assign a tracking 
number to the appeal and forward it to the FSGB, which is an 
independent body, for adjudication.
    (b) Adjudication of appeals. (1) The A/GIS/IPS Director or designee 
will act on behalf of the Assistant Secretary for Administration on all 
appeals of A/GIS/IPS FOIA determinations under this section. Likewise, 
the General Counsel of OIG or his/her designee will act on behalf of 
the Inspector General on all appeals of OIG FOIA determinations under 
this section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.

[[Page 13111]]

    (c) Decisions on appeals. The Department must provide its decision 
on an appeal in writing. A decision that upholds the Department's 
determination in whole or in part must include a brief statement of the 
reason for the affirmance, including any FOIA exemptions applied. The 
decision must inform the requester that the decision represents the 
final decision of the Department; must advise the requester of the 
statutory right to file a lawsuit; and must inform the requester of the 
dispute resolution services offered by the Office of Government 
Information Services of the National Archives and Records 
Administration (OGIS) as a non-exclusive alternative to litigation. If 
a decision is remanded or modified on appeal, the requester will be 
notified in writing. The appropriate component will then further 
process the request in accordance with that appeal determination and 
respond directly to the requester.
    (d) Engaging in dispute resolution services provided by OGIS. 
Dispute resolution is a voluntary process. If a component agrees to 
participate in the dispute resolution services provided by OGIS, it 
will actively engage as a partner to the process in an attempt to 
resolve the dispute.
    (e) When appeal is required. Before seeking review by a court of 
the Department's adverse determination, a requester must first submit a 
timely administrative appeal.


Sec.  171.16   Fees to be charged.

    (a) In general. (1) The Department will charge fees for processing 
requests under the FOIA in accordance with the provisions of this 
section and with the OMB Guidelines. For purposes of assessing fees, 
the FOIA establishes three categories of requesters:
    (i) Commercial use requesters,
    (ii) Non-commercial scientific or educational institutions or news 
media requesters, and
    (iii) All other requesters. Different fees are assessed depending 
on the category.
    (2) Requesters may seek a fee waiver. The Department considers fee 
waivers in accordance with the requirements set forth below. To resolve 
any issues that arise under this section, the Department may contact a 
requester for additional information. The Department must use the most 
efficient and least costly methods to comply with requests for records 
made under the FOIA. The Department shall attempt to notify the 
requester if fees are estimated to exceed $25.00, unless the requester 
has expressed a willingness to pay fees as high as those anticipated. 
Such notification shall include a breakdown of the fees for search, 
review, and duplication. The Department ordinarily will collect all 
applicable fees before sending copies of records to a requester. 
Requesters must pay fees by check or money order made payable to the 
Treasury of the United States, or by another method as determined by 
the Department.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. The Department's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information. The Department will 
notify requesters of their placement in this category.
    (2) Direct costs are those expenses the Department incurs in 
searching for, duplicating, and, in the case of commercial use 
requests, reviewing records in response to a FOIA request. For example, 
direct costs include the salary of the employee performing the work 
(i.e., the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating computers and other 
electronic equipment, such as photocopiers and scanners. The term does 
not include overhead expenses such as the costs of space, and of 
heating or lighting of a facility.
    (3) Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this category must show that the 
request is made in connection with the requester's role at the 
educational institution. The Department may seek verification from the 
requester that the request is in furtherance of scholarly research. The 
Department will advise requesters of their placement in this category.
    (5) Non-commercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this section and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. A requester in this 
category must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use. 
The Department will advise requesters of their placement in this 
category.
    (6) 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, the Department shall 
also consider a requester's past publication record in making this 
determination. The Department will advise requesters of their placement 
in this category.
    (7) 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 processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a business information submitter under Sec.  171.14 but it does 
not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (8) Search is the process of looking for, identifying, and 
retrieving records or information responsive to a request. Search time 
includes page-by-page or line-by-line identification of information 
within records and the reasonable efforts expended to locate and 
retrieve information from electronic records.
    (c) Charging fees. In responding to FOIA requests, the Department 
will

[[Page 13112]]

charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (j) of this section. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, the Department should not add any additional costs to 
charges calculated under this section.
    (1) Search. (i) Requests made by educational institutions, non-
commercial scientific institutions, or representatives of the news 
media are not subject to search fees. Search fees shall be charged for 
all other requesters, subject to restrictions of paragraph (j) of this 
section. The Department may properly charge for time spent searching 
even if responsive records are not located, or if records are 
determined to be entirely exempt from disclosure.
    (ii) For each hour spent by personnel searching for requested 
records, the fees shall be as stated at the following website: 
foia.state.gov/Request/Guide.aspx (section VII, ``Fees'') and 
www.stateoig.gov/foiafees for OIG requested records.
    (iii) For requests that require the retrieval of records stored by 
the Department at a Federal records center operated by the National 
Archives and Records Administration (NARA), the Department will charge 
additional costs in accordance with the Transactional Billing Rate 
Schedule established by NARA.
    (2) Review. The Department will charge review fees to requesters 
who make commercial use requests. Review fees will be assessed in 
connection with the initial review of the record, i.e., the review 
conducted to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with the Department's re-review of the records in 
order to consider the use of other exemptions may be assessed as review 
fees. Review fees shall be charged at the same rates as those charged 
for a search under paragraph (c)(1)(ii) of this section.
    (3) Duplication. The Department will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The Department must honor a requester's preference for 
receiving a record in a particular form or format where it is readily 
reproducible by the Department in the form or format requested. The 
Department charges the direct costs of producing the copy, including 
operator time. Where paper documents must be scanned in order to comply 
with a requester's preference to receive the records in an electronic 
format, the requester must also pay the direct costs associated with 
scanning those materials. Duplication fees are as stated at the 
following website: foia.state.gov/Request/Guide.aspx (section VII, 
``Fees'').
    (d) Restrictions on charging fees. (1) The Department will not 
charge search fees for requests by educational institutions, non-
commercial scientific institutions, or representatives of the news 
media, unless the records are sought for a commercial use.
    (2) If the Department fails to comply with the FOIA's time limits 
in which to respond to a request, it may not charge search fees, or, in 
the instances of requests from requesters described in paragraph (d)(1) 
of this section, may not charge duplication fees, except as described 
in paragraphs (d)(2)(i) through (iii) of this section.
    (i) If the Department has determined that unusual circumstances as 
defined by the FOIA apply and the agency provided timely written notice 
to the requester in accordance with the FOIA, a failure to comply with 
the time limit is excused for an additional 10 days.
    (ii) If the Department has determined that unusual circumstances as 
defined by the FOIA apply, and more than 5,000 pages are necessary to 
respond to the request, the Department 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. The 
Department must have provided timely written notice of unusual 
circumstances to the requester in accordance with the FOIA, and the 
Department must 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 Department may charge all applicable fees incurred in 
the processing of the request.
    (iii) If a court has determined that exceptional circumstances 
exist as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (3) Except for requesters seeking records for a commercial use, the 
Department must provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (4) When, after deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, the total fee calculated 
under paragraph (c) of this section is $25.00 or less, no fee will be 
charged.
    (5) Apart from the stated provisions regarding waiver or reduction 
of fees, see paragraph (j) of this section, the Department may in its 
sole discretion decide to not assess fees or to reduce them if it is in 
the best interests of the government not to do so.
    (e) Notice of anticipated fees in excess of $25.00. (1) When the 
Department determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the Department must 
notify the requester of the actual or estimated amount of the fees, 
including a breakdown of the fees for search, review, or duplication, 
unless the requester has indicated a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the Department will advise the requester accordingly. If the 
request is not for commercial use, the notice will specify that the 
requester is entitled to the statutory entitlements of 100 pages of 
duplication at no charge and, if the requester is charged search fees, 
two hours of search time at no charge, and will advise the requester 
whether those entitlements have been provided.
    (2) In cases in which the Department has notified the requester 
that the actual or estimated fees are in excess of $25.00, the request 
will not be considered received and further work will not be completed 
until the requester commits in writing to pay the actual or estimated 
total fee, or designates some amount of fees the requester is willing 
to pay; or in the case of a noncommercial use requester who has not yet 
been provided with the requester's statutory entitlements, designates 
that the requester seeks only that which can be provided by the 
statutory entitlements. The requester must provide the commitment or 
designation in writing, and must, when applicable, designate an exact 
dollar amount the requester is willing to pay. The Department is not 
required to accept payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the Department estimates that the total 
fee will exceed that amount, the Department will 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. 
The Department will inquire whether the requester wishes to revise

[[Page 13113]]

the amount of fees the requester is willing to pay or modify the 
request. Once the requester responds, the time to respond will resume 
from where it was at the date of the notification.
    (4) The Department must make available its FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if a component chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
shall be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (g) Charging interest. The Department may charge interest on any 
unpaid bill starting on the 31st day following the date the bill was 
sent to the requester. Interest charges will be assessed at the rate 
provided in 31 U.S.C. 3717 and shall accrue from the date of the 
billing until payment is received by the Department. The fact that a 
fee has been received by the Department within the thirty-day grace 
period, even if not processed, shall stay the accrual of interest. The 
Department must follow the provisions of the Debt Collection Act of 
1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (h) Aggregating requests. When the Department reasonably believes 
that a requester or a group of requesters acting in concert is 
attempting to divide a single request into a series of requests for the 
purpose of avoiding fees, the Department may aggregate those requests 
and charge accordingly. The Department 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, 
components will aggregate them only where there is a reasonable basis 
for determining that aggregation is warranted in view of all the 
circumstances involved. Multiple requests involving unrelated matters 
cannot be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) or (i)(3) of this section, the Department cannot 
require a 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 the requester) is not advance 
payment.
    (2) When the Department estimates or determines that a total fee to 
be charged under this section will exceed $250, 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. The Department 
may elect to process the request prior to collecting fees when it 
receives a satisfactory assurance of full payment from a requester with 
a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any component within 30 calendar days of the date 
of its billing, the Department may require the requester to pay the 
full amount due, plus any applicable interest on that prior request, 
and to make an advance payment of the full amount of any anticipated 
fee before the Department begins to process a new request or continues 
to process a pending request or any appeal from that requester. Where 
the Department 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. Additionally, if a requester has failed to pay a fee properly 
charged by another U.S. Government agency in a FOIA case, the 
Department may require proof that such fee has been paid before 
processing a new or pending request from that requester.
    (4) In cases in which the Department requires advance payment, the 
request will not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the Department's fee determination, the request will be closed.
    (j) Requirements for waiver or reduction of fees. (1) Requesters 
may seek a waiver of fees by submitting a written application 
demonstrating how disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester.
    (2) The Department must 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 
(j)(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 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information is likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public shall be 
considered. The Department will presume that a representative of the 
news media satisfies this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
information is primarily in the commercial interest of the requester, 
the Department will consider the following factors:
    (A) The Department must identify whether the requester has any 
commercial interest that would be furthered by the requested 
disclosure. A commercial interest includes any commercial, trade, or 
profit interest. Requesters must be given an opportunity to provide 
explanatory information regarding this consideration.
    (B) If there is an identified commercial interest, the Department 
must determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirement of paragraphs (j)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. The Department ordinarily will presume that 
when a news media requester has satisfied the requirements of 
paragraphs (j)(2)(i) and (ii) of this section, the request is not 
primarily in the commercial interest of the requester.

[[Page 13114]]

Disclosure to data brokers or others who merely compile and market 
government information for direct economic return will not be presumed 
to primarily serve the public interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver or reduction of fees, a waiver or reduction 
must be granted for those records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Department and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay 
fees subsequently asks for a waiver of those fees and that waiver is 
denied, the requester must pay any costs incurred up to the date the 
fee waiver request was received.


Sec.  171.17  Preservation of records

    The Department must 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 and applicable records 
disposition schedules, including the General Records Schedule 4.2 of 
the National Archives and Records Administration. The Department must 
not dispose of or destroy records while they are the subject of a 
pending request, appeal, or lawsuit under the FOIA.

Subpart C--Privacy Act Provisions


Sec.  171.20  Purpose and scope.

    This subpart contains the rules that the Department follows when 
implementing certain provisions of the Privacy Act of 1974 (PA), as 
amended, 5 U.S.C. 552a. These rules should be read together with the 
statute. The rules in this subpart apply to all records in systems of 
records maintained by the Department that are retrieved by an 
individual's name or personal identifier. They describe the procedures 
by which individuals may request access to records about themselves, 
request amendment or correction of those records, and request an 
accounting of disclosures of those records by the Department. If any 
records retrieved pursuant to an access request under the PA are found 
to be exempt from access under that Act, they will be processed for 
possible disclosure under the Freedom of Information Act (FOIA), 5 
U.S.C. 552, as amended. No fees shall be charged when an individual 
requests access to or amendment of his or her own PA records.


Sec.  171.21  Definitions.

    As used in this subpart, the following definitions shall apply:
    (a) Individual means a citizen or a legal permanent resident alien 
(LPR) of the United States.
    (b) Maintain includes maintain, collect, use, or disseminate.
    (c) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Department and that 
contains the individual's name or the identifying number, symbol, or 
other identifying particular assigned to the individual, such as a 
fingerprint, voice print, or photograph.
    (d) System of records means a group of any records under the 
control of the Department from which information is retrieved by the 
name of an individual or by some identifying number, symbol, or other 
identifying particular assigned to an individual.


Sec.  171.22  Request for access to records.

    (a) In general. Requests for access to records under the PA must be 
made in writing and sent to the Office of Information Programs and 
Services, the Office of Passport Services within the Bureau of Consular 
Affairs, or the Office of Inspector General at the addresses given in 
Sec.  171.4. The Director of the Office of Information Programs and 
Services (A/GIS/IPS) is responsible for acting on all PA requests for 
Department records except for requests received directly by the Office 
of Inspector General, which processes its own requests for information, 
and the Office of Passport Services within the Bureau of Consular 
Affairs, which receives directly and processes its own PA requests for 
information as described in PA System of Record Notice STATE-26. All 
processing of PA requests coming under the jurisdiction of the 
Directorates for Visa Services and Overseas Citizens Services in the 
Bureau of Consular Affairs, the Bureau of Diplomatic Security, the 
Bureau of Human Resources, the Office of Medical Services, and the 
Foreign Service Grievance Board (FSGB) are handled by those bureaus or 
offices.
    (b) Description of records sought. Requests for access should 
describe the requested record(s) in sufficient detail to permit 
identification of the record(s). At a minimum, requests should include 
the individual's full name (including maiden name, if appropriate) and 
any other names used, current complete mailing address, and date and 
place of birth (city, state and country). Helpful information includes 
the approximate time period of the record and the circumstances that 
give the individual reason to believe that the Department maintains a 
record under the individual's name or personal identifier, and, if 
known, the system of records in which the record is maintained. In 
certain instances, it may be necessary for the Department to request 
additional information from the requester, either to ensure a full 
search, or to ensure that a record retrieved does in fact pertain to 
the individual.
    (c) Verification of personal identity. The Department will require 
reasonable identification of individuals requesting records about 
themselves under the PA's access provisions to ensure that records are 
only accessed by the proper persons. Requesters must state their full 
name, current address, citizenship or legal permanent resident alien 
status, and date and place of birth (city, state, and country). The 
request must be signed, and the requester's signature must be either 
notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. 
If the requester seeks records under another name the requester has 
used, a statement, under penalty of perjury, that the requester has 
also used the other name must be included. Requesters seeking access to 
copies of the Passport Services' passport records must meet the 
requirements in paragraph (d) of this section.
    (d) Special requirements for passport records. Given the sensitive 
nature of passport records and their use, requesters seeking access to 
copies of passport records from Passport Services under the PA must 
submit a letter that is either notarized or made under penalty of 
perjury pursuant to 28 U.S.C. 1746, which includes the full name at 
birth and any subsequent name changes of the individual whose records 
are being requested (if submitting the request on behalf of a minor, 
provide the representative's full name as well); the date and place of 
birth of the individual whose records are being requested; the 
requester's current mailing address; and, if available, daytime 
telephone number and email address; the date or estimated date the 
passport(s) was issued; the passport number of the person whose records 
are being sought, if known; and any other information that will help to 
locate the records. The requester must also include a clear copy of 
both sides of the requester's valid government-issued photo 
identification, e.g., a driver's license.
    (e) Authorized third party access. The Department shall process all 
properly authorized third party requests, as

[[Page 13115]]

described in this section, under the PA. In the absence of proper 
authorization from the individual to whom the records pertain, the 
Department will process third party requests under the FOIA. The 
Department's form, DS-4240, may be used to certify identity and provide 
third party authorization. Forms created by other Federal agencies will 
not be accepted.
    (1) Parents and guardians of minor children. Upon presentation of 
acceptable documentation of the parental or guardian relationship, a 
parent or guardian of a U.S. citizen or LPR minor (an unmarried person 
under the age of 18) may, on behalf of the minor, request records under 
the PA pertaining to the minor. In any case, U.S. citizen or LPR minors 
may request such records on their own behalf.
    (i) Verification of parentage or guardianship of minor children. 
When making a request as the parent or guardian of a minor child, for 
access to records about that individual, a requester must establish:
    (A) The identity of the individual who is the subject of the 
records, by stating the name, current address, date and place of birth;
    (B) The requester's own identity, as required in paragraph (c) of 
this section;
    (C) That the requester is the parent of that individual, which the 
requester may prove by providing a copy of the individual's birth 
certificate showing parentage, or by providing a court order 
establishing guardianship; and
    (D) That the requester is acting on behalf of that individual in 
making the request.
    (2) Guardians of incompetent adults. A guardian of an individual 
who has been declared by a court to be incompetent may act for and on 
behalf of the incompetent individual upon presentation of appropriate 
documentation of the guardian relationship.
    (i) Verification of guardianship of incompetent adult. When making 
a request as the guardian of someone determined by a court to be 
incompetent, for access to records about that individual, a requester 
must establish:
    (A) The identity of the individual who is the subject of the 
records, by stating the name, current address, date and place of birth;
    (B) The requester's own identity, as required in paragraph (c) of 
this section;
    (C) That the requester is the guardian of that individual, which 
the requester may prove by providing a copy of a court order 
establishing guardianship; and
    (D) That the requester is acting on behalf of that individual in 
making the request.
    (2) Authorized representatives or designees. When an individual 
wishes to authorize the Department to permit a third party access to 
his or her records, the individual to whom the records pertain must 
submit, in addition to the identity verification information described 
in paragraph (c) (or paragraph (d) of this section if the request is 
for passport records), a signed statement from the individual to whom 
the records pertain, either notarized or made under penalty of perjury 
pursuant to 28 U.S.C. 1746, giving the Department authorization to 
release records about the individual to the third party. The designated 
third party must submit identity verification information described in 
paragraph (c) of this section. Third party requesters seeking access to 
copies of the Passport Office's records must submit a clear copy of 
both sides of a valid government-issued photo identification (e.g., a 
driver's license) in addition to the other information described above.
    (f) Referrals and consultations. If the Department determines that 
records retrieved as responsive to the request were created by another 
agency, it ordinarily will refer the records to the originating agency 
for direct response to the requester. If the Department determines that 
Department records retrieved as responsive to the request are of 
interest to another agency, it may consult with the other agency before 
responding to the request. The Department may make agreements with 
other agencies to eliminate the need for consultations or referrals for 
particular types of records.
    (g) Records relating to civil actions. Nothing in this subpart 
entitles an individual to access to any information compiled in 
reasonable anticipation of a civil action or proceeding.
    (h) Time limits. The Department will acknowledge the request 
promptly and furnish the requested information as soon as possible 
thereafter.


Sec.  171.23  Request to amend or correct records.

    (a) An individual has the right to request that the Department 
amend a record pertaining to the individual that the individual 
believes is not accurate, relevant, timely, or complete.
    (b) Requests to amend records must be in writing and mailed or 
delivered to A/GIS/IPS or OIG at the address given in Sec.  171.4, with 
ATTENTION: PRIVACY ACT AMENDMENT REQUEST written on the envelope. A/
GIS/IPS or OIG will coordinate the review of the request with the 
appropriate offices under its purview. The Department will require 
verification of personal identity as provided in Sec.  171.22(c) before 
it will initiate action to amend a record. Amendment requests should 
contain, at a minimum, identifying information needed to locate the 
record in question, a description of the specific correction requested, 
and an explanation of why the existing record is not accurate, 
relevant, timely, or complete. The request must be signed, and the 
requester's signature must be either notarized or made under penalty of 
perjury pursuant to 28 U.S.C. 1746. The requester should submit as much 
pertinent documentation, other information, and explanation as possible 
to support the request for amendment.
    (c) All requests for amendments to records shall be acknowledged 
within 10 working days.
    (d) In reviewing a record in response to a request to amend, the 
Department shall review the record to determine if it is accurate, 
relevant, timely, and complete.
    (e) If the Department agrees with an individual's request to amend 
a record, it shall:
    (1) Advise the individual in writing of its decision;
    (2) Amend the record accordingly; and
    (3) If an accounting of disclosure has been made, advise all 
previous recipients of the record of the amendment and its substance.
    (f) If the Department denies an individual's request to amend a 
record, it shall advise the individual in writing of its decision and 
the reason for the refusal, and the procedures for the individual to 
request further review. See Sec.  171.25.


Sec.  171.24  Request for an accounting of record disclosures.

    (a) How made. Except where accountings of disclosures are not 
required to be kept, as set forth in paragraph (b) of this section, or 
where accountings of disclosures do not need to be provided to a 
requesting individual pursuant to 5 U.S.C. 552a(c)(3), an individual 
has a right to request an accounting of any disclosure that the 
Department has made to another person, organization, or agency of any 
record about such individual, provided that the disclosed records are 
maintained in a system of records. This accounting shall contain the 
date, nature, and purpose of each disclosure as well as the name and 
address of the recipient of the disclosure. Any request for accounting 
should identify each

[[Page 13116]]

particular record in question and may be made by writing directly to A/
GIS/IPS at the address given in Sec.  171.4.
    (b) Where accountings not required. The Department is not required 
to keep an accounting of disclosures in the case of:
    (1) Disclosures made to employees within the Department who have a 
need for the record in the performance of their duties; and
    (2) Disclosures required under the FOIA.


Sec.  171.25  Appeals from denials of PA amendment requests.

    (a) If the Department denies a request for amendment of such 
records, the requester shall be informed of the reason for the denial 
and of the right to appeal the denial within 90 working days of the 
date of the Department's denial letter.
    (b) For decisions made by A/GIS/IPS, requesters should submit their 
appeal to the A/GIS/IPS FOIA Appeals Office. The contact information 
for A/GIS/IPS is contained in the FOIA Reference Guide, which is 
available at www.state.gov. Appeals can be submitted by mail or email 
to [email protected]. To facilitate handling, the requester should 
mark both the appeal letter and envelope, or subject line of the 
electronic transmission, ``Privacy Act Appeal.''
    (c) For decisions made by OIG, requesters should submit their 
appeal to the OIG. The contact information for OIG is available at 
www.stateoig.gov/foiaappeals. To facilitate handling, the requester 
should mark both the appeal letter and envelope, or subject line of the 
electronic transmission, ``Privacy Act Appeal.''
    (d) Appellants should submit an administrative appeal of any 
denial, in whole or in part, of a request for access to FSGB records 
under the PA to A/GIS/IPS at the above address. A/GIS/IPS will assign a 
tracking number to the appeal and forward it to the FSGB, which is an 
independent body, for adjudication.
    (e) A/GIS/IPS or OIG will decide appeals from denials of PA 
amendment requests within 30 working days from the date when the appeal 
is received, unless an extension of that period for good cause shown is 
needed.
    (f) Decisions will be made in writing, and appellants will receive 
notification of the decision. A reversal will result in reprocessing of 
the request in accordance with that decision. An affirmance will 
include a brief statement of the reason for the affirmance and will 
inform the appellant that the decision represents the final decision of 
the Department and of the right to seek judicial review of the 
decision, when applicable.
    (g) If the decision is that a record shall be amended in accordance 
with the appellant's request, A/GIS/IPS or OIG shall direct the office 
under its purview that is responsible for the record to amend the 
record, advise all previous recipients of the record of the amendment 
and its substance (if an accounting of previous disclosures has been 
made), and so advise the individual in writing.
    (h) If the decision is that the amendment request is denied, in 
addition to the notification required by paragraph (f) of this section, 
A/GIS/IPS or OIG shall advise the appellant:
    (1) Of the right to file a concise Statement of Disagreement 
stating the reasons for disagreement with the decision of the 
Department;
    (2) Of the procedures for filing the Statement of Disagreement;
    (3) That any Statement of Disagreement that is filed will be made 
available to anyone to whom the record is subsequently disclosed, 
together with, at the discretion of the Department, a brief statement 
by the Department summarizing its reasons for refusing to amend the 
record;
    (4) That prior recipients of the disputed record will be provided a 
copy of any statement of disagreement, to the extent that an accounting 
of disclosures was maintained.
    (i) If the appellant files a Statement of Disagreement under 
paragraph (h) of this section, the Department will clearly annotate the 
record so that the fact that the record is disputed is apparent to 
anyone who may subsequently access the record. When the disputed record 
is subsequently disclosed, the Department will note the dispute and 
provide a copy of the Statement of Disagreement. The Department may 
also include a brief summary of the reasons for not amending the 
record. Copies of the Department's statement shall be treated as part 
of the individual's record for granting access; however, it will not be 
subject to amendment by an individual under this part.


Sec.  171.26  Exemptions.

    Systems of records maintained by the Department are authorized to 
be exempt from certain provisions of the PA under both general and 
specific exemptions set forth in the Act. In utilizing these 
exemptions, the Department is exempting only those portions of systems 
that are necessary for the proper functioning of the Department and 
that are consistent with the PA. Where compliance would not interfere 
with or adversely affect the law enforcement process, and/or where it 
may be appropriate to permit individuals to contest the accuracy of the 
information collected, the applicable exemption may be waived, either 
partially or totally, by the Department or the OIG, in the sole 
discretion of the Department or the OIG, as appropriate. Records exempt 
under 5 U.S.C. 552a(j) or (k) by the originator of the record remain 
exempt if subsequently incorporated into any Department system of 
records, provided the reason for the exemption remains valid and 
necessary.
    (a) General exemptions. If exempt records are the subject of an 
access request, the Department will advise the requester of their 
existence and of the name and address of the source agency, unless that 
information is itself exempt from disclosure.
    (1) Individuals may not have access to records maintained by the 
Department that are maintained or originated by the Central 
Intelligence Agency under 5 U.S.C. 552a(j)(1).
    (2) In accordance with 5 U.S.C. 552a(j)(2), individuals may not 
have access to records maintained or originated by an agency or 
component thereof that performs as its principal function any activity 
pertaining to the enforcement of criminal laws, including police 
efforts to prevent, control, or reduce crime or to apprehend criminals, 
and the activities of prosecutors, courts, correctional, probation, 
pardon, or parole authorities, and which consists of:
    (i) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition 
of criminal charges, sentencing, confinement, release, and parole and 
probation status;
    (ii) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (iii) Reports identifiable to an individual compiled at any stage 
of the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision. The reason for invoking 
these exemptions is to ensure effective criminal law enforcement 
processes. Records maintained by the Department in the following 
systems of records are exempt from all of the provisions of the PA 
except paragraphs (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), 
(e)(7), (e)(9), (e)(10), and (e)(11), and (i) of this section, to the 
extent to which they meet the criteria of section (j)(2) of 5 U.S.C. 
552a. The names of the systems correspond to those published

[[Page 13117]]

in the Federal Register by the Department.
    Office of Inspector General Investigation Management System. STATE-
53.
    Information Access Program Records. STATE-35.
    Risk Analysis and Management. STATE-78.
    Security Records. STATE-36.
    (b) Specific exemptions. Portions of the following systems of 
records are exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), and (4), (G), 
(H), and (I), and (f). The names of the systems correspond to those 
published in the Federal Register by the Department.
    (1) Exempt under 5 U.S.C. 552a(k)(1). Records contained within the 
following systems of records are exempt under this section to the 
extent that they are subject to the provisions of 5 U.S.C. 552(b)(1).
    (i) Board of Appellate Review Records. STATE-02.
    (ii) Congressional Correspondence. STATE-43.
    (iii) Congressional Travel Records. STATE-44.
    (iii) Coordinator for the Combating of Terrorism Records. STATE-06.
    (iv) External Research Records. STATE-10.
    (v) Extradition Records. STATE-11.
    (vi) Family Advocacy Case Records. STATE-75.
    (vii) Foreign Assistance Inspection Records. STATE-48.
    (viii) Human Resources Records. STATE-31.
    (ix) Information Access Programs Records. STATE-35.
    (x) Intelligence and Research Records. STATE-15.
    (xi) International Organizations Records. STATE-17.
    (xii) Law of the Sea Records. STATE-19.
    (xiii) Legal Case Management Records. STATE-21.
    (xiv) Munitions Control Records. STATE-42.
    (xv) Overseas Citizens Services Records. STATE-05.
    (xvi) Passport Records. STATE-26.
    (xvii) Personality Cross Reference Index to the Secretariat 
Automated Data Index. STATE-28.
    (xviii) Personality Index to the Central Foreign Policy Records. 
STATE-29.
    (xix) Personnel Payroll Records. STATE-30.
    (xx) Office of Inspector General Investigation Management System. 
STATE-53.
    (xxi) Records of the Office of the Assistant Legal Adviser for 
International Claims and Investment Disputes. STATE-54.
    (xxii) Risk Analysis and Management Records. STATE-78.
    Rover Records. STATE-41.
    (xxiii) Records of Domestic Accounts Receivable. STATE-23.
    (xxiv) Records of the Office of White House Liaison. STATE-34.
    (xxv) Refugee Records. STATE-59.
    (xxvi) Security Records. STATE-36.
    (xxvii) Visa Records. STATE-39.
    (2) Exempt under 5 U.S.C. 552a(k)(2). Records contained within the 
following systems of records are exempt under this section to the 
extent that they consist of investigatory material compiled for law 
enforcement purposes, subject to the limitations set forth in 5 U.S.C. 
552a(k)(2).
    (i) Board of Appellate Review Records. STATE-02.
    (ii) Coordinator for the Combating of Terrorism Records. STATE-06.
    (iii) Extradition Records. STATE-11.
    (iv) Family Advocacy Case Records. STATE-75
    (v) Foreign Assistance Inspection Records. STATE-48.
    (vi) Garnishment of Wages Records. STATE-61.
    (vii) Information Access Program Records. STATE-35.
    (viii) Intelligence and Research Records. STATE-15.
    (ix) Munitions Control Records. STATE-42.
    (x) Overseas Citizens Services Records. STATE-05.
    (xi) Passport Records. STATE-26.
    (xii) Personality Cross Reference Index to the Secretariat 
Automated Data Index. STATE-28.
    (xiii) Personality Index to the Central Foreign Policy Records. 
STATE-29.
    (xiv) Office of Foreign Missions Records, STATE-81.
    (xv) Office of Inspector General Investigation Management System. 
STATE-53.
    (xvi) Risk Analysis and Management Records. STATE-78.
    (xvii) Security Records. STATE-36.
    (xviii) Visa Records. STATE-39.
    (3) Exempt under 5 U.S.C. 552a(k)(3). Records contained within the 
following systems of records are exempt under this section to the 
extent that they are maintained in connection with providing protective 
services pursuant to 18 U.S.C. 3056.
    (i) Extradition Records. STATE-11.
    (ii) Information Access Programs Records. STATE-35.
    (iii) Intelligence and Research Records. STATE-15.
    (iv) Overseas Citizens Services Records. STATE-05.
    (v) Passport Records. STATE-26.
    (vi) Personality Cross-Reference Index to the Secretariat Automated 
Data Index. STATE-28.
    (vii) Personality Index to the Central Foreign Policy Records. 
STATE-29.
    Security Records. STATE-36.
    (viii) Visa Records. STATE-39.
    (4) Exempt under 5 U.S.C. 552a(k)(4). Records contained within the 
following systems of records are exempt under this section to the 
extent that they are required by statute to be maintained and are used 
solely as statistical records.
    (i) Foreign Service Institute Records. STATE-14.
    (ii) Human Resources Records. STATE-31.
    (iii) Information Access Programs Records. STATE-35.
    (iv) Overseas Citizens Services Records, STATE-05
    (v) Personnel Payroll Records. STATE-30.
    (vi) Security Records. STATE-36.
    (5) Exempt under 5 U.S.C. 552a(k)(5). Records contained within the 
following systems of records are exempt under this section to the 
extent that they consist of investigatory material compiled solely for 
the purpose of determining suitability, eligibility, or qualifications 
for Federal civilian employment, military service, Federal contracts, 
or access to classified information, but only to the extent that 
disclosure of such material would reveal the identity of a confidential 
informant.
    (i) Records Maintained by the Office of Civil Rights. STATE-09.
    (ii) Foreign Assistance Inspection Records. STATE-48.
    (iii) Foreign Service Grievance Board Records. STATE-13.
    (iv) Human Resources Records. STATE-31.
    (v) Information Access Programs Records. STATE-35.
    (vi) Legal Adviser Attorney Employment Application Records. STATE-
20.
    (vii) Overseas Citizens Services Records. STATE-25.
    (viii) Personality Cross-Reference Index to the Secretariat 
Automated Data Index. STATE-28.
    (ix) Office of Inspector General Investigation Management System. 
STATE-53.
    (x) Records of the Office of White House Liaison. STATE-34.
    (xi) Risk Analysis and Management Records. STATE-78.
    (xii) Rover Records. STATE-41.
    (xiii) Security Records. STATE-36.
    (xiv) Senior Personnel Appointments Records. STATE-47.
    (6) Exempt under 5 U.S.C. 552a(k)(6). Records contained within the 
following systems of records are exempt under this section to the 
extent that they consist of testing or examination material used solely 
to determine

[[Page 13118]]

individual qualifications for appointment or promotion in the Federal 
service the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process.
    (i) Foreign Service Institute Records. STATE-14.
    (ii) Human Resources Records. STATE-31.
    (iii) Information Access Programs Records. STATE-35.
    (iv) Records Maintained by the Office of Civil Rights. STATE-09
    (v) Security Records. STATE-36.
    (7) Exempt under 5 U.S.C. 552a(k)(7). Records contained within the 
following systems of records are exempt under this section to the 
extent that they consist of evaluation material used to determine 
potential for promotion in the armed services, but only to the extent 
that such disclosure would reveal the identity of a confidential 
informant.
    (i) Overseas Citizens Services Records. STATE-25.
    (ii) Human Resources Records. STATE-31.
    (iii) Information Access Programs Records. STATE-35.
    (iv) Personality Cross-Reference Index to the Secretariat Automated 
Data Index. STATE-28.
    (v) Personality Index to the Central Foreign Policy Records. STATE-
29.

Subpart D--Access to Financial Disclosure Reports


Sec.  171.30   Purpose and scope.

    This subpart sets forth the process by which persons may request 
access to public financial disclosure reports filed with the Department 
in accordance with sections 101 and 103(l) of the Ethics in Government 
Act of 1978, 5 U.S.C. app. 101 and 103(l), as amended. The retention, 
public availability, and improper use of these reports are governed by 
5 U.S.C. app. 105 and 5 CFR 2634.603. It also sets forth the 
restrictions on access to confidential financial disclosure reports 
filed under 5 CFR 2634, Subpart I, in accordance with sections 107(a) 
of the Ethics in Government Act of 1978, 5 U.S.C. app. 107(a) and 5 CFR 
2634.604.


Sec.  171.31   Requests for Public Financial Disclosure Reports--OGE 
Form 278

    Requests for access to public financial disclosure reports filed 
with the Department should be made by submitting the information 
required by 5 CFR 2634.603(c) or a completed Office of Government 
Ethics request form, OGE Form 201, to [email protected] or the 
Office of the Assistant Legal Adviser for Ethics and Financial 
Disclosure, U.S. Department of State, 2201 C Street NW, Washington, DC 
20520. The OGE Form 201 may be obtained by visiting www.oge.gov or 
writing to the address above.


Sec.  171.32   Denial of Public Access to Confidential Financial 
Disclosure Reports--OGE Form 450

    No member of the public shall have access to confidential financial 
disclosure reports filed pursuant to 5 CFR 2634, Subpart I, except 
pursuant to the order of a Federal court or as otherwise provided under 
the Privacy Act. See 5 U.S.C. 552a.

Carrie Cabelka,
Assistant Secretary, Bureau of Administration, Department of State.
[FR Doc. 2020-03844 Filed 3-5-20; 8:45 am]
 BILLING CODE 4710-24-P