[Federal Register: June 4, 2007 (Volume 72, Number 106)]
[Proposed Rules]
[Page 30734-30739]
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OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
32 CFR Chapter XVII
Freedom of Information Act Regulations
AGENCY: Office of the Director of National Intelligence.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposed regulation will provide the public the
guidelines under which the Office of the Director of National
Intelligence will implement the Freedom of Information Act, 5 U.S.C.
552.
DATES: Submit comments on or before July 5, 2007.
ADDRESSES: You may submit comments by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Chief FOIA Officer c/o Director of Intelligence Staff, Office
of the Director of National Intelligence, Washington, DC 20511.
FOR FURTHER INFORMATION CONTACT: Mr. John F. Hackett, (703) 482-1707.
SUPPLEMENTARY INFORMATION: The Office of the Director of National
Intelligence (ODNI) was created by the Intelligence Reform and
Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638.
The first Director of National Intelligence, Ambassador John D.
Negroponte, was sworn into Office on April 21, 2005, and the ODNI began
operations on April 22, 2005. Because the majority of documents held by
the ODNI at its inception were previously maintained by the Central
Intelligence Agency (CIA), and because the ODNI did not have a FOIA
staff upon stand-up, the CIA agreed to handle the administrative
aspects of the ODNI's FOIA processing. Through this arrangement, the
ODNI makes all legal decisions regarding the handling of FOIA requests
for ODNI records and the CIA assists with the administrative tasks
associated with processing FOIA requests, including the intake and
tracking of requests, as well as drafting correspondence to requesters.
The ODNI has gradually built up its FOIA program and is now proposing
its own FOIA regulations. The proposed regulations address all aspects
of FOIA processing, including how and where to submit FOIA requests,
fees for record services, procedures for handling business information,
requests for expedited processing and the right to appeal denials of
information.
Therefore, as discussed in the preamble, and under the authority of
the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L.
108-458, 118 Stat. 3638, the ODNI proposes to establish 32 CFR Chapter
XVII and add part 1700 to read as follows:
CHAPTER XVII--OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
PART 1700--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM
OF INFORMATION ACT
Sec.
1700.1 Authority and purpose.
1700.2 Definitions.
1700.3 Contact for general information and requests.
1700.4 Suggestions and complaints.
1700.5 Preliminary information.
1700.6 Requirements as to form and content.
1700.7 Fees for records services.
1700.8 Processing of requests for records.
1700.9 Action on the request.
1700.10 Payment of fees, notification of decision, and right of
appeal.
1700.11 Procedures for business information.
1700.12 Procedures for information concerning other persons.
1700.13 Allocation of resources.
1700.14 Requests for expedited processing.
1700.15 Right of appeal and appeal procedures.
1700.16 Action by appeals authority.
Authority: 5 U.S.C. 552, 50 U.S.C. 401-442; Pub L. 108-458, 188
Stat. 3638.
Sec. 1700.1 Authority and purpose.
(a) Authority: This part is issued under the authority of and in
order to implement the Freedom of Information Act, as amended, 5 U.S.C.
552; the National Security Act of 1947, as amended, 50 U.S.C. 401-442;
and the Intelligence Reform and Terrorism Prevention Act of 2004, Pub.
L. 108-458, 118 Stat. 3638.
(b) Purpose in general. This part prescribes procedures for:
(1) ODNI administration of the FOIA;
(2) Requesting records pursuant to the FOIA; and
(3) Filing an administrative appeal of an initial adverse decision
under the FOIA.
Sec. 1700.2 Definitions.
For purposes of this part, the following terms have the meanings
indicated:
(a) Days means calendar days when ODNI is operating and
specifically excludes Saturdays, Sundays, and legal public holidays;
(b) Control means actual possession and ownership or the authority
of ODNI pursuant to federal statute or privilege to regulate official
or public access to a particular record or records. It does not
establish an obligation to create any record or data compilation,
although ODNI reserves the right to offer production of a compilation
as an alternative to production of records;
(c) Direct costs means those expenditures which ODNI actually
incurs in the processing of a FOIA request; it does not include
overhead factors such as space;
(d) Pages means paper copies of standard office size or the dollar
value equivalent in other media;
(e) Reproduction means generation of a copy of a requested record
in a form appropriate for release;
(f) Review means all time expended in examining a record to
determine whether any portion must be withheld pursuant to law and in
effecting any required deletions but excludes personnel hours expended
in resolving general legal or policy issues; it also means personnel
hours of professional time;
(g) Search means all time expended in looking for and retrieving
material that may be responsive to a request utilizing available paper
and electronic indices and finding aids; it also means personnel hours
of professional time or the dollar value equivalent in computer
searches;
(h) Employee or staff member means any employee, detailee,
assignee, employee of a contracting organization or independent
contractor of the ODNI or any of its component organizations, unless
otherwise excepted;
(i) Expression of interest means a written or electronic
communication submitted by any person requesting information on or
concerning the FOIA program, the availability of documents from ODNI,
or both;
(j) Fees means those direct costs which may be assessed a requester
considering the categories established by the FOIA; requesters should
submit information to assist the ODNI in determining the proper fee
category and the ODNI may draw reasonable inferences from the identity
and activities of the requester in making such determinations; the fee
categories include:
(1) Commercial: A request in which the disclosure sought is
primarily in the commercial interest of the requester and
[[Page 30735]]
which furthers such commercial, trade, income or profit interests;
(2) Non-commercial educational or scientific institution: A request
from an accredited United States educational institution at any
academic level or institution engaged in research concerning the
social, biological, or physical sciences or an instructor or researcher
or member of such institutions; it also means that the information will
be used in a specific scholarly or analytical work, will contribute to
the advancement of public knowledge, and will be disseminated to the
general public;
(3) Representative of the news media: Any person actively gathering
news for an entity that is organized and operated to publish or
broadcast news to the public. 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 broadcasting to the public at large and publishers of
periodicals (but only in those instances where they can qualify as
disseminators of ``news'') who make their products available for
purchase or subscription by the general public. For ``freelance''
journalists to be regarded as working for a news organization, they
must demonstrate a solid basis for expecting publication through that
organization. A publication contract would be the clearest proof, but
components shall also look to the past publication record of a
requester in making this determination. To be in this category, a
requester must not be seeking the requested records for a commercial
use. However, a request for records supporting the news-dissemination
function of the requester shall not be considered to be for a
commercial use.
(4) All other: A request from an individual not within paragraphs
(j)(1), (2), or (3) of this section;
(k) Freedom of Information Act, ``FOIA,'' or ``the Act'' means the
statute as codified at 5 U.S.C. 552;
(l) Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
the ODNI, has a subject matter or physical interest in the documents or
information at issue;
(m) ODNI means the Office of the Director of National Intelligence
and its component organizations. It does not include members of the
Intelligence Community as defined by the National Security Intelligence
Reform Act of 2004, section 1073, or other federal entities
subsequently designated in accordance with this authority, unless
specifically designated as included in this Part or in the notice of a
system of records;
(n) Originator means the U.S. Government official who originated
the document at issue or successor in office or such official who has
been delegated release or declassification authority pursuant to law;
(o) Potential requester means a person, organization, or other
entity who submits an expression of interest;
(p) Reasonably described record means a description of a record by
unique identification number or descriptive terms that permits an ODNI
staff member familiar with the subject matter area to locate documents
with reasonable effort given existing indices and finding aids;
(q) Records means all documents, irrespective of physical or
electronic form, under the control of ODNI pursuant to federal law or
in connection with the transaction of public business at the time ODNI
accepts an expression of interest as a formal request or initiates a
search, whichever is later, and appropriate for preservation by the
ODNI as evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the ODNI or because of
the informational value of the data contained therein; it does not
include:
(1) Commercially available materials or materials made available in
electronic or other public reading rooms, except to the extent that
such materials are incorporated into any form of analysis or otherwise
distributed or published by ODNI;
(2) Personal records maintained by ODNI staff that have not been
created, used, disseminated or maintained in a manner inconsistent with
their characterization as private;
(3) Objects or items, such as equipment, machinery or material,
whatever the historical or evidentiary value; and
(4) Anything that is not a tangible reduction of information to
accessible electronic or paper media, such as an individual's memory or
oral communications.
(r) Responsive records means those records that ODNI has determined
to be within the scope of a formal request.
Sec. 1700.3 Contact for general information and requests.
For general information on this Part, to inquire about the FOIA
program at ODNI, or to file a FOIA request (or expression of interest),
please direct communication in writing to the Office of the Director of
National Intelligence, Chief FOIA Officer c/o Director, Information
Management Office, Washington, DC 20511 by mail or by facsimile at
(703) 482-2144. For general information or status information on
pending cases only, call the ODNI FOIA Customer Service Center at (703)
482-1707. Collect calls cannot be accepted.
Sec. 1700.4 Suggestions and complaints.
ODNI welcomes suggestions or complaints with regard to its
administration of the FOIA. Letters of suggestion or complaint should
identify the specific purpose and the issues for consideration. ODNI
will not respond to all communications but will take such actions as
determined feasible and appropriate.
Sec. 1700.5 Preliminary information.
Members of the public shall address all communications to the point
of contact specified in Sec. 1700.3 and clearly delineate the
communication as a request under the FOIA. ODNI staff who receive a
FOIA request shall expeditiously forward the request to the Director,
Information Management Office. Requests and appeals (as well as
referrals and consultations) received from FOIA requesters who owe
outstanding fees for information services at this or other federal
agencies will not be accepted and action on all pending requests shall
be terminated in such circumstances.
Sec. 1700.6 Requirements as to form and content.
(a) Required information. No particular form is required. A request
must reasonably describe the record or records of interest and be
submitted in accordance with this regulation. Documents must be
described sufficiently to enable a staff member familiar with the
subject to locate the documents with a reasonable amount of effort. In
most cases, documents must be locatable through the indexing of ODNI
systems. Extremely broad or vague requests, or requests requiring
research in order to ascertain meaning may require further
clarification before they are accepted as formal requests.
(b) Additional information for fee determination. A requester must
provide sufficient personally identifying information to allow staff to
determine the appropriate fee category and to contact the requester
easily. A requester must agree to pay all applicable fees or fees not
to exceed a certain amount or must request a fee waiver in connection
with a request.
(c) Otherwise. Communications that do not meet the above
requirements will be considered an expression of interest.
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ODNI staff should attempt to help a potential requester define a
request properly. Although staff will take reasonable measures to
clarify vague or broad requests, ODNI is not required to clarify an
expression of interest that does not meet the requirements of a formal
request.
Sec. 1700.7 Fees for records services.
(a) In general. Search, review, and reproduction fees will be
charged in accordance with the provisions below relating to schedule,
limitations, and category of requester. Applicable fees will be due
even if a subsequent search locates no responsive records or some or
all of the responsive records must be denied under one or more of the
exemptions of the FOIA.
(b) Fee waiver requests. Records will be furnished without charge
or at a reduced rate when ODNI determines:
(1) As a matter of administrative discretion, the interest of the
United States Government would be served, or
(2) It is in the public interest to provide responsive records
because the disclosure is likely to contribute significantly to the
public understanding of the operations or activities of the United
States Government and is not primarily in the commercial interest of
the requester.
(c) Fee waiver appeals. Denials of requests for fee waivers or
reductions may be appealed to the Director of the Intelligence Staff,
or his functional equivalent, through the ODNI Chief FOIA Officer. A
requester is encouraged to provide any explanation or argument as to
how his or her request satisfies the requirements of this regulation
and the Act. See Sec. 1700.15 for further details on appeals.
(d) Time for fee waiver requests and appeals. Appeals should be
resolved prior to the initiation of processing and the incurring of
costs. However, fee waiver requests will be accepted at any time prior
to an agency decision regarding the request, except when processing has
been initiated, in which case the requester must agree to be
responsible for costs in the event of an adverse administrative or
judicial decision.
(e) Agreement to pay fees. In order to protect requesters from
large and/or unanticipated charges, ODNI will request a payment
commitment when staff estimate that fees will exceed $100.00, not
including charges associated with the first 100 pages of production and
two hours of search (when applicable). ODNI will hold in abeyance for
45 days requests requiring such agreement and will thereafter deem the
request closed. A request deemed closed may be reopened upon receipt of
an appropriate fee commitment or a requester may limit the scope of his
or her request.
(f) Advance payment. The ODNI may require an advance payment of up
to 100 percent of the estimated fees when projected fees exceed
$250.00, not including charges associated with the first 100 pages of
production and two hours of search (when applicable), or when the
requester previously failed to pay fees in a timely fashion, for fees
of any amount. ODNI will hold in abeyance for 45 days those requests
where advance payment has been requested.
(g) Schedule of fees. (1) In general. The schedule of fees for
services performed in responding to requests for records is as follows:
Personnel Search and Review
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Clerical/Technical................. Quarter hour.......... $5.00
Professional/Supervisory........... Quarter hour.......... 10.00
Manager/Senior Professional........ Quarter hour.......... 18.00
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Computer Search and Production
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Search (on-line)................... Flat rate............. 10.00
Search (off-line).................. Flat rate............. 30.00
Other activity..................... Per minute............ 10.00
Tapes (mainframe cassette)......... Each.................. 9.00
Tapes (mainframe cartridge)........ Each.................. 9.00
Tapes (mainframe reel)............. Each.................. 20.00
Tapes (PC 9mm)..................... Each.................. 25.00
Diskette (3.5'')................... Each.................. 4.00
CD (bulk recorded)................. Each.................. 10.00
CD (recordable).................... Each.................. 20.00
Telecommunications................. Per minute............ .50
Paper (mainframe printer).......... Per page.............. .10
Paper (PC b&w laser printer)....... Per page.............. .10
Paper (PC color printer)........... Per page.............. 1.00
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Paper Production
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Photocopy (standard or legal)...... Per page.............. .10
Microfiche......................... Per frame............. .20
Pre-printed (if available)......... Per 100 pages......... 5.00
Published (if available)........... Per item.............. NTIS
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(2) Application of schedule. Personnel search time includes time
expended in manual paper records searches, indices searches, review of
computer search results for relevance, personal computer system
searches, and various reproduction services. In any event where the
actual cost to ODNI of a particular item is less than the above
schedule (e.g., a large production run of a document resulting in a
cost less than $5.00 per hundred pages), then the actual lesser cost
will be charged. Items published and available at the National
Technical Information Service (NTIS) are also available from ODNI
pursuant to this part at the NTIS price as authorized by statute.
[[Page 30737]]
(3) Other services. For all other types of output, production, or
reproduction (e.g., photographs, maps, or published reports), ODNI will
charge actual cost or amounts authorized by statute. Determinations of
actual cost shall include the commercial cost of the media, the
personnel time expended in making the item to be released, and an
allocated cost of the equipment used in making the item, or, if the
production is effected by a commercial service, then that charge shall
be deemed the actual cost for purposes of this regulation.
(h) Limitations on collection of fees. (1) In general. No fees will
be charged if the cost of collecting the fee is equal to or greater
than the fee itself. That cost includes the administrative costs to
ODNI of billing, receiving, recording, and processing the fee for
deposit to the Treasury Department and, as of the date of these
regulations, is deemed to be $10.00.
(2) [Reserved]
(i) Fee categories. There are four categories of FOIA requesters
for fee purposes: Commercial use requesters, educational and non-
commercial scientific institution requesters, representatives of the
news media requesters, and all other requesters. The categories are
defined in Sec. 1700.2 and applicable fees will be assessed as
follows:
(1) Commercial use requesters: Charges which recover the full
direct costs of searching for, reviewing, and duplicating responsive
records (if any);
(2) Educational and non-commercial scientific institution
requesters, and representatives of the news media requesters: Only
charges for reproduction beyond the first 100 pages;
(3) All other requesters: Charges which recover the full direct
cost of searching for and reproducing responsive records (if any)
beyond the first 100 pages of reproduction and the first two hours of
search time which will be furnished without charge.
(j) Associated requests. If it appears a requester or a group of
requesters acting in concert have requested portions of an apparently
unitary request for the purpose of avoiding the assessment of fees,
ODNI may aggregate any such requests and charge accordingly. Requests
from multiple requesters will not be aggregated without clear evidence.
ODNI will not aggregate multiple unrelated requests.
Sec. 1700.8 Processing of requests for records.
(a) In general. Requests meeting the requirements of Sec. 1700.3
through Sec. 1700.7 shall be accepted as formal requests and processed
under the FOIA and these regulations. A request will not be considered
received until it reaches the Information Management Office. Ordinarily
upon its receipt a request will be date-stamped as received. It is this
date that establishes when your request is received for administrative
purposes, not any earlier date such as the date of the letter or its
postmark date. For the quickest possible handling, both the request
letter and the envelope should be marked ``Freedom of Information Act
Request.''
(b) Electronic Reading Room. ODNI maintains an online FOIA Reading
Room on the ODNI Web site which contains the information that the FOIA
requires be routinely made available for public inspection and copying
as well as other information determined to be of general public
interest.
(c) Confirming the existence of certain documents. In processing a
request, ODNI shall decline to confirm or deny the existence of
responsive records whenever the fact of their existence or nonexistence
is itself classified under Executive Order 12958 and its amending
orders, reveals intelligence sources and methods protected pursuant to
50 U.S.C. 403-1(i)(1), or would be an invasion of the personal privacy
of third parties. In such circumstances, ODNI, in its final written
response, shall so inform the requester and advise of his or her right
to file an administrative appeal.
(d) Time for response. Whenever the statutory time limits for
processing a request cannot be met because of ``unusual
circumstances,'' as defined in the FOIA, and the component determines
to extend the time limits on that basis, ODNI will inform the requester
in writing and advise the requester of the right to narrow the scope of
his or her request or agree to an alternative time frame for
processing.
(e) Multitrack processing. ODNI may use two or more processing
tracks by distinguishing between simple and more complex requests based
on the amount of work and/or time needed to process the request,
including through limits based on the number of pages involved. ODNI
may provide requesters in its slower track with an opportunity to limit
the scope of their requests in order to qualify for faster processing
within the specified limits of its faster track.
Sec. 1700.9 Action on the request.
(a) Initial action for access. ODNI staff identified to search for
records pursuant to a FOIA request shall search all relevant record
systems within their cognizance as of the date the search is commenced.
A staff member tasked to conduct a search shall:
(1) Determine whether records exists;
(2) Determine whether and to what extent any FOIA exemptions apply;
(3) Make recommendations for withholding records or portions of
records that originated in the staff member's organization and for
which there is a legal basis for denial or make a recommendation in
accordance with Sec. 1700.8(c). In making recommendations, ODNI staff
shall be guided by the procedures specified in Sec. 1700.11 regarding
confidential commercial information and Sec. 1700.12 regarding third
party information; and
(4) Forward to the Director, Information Management Office, all
records responsive to the request.
(b) Referrals and consultations. ODNI records containing
information originated by other ODNI components shall be forwarded to
those entities for action in accordance with paragraph (a) of this
section and returned. Records originated by other federal agencies or
ODNI records containing other federal agency information shall be
forwarded to such agencies for processing and direct response to the
requester or for consultation and return to the ODNI. ODNI will notify
the requester if it makes a referral for direct response.
(c) Release of information. When the Director, Information
Management Office (or Appeals Authority) makes a final determination to
release records, the records will be forwarded to the requester in an
appropriate format promptly upon compliance with any preliminary
procedural requirements, including payment of fees. If any portion of a
record is withheld initially or upon appeal, the Director, Information
Management Office (or Appeals Authority) will provide a written
response that shall include, at a minimum:
(1) The basis for the withholding, citing the specific statutory
exemption or exemptions invoked under the FOIA with respect to each
portion withheld, unless documents are withheld in accordance with
Sec. 1700.8(c);
(2) When the withholding is based in whole or in part on a security
classification, the explanation shall include a determination that the
record meets the cited criteria and rationale of the governing
Executive Order;
(3) When the denial is based on 5 U.S.C. 552(b)(3), the statute
relied upon; and
(4) Notice to the requester of the right to judicial review.
[[Page 30738]]
Sec. 1700.10 Payment of fees, notification of decision, and right of
appeal.
(a) Fees in general. Fees collected under this Part do not accrue
to ODNI and shall be deposited immediately to the general account of
the United States Treasury.
(b) Notification of decision. Upon completion of all required
review and the receipt of accrued fees (or promise to pay such fees),
ODNI will promptly inform the requester in writing of those records or
portions of records that will be released and those that will be
denied.
(1) For documents to be released, ODNI will provide paper copies or
documents on electronic media, if requested and available;
(2) For documents not released or partially released, ODNI shall
explain the reasons for any denial and give notice of a right of
administrative appeal. For partial releases, redactions will be made to
ensure requesters can see the placement and general length of
redactions with the applicable exemption or exemptions clearly with
respect to each redaction.
Sec. 1700.11 Procedures for business information.
(a) In general. Business information obtained by ODNI from a
submitter shall not be disclosed pursuant to a FOIA request except in
accordance with this section. For purposes of this section, the
following definitions apply:
(1) Business information means commercial or financial information
in which a legal entity has a recognized property interest;
(2) Confidential commercial information means such business
information provided to the United States Government by a submitter
which is reasonably believed to contain information exempt from release
under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), because disclosure
could reasonably be expected to cause substantial competitive harm; and
(3) Submitter means any person or entity who provides confidential
commercial information to the United States Government; it includes,
but is not limited to, corporations, businesses (however organized),
State governments, and foreign governments.
(b) Designation of confidential commercial information. A submitter
of business information will use good-faith efforts to designate, by
appropriate markings, either at the time of submission or at a
reasonable time thereafter, any portions of its submission that it
considers to be confidential commercial information and hence protected
from required disclosure pursuant to Exemption 4 of the FOIA. Such
designations shall expire 10 years after the date of the submission
unless the submitter requests, and provides justification for, a longer
designation period.
(c) Process in event of FOIA request--(1) Notice to submitters.
ODNI shall provide a submitter with prompt written notice of receipt of
a FOIA request encompassing business information whenever:
(i) The submitter has in good faith designated the information as
confidential commercial information, or
(ii) ODNI staff believe that disclosure of the information could
reasonably be expected to cause substantial competitive harm, and
(iii) The information was submitted within the last 10 years unless
the submitter requested and provided acceptable justification for a
specific notice period of greater duration.
(2) Form of notice. Communication to a submitter of commercial
information shall either describe the exact nature of the confidential
commercial information at issue or provide copies of the responsive
records containing such information.
(3) Response by submitter. (i) Within seven days of the notice
described in paragraph (c)(1) of this section, all claims of
confidentiality by a submitter must be supported by a detailed
statement of any objection to disclosure. Such statement shall:
(A) Affirm that the information has not been disclosed to the
public;
(B) Explain why the information is a trade secret or confidential
commercial information;
(C) Explain in detail how disclosure of the information will result
in substantial competitive harm;
(D) Affirm that the submitter will provide ODNI and the Department
of Justice with such litigation support as requested; and
(E) Be certified by an officer authorized to legally bind the
submitter.
(ii) It should be noted that information provided by a submitter
pursuant to this provision may itself be subject to disclosure under
the FOIA.
(4) Decision and notice of intent to disclose. (i) ODNI shall
consider carefully a submitter's objections and specific grounds for
nondisclosure prior to its final determination. If the Director,
Information Management Office, decides to disclose a document over the
objection of a submitter, ODNI shall provide the submitter a written
notice that shall include:
(A) A statement of the reasons for which the submitter's disclosure
objections were not sustained;
(B) A description of the information to be disclosed; and
(C) A specified disclosure date that is seven days after the date
of the instant notice.
(ii) When notice is given to a submitter under this section, the
ODNI shall also notify the requester and, if the ODNI notifies a
submitter that it intends to disclose information, then the requester
shall be notified also and given the proposed date for disclosure.
(5) Notice of FOIA lawsuit. If a requester initiates legal action
seeking to compel disclosure of information asserted to be within the
scope of this section, ODNI shall promptly notify the submitter. The
submitter, as specified above, shall provide such litigation assistance
as required by ODNI and the Department of Justice.
(6) Exceptions to notice requirement. The notice requirements of
this section shall not apply if ODNI determines that:
(i) The information should not be disclosed, pursuant to Exemption
4 and/or any other exemption of the FOIA;
(ii) The information has been published lawfully or has been
officially made available to the public;
(iii) The disclosure of the information is otherwise required by
law or federal regulation; or
(iv) The designation made by the submitter under this section
appears frivolous, except that, in such a case, the ODNI will, within a
reasonable time prior to the specified disclosure date, give the
submitter written notice of any final decision to disclose the
information.
Sec. 1700.12 Procedures for information concerning other persons.
(a) In general. Personal information concerning individuals other
than the requester shall not be disclosed under the FOIA if the
proposed release would constitute a clearly unwarranted invasion of
personal privacy, or, if the information was compiled for law
enforcement purposes, it could reasonably be expected to constitute an
unwarranted invasion of personal privacy. See 5 U.S.C. 552(b)(6) and
(b)(7)(C). For purposes of this section, the following definitions
apply:
(1) Personal information means any information about an individual
that is not a matter of public record, or easily discernible to the
public, or protected from disclosure because of the implications that
arise from Government possession of such information.
(2) Public interest means the public interest in understanding the
operations and activities of the United States Government and not
simply any matter
[[Page 30739]]
that might be of general interest to the requester or members of the
public.
(b) Determination to be made. In making the required determination
under this section and pursuant to Exemptions 6 and 7(C) of the FOIA,
ODNI will balance the privacy interests that would be compromised by
disclosure against the public interest in release of the requested
information.
(c) Otherwise. A requester seeking information on a third party is
encouraged to provide a signed affidavit or declaration from the third
party consenting to disclosure of the information. However, any such
statements shall be narrowly construed and the Director, Information
Management Office, in the exercise of that officer's discretion and
administrative authority, may seek clarification from the third party
prior to any or all releases.
Sec. 1700.13 Allocation of resources.
(a) In general. ODNI shall devote such personnel and other
resources to the responsibilities imposed by the FOIA as may be
appropriate and reasonable considering:
(1) The totality of resources available;
(2) The demands imposed on ODNI in fulfillment of its statutory
responsibilities or otherwise by law;
(3) The demand imposed upon ODNI component organizations by the
ODNI or otherwise by law;
(4) The information review and release demands imposed by Congress
or other governmental authority; and
(5) The rights of all members of the public under the various
information review and disclosure laws.
(b) Discharge of FOIA responsibilities. ODNI and its components
shall exercise due diligence in their responsibilities under FOIA and
must allocate a reasonable level of resources to requests under the Act
on a strictly ``first-in, first-out'' basis and utilizing two or more
processing queues to ensure that complex and simple requests receive
equitable attention. The ODNI Chief FOIA Officer is responsible for
management of the ODNI-wide program defined by this Part and for
establishing priorities for cases consistent with established law. The
Director, Information Management Office, shall provide policy and
resource direction as necessary.
Sec. 1700.14 Requests for expedited processing.
(a) In general. All requests will be handled in the order received
on a strictly ``first-in, first-out'' basis. Exceptions to this rule
will only be made in accordance with the following procedures.
(b) Procedure. Requests for expedited processing will be approved
only when a requester establishes compelling need for records to the
satisfaction of the Director, Information Management Office, and it
appears to him or her that substantive records relevant to the stated
needs may exist and be deemed releasable. A requester may make a
request with a certification of ``compelling need'' and the Director,
Information Management Office, will decide whether to grant expedited
processing and will notify the requester of his or her decision. The
certification shall set forth with specificity the relevant facts upon
which the requester relies and will attest that the statement is true
and accurate. A ``compelling need'' is deemed to exist:
(1) When 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; or
(2) With respect to a request made by a person primarily engaged in
disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.
Sec. 1700.15 Right to appeal and appeal procedures.
(a) Right to appeal. Individuals who disagree with a decision not
to produce a document or parts of a document, to deny a fee category
request, to deny a request for a fee waiver or fee reduction, to deny
expedited processing, or a decision regarding a fee estimate or a
determination that no records exist, should submit a written request
for review to the Chief FOIA Officer c/o Director, Information
Management Office, Office of the Director of National Intelligence,
Washington, DC 20511. The words ``FOIA APPEAL'' should be written on
the letter and the envelope. The appeal must be signed by the
individual or his legal counsel.
(b) Requirements as to time and form. Appeals of adverse decisions
must be received within 45 days of the date of the ODNI's initial
decision. Requesters should include a statement of the reasons
supporting the request for reversal of the initial decision.
(c) Exceptions. No appeal shall be accepted if the requester has
outstanding fees for information services at this or another federal
agency. In addition, no appeal shall be accepted if the information in
question has been the subject of an administrative review within the
previous two years or is the subject of pending litigation in the
Federal courts.
Sec. 1700.16 Action by appeals authority.
(a) The Director of the Intelligence Staff, after consultation with
any ODNI component organization involved in the initial decision as
well as with the Office of General Counsel, will make a final
determination on the appeal. Appeals of denials of requests for
expedited processing shall be acted on expeditiously.
(b) The Director, Information Management Office, will ordinarily be
the initial deciding official on FOIA requests to the ODNI. However, in
the event the Director of the Intelligence Staff makes an initial
decision that is later appealed, the Principal Deputy Director for
National Intelligence will decide the appeal in accordance with the
procedures in this section.
Dated: May 17, 2007.
David Shedd,
Acting Director of the Intelligence Staff.
[FR Doc. E7-10420 Filed 6-1-07; 8:45 am]
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