[Federal Register: August 16, 2007 (Volume 72, Number 158)]
[Rules and Regulations]
[Page 45895-45900]
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OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
32 CFR Chapter XVII
Freedom of Information Act Regulation
AGENCY: Office of the Director of National Intelligence.
ACTION: Final rule.
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SUMMARY: This final regulation provides the Office of the Director of
National Intelligence's rules implementing the Freedom of Information
Act (FOIA), 5 U.S.C. 552. The regulation addresses 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.
EFFECTIVE DATE: August 16, 2007.
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, Pub. L. 108-458, 118 Stat. 3638. The
ODNI began operations on April 22, 2005, the day after the first
Director of National Intelligence took office. Because the majority of
documents held by the ODNI at its inception were previously maintained
by the Central Intelligence Agency (CIA) and 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.
We are currently working toward having our own FOIA office handle all
aspects of ODNI's FOIA processing.
On June 4, 2007, the ODNI submitted a proposed regulation
implementing the FOIA for public comment. The ODNI received two
submissions with comments on the proposed regulation. The ODNI has
reviewed and carefully considered all of the comments that were
submitted and has made the following changes to the regulation:
(1) The definitions of educational institution and noncommercial
scientific institution have been changed and are in accordance with the
definition in the Office of Management and Budget's guidelines, 52 Fed.
Reg. 10,012 (Mar. 27, 1987).
(2) We have changed the fee portion of the regulation so that a
FOIA request will be considered a commitment to pay up to $25.00 unless
the requester asks for a waiver of fees.
(3) The term ``reasonably described record'' has been removed from
the definitional section of the regulation. A more detailed explanation
of the type of information the ODNI needs in order to locate records
responsive to a particular request has been added in a separate
section.
(4) We have decided to accept FOIA requests electronically and have
added the email address to the regulation. Although the FOIA does not
require this, it is a growing trend within the federal government and
we believe it will provide better customer service to our FOIA
requesters.
(5) The expedited processing section and other sections have been
clarified.
(6) Certain superfluous words in the definitional section and a
paragraph regarding allocation of resources have been removed.
List of Subjects in 32 CFR Part 1700
Freedom of information.
0
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 Office of the Director of National
Intelligence establishes 32 CFR Chapter XVII and adds part 1700 to read
as follows:
Chapter XVII--Office of the Director of National Intelligence
PART 1700--PROCEDURES FOR DISCLOSURE OF RECORDS PURSUANT TO THE
FREEDOM OF INFORMATION ACT
Sec.
1700.1 Authority and purpose.
1700.2 Definitions.
1700.3 Contact for general information and requests.
1700.4 Preliminary information.
1700.5 Requirements as to form and content.
1700.6 Fees for records services.
1700.7 Processing of requests for records.
1700.8 Action on the request.
1700.9 Payment of fees, notification of decision, and right of
appeal.
1700.10 Procedures for business information.
1700.11 Procedures for information concerning other persons.
1700.12 Requests for expedited processing.
1700.13 Right to appeal and appeal procedures.
1700.14 Action by appeals authority.
Authority: 5 U.S.C. 552, 50 U.S.C. 401-442; Pub. L. 108-458, 118
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) 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;
(c) Pages means paper copies of standard office size or the dollar
value equivalent in other media;
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(d) Reproduction means generation of a copy of a requested record
in a form appropriate for release;
(e) 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;
(f) 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;
(g) 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;
(h) 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 use request: A request in which the disclosure
sought is primarily in the commercial interest of the requester and
which furthers such commercial, trade, income or profit interests;
(2) Educational institution: A preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education,
that operates a program of scholarly research. To be in this category,
a requester must show that the request is authorized by and is made
under the auspices of a qualifying institution and that the records are
not sought for a commercial use but are sought to further scholarly
research.
(3) Noncommercial scientific institution: An institution that is
not operated on a commercial basis, as that term is defined in
paragraph (h)(1) of this section, and that is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry. To be in this
category, a requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are not sought for a commercial use but are sought to further
scientific research.
(4) Representative of the news media: An individual actively
gathering news for an entity that is organized and operated to publish
and broadcast news to the public and pursuant to the entity's news
dissemination function and not its commercial interests; the term
``news'' means information which concerns current events, would be of
current interest to the general public, would enhance the public
understanding of the operations or activities of the U.S. Government,
and is in fact disseminated to a significant element of the public at
minimal cost; freelance journalists are included in this definition if
they provide sufficient evidence to justify an expectation of
publication through such an organization, even though not actually
employed by it; a publication contract or prior publication record is
relevant to such status;
(5) All other: A request from an individual not within paragraphs
(h)(1), (2), (3), or (4) of this section;
(i) Freedom of Information Act, ``FOIA,'' or ``the Act'' means the
statute as codified at 5 U.S.C. 552;
(j) ODNI means the Office of the Director of National Intelligence
and its component organizations. It does not include other members of
the Intelligence Community as defined in 50 U.S.C. 401a, 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;
(k) Potential requester means a person, organization, or other
entity who submits an expression of interest.
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. FOIA requests can also be submitted by electronic mail
pending cases only, call the ODNI FOIA Customer Service Center at (571)
204-4774.
Sec. 1700.4 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 (IMO). 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. 1700.5 Requirements as to form and content.
(a) Required information. No particular form is required. A request
must reasonably describe the record or records being sought 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.
Whenever possible, your request should include specific information
about each record sought, such as the date, title or name, author,
recipient, and the subject matter of the record. As a general rule, the
more specific you are about the records or type of records that you
want, the more likely it will be that the IMO will be able to locate
records responsive to your request. The IMO will provide you an
opportunity to discuss your request with it so that you may modify your
request to meet the requirements of this section. If after having been
asked to do so you do not provide the IMO with information sufficient
to enable it to locate responsive records your request will be closed.
(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.
Sec. 1700.6 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
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(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. 1700.14 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. If you make a FOIA request, it shall be
considered a firm commitment by you to pay all applicable fees
chargeable under this regulation, up to and including the amount of
$25.00, unless you ask for a waiver of fees. When making a request, you
may specify a willingness to pay a greater or lesser amount.
(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:
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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, and personal computer system
searches. 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.
(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.
(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
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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. 1700.7 Processing of requests for records.
(a) In general. Requests meeting the requirements of Sec. 1700.3
through Sec. 1700.6 shall be accepted as formal requests and processed
under the FOIA and this Part. A request will not be considered received
until it reaches the IMO. 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 12,958 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 timeframe 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. 1700.8 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 exist;
(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. 1700.7(c). In making recommendations, ODNI staff
shall be guided by the procedures specified in Sec. 1700.10 regarding
confidential commercial information and Sec. 1700.11 regarding third
party information; and
(4) Forward to the Director, IMO, 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, IMO (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, IMO (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. 1700.7(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.
Sec. 1700.9 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. 1700.10 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
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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), 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, IMO,
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. 1700.11 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 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, IMO, 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. 1700.12 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. A requester who seeks expedited processing must
submit a statement, certified to be true and correct, explaining in
detail the basis for requesting expedited processing. Within ten
calendar days of its receipt of a request for expedited processing, the
IMO shall decide whether to grant it and shall notify the requester of
the decision. If a request for expedited processing is granted, the
request shall be given priority and shall be processed as soon as
practicable.
(c) Determination to be made: Requests and appeals will be taken
out of order and given expedited processing treatment whenever it is
determined that they involve:
(1) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(2) An urgency to inform the public concerning an actual or alleged
Federal
[[Page 45900]]
Government activity, if made by a person primarily engaged in
disseminating information.
Sec. 1700.13 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. 1700.14 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, IMO, 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: August 9, 2007.
Ronald L. Burgess, Jr.,
Director of the Intelligence Staff.
[FR Doc. E7-15996 Filed 8-15-07; 8:45 am]
BILLING CODE 3910-A7-P
