Public Access to Information, 71737-71754 [2023-22380]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 88, Number 200 (Wednesday, October 18, 2023)]
[Rules and Regulations]
[Pages 71737-71754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22380]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 171

[Public Notice 12153]
RIN 1400-AE00


Public Access to Information

AGENCY: Department of State.

ACTION: Final rule.

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

SUMMARY: The Department of State (the Department) finalizes the 
proposed rule it published on March 3, 2020, relating to the 
availability to the public of information that is under the control of 
the Department. These changes were prompted by changes in the law 
governing disclosure of such information, including the Freedom of 
Information Act Improvement Act of 2016. This final rule reflects 
changes in the FOIA and consequent changes in the Department's 
procedures since the last major revision of the Department's 
regulations on public access to information, which occurred in 2016.

DATES: This rule is effective on November 17, 2023.

FOR FURTHER INFORMATION CONTACT: Kellie Robinson, Office of Information 
Programs and Services, [email protected], 202-261-8484.

SUPPLEMENTARY INFORMATION: This rule finalizes the Notice of Proposed 
Rulemaking that was published on March 3, 2020. 85 FR 13104. It 
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 summary of the substantive changes to 
Part 171 was included in the NPRM but is provided here for convenience.
    The 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 rule (Sec. Sec.  171.10 through 171.17) contains 
the rules governing the processing of a FOIA request. Section 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. Section 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. Section 171.13 covers 
responses to requests, including the procedures upon denial of a 
request. The updates add a provision for consultation with the 
Department of Justice's Office of Information Policy with respect to 
invocation of a FOIA exclusion. Section 171.14 modifies the 
Department's process with respect to reviews of confidential commercial 
information, including procedures for the owner of the information to 
object to the release of the information.
    Section 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. Section 
171.16 provides updates on the fees to be charged for FOIA requests, 
including how fees are calculated. This section provides an updated 
explanation of the term, ``representative of the news media.''
    Subpart C contains the rule's Privacy Act provisions. There are two 
substantive changes in this subpart from that published in the NPRM. 
The first relates to a Privacy Act exemption that was published after 
the NPRM was published. See the final rule on March 9, 2020, ``Privacy 
Act; STATE-01, Email Archive Management Records,'' 85 FR 13482. This 
SORN was added to the lists in paragraph (a)(2)(iii), and (b)(1), (2), 
(3), (4), (5), (6) and (7). However, the Department has now determined 
that this item was added in error, and the Department is removing 
STATE-01 from the lists of Privacy Act exemptions in Sec. Sec.  
171.26(a)(2)(iii), (b)(2), (b)(3), (b)(4), (b)(5), (b)(6), and (b)(7). 
The reason for this action is that the Department has determined that 
its email records do not constitute a system of records under the 
Privacy Act; therefore, STATE-01, ``Email Archive Management Records'', 
will be

[[Page 71738]]

rescinded. The Department finds that there is good cause for making 
this amendment subsequent to the Notice of Proposed Rulemaking. Since 
STATE-01 will be rescinded as not describing a system of records under 
the Privacy Act, it must be removed from the lists in Sec.  171.26.
    Also in Subpart C, there is a change relating to the ``Risk 
Analysis and Management'' System of Records Notice (SORN) (STATE-78), 
which was established in 2011.\1\ At the time, it appeared that the 
Department anticipated sending and receiving classified national 
security name checks on some individuals. For that reason, this 
Department provided notice that this SORN would be exempt from certain 
portions of the Privacy Act, including Sec.  552a(k)(1), which exempts 
records from certain provisions of the Privacy Act if the records are 
classified records subject to the provisions of 5 U.S.C. 552(b)(1). As 
it turned out, no classified records have been, or will be, included in 
STATE-78. Therefore, the exemption is not required, and the Department 
is removing it from the list in Sec.  171.26(b)(1). Although this is a 
new action taken since the proposed rule was published, the Department 
believes that public comment thereon is not required since the 
Department is removing, not imposing, a Privacy Act exemption, and it 
is in the public interest for such action to be concluded 
expeditiously.
---------------------------------------------------------------------------

    \1\ 76 FR 76103, finalized at 80 FR 1847.
---------------------------------------------------------------------------

    In Subpart D, the rule adds information about processing of 
requests for confidential financial disclosure reports.
    Finally, the final rule makes minor changes throughout, to conform 
more closely to the Department of Justice Office of Information Policy 
(OIP) Template for Agency FOIA Regulations, https://www.justice.gov/oip/template-agency-foia-regulations (the ``OIP Template'') \2\ and to 
implement operational lessons learned since the last major revision of 
the Department's FOIA regulations on April 6, 2016. See ``Public Access 
to Information'', 81 FR 19863. The names of two Department bureaus have 
changed since publication of the NPRM: the Bureau of Human Resources is 
now the Bureau of Global Talent Management; and the Office of Medical 
Services is now the Bureau of Medical Services.
---------------------------------------------------------------------------

    \2\ See also ``Guidance for Agency FOIA Regulations'' at https://www.justice.gov/oip/oip-guidance/guidance-agency-foia-regulations 
(last accessed March 30, 2021)
---------------------------------------------------------------------------

Response to Public Comments

    The Department would like to thank the members of the public for 
reviewing the proposed changes to the FOIA and Privacy Act regulations, 
and for providing very useful feedback. The Department received 10 
substantive comments, which were contained in two documents, from the 
International Refugee Assistance Project (IRAP) and the Immigration 
Reform Law Institute (IRLI). The Department also received four 
submissions that were nonresponsive, in that they had nothing to do 
with the proposed rule.
    First public comment:
    IRAP stated that it is concerned about the lack of explanation or 
justification by the Department for the proposed changes to its FOIA 
regulations.
    Department response:
    As noted in the proposed rule, there have been changes in the law 
governing disclosure of information, including the Freedom of 
Information Act Improvement Act of 2016. The Department is revising its 
FOIA regulations to make them consistent with the FOIA Improvement Act 
of 2016 and current law, policy, and the Department of Justice, Office 
of Information Policy, template for agency FOIA regulations.
    Second public comment:
    IRAP suggests that the proposed rule in Sec.  171.4(a)(7), Proof of 
Third-Party Consent, contains too broad a discretion to effectively 
deny requests, without any substantive standard or procedural 
safeguards to ensure that the Department's denial is appropriate. IRAP 
further contends that the Department did not take into account the 
difficulties this could impose on some requesters considering the 
burden the requirements for obtaining such records can be in the 
immigration context. These requesters are often overseas in difficult 
circumstances as they await the results of their application for 
resettlement in the United States and may face the possible struggle to 
find safe and affordable access to a printer and scanner, notary, and 
postal service.
    Department response:
    With respect to requests for third-party records, Sec.  171.4(a)(7) 
provides that ``a requester may receive greater access by submitting a 
notarized authorization signed by the person whose records are 
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).'' The rule does not require the 
requester to produce all these items. In fact, the rule does not say 
that the requester must produce any of the items, but that there might 
be a more expeditious response if more information is presented. The 
provisions of this rule are intended to advise the requester of the 
type of documentation to submit to ensure the most expeditious release 
of responsive records, while still protecting the privacy of the 
individual to whom the records pertain. It is not intended to deny the 
disclosure of records.
    The Department agrees to remove the text, ``As an exercise of 
administrative discretion, the Department may require a requester to 
supply additional information in order to verify that a particular 
individual has consented to disclosure or is deceased.''
    Pertaining to requests for visa records (Sec.  171.4(a)(8)), the 
requirements have been simplified. The Department has eliminated the 
requirement for the submission of the country and Foreign Service post 
where the visa application was made; when the visa application was 
made; and whether the visa application was granted or denied (and if 
denied, on what grounds).
    The Department's public FOIA website provides requesters with 
further information regarding the electronic submission of their 
request and supplemental documentation, thereby eliminating the need 
for a requester to have access to a printer, scanner, notary, or postal 
service. The Department does not see a need to make any revisions to 
this section.
    Third public comment:
    IRAP notes that the proposed rule text in proposed Sec.  
171.4(a)(8), Documents in Visa Files Not Within 212(f), omits language 
in the current regulations on visa-related requests. Specifically, it 
omits what types of records may be released. IRAP suggests that the 
change expands the scope of the exemption and has the potential to harm 
applicants by preventing them from obtaining important notices about 
benefits and leaving them without a means to obtain those documents.
    Department response:
    The Department will add the following text to the end of Sec.  
171.4(a)(8): ``Other information found in the visa file, such as 
information submitted as part of the visa application and information 
not falling within section 222(f) or another FOIA exemption, may be 
provided to the requester.''
    Fourth public comment:
    IRAP suggests that the proposed rule in Sec.  171.4(b), Description 
of Records

[[Page 71739]]

Sought, adds text that would give the Department broad discretion to 
deny or delay requests that are not able to meet this high standard of 
specificity. Also, IRAP contends that a requester may be able to 
provide some specifics regarding the topic matter but will not be able 
to provide such details as the author, file designation, or reference 
number of records that have never before been made publicly available.
    Department response:
    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. If a requester submits a request that 
meets the criteria, the request will be processed. 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. FOIA calls for as much specificity as requesters can 
provide; if the Department cannot identify the record, it cannot act on 
the request, and it is up to requesters to identify what records they 
are seeking (see FOIA subsections (a)(1)-(3) and (b)). In addition, the 
proposed section is drawn directly from the DOJ Template, Section III. 
The final rule is consistent with current law, policy, and the OIP 
Template.
    Fifth public comment:
    IRAP is concerned that the proposed regulation on expedited 
processing (proposed Sec.  171.12(d), Grounds for Expedited 
Processing), removes the text ``compelling need'' as a factor in 
expedited processing.
    Department response:
    The Department agrees to revise the text to state that ``requests 
shall receive expedited processing when a requester demonstrates that a 
`compelling need' for the information exists. A `compelling need' is 
deemed to exist where the requester can demonstrate one of the 
following:''
    Sixth public comment:
    IRAP stated that the proposed text in Sec.  171.12(d)(4), Timeline 
to Appeal Denial of Expedited Processing, removes language in the 
current regulations about a timeline for appealing a denial of 
expedited processing and provides only that ``[i]f a request for 
expedited processing is denied, the Department must act on any appeal 
of that decision expeditiously.''
    Department response:
    The Department agrees to revise the text to state that ``A denial 
of a request for expedited processing may be appealed within 90 
calendar days of the date of the Department's letter denying the 
request. A decision in writing on the appeal will be issued within 10 
calendar days of the receipt of the appeal.''
    Seventh public comment:
    Regarding proposed Sec.  171.14(c)(1-2), When Notice to Submitters 
Is Not Required, IRAP states that the ``Department does not provide a 
reason why it would not provide individual notifications to ensure that 
all submitters were informed, rather than `likely' to be informed, of 
the `descri[ption] of the business information requested' or `copy of 
the requested records or record portions containing the information' in 
the notice.''
    Department response:
    The Department proposed the change to the rule as a way of 
facilitating handling notifications when there are voluminous 
responses. However, after review, the Department will delete the 
additional text.
    Eighth public comment:
    In proposed Sec.  171.15(a)(1), Incorrect Citation, IRAP states 
that the proposed text for Sec.  171.15(a)(1) cites to examples of 
adverse determination in Sec.  171.13(d) of the proposed text. The text 
should cite to the proposed Sec.  171.13(e).
    Department response:
    The Department agrees to revise the incorrect citation at Sec.  
171.15(a)(1) from Sec.  171.13(d) to Sec.  171.13(e).
    Ninth public comment:
    IRAP states that, in Sec.  171.16, Costs of Search and Review Time, 
the proposed text for Sec.  171.16(b)(5) and Sec.  171.16(b)(6) removes 
provisions in the current regulations for costs of search and review 
time and a quota of pages provided free of charge. The commenter is 
concerned that this will impact certain categories of requesters when 
they do not meet the criteria for those who are not charged fees.
    Department response:
    The Department will add the following text as the penultimate 
sentence of Sec.  171.16(b)(5): ``Noncommercial scientific institution 
requesters will not be charged for search and review time, and the 
first 100 pages of the duplication will be provided free of charge.'' 
The Department will add the following text as the penultimate sentence 
of Sec.  171.16(b)(6): ``A representative of the news media will not be 
charged for search and review time, and the first 100 pages of the 
duplication will be provided free of charge.''
    Tenth public comment:
    The Immigration Reform Law Institute (IRLI) is ``primarily 
interested in the effect the proposed rule will have on public interest 
waiver FOIA procedures.''
    Department response:
    The text of Sec. Sec.  171.16(j)(1)-(4) sets forth the requirements 
for waiver or reduction of fees. These sections are consistent with the 
FOIA and comply with the OIP Template. The Department is unaware of any 
reason why the revised rule would have any effect on public interest 
waivers of fees.

Regulatory Findings

Administrative Procedure Act

    The Department published this rule under the provisions of 5 U.S.C. 
553 and provided for 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.

Congressional Review Act

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996.

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

[[Page 71740]]

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 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review), and 14094 (Modernizing 
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 Office of Management and Budget has designated this rule 
as significant under E.O. 12866, as amended. The benefits of this 
rulemaking for the public include: providing the public with an up-to-
date procedure for requesting information from the Department that is 
consistent with the FOIA Improvement Act of 2016, updating its 
procedures for communicating electronically with requesters, including 
in its acknowledgment a brief description of the records sought to 
allow requesters to more easily keep track of their requests, adding a 
provision that the Department may divide a multi-part request into 
multiple requests to facilitate processing, adding a provision for 
consultation with the Department of Justice's Office of Information 
Policy with respect to invocation of a FOIA exclusion, providing 
information regarding the reasons for a denial and any FOIA exemptions 
applied in denying the request, revising the timeline for submission of 
appeals to 90 days, providing requesters with information regarding 
assistance available from the Department's FOIA Public Liaison and the 
dispute resolution services offered by the Office of Government 
Information Services (OGIS), updating information on the fees to be 
charged for FOIA requests, and updating its description of 
``representative of the news media,'' The Department is aware of no 
cost to the public from this rulemaking.

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.

0
1. For the reasons set forth in the preamble, 22 CFR part 171 is 
revised 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 Confidential commercial 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; 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. Ch. 131); 5 CFR part 2634.

Subpart A--General Policy and Procedures


Sec.  171.1  General provisions.

    (a) In General. 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. 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 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 Global Talent Management; the 
Bureau of Medical Services; and the Foreign Service Grievance Board.
    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.
    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). Requesters should visit USAID's 
website for further information.
    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 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.


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

[[Page 71741]]

and lawful 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) 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 System of Records Notices are available at www.state.gov/privacy. 
In addition, see 22 CFR part 173 regarding release within the United 
States of public diplomacy program material generated pursuant to the 
U.S. Information and Educational Exchange Act of 1948, as amended (22 
U.S.C. 1431, et seq., also referred to as the Smith-Mundt Act).
    (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) 485-1669, 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) 485-1669, 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 STATE-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 1400, Arlington, VA 22209. Submission by email is 
preferred. Guidance and contact information are 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 of Subpart C (the 
Privacy Act Provisions) of this part 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 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).
    (8) 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, 
requesters may submit a DS-4240-R to certify their identity or a DS-
4240-C 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. Other information found in the visa 
file, such as information submitted as part of the visa application and 
information not falling within section 222(f) or another FOIA

[[Page 71742]]

exemption, may be provided to the requester.
    (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 shall inform the requester what additional 
information is needed or why the request is otherwise insufficient. If 
a request does not reasonably describe the records sought, the agency's 
response to the request may be delayed. 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) Privacy Act versus FOIA. 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 
lawful permanent residents 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 (RD-F), 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 that 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) (see www.justice.gov/oip/foia-resources#s5); and information located at www.foia.state.gov.


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 
Directorates for Visa Services, Passport Services, and Overseas 
Citizens Services, in the Bureau of Consular Affairs; the Bureau of 
Diplomatic Security; the Bureau of Global Talent Management; and the 
Bureau 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 the request is received by 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 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.

[[Page 71743]]

    (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 FOIA Public Liaison for 
this purpose (see foia.state.gov/contact/). 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) Requests shall receive expedited 
processing when a requester demonstrates that a compelling need for the 
information exists. A compelling need is deemed to exist when the 
requester can demonstrate one of the following:
    (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 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

[[Page 71744]]

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. A 
denial of a request for expedited processing may be appealed within 90 
calendar days of the date of the Department's letter denying the 
request. A decision in writing on the appeal will be issued within 10 
calendar days of the receipt of the appeal.


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 exemptions 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;
    (4) A statement that the denial may be appealed under Sec.  171.15 
and a description of the requirements set forth therein; and
    (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  Confidential commercial information.

    (a) Definitions. The following definitions apply for purposes of 
this section:
    Confidential commercial 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).
    Submitter means any person or entity from which the Department 
obtains confidential commercial information, directly or indirectly. 
The term includes corporations, partnerships, and sole proprietorships; 
state, local, and tribal governments; foreign governments; NGOs; and 
educational institutions. This term does not include another Federal 
Government entity.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial 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 
confidential commercial 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 confidential commercial 
information requested or include a copy of the requested records or 
record portions containing the information.
    (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;

[[Page 71745]]

    (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. If 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 confidential commercial 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 confidential commercial 
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(e). 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) 485-1718; 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 1400, 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.
    (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 generally must 
first submit a timely administrative appeal.


Sec.  171.16  Fees to be charged.

    (a) In general. 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: (1) commercial use 
requesters, (2) non-commercial scientific or educational institutions 
or news media requesters, and (3) all other requesters. Different fees 
are assessed depending on the category. Requesters may seek a fee 
waiver. The Department considers fee waivers in accordance with the 
requirements set forth below. To resolve

[[Page 71746]]

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:
    Charging fees. In responding to FOIA requests, the Department will 
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.
    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.
    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.
    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.
    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.
    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 which 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. 
Noncommercial scientific institution requesters will not be charged for 
search and review time, and the first 100 pages of the duplication will 
be provided free of charge. The Department will advise requesters of 
their placement in this category.
    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. A representative of the news media will not be charged 
for search and review time, and the first 100 pages of the duplication 
will be provided free of charge. The Department will advise requesters 
of their placement in this category.
    Review is the examination of a record located in response to a 
request to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential commercial information submitter under Sec.  
171.14 but it does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    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.
    (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 the 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

[[Page 71747]]

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 entitlement 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 an 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 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

[[Page 71748]]

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 FOIA fees 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 FOIA fees to 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. 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

[[Page 71749]]

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:
    Individual means a citizen or a lawful permanent resident (LPR) of 
the United States.
    Maintain includes maintain, collect, use, or disseminate.
    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.
    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 Law Enforcement Liaison Division of the Passport Services 
directorate 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 Law 
Enforcement Liaison Division of the Passport Services directorate 
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 Global Talent Management, the Bureau 
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 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 forms DS-4240-R 
and DS-4240-C, respectively, 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. When making a request as 
the parent or guardian of a minor child, for access to records about 
that individual, a requester must establish: (1) the identity of the 
individual who is the subject of the records, by stating the name, 
current address, date and place of birth; (2) the requester's own 
identity, as required in paragraph (c) of this section; (3) 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 
(4) 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

[[Page 71750]]

request as the guardian of someone determined by a court to be 
incompetent, for access to records about that individual, a requester 
must establish: (1) the identity of the individual who is the subject 
of the records, by stating the name, current address, date and place of 
birth; (2) the requester's own identity, as required in paragraph (c) 
of this section; (3) 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 (4) that the requester is 
acting on behalf of that individual in making the request.
    (ii) 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). 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 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 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 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) 485-1718; or by 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 FOIA Appeals Office using any of the 
following methods: by mail to the Appeals Officer, Office of 
Information Programs and Services (A/GIS/IPS),

[[Page 71751]]

Room B-266, U.S. Department of State, 2201 C Street NW, Washington, DC 
20520; by fax to (202) 485-1718; or by email to [email protected]. 
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), 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 in the Federal Register by 
the Department.

                    Table 1 to Paragraph (a)(2)(iii)
------------------------------------------------------------------------
                 Title                                 No.
------------------------------------------------------------------------
Information Access Program Records.....  STATE-35.
Office of Inspector General              STATE-53.
 Investigation Management System.
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.

[[Page 71752]]

    (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).

                       Table 2 to Paragraph (b)(1)
------------------------------------------------------------------------
                 Title                                 No.
------------------------------------------------------------------------
Board of Appellate Review Records......  STATE-02.
Congressional Correspondence...........  STATE-43.
Congressional Travel Records...........  STATE-44.
Coordinator for the Combating of         STATE-06.
 Terrorism Records.
External Research Records..............  STATE-10.
Extradition Records....................  STATE-11.
Family Advocacy Case Records...........  STATE-75.
Foreign Assistance Inspection Records..  STATE-48.
Human Resources Records................  STATE-31.
Information Access Programs Records....  STATE-35.
Intelligence and Research Records......  STATE-15.
International Organizations Records....  STATE-17.
Law of the Sea Records.................  STATE-19.
Legal Case Management Records..........  STATE-21.
Munitions Control Records..............  STATE-42.
Office of Inspector General              STATE-53.
 Investigation Management System.
Overseas Citizens Services Records.....  STATE-05.
Passport Records.......................  STATE-26.
Personality Cross Reference Index to     STATE-28.
 the Secretariat Automated Data Index.
Personality Index to the Central         STATE-29.
 Foreign Policy Records.
Personnel Payroll Records..............  STATE-30.
Records of Domestic Accounts Receivable  STATE-23.
Records of the Office of the Assistant   STATE-54.
 Legal Adviser for International Claims
 and Investment Disputes.
Records of the Office of White House     STATE-34.
 Liaison.
Refugee Records........................  STATE-59.
Rover Records..........................  STATE-41.
Security Records.......................  STATE-36.
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).

                       Table 3 to Paragraph (b)(2)
------------------------------------------------------------------------
                 Title                                 No.
------------------------------------------------------------------------
Board of Appellate Review Records......  STATE-02.
Coordinator for the Combating of         STATE-06.
 Terrorism Records.
Extradition Records....................  STATE-11.
Family Advocacy Case Records...........  STATE-75.
Foreign Assistance Inspection Records..  STATE-48.
Garnishment of Wages Records...........  STATE-61.
Information Access Program Records.....  STATE-35.
Intelligence and Research Records......  STATE-15.
Munitions Control Records..............  STATE-42.
Office of Foreign Missions Records.....  STATE-81.
Office of Inspector General              STATE-53.
 Investigation Management System.
Overseas Citizens Services Records.....  STATE-05.
Passport Records.......................  STATE-26.
Personality Cross Reference Index to     STATE-28.
 the Secretariat Automated Data Index.
Personality Index to the Central         STATE-29.
 Foreign Policy Records.
Risk Analysis and Management Records...  STATE-78.
Security Records.......................  STATE-36.
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.

[[Page 71753]]



                       Table 4 to Paragraph (b)(3)
------------------------------------------------------------------------
                 Title                                 No.
------------------------------------------------------------------------
Extradition Records....................  STATE-11.
Information Access Programs Records....  STATE-35.
Intelligence and Research Records......  STATE-15.
Overseas Citizens Services Records.....  STATE-05.
Passport Records.......................  STATE-26.
Personality Cross-Reference Index to     STATE-28.
 the Secretariat Automated Data Index.
Personality Index to the Central         STATE-29.
 Foreign Policy Records.
Security Records.......................  STATE-36.
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.

                       Table 5 to Paragraph (b)(4)
------------------------------------------------------------------------
                 Title                                 No.
------------------------------------------------------------------------
Foreign Service Institute Records......  STATE-14.
Human Resources Records................  STATE-31.
Information Access Programs Records....  STATE-35.
Overseas Citizens Services Records.....  STATE-05.
Personnel Payroll Records..............  STATE-30.
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.

                       Table 6 to Paragraph (b)(5)
------------------------------------------------------------------------
                 Title                                 No.
------------------------------------------------------------------------
Foreign Assistance Inspection Records..  STATE-48.
Foreign Service Grievance Board Records  STATE-13.
Human Resources Records................  STATE-31.
Information Access Programs Records....  STATE-35.
Legal Adviser Attorney Employment        STATE-20.
 Application Records.
Office of Inspector General              STATE-53.
 Investigation Management System.
Overseas Citizens Services Records.....  STATE-25.
Personality Cross-Reference Index to     STATE-28.
 the Secretariat Automated Data Index.
Records Maintained by the Office of      STATE-09.
 Civil Rights.
Records of the Office of White House     STATE-34.
 Liaison.
Risk Analysis and Management Records...  STATE-78.
Rover Records..........................  STATE-41.
Security Records.......................  STATE-36.
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 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.

                       Table 7 to Paragraph (b)(6)
------------------------------------------------------------------------
                 Title                                 No.
------------------------------------------------------------------------
Foreign Service Institute Records......  STATE-14.
Human Resources Records................  STATE-31.
Information Access Programs Records....  STATE-35.
Records Maintained by the Office of      STATE-09.
 Civil Rights.
Security Records.......................  STATE-36.
------------------------------------------------------------------------


[[Page 71754]]

    (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.

                       Table 8 to Paragraph (b)(7)
------------------------------------------------------------------------
                 Title                                 No.
------------------------------------------------------------------------
Human Resources Records................  STATE-31.
Information Access Programs Records....  STATE-35.
Overseas Citizens Services Records.....  STATE-25.
Personality Cross-Reference Index to     STATE-28.
 the Secretariat Automated Data Index.
Personality Index to the Central         STATE-29.
 Foreign Policy Records.
Security Records.......................  STATE-36.
------------------------------------------------------------------------

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, as amended, recodified at 5 U.S.C. 13103 and 13105. The 
retention, public availability, and improper use of these reports are 
governed by 5 U.S.C. 13107 and 5 CFR 2634.603. It also sets forth the 
prohibition 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. 13109 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 to 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 in this section.


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.

Kevin E. Bryant,
Deputy Director, Office of Directives Management, Department of State.
[FR Doc. 2023-22380 Filed 10-17-23; 8:45 am]
BILLING CODE 4710-24-P