Implementation of the Freedom of Information Act, 70721-70733 [2022-24180]

Agencies

• Agency for International Development

[Federal Register Volume 87, Number 223 (Monday, November 21, 2022)]
[Rules and Regulations]
[Pages 70721-70733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24180]


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AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 212

RIN 0412-AA97


Implementation of the Freedom of Information Act

AGENCY: Agency for International Development (USAID).

ACTION: Final rule.

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SUMMARY: This regulation updates certain procedures and standards USAID 
follows in processing requests for records under the Freedom of 
Information Act (FOIA).

DATES: Effective December 7, 2022.

FOR FURTHER INFORMATION CONTACT: Christopher A. Colbow, Bureau for 
Management, Office of Management Services, Information Records 
Division, U.S. Agency for International Development, 1300 Pennsylvania 
Avenue, USAID Annex, Room 2.4.0A, Washington, DC 20523; tel. 202-916-
4661; [email protected].

SUPPLEMENTARY INFORMATION: This rule makes revisions to 22 CFR part 
212, USAID's regulations under the Freedom of Information Act (FOIA) 
and the Privacy Act. The Agency is revising its regulations to update 
several procedural provisions, including methods for submitting 
requests under the FOIA, and initial appeals of denials of requests, 
for records of the Office of the USAID Inspector General (OIG). The 
Inspector General Act of 1978, as amended (5 U.S.C. App. 3) was enacted 
to, ``create independent and objective units,'' to perform 
investigative and monitoring functions within Executive Departments and 
Agencies of the Federal Government, including USAID. These revisions 
will further the OIG's independence and streamline the processing of 
requests that seek OIG records.

List of Subjects in 22 CFR Part 212

    Freedom of Information.

    For the reasons stated in the preamble, USAID revises 22 CFR part 
212 to read as follows:

PART 212--PUBLIC INFORMATION

Subpart A--General Provisions
Sec.
212.1 Purpose and scope.
212.2 Policy.
212.3 Records available on the Agency's website.
Subpart B--Proactive Disclosures of Agency Records
212.4 Materials available for public inspection and in election 
format.
Subpart C--Requirements for Making Requests
212.5 How to make a request for records.
Subpart D--Responsibility for Responding to Requests
212.6 Designation of authorized officials.
212.7 Processing of request.
Subpart E--Timing of Responses to Requests
212.8 Time limits.
Subpart F--Responses to Requests
212.9 Responsibility for responding to requests.
Subpart G--Confidential Commercial Information
212.10 Policy and procedures.
Subpart H--Administrative Appeals
212.11 Appeal procedures.
212.12 Mediation and dispute services.
Subpart I--Preservation of Records
212.13 Policy and procedures.
Subpart J--Fees
212.14 Fees to be charged--general.
212.15 Fees to be charged--requester categories.
Subpart K--FOIA Definitions
212.16 Glossary.
Subpart L--Other Rights and Services
212.17 Rights and services qualified by the FOIA statute.
Subpart M--Privacy Act Provisions
212.18 Purpose and scope.
212.19 Privacy definitions.
212.20 Request for access to records.
212.21 Request to amend or correct records.
212.22 Request for accounting of record disclosures.
212.23 Appeals from denials of PA amendment requests.
212.24 Specific exemptions.

    Authority: Pub. L. 114-185, 130 Stat. 538.

Subpart A--General Provisions


Sec.  212.1  Purpose and scope.

    This subpart contains the rules that the United States Agency for 
International Development (hereinafter ``USAID'' or ``the Agency'') 
follows in processing requests for records under the Freedom of 
Information Act (``FOIA''), 5 U.S.C. 552. The rules in this subpart 
should be read in conjunction with the text of the FOIA. Requests made 
by individuals for records about themselves under the Privacy Act of 
1974, are processed under Subpart O. Definitions of FOIA terms are 
referenced in subpart L of this part.


Sec.  212.2  Policy.

    (a) As a general policy, USAID follows a balanced approach in 
administering the FOIA. USAID recognizes the right of the public to 
access information in the possession of the Agency. USAID also 
recognizes the legitimate interests of organizations or persons who 
have submitted records to the Agency or who would otherwise be affected 
by release of records. USAID has no discretion to release certain 
records, such as trade secrets and confidential commercial information, 
prohibited from release by law. USAID's policy calls for the fullest 
responsible disclosure consistent with those requirements of 
administrative necessity and confidentiality which are recognized under 
the FOIA.

[[Page 70722]]

    (b) For purposes of subparts A through K, M, and O of this part, 
record means information regardless of its physical form or 
characteristics including information created, stored, and retrievable 
by electronic means that is created or obtained by the Agency and under 
the control of the Agency at the time of the request, including 
information maintained for the Agency 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. Information available in 
electronic form shall be searched and compiled in response to a request 
unless such search and compilation would significantly interfere with 
the operation of the Agency's automated information systems.


Sec.  212.3  Records available on the Agency's website.

    Information that is required to be published in the Federal 
Register under 5 U.S.C. 552(a)(1) is regularly updated by the Agency 
and found on its public website, https://www.usaid.gov/foia-requests, 
or for records of the Office of the USAID Inspector General (OIG), on 
the FOIA page of OIG's public website, https://oig.usaid.gov/FOIA. 
Records required by FOIA to be made available for public inspection in 
an electronic format under 5 U.S.C. 552(a)(2) are available on the 
Agency's and OIG's public websites.

Subpart B--Proactive Disclosures of Agency Records


Sec.  212.4  Materials available for public inspection and in 
electronic format.

    (a) In accordance with this subpart, the Agency shall make the 
following materials available for public inspection in an electronic 
format:
    (1) Operational policy in USAID's Automated Directives System (ADS) 
which have been adopted by the Agency and are not published in the 
Federal Register;
    (2) Administrative staff manuals and instructions to staff that 
affect any member of the public; and
    (3) Copies of all records, regardless of form or format, which have 
been released pursuant to a FOIA request, and which have been requested 
three (3) or more times, or because of the nature of their subject 
matter, have become or are likely to become the subject of subsequent 
requests for substantially the same records. The Agency shall decide on 
a case by case basis whether records fall into this category, based on 
the following factors:
    (i) Previous experience with similar records;
    (ii) The particular characteristics of the records involved, 
including their nature and the type of information contained in them; 
and
    (iii) The identity and number of requesters and whether there is 
widespread media, historical, academic, or commercial interest in the 
records.
    (b) [Reserved].

Subpart C--Requirements for Making Requests


Sec.  212.5  How to make a request for records.

    (a) USAID has a de-centralized system for responding to FOIA 
requests for all USAID records. The USAID FOIA operations are broken 
down into two component FOIA Offices: The Bureau for Management, Office 
of Management Services, Information and Records Division (M/MS/IRD) and 
the Office of the USAID Inspector General (OIG).
    (b) The Bureau for Management, Office of Management Services, 
Information and Records Division (M/MS/IRD) is the central processing 
point for requests for USAID records contained in Washington, DC and 
its overseas missions. All FOIA requests for USAID records (other than 
OIG records) must be submitted to this office. To make a request for 
the Agency's records, a requester may send request via one of the 
following mediums:
    (1) By Email: [email protected]. Please include your mailing address, 
email address, phone number, and fee category with your request. While 
our FOIA Specialists are happy to answer questions about the FOIA 
Program and/or help you formulate your request over the phone, please 
be advised that FOIA requests cannot be accepted by phone.
    (2) Online Portal: To submit your request online, please click the 
subsequent link: https://foiarequest.usaid.gov/index.aspx.
    (3) By U.S. Postal Mail: United States Agency for International 
Development Bureau for Management, Office of Management Services 
Services, Information and Records Division USAID Annex, Room 2.4.0A, 
Washington, DC 20523.
    (4) By Telephone: (202) 916-4661.
    (5) By Fax: (202) 916-4990.
    (c) The Inspector General has received delegated authority from 
USAID's Administrator to process requests and issue determinations with 
respect to requests, and appeals of initial denials of requests, for 
the OIG's records. To make a request for OIG records, a requester may 
send a request via one of the following mediums:
    (1) By email: [email protected]. Please include your mailing 
address, email address, phone number, and fee category with your 
request.
    (2) Online Portal: Please submit a request online via the OIG 
website at https://oig.usaid.gov/FOIA.
    (3) By U.S. Postal Mail: United States Agency of International 
Development Office of Inspector General, Office of General Counsel 1300 
Pennsylvania Avenue NW, Suite 6.06-D, Washington, DC 20523.
    (4) By Telephone: (202) 712-1150.
    (d) Where a request for records pertains to a third party, a 
requester may receive greater access by submitting either a notarized 
consent form signed by the person who is the subject of the records, or 
a signed declaration by that person, made under penalty of perjury 
pursuant to 28 U.S.C. 1746, authorizing disclosure of the records to 
the requester, or by submitting proof that the individual is deceased 
(e.g., a copy of a death certificate or an obituary). In addition, 
requesters may present an argument that there exists an overriding 
public interest in disclosure of the information related to official 
misconduct by producing evidence that alleged Government impropriety 
occurred. As an exercise of administrative discretion, the component's 
FOIA office can require a requester to supply additional information if 
necessary in order to verify that a particular individual has consented 
to disclosure.
    (e) Requesters must describe the records sought in sufficient 
detail to enable the component's FOIA office personnel to locate them 
with a reasonable amount of effort. To the extent possible, requesters 
should include specific information that may assist in identifying the 
requested records, such as the date, title or name, author, recipient, 
subject matter of the record, case number, file designation, or 
reference number. In general, requesters should include as much detail 
as possible about the specific records or the types of records that 
they are seeking. Before submitting their requests, requesters may 
contact the component FOIA office's FOIA contact or FOIA Public Liaison 
to discuss the records they are seeking and to receive assistance in 
describing the records. If, after receiving a request, the component's 
FOIA office determines that it does not reasonably describe the records 
sought, the component's FOIA office shall inform the requester what 
additional information is needed or why the request is otherwise 
insufficient. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with the component FOIA 
office's designated

[[Page 70723]]

FOIA Specialist or its FOIA Public Liaison, each of whom is available 
to assist the requester in reasonably describing the records sought. If 
a request does not reasonably describe the records sought, the 
component FOIA office's response to the request may be delayed or 
denied.

Subpart D--Responsibility for Responding to Requests


Sec.  212.6  Designation of authorized officials.

    (a) The Assistant Administrator for the Bureau for Management(M) 
serves as the USAID Chief FOIA Officer. The Chief FOIA Officer has 
overall responsibility for USAID compliance with the FOIA. The Chief 
FOIA Officer provides high level oversight and support to USAID's FOIA 
programs, and recommends adjustments to agency practices, personnel, 
and funding as may be necessary to improve FOIA administration, 
including through an annual Chief FOIA Officers Report submitted to the 
U.S. Department of Justice. The Chief FOIA Officer is responsible for 
offering training to agency staff regarding their FOIA 
responsibilities; serves as the primary liaison with the Office of 
Government Information Services and the Office of Information Policy; 
and reviews, not less frequently than annually, all aspects of the 
Agency's administration of the FOIA to ensure compliance with the 
FOIA's requirements.
    (b) The Bureau for Management, Office of Management Services, 
Information and Records Division (M/MS/IRD) is the component FOIA 
office that receives, tracks, and processes all of USAID's FOIA 
requests, other than requests for OIG records, to ensure transparency 
within the Agency.
    (c) The Deputy Director, Bureau for Management, Office of 
Management Services (M/MS/OD) serves as the USAID FOIA Appeals Officer 
for requests for all USAID records other than OIG records. The FOIA 
Appeals Officer is responsible for receiving and acting upon appeals 
from requesters whose initial FOIA requests for USAID records (other 
than OIG records) have been denied, in whole or in part.
    (d) The Deputy Inspector General serves as the USAID OIG FOIA 
Appeals Officer for appeals of requests for OIG records.
    (e) The Chief, Bureau for Management, Office of Management 
Services, Information and Records Division (M/MS/IRD) serves as USAID's 
FOIA Officer and USAID's FOIA Public Liaison. The FOIA Officer is 
responsible for program direction, original denials, and policy 
decisions required for effective implementation of USAID's FOIA 
program. The FOIA Public Liaison serves as a supervisory official to 
whom a FOIA requester can raise concerns about the services received, 
following an initial response from the FOIA staff. In addition, the 
FOIA Public Liaison assists, as appropriate, in reducing delays, 
increasing transparency and understanding of the status of requests, 
and resolving disputes.
    (f) The General Counsel to the Inspector General serves as the 
OIG's FOIA Officer and FOIA Public Liaison.
    (g) The Supervisory FOIA Team Lead is the Principal Operations 
Officer within the component's FOIA office for the processing of FOIA 
requests and release determinations.
    (h) The FOIA Specialist also known as the Government Information 
Specialist (GIS) is responsible for processing requests and preparing 
records for release when such releases are authorized by the FOIA. They 
do not have the authority to make denials, including ``no records'' 
responses.
    (i) The General Counsel (GC), FOIA Backstop Attorney Advisor has 
responsibility for providing legal advice on all USAID matters 
regarding or resulting from the FOIA (other than OIG matters). Upon 
request, GC advises M/MS/IRD on release and denial decisions, and 
apprises the FOIA Office of all significant developments with respect 
to the FOIA.
    (j) OIG attorneys have responsibility for providing legal advice on 
all requests and appeals related to OIG records.
    (k) Each Attorney Advisor designated to provide legal advice to 
USAID Bureaus/Independent Offices (B/IOs) is responsible for providing, 
at M/MS/IRD's request, legal advice on FOIA requests assigned to those 
B/IOs.
    (l) The designated FOIA Liaison Officer (FLO) in each USAID Bureau 
and Office is responsible for tasking and facilitating the collection 
of responsive records and monitoring the production of records to M/MS/
IRD.


Sec.  212.7  Processing of request.

    (a) In general. In determining which records are responsive to a 
request, the component's FOIA office ordinarily will include only 
records in its possession as of the date that it begins its search. If 
any other date is used, the component's FOIA office shall inform the 
requester of that date.
    (b) Authority to grant or deny requests. The FOIA Officer is 
authorized to grant or to deny any requests for records that are 
maintained by the Agency (other than OIG records). The OIG FOIA Officer 
is authorized to grant or to deny any requests for records maintained 
by OIG.
    (c) Consultation, referral, and coordination. When reviewing 
records located by the Agency in response to a request, the component's 
FOIA office shall determine whether another agency of the Federal 
Government is better able to determine whether the record is exempt 
from disclosure under the FOIA. All consultations and referrals 
received by the Agency will be handled according to the date that the 
first agency received the perfected FOIA request. As to any such 
record, the component's FOIA office shall proceed in one of the 
following ways:
    (1) Consultation. When records originated with USAID, but contain 
within them information of substantial interest to another agency, or 
other Federal Government office, the component's FOIA office should 
consult with that other agency prior to making a release determination.
    (2) Referral. (i) When a component's FOIA office believes that a 
different Department, agency, or component, is best able to determine 
whether to disclose the record, the component's FOIA office will refer 
the responsibility for responding to the request regarding that record, 
as long as the referral is to an agency that is 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's FOIA office and the originating agency jointly agree that 
the former is in the best position to respond regarding the record, 
then the record may be handled as a consultation.
    (ii) Whenever the component's FOIA office refers any part of the 
responsibility for responding to a request to another agency, it shall 
document the referral, maintain a copy of the record that it refers, 
and notify the requester of the referral and inform the requester of 
the name(s) of the agency to which the record was referred, including 
that agency's FOIA contact information.
    (iii) Where a component's FOIA office determines that a request was 
misdirected within the agency, the receiving component's FOIA office 
must route the request to the FOIA office of the proper component 
within the agency.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. In

[[Page 70724]]

such instances, in order to avoid harm to an interest protected by an 
applicable exemption, the component's FOIA office will coordinate with 
the originating agency to seek its views on the disclosability of the 
record. The release determination for the record that is the subject of 
the coordination will then be conveyed to the requester by the 
component's FOIA office.
    (d) Classified information. On receipt of any request involving 
classified information, the component's FOIA office must determine 
whether the information is currently and properly classified in 
accordance with applicable classification rules. Whenever a request 
involves a record containing information that has been classified or 
may be appropriate for classification by another agency under any 
applicable executive order concerning the classification of records, 
the component's FOIA office must refer the responsibility for 
responding to the request regarding that information to the agency that 
classified the information, or that should consider the information for 
classification. Whenever USAID's record contains information that has 
been derivatively classified (for example, when it contains information 
classified by another agency), the component's FOIA office must refer 
the responsibility for responding to that portion of the request to the 
agency that classified the underlying information.
    (e) Furnishing records. The component's FOIA office shall furnish 
copies only of records that the Agency has in its possession. The 
Agency is not compelled to create new records. The Agency is not 
required to perform research for a requester. The component's FOIA 
office is required to furnish only one copy of a record. If information 
exists in different forms, the component's FOIA office will provide the 
record in the form that best conserves government resources. Requests 
may specify the preferred form or format (including electronic formats) 
for the records sought by the requester. The component's FOIA office 
will accommodate the form or format request if the record is readily 
reproducible in that form or format.
    (f) Archival records. The Agency ordinarily transfers records in 
accordance with its retirement authority, included in ADS 502, to the 
National Archives and Records Administration. These records become the 
physical and legal custody of the National Archives. Accordingly, 
requests for retired Agency records should be submitted to the National 
Archives by mail addressed to Special Access and FOIA Staff (NWCTF), 
8601 Adelphi Road, Room 5500, College Park, MD 20740 by fax to (301) 
837[not]1864 or by email to [email protected].
    (g) Poor copy. If USAID cannot make a legible copy of a record to 
be released, the Agency is not required to reconstruct it. Instead, the 
component's FOIA office will furnish the best copy possible and note 
its poor quality in the component's FOIA office reply.

Subpart E--Timing of Responses to Requests


212.8  Time limits.

    (a) In general. The component's FOIA office ordinarily will respond 
to requests according to their order of receipt.
    (b) Multitrack processing. (1) The component's FOIA office shall 
designate a specific track for requests that are granted expedited 
processing, in accordance with the standards set forth in paragraph (e) 
of this section. The component's FOIA office may designate additional 
processing tracks that distinguish between simple and more complex 
requests based on the estimated amount of work or time needed to 
process the request. Among the factors the component's FOIA office may 
consider are, the number of pages involved in processing the request 
and the need for consultations or referrals. The component's FOIA 
office shall advise requesters of the track into which their request 
falls and, when appropriate, shall offer the requesters an opportunity 
to narrow their request so that it can be placed in a different 
processing track.
    (2) The component's FOIA office shall generally process requests in 
each track on a ``first-in, first-out'' basis.
    (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 component's FOIA 
office extends the time limit on that basis, the component's FOIA 
office shall, before expiration of the 20-day period to respond, notify 
the requester in writing of the unusual circumstances involved and of 
the date by which processing of the request can be expected to be 
completed. Where the extension exceeds 10 working days, the component's 
FOIA office shall, in the written notice, notify the requester of the 
right to contact the component's FOIA office's FOIA Public Liaison, or 
seek dispute resolution services from the Office of Government 
Information Services (OGIS). In addition, the component's FOIA office 
shall, as described by the FOIA, provide the requester with an 
opportunity to modify the request or arrange an alternative time period 
for processing.
    (d) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, the component's FOIA office may aggregate 
requests in cases where it reasonably appears that multiple requests, 
submitted either by a requester or by a group of requesters acting in 
concert, constitute a single request that would otherwise involve 
unusual circumstances. The component's FOIA office shall not aggregate 
multiple requests that involve unrelated matters.
    (e) Expedited processing. (1) Requests and appeals shall be 
processed on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity that 
affect public confidence.
    (2) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (e)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary 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 component's FOIA office may waive the 
formal certification requirement.
    (3) The component's FOIA office shall notify the requester within 
10 calendar days of the receipt of a request for expedited processing 
of its decision whether to grant or deny expedited

[[Page 70725]]

processing. If expedited processing is granted, the request shall be 
given priority, placed in the processing track for expedited requests, 
and shall be processed as soon as practicable. If a request for 
expedited processing is denied, any appeal of that decision shall be 
acted on expeditiously.

Subpart F--Responses to Requests


Sec.  212.9  Responsibility for responding to requests.

    (a) In general. The component's FOIA office should, to the extent 
practicable, communicate with requesters having access to the internet 
using electronic means, such as email or web portal.
    (b) Acknowledgments of requests. The component's FOIA office shall 
acknowledge the request and assign it an individualized tracking 
number. The component's FOIA office shall include in the acknowledgment 
a brief description of the records sought to allow requesters to more 
easily keep track of their requests.
    (c) Grants of requests. Once the component's FOIA office makes a 
determination to grant a request in full or in part, it shall notify 
the requester in writing. The component's FOIA office also shall inform 
the requester of any fees charged and shall disclose the requested 
records to the requester promptly upon payment of any applicable fees.
    (d) Consultations and referrals. Whenever the component's FOIA 
office consults with another Federal Government office over the 
releasability of a record, the component's FOIA office shall notify the 
requester of the consultation and inform the requester of the name(s) 
of the agency or office with which the consultation is taking place. 
Whenever the component's FOIA office refers any part of the 
responsibility for responding to a request to another Federal 
Government office, the component's FOIA office shall document the 
referral, maintain a copy of the record that it refers, notify the 
requester of the referral, and inform the requester of the name(s) of 
the agency to which the record was referred, including that agency's 
FOIA contact information.
    (e) Adverse determinations of requests. If the component's FOIA 
office has made an adverse determination denying a request in any 
respect, the component's FOIA office shall notify the requester of that 
determination in writing, and provide the contact information for the 
FOIA Public Liaison, as well as a description of the requester's right 
to seek mediation services from the Office of Government Information 
Services (OGIS). Adverse determinations, or denials of requests, 
include decisions that: the requested record is exempt, in whole or in 
part; the request does not reasonably describe the records sought; the 
information requested is not a record subject to 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. A response will provide an 
estimate of the volume of any records or any information withheld. 
Adverse determinations also include denials involving fees or fee 
waiver matters or denials of requests for expedited processing.
    (f) Information furnished. All denials are in writing and describe 
in general terms the material withheld; state the reasons for the 
denial, including, as applicable, a reference to the specific exemption 
of the FOIA authorizing the withholding; explain your right to appeal 
the decision and identify the official to whom you should send the 
appeal; and are signed by the person who made the decision to deny all 
or part of the request. Records disclosed in part must be marked 
clearly 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.
    (g) Conducting searches. USAID performs a diligent search for 
records to satisfy your request. Nevertheless, the Agency may not be 
able to find the records requested using the information provided, or 
the records may not exist.

Subpart G--Confidential Commercial Information


Sec.  212.10  Policy and procedures.

    (a) Definitions--(1) Confidential commercial information means 
commercial or financial information obtained by the Agency from a 
submitter that may be protected from disclosure under Exemption 4 of 
the FOIA, 5 U.S.C. 552(b)(4).
    (2) Business submitter means any person or entity, including a 
corporation, State, or foreign government, but not including another 
Federal Government entity, that provides information, either directly 
or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, either at the time of submission or 
within a reasonable time thereafter, any portion of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations shall expire 10 years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (c) When notice to business submitters is required. (1) The 
component's FOIA office shall promptly provide written notice to a 
business submitter of confidential commercial information whenever 
records containing such information are requested under the FOIA if, 
after reviewing the request, the responsive records, and any appeal by 
the requester, the component's FOIA office determines that it may be 
required to disclose the records, provided:
    (i) The requested information has been designated in good faith by 
the business submitter as information considered protected from 
disclosure under Exemption 4; or
    (ii) The component's FOIA office has a reason to believe that the 
requested information may be protected from disclosure under Exemption 
4, but has not yet determined whether the information is protected from 
disclosure under that exemption or any other applicable exemption.
    (2) The notice shall either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, notice may be made by posting or publishing the 
notice in a place or manner reasonably likely to accomplish it.
    (d) Exceptions to business submitter notice requirements. The 
notice requirements of this section shall not apply if:
    (1) The component's FOIA office determines that the information is 
exempt under the FOIA;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the business submitter appears 
obviously frivolous, except that, in such a case, the component's FOIA 
office shall give the business submitter written notice of any final 
decision to disclose the information and must provide that

[[Page 70726]]

notice within a reasonable number of days prior to a specified 
disclosure date.
    (e) Opportunity to object to disclosure. (1) The component's FOIA 
office shall specify a reasonable time period within which the business 
submitter must respond to the notice referenced in paragraph (c) of 
this section. If a business submitter has any objections to disclosure, 
the business submitter should:
    (i) Provide the component's FOIA office with 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 business submitter must 
explain why the information constitutes a trade secret or commercial or 
financial information that is privileged or confidential.
    (ii) [Reserved].
    (2) A business submitter who fails to respond within the time 
period specified in the notice shall be considered to have no objection 
to disclosure of the information. Information received by the 
component's FOIA office after the date of any disclosure decision shall 
not be considered by the component's FOIA office. Any information 
provided by a business submitter under this subpart may itself be 
subject to disclosure under the FOIA.
    (f) Analysis of objections. The component's FOIA office shall 
consider a business submitter's objections and specific grounds for 
nondisclosure in deciding whether to disclose the requested 
information.
    (g) Notice of intent to disclose. Whenever the component's FOIA 
office decides to disclose information over the objection of a business 
submitter, the component's FOIA office shall provide the business 
submitter written notice, which shall include:
    (1) A statement of the reasons why each of the business submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the component's FOIA office shall promptly notify the 
business submitter.
    (i) Requester notification. The component's FOIA office shall 
notify the requester whenever it provides the submitter with notice and 
an opportunity to object to disclosure; whenever it notifies the 
submitter of its intent to disclose the requested information; and 
whenever a submitter files a lawsuit to prevent the disclosure of the 
information.

Subpart H--Administrative Appeals


Sec.  212.11  Appeal procedures.

    The component's FOIA office must inform the requester of the 
reasons for the denial and the requester's right to appeal the denial 
to the FOIA Appeals Officer whenever a FOIA request is denied.
    (a) What a requester can appeal. A requester may appeal the 
withholding of a document or denial of a fee waiver request. A 
requester may contest the type or amount of fees that were charged, or 
may appeal any other type of adverse determination under the FOIA. A 
requester may also appeal because USAID failed to conduct an adequate 
search for the documents requested. However, a requester may not file 
an administrative appeal for the lack of a timely response. A requester 
may administratively appeal any portion denied when their request is 
granted in part and denied in part.
    (b) Requirements for making an appeal. A requester may appeal any 
adverse determinations to the component's FOIA office. The requester 
must make the appeal in writing. To be considered timely, the appeal 
must be postmarked, or in the case of electronic submissions, 
transmitted, within 90 calendar days after the date of the response. 
The appeal should clearly identify the component FOIA office'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.''
    (c) Adjudication of appeals. (1) The Deputy Director of the Bureau 
for Management Services or designee will conduct de novo review and 
make the final determination on the appeals related to all Agency 
records other than OIG records. The Deputy Inspector General will 
conduct de novo review and make the final determination on the appeals 
relating to OIG records.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (d) Decisions on appeals. A decision on an appeal must be made in 
writing. A decision that upholds the component FOIA office's 
determination will contain a statement that identifies the reasons for 
the affirmance, including any FOIA exemptions applied. The decision 
will provide the requester with notification of the statutory right to 
file a lawsuit and will inform the requester of the mediation services 
offered by the Office of Government Information Services of the 
National Archives and Records Administration (OGIS) as a non-exclusive 
alternative to litigation. Mediation is a voluntary process. If the 
component's FOIA office agrees to participate in the mediation services 
provided by OGIS, it will actively engage as a partner to the process 
in an attempt to resolve the dispute. If the component FOIA office's 
decision is remanded or modified on appeal, the requester will be 
notified of that determination in writing. The component's FOIA office 
will thereafter further process the request in accordance with that 
appeal determination and respond directly to the requester.
    (e) When appeal is required. Before seeking review by a court of 
the component FOIA office's adverse determination, a requester 
generally must first submit a timely administrative appeal.
    (f) Where to file an appeal. An appeal (other than appeals related 
to OIG records) may be filed by sending a letter to: FOIA Appeals 
Officer, Bureau for Management, Deputy Director, Office of Management 
Services, U.S. Agency for International Development, USAID Annex, M/MS, 
Room 10.8 OD, Washington, DC 20523; or by email at [email protected]. An 
appeal relating to OIG records may be filed by sending a letter to: 
Deputy Inspector General, Office of Inspector General, U.S. Agency for 
International Development, Suite 6.06-D, RRB, 1300 Pennsylvania Avenue 
NW, Washington, DC 20523-4601; or by email at [email protected]. There 
is no charge for filing an administrative appeal.


Sec.  212.12  Mediation and dispute services.

    (a) The Office of Government Information Services of the National 
Archives and Records Administration (OGIS) is a Freedom of Information 
Act (FOIA) resource for the public and the government. Congress has 
charged OGIS with reviewing FOIA policies, procedures and compliance of 
Federal agencies and to recommend changes to the FOIA. OGIS' mission 
also includes providing dispute resolution services between Federal 
agencies and requesters. OGIS works as a non-exclusive alternative to 
litigation.
    (b) When the component's FOIA office makes a determination on a 
request, the component's FOIA office shall offer the services of the 
FOIA Public Liaison, and will notify requesters of the mediation 
services

[[Page 70727]]

provided by OGIS. Specifically, the component's FOIA office will 
include in the component's FOIA office's notification to the requester:
    (1) The right of the requester to seek assistance from the FOIA 
Public Liaison of the component's FOIA office, and in the case of an 
adverse determination;
    (2) The right of the requester to seek dispute resolution services 
from the FOIA Public Liaison of the component's FOIA office or the 
Office of Government Information Services.

Subpart I--Preservation of Records


Sec.  212.13  Policy and procedures.

    The component's FOIA office shall preserve all correspondence 
relating to the requests it receives under this subpart, and all 
records processed pursuant to such requests, until such time as the 
destruction of such correspondence and records is authorized pursuant 
to title 44 of the United States Code or the General Records Schedule 
4.2 of the National Archives and Records Administration (NARA). Under 
no circumstances shall records be sent to a Federal Records Center, 
transferred to the permanent custody of NARA, or destroyed while they 
are the subject of a pending request, appeal, or civil action under the 
FOIA.

Subpart J--Fees


Sec.  212.14  Fees to be charged--general.

    (a) In general. The component's FOIA office shall charge for 
processing requests under the FOIA in accordance with the provisions of 
this section and with the Office of Management and Budget (OMB) 
Guidelines. In order to resolve any fee issues that arise under this 
section, the component's FOIA office may contact a requester for 
additional information. The component's FOIA office shall ensure that 
search, review, and duplication are conducted in the most efficient and 
the least expensive manner. The component's FOIA office ordinarily will 
collect all applicable fees before sending copies of records to a 
requester. Requesters must pay fees by check or money order made 
payable to the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. The component FOIA office'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.
    (2) Direct costs are those expenses that the Agency incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. 
Direct costs do not include overhead expenses such as the costs of 
space, and of heating or lighting 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 fee category must show that 
the request is made in connection with his or her role at the 
educational institution. Agencies may seek verification from the 
requester that the request is in furtherance of scholarly research.
    (5) Fee waiver is a waiver or reduction of processing fees if a 
requester can demonstrate that certain statutory standards are 
satisfied, including that the information is in the public interest and 
is not requested for a commercial interest.
    (6) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this section and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. A requester in this 
category must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use.
    (7) 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, components shall also consider a requester's past publication 
record in making this determination.
    (8) Requester category is one of the three categories that agencies 
place requesters in for the purpose of determining whether a requester 
will be charged fees for search, review, and duplication. The three 
categories are: commercial requesters; non-commercial scientific or 
educational institutions or news media requesters; and all other 
requesters.
    (9) 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 confidential commercial information submitter, but it does 
not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (10) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the component's 
FOIA office shall charge the following fees unless a waiver or 
reduction of fees has been granted under paragraph (k) of this section.
    (1) Search. 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 the restrictions of paragraph (d) of 
this section. The component's FOIA office may properly charge for time 
spent searching even if they do not locate any responsive records or if 
they determine that the records are entirely exempt from disclosure.

[[Page 70728]]

    (2) Duplication. Duplication fees shall be charged to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The component's FOIA office shall honor a requester's 
preference for receiving a record in a particular form or format where 
it is readily reproducible by the component's FOIA office in the form 
or format requested. Where photocopies are supplied, the component's 
FOIA office shall provide one copy per request at a cost of ten cents 
per page. For copies of records produced on tapes, disks, or other 
media, the direct costs of producing the copy, including operator time 
shall be charged. 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 shall pay the direct costs associated 
with scanning those materials. For other forms of duplication, the 
component's FOIA office shall charge the direct costs.
    (3) Review. Review fees shall be charged to requesters who make 
commercial use requests. Review fees shall be assessed in connection 
with the initial review of the record, i.e., the review conducted by 
the component's FOIA office 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 component's FOIA 
office re-review of the records in order to consider the use of other 
exemptions may be assessed as review fees.
    (d) Restrictions on charging fees. (1) No search fees will be 
charged for requests by educational institutions, noncommercial 
scientific institutions, or representatives of the news media, unless 
the records are sought for commercial use.
    (2) When the component's FOIA office determines that unusual 
circumstances apply to the processing of a request, and the component's 
FOIA office has provided timely written notice to the requester, the 
delay is excused for an additional 10 days. If the component's FOIA 
office fails to comply with the extended time limit, it may not charge 
search fees (or for requesters with preferred fee status, may not 
charge duplication fees) except as provided in paragraphs (d)(2)(i) and 
(ii) of this section.
    (i) Exception. If unusual circumstances apply and more than 5000 
pages are necessary to respond to the request, the component's FOIA 
office may charge search fees (or, for requesters in preferred fee 
status, may charge duplication fees) if timely written notice has been 
made to the requester and the component's FOIA office has discussed 
with the requester via written mail, electronic mail, or telephone (or 
made not less than 3 good-faith attempts to do so) how the requester 
could effectively limit the scope of the request.
    (ii) Court Determination that exceptional circumstances exist. If a 
court determines that exceptional circumstances exist, the component's 
FOIA office's failure to comply with a time limit shall be excused for 
the length of time provided by the court order.
    (3) If the component's FOIA office fails to comply with the time 
limits in which to respond to a request, and if no unusual or 
exceptional circumstances, as those terms are defined by the FOIA, 
apply to the processing of the 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.
    (4) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (5) Except for requesters seeking records for a commercial use, the 
component's FOIA office shall 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.
    (6) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under paragraph (c) of this section is $25.00 or less for any request, 
no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. (1) When the 
component's FOIA office determines or estimates that the fees to be 
assessed in accordance with this section will exceed $25.00, the 
component's FOIA office shall notify the requester of the actual or 
estimated amount of the fees, including a breakdown of the fees for 
search, review or duplication, unless the requester has indicated a 
willingness to pay fees as high as those anticipated. If only a portion 
of the fee can be estimated readily, the component's FOIA office shall 
advise the requester accordingly. If the requester is a noncommercial 
use requester, the notice shall specify that the requester is entitled 
to the statutory entitlements of 100 pages of duplication at no charge 
and, if the requester is charged search fees, two hours of search time 
at no charge, and shall advise the requester whether those entitlements 
have been provided.
    (2) In cases in which a requester has been notified that the actual 
or estimated fees are in excess of $25.00, the request shall not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees the requester is willing to pay, or 
in the case of a noncommercial use requester who has not yet been 
provided with the requester's statutory entitlements, designates that 
the requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. The component's FOIA office 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 component's FOIA office estimates 
that the total fee will exceed that amount, the component's FOIA office 
shall toll the processing of the request when it notifies the requester 
of the estimated fees in excess of the amount the requester has 
indicated a willingness to pay. The component's FOIA office shall 
inquire whether the requester wishes to revise the amount of fees the 
requester is willing to pay or modify the request. Once the requester 
responds, the time to respond will resume from where it was at the date 
of the notification.
    (4) The component's FOIA office shall make available their FOIA 
Public Liaison or other FOIA Specialists 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 the component's FOIA office 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 component's FOIA office may charge 
interest on any unpaid bill starting on the 31st day following the date 
of billing the requester. Interest charges shall be assessed at the 
rate provided in 31 U.S.C. 3717 and will accrue from the billing date 
until payment is received by the component's FOIA office. The 
component's FOIA office shall follow the provisions of the Debt 
Collection

[[Page 70729]]

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 component's FOIA office 
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 component's FOIA office 
may aggregate those requests and charge accordingly. The component's 
FOIA office 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, the component's FOIA office 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 shall not be 
aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraph (i)(2) or (3) of this section, the component's FOIA office 
shall not require the requester to make an advance payment before work 
is commenced or continued on a request. Payment owed for work already 
completed (i.e., payment before copies are sent to a requester) is not 
an advance payment.
    (2) When the component's FOIA office determines or estimates that a 
total fee to be charged under this section will exceed $250.00, it may 
require that the requester make an advance payment up to the amount of 
the entire anticipated fee before beginning to process the request. The 
component's FOIA office 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 the component's FOIA office within 30 calendar days 
of the billing date, the component's FOIA office may require that the 
requester pay the full amount due, plus any applicable interest on that 
prior request, and the component's FOIA office may require that the 
requester make an advance payment of the full amount of any anticipated 
fee before the component's FOIA office begins to process a new request 
or continues to process a pending request or any pending appeal. If the 
component's FOIA office 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.
    (4) In cases in which the component's FOIA office requires advance 
payment, the request shall not be considered received and further work 
will not be completed until the required payment is received. If the 
requester does not pay the advance payment within 30 calendar days 
after the date of the component FOIA office's fee determination, the 
request will be closed.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
the component's FOIA office shall inform the requester of the contact 
information for that program.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request shall be furnished without charge or at a 
reduced rate below the rate established under paragraph (c) of this 
section, where the component's FOIA office determines, based on all 
available information, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) In deciding whether disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of operations or activities of the government, 
the component's FOIA office shall consider all four of the following 
factors:
    (i) 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 records must be meaningfully 
informative about government operations or activities in order to be 
``likely to contribute'' to an increased public understanding of those 
operations or activities. The disclosure of information that already is 
in the public domain, in either the same or a substantially identical 
form, would not contribute to such understanding where nothing new 
would be added to the public's understanding.
    (iii) 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. It shall be presumed that a representative of the news 
media will satisfy this consideration.
    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent. However, the 
component's FOIA office shall not make value judgments about whether 
the information at issue is ``important'' enough to be made public.
    (3) To determine whether disclosure of the requested information is 
primarily in the commercial interest of the requester, the component's 
FOIA office shall consider the following factors:
    (i) The component's FOIA office shall identify any commercial 
interest of the requester, as defined in paragraph (b)(1) of this 
section, that would be furthered by the requested disclosure. 
Requesters shall be given an opportunity to provide explanatory 
information regarding this consideration.
    (ii) A waiver or reduction of fees is justified where the public 
interest is greater than any identified commercial interest in 
disclosure. The component's FOIA office ordinarily shall presume that 
where a news media requester has satisfied the public interest 
standard, the public interest will be the interest primarily served by 
disclosure to that requester. Disclosure to data brokers or others who 
merely compile and market government information for direct economic 
return shall not be presumed to primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the component's FOIA office and 
should address the criteria referenced above. A requester may submit a 
fee waiver request at a later time so long as the underlying record 
request is pending or on administrative appeal. When a requester who 
has committed to pay fees subsequently asks for a waiver of those fees 
and that waiver is denied, the requester shall be required to pay any 
costs incurred up to the date the fee waiver request was received. A

[[Page 70730]]

requester may appeal the denial of a fee waiver.


Sec.  212.15  Fees to be charged--requester categories.

    (a) The following specific fees are charged for services rendered:
    (1) Commercial use:
    (i) Search: $40.00 per hour. Search costs will be assessed even 
though no records may be found or even if, after review, there is no 
disclosure or records.
    (ii) Review: $55.00 per hour.
    (iii) Duplication: 10[cent] per page.
    (2) Educational & Non-Commercial Scientific Institutions:
    (i) Search: No fee.
    (ii) Review: No fee.
    (iii) Duplication: 10[cent] per page after the first 100 pages.
    (3) Representatives of the News Media:
    (i) Search: No fee.
    (ii) Review: No fee.
    (iii) Duplication: 10[cent] per page after the first 100 pages.
    (4) All Others:
    (i) Search: Same as ``Commercial Users'' except the first two hours 
shall be furnished without charge.
    (ii) Review: No fee.
    (iii) Duplication: 10[cent] per page after the first 100 pages.
    (b) If copies of records are provided in other than paper format 
(such as on microfiche, video tape, or as electronic data files), or 
other than first-class mail is requested or required, the requester is 
charged the actual cost of providing these additional services.

Subpart K--FOIA Definitions


Sec.  212.16  Glossary.

    As used in this part:
    Administrative FOIA Appeal is an independent review of the initial 
determination made in response to a FOIA request. Requesters who are 
dissatisfied with the response made on their initial request have a 
statutory right to appeal the initial determination made by the 
component's FOIA office.
    Agency is any executive agency, military agency, government 
corporation, government-controlled corporation, or other establishment 
in the executive branch of the Federal Government, or any independent 
regulatory agency. Thus, USAID is an agency.
    Complex request is a request that typically seeks a high volume of 
material or requires additional steps to process such as the need to 
search for records in multiple locations.
    Consultation is when USAID locates a record that contains 
information of substantial interest to another agency, and the 
component's FOIA office asks for the views of that other agency on the 
disclosability of the records before any final determination is made.
    Discretionary disclosure is information that the component's FOIA 
office releases even though it could have been withheld under one of 
the FOIA's exemptions.
    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.
    Electronic record is any information that is recorded in a form 
that only a computer can process and that satisfies the definition of a 
Federal record per the Federal Records Act. Federal electronic records 
are not necessarily kept in a ``recordkeeping system'' but may reside 
in a generic electronic information system or are produced by an 
application such as word processing or electronic mail.
    Exemptions are nine categories of information that are not required 
to be released in response to a FOIA request because release would be 
harmful to a government or private interest. These categories are 
called ``exemptions'' from disclosures.
    Expedited processing is the FOIA response track granted in certain 
limited situations, specifically when a FOIA request is processed ahead 
of other pending requests.
    Freedom of Information Act or FOIA is a United States Federal law 
that grants the public access to information possessed by government 
agencies. Upon written request, U.S. Government agencies are required 
to release information unless it falls under one of nine exemptions 
listed in the Act.
    Frequently requested records are records that have been requested 
three (3) or more times from the component's FOIA office.
    Multi-track processing is a system that divides in-coming FOIA 
requests according to their complexity so that simple requests 
requiring relatively minimal review are placed in one processing track 
and more complex requests are placed in one or more other tracks. 
Requests granted expedited processing are placed in yet another track. 
Requests in each track are processed on a first-in/first-out basis.
    Office of Government Information Services (OGIS) offers mediation 
services to resolve disputes between FOIA requesters and agencies as an 
alternative to litigation. OGIS also reviews agency FOIA compliance, 
policies, and procedures and makes recommendations for improvement. The 
Office is a part of the National Archives and Records Administration, 
and was created by Congress as part of the OPEN Government Act of 2007, 
which amended the FOIA.
    Proactive disclosures are records made publicly available by 
agencies without waiting for a specific FOIA request. Agencies now post 
on their websites' material concerning their functions and mission. The 
FOIA itself requires agencies to make available certain categories of 
information, including final opinions and orders, specific policy 
statements, certain administrative staff manuals and frequently 
requested records.
    Record means information regardless of its physical form or 
characteristics including information created, stored, and retrievable 
by electronic means that is created or obtained by the Agency and under 
the control of the Agency at the time of the request, including 
information maintained for the Agency 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. Information available in 
electronic form shall be searched and compiled in response to a request 
unless such search and compilation would significantly interfere with 
the operation of the Agency's automated information systems.
    Referral occurs when an agency locates a record that originated 
with, or is of otherwise primary interest to another Department, 
agency, or component. It will forward that record to the other agency 
to process the record and to provide the final determination directly 
to the requester.
    Simple request is a FOIA request that a component's FOIA office 
anticipates will involve a small volume of material or which will be 
able to be processed relatively quickly.

Subpart L--Other Rights and Services


Sec.  212.17  Rights and services qualified by the FOIA statute.

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

Subpart M--Privacy Act Provisions


Sec.  212.18  Purpose and scope.

    This subpart contains the rules that the USAID follows under the 
Privacy Act of 1974 (PA), 5 U.S.C. 552a, as amended. These rules should 
be read together with the text of the statute,

[[Page 70731]]

which provides additional information about records maintained on 
individuals. The rules in this subpart apply to all records in systems 
of records maintained by the agency 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 agency. 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 FOIA, as amended. No fees shall be 
charged for access to or amendment of PA records.


Sec.  212.19  Privacy 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 agency and that contains 
the individual's name or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a finger or 
voice print or photograph.
    (d) System of records means a group of any records under the 
control of the agency 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.  212.20  Request for access to records.

    (a) In general. Requests for access to records (other than OIG 
records) under the PA must be made in writing and mailed to the Bureau 
for Management Services, Information and Records Division at the 
address given in Sec.  212.5. Requests for access to OIG records under 
the PA must be made in writing and mailed to the Office of General 
Counsel for the OIG at the address given in Sec.  212.5.
    (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, (city, state 
and country). Helpful data includes the approximate time period of the 
record and the circumstances that give the individual reason to believe 
that the agency 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 
component's FOIA office 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 component's FOIA office 
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 (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.
    (d) Third party access. The component's FOIA office may process 
third party requests, as described in this section. In the absence of a 
request by, or prior written consent of, the individual to whom the 
records pertain, the component's FOIA office will process third party 
requests under the FOIA. The Agency's form, AID 507-1, may be used to 
certify the identity and provide third party authorization.
    (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.
    (2) Guardians. 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.
    (3) Authorized representatives or designees. Third-party access to 
an individual's records shall be granted pursuant to a written request 
by, or with the prior written consent of, the individual. The 
designated third party must submit identity verification information 
described in paragraph (c) of this section.
    (e) Referrals and consultations. If the component's FOIA office 
determines that records retrieved as responsive to the request were 
created by another Department, agency, or component it ordinarily will 
refer the records to the originating agency for direct response to the 
requester. If the agency determines that 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 
component's FOIA office may make agreements with other agencies to 
eliminate the need for consultations or referrals for particular types 
of records.
    (f) 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.
    (g) Time limits. The component's FOIA office will acknowledge the 
request promptly and furnish the requested information as soon as 
possible thereafter.


Sec.  212.21  Request to amend or correct records.

    (a) An individual has the right to request that the component's 
FOIA office 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 to the component's 
FOIA office, and mailed or delivered to the Bureau for Management, 
Office of Management Services, Information and Records Division (for 
non-OIG records), or the Office of the USAID Inspector General (for OIG 
records) at the addresses given in Sec.  212.5, with ATTENTION: PRIVACY 
ACT AMENDMENT REQUEST written on the envelope. The component's FOIA 
office will coordinate the review of the request with the appropriate 
offices of the Agency. The component's FOIA office will require 
verification of personal identity 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

[[Page 70732]]

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 
Agency shall review the record to determine if it is accurate, 
relevant, timely, and complete.
    (e) If the Agency 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 Agency 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 of this chapter.


Sec.  212.22  Request for 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 
component's FOIA office has made to another person, organization, or 
agency of any record about an individual. 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 particular record in question and may 
be made by writing directly to the Appeals Officer, Bureau for 
Management, Office of Management Services at the address given in Sec.  
212.19.
    (b) Where accountings are not required. The component's FOIA office 
is not required to keep an accounting of disclosures in the case of:
    (1) Disclosures made to employees within the Agency who have a need 
for the record in the performance of their duties; and
    (2) Disclosures required under the FOIA.


Sec.  212.23  Appeals from denials of PA amendment requests.

    (a) If the component's FOIA office 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 to the Appeals Review 
Panel. Any such appeal must be postmarked within 60 working days of the 
date of the component FOIA office's denial letter and sent to: Appeals 
Officer, Bureau for Management, Office of Management Services (for non-
OIG records), and Deputy Inspector General, Office of Inspector General 
(for OIG records) at the addresses given in Sec.  212.11.
    (b) Appellants should submit an administrative appeal of any 
denial, in whole or in part, of a request for access to the PA at the 
above address. The component's FOIA office will assign a tracking 
number to the appeal.
    (c) The Appeals Review Panel will decide appeals from denials of PA 
amendment requests within 30 business days, unless the Panel extends 
that period for good cause shown, from the date when it is received by 
the Panel.
    (d) Appeals Review Panel 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 of the Panel 
represents the final decision of the Agency and of the right to seek 
judicial review of the Panel's decision, when applicable.
    (e) If the Panel's decision is that a record shall be amended in 
accordance with the appellant's request, the Chairman--USAID'S FOIA 
Liaison Officer or their designee shall direct the office 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.
    (f) If the Panel's decision is that the amendment request is 
denied, in addition to the notification required by paragraph (d) of 
this section, the Chairman--USAID'S FOIA Liaison Officer or their 
designee-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 Agency;
    (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 Agency, a brief statement by 
the component's FOIA office 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.
    (g) If the appellant files a Statement of Disagreement under 
paragraph (f) of this section, the component's FOIA office 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 component's FOIA office 
will note the dispute and provide a copy of the Statement of 
Disagreement. The component's FOIA office may also include a brief 
summary of the reasons for not amending the record. Copies of the 
component FOIA office'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.  212.24  Specific exemptions.

    (a) Pursuant to 5 U.S.C. 552a(k), the Director or the Administrator 
may, where there is a compelling reason to do so, exempt a system of 
records, from any of the provisions of subsections (c)(3); (d); (e)(1); 
(e)(4) (G), (H), and (I); and (f) of the Act if a system of records is:
    (1) Subject to the provisions of 5 U.S.C. 552(b)(1); (2) 
Investigatory material compiled for law enforcement purposes, other 
than material within the scope of subsection (j)(2) of the Act: 
Provided, however, that if any individual is denied any right, 
privilege, or benefit to which he or she would otherwise be eligible, 
as a result of the maintenance of such material, such material shall be 
provided to such individual, except to the extent that the disclosure 
of such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the 
identity of the source would be held in confidence, or prior to the 
effective date of this section, under an implied promise that the 
identity of the source would be held in confidence;
    (2) Maintained in connection with providing protective services to 
the President of the United States or other individuals pursuant to 18 
U.S.C. 3056;
    (3) Required by statute to be maintained and used solely as 
statistical records;
    (4) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or

[[Page 70733]]

access to classified information, but only to the extent that the 
disclosure of such material would reveal the identity of a source who 
furnished information to the Government under an express promise that 
the identity of the source would be held in confidence, or, prior to 
the effective date of this section, under an implied promise that the 
identity of the source would be held in confidence;
    (5) Testing or examination material used solely to determine 
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; or
    (6) Evaluation material used to determine potential for promotion 
in the armed services, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the 
identity of the source would be held in confidence, or, prior to the 
effective date of this section, under an implied promise that the 
identity of the source would be held in confidence.
    (b) Each notice of a system of records that is the subject of an 
exemption under 5 U.S.C. 552a(k) will include a statement that the 
system has been exempted, the reasons therefore, and a reference to the 
Federal Register, volume and page, where the exemption rule can be 
found.
    (c) The systems of records to be exempted under section (k) of the 
Act, the provisions of the Act from which they are being exempted, and 
the justification for the exemptions, are set forth in paragraphs 
(c)(1) through (3) of this section:
    (1) Criminal Law Enforcement Records. If the 5 U.S.C. 552a(j)(2) 
exemption claimed under Sec.  215.13(c) of this chapter and on the 
notice of systems of records to be published in the Federal Register on 
this same date is held to be invalid, then this system is determined to 
be exempt, under 5 U.S.C. 552(a) and (k)(1) and (2) of the Act, from 
the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f). The reasons for asserting the exemptions are to protect 
the materials required by executive order to be kept secret in the 
interest of the national defense or foreign policy, to prevent subjects 
of investigation from frustrating the investigatory process, to insure 
the proper functioning and integrity of law enforcement activities, to 
prevent disclosure of investigative techniques, to maintain the ability 
to obtain necessary information, to fulfill commitments made to sources 
to protect their identities and the confidentiality of information and 
to avoid endangering these sources and law enforcement personnel.
    (2) Personnel Security and Suitability Investigatory Records. This 
system is exempt under U.S.C. 552a(k)(1), (2), and (5) from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G) through (I), 
and (f). These exemptions are claimed to protect the materials required 
by executive order to be kept secret in the interest of national 
defense or foreign policy, to prevent subjects of investigation from 
frustrating the investigatory process, to insure the proper functioning 
and integrity of law enforcement activities, to prevent disclosure of 
investigative techniques, to maintain the ability to obtain candid and 
necessary information, to fulfill commitments made to sources to 
protect the confidentiality of information, to avoid endangering those 
sources and, ultimately, to facilitate proper selection or continuance 
of the best applicants or persons for a given position or contract. 
Special note is made of the limitation on the extent to which this 
exemption may be asserted.
    (3) Litigation Records. This system is exempt under 5 U.S.C. 
552(k)(1), (2), and (5) from the provisions of 5 U.S.C. 552a(c)(3), 
(d), (e)(1), (e)(4)(G) through (I), and (f). These exemptions are 
claimed to protect the materials required by executive order to be kept 
secret in the interest of national defense or foreign policy, to 
prevent subjects of investigation from frustrating the investigatory 
process, to insure the proper functioning and integrity of law 
enforcement activities, to prevent disclosure of investigative 
techniques, to maintain the ability to obtain candid and necessary 
information, to fulfill commitments made to sources to protect the 
confidentiality of information.

Christopher A. Colbow,
Chief, Information and Records Division, FOIA Public Liaison/Agency 
Records Officer, U.S. Agency for International Development.
[FR Doc. 2022-24180 Filed 11-18-22; 8:45 am]
BILLING CODE 6116-01-P