[Federal Register Volume 80, Number 64 (Friday, April 3, 2015)]
[Rules and Regulations]
[Pages 18099-18114]
[FR Doc No: 2015-07772]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[Docket No. OAG 140; AG Order No. 3517-2015]
RIN 1105-AB27
Revision of Department's Freedom of Information Act Regulations
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This rule amends the Department's regulations under the
Freedom of Information Act (``FOIA''). The regulations have been
revised to update and streamline the language of several procedural
provisions and to incorporate changes brought about by the amendments
to the FOIA under the OPEN Government Act of 2007. Additionally, the
regulations have been updated to reflect developments in the case law
and to include current cost figures to be used in calculating and
charging fees.
DATES: Effective May 4, 2015.
FOR FURTHER INFORMATION CONTACT: Lindsay Roberts, Attorney-Advisor,
Office of Information Policy, (202) 514-3642.
SUPPLEMENTARY INFORMATION:
Background Information
On March 21, 2011, the Department of Justice published a proposed
rule to revise its existing regulations under the FOIA. See 76 FR
15236. On September 19, 2011, the Department reopened the comment
period for another thirty days in order to consider additional public
comments. See 76 FR 57940.
Comments
Interested persons were afforded the opportunity to participate in
the
[[Page 18100]]
rulemaking process through submission of written comments to the
proposed rule during the two open comment periods. In total, the
Department received fifteen public submissions in response to its
proposed rule, including comments from another agency as well as
internal comments from components of the Department. Due consideration
has been given to each of the comments received and, in response, the
Department has made several modifications to the rule. These
modifications include clarifying, revising, or expanding various
provisions, withdrawing a provision, retaining existing language for
certain other provisions, and making technical edits, such as
correcting Web site links.
General Provisions
As an initial matter, the Department has decided that the final
regulations will reference the Department's policy to encourage
discretionary releases of information whenever disclosure would not
foreseeably harm an interest protected by a FOIA exemption.
Some commenters suggested the inclusion of provisions that would
merely duplicate certain statutory requirements, such as adding
provisions describing the FOIA's standards for tolling of requests or
delineating the statutory duties of FOIA Public Liaisons. Other than
those instances where the Department believed it was important for
emphasis, in order to streamline these regulations the Department has
intentionally not simply repeated statutory provisions. These
regulations implement the FOIA as well as the Office of Management and
Budget's Uniform Freedom of Information Act Fee Schedule and
Guidelines, 52 FR 10012 (Mar. 27, 1987) (``OMB Guidelines''), and
should be read in conjunction with those authorities. The regulations
are not meant to duplicate or to serve as a substitute for these
sources.
Fee-Related Provisions
Several public submissions contained comments regarding the
Department's assessment of fees. As a general matter, the Department
notes that the fee provisions are written to conform with the OMB
Guidelines, which establish uniform standards for fee matters.
Conformity with the OMB Guidelines is required by the FOIA. See 5
U.S.C. 552(a)(4)(A)(i).
One commenter questioned the specific dollar amount that he had
been charged by one Department component for producing records on
compact discs (``CDs'') as well as the volume of material that was
loaded onto each CD. In accordance with the OMB Guidelines, see 52 FR
at 10018, the Department's current regulations provide (without
specifying a dollar amount) for the assessment of ``direct costs,''
meaning the actual cost of producing the media, incurred by the
component when producing records in a format other than paper. The
direct costs of producing records on CD may include scanning paper
records into an electronic format and conducting requisite security
scans in addition to the cost associated with the blank CD. Section
16.10(c)(2) of the final rule, which allows components to charge
``direct costs'' for non-paper media, gives components flexibility to
adjust fees as the costs of providing records in a specified format
change over time. This same flexibility allows components to adjust the
volume of material loaded onto each CD to ensure that requesters
receive material as efficiently as possible. The expectation is that
with technological advances, components will pass along the reduced
costs to requesters contemporaneously, without first necessitating a
change in the regulation. Accordingly, this regulation is not the
proper venue for determining the specific dollar amount that components
should charge or the volume of material that should be loaded onto each
CD.
Several commenters expressed concerns about the increase in search
fees. In contrast to the use of ``direct costs'' for responding to a
request for non-paper media, search fees are assessed on a uniform
basis throughout the Department in accordance with the OMB Guidelines
and are largely salary-based. See 52 FR at 10018. The Department has
reexamined the rates using a formula for search and review fees that
takes into account current pay rates for different levels of staff
involved in processing FOIA requests. The revised rule changes the
``administrative'' staff category to ``clerical/administrative'' to
account for work performed by either clerical or administrative staff
who may assist FOIA professionals in searching for responsive records.
As a result of these adjustments, while there is a small increase in
the rates from our existing regulations, we were able to reduce the
rates from those originally proposed. Updating these costs is
consistent with the OMB Guidelines, which provide that ``[a]gencies
should charge fees that recoup the full allowable direct costs they
incur.'' Id. While certain costs are now higher than when last
calculated 13 years ago, the revised fee schedule includes a decrease
in duplication fees due to advances in technology. The Department
includes in the revised regulations a directive that components
``ensure that searches, review, and duplication are conducted in the
most efficient and the least expensive manner.'' Sec. 16.10(a). For
greater emphasis, the Department moves that directive in the final rule
from the definition paragraph in proposed Sec. 16.10 to the
introductory paragraph in the final rule.
One commenter recommended that proposed Sec. 16.10(b)(3) contain
the statement, included in the existing version of that paragraph, 28
CFR 16.11(b)(3), that ``[c]omponents shall honor a requester's
specified preference of form or format.'' The requirement to honor a
requester's specified form or format preference is now located in Sec.
16.10(c)(2), concerning charging duplication fees, which is a more
appropriate location.
Some commenters expressed concern regarding the provisions that
govern fees for educational institutions. The FOIA provides in relevant
part that ``fees shall be limited to reasonable standard charges for
document duplication when records are not sought for commercial use and
the request is made by an educational or noncommercial scientific
institution, whose purpose is scholarly or scientific research.'' 5
U.S.C. 552(a)(4)(A)(ii)(II). In other words, such a requester may not
be charged fees for searches or review.
One commenter took issue with proposed Sec. 16.10(b)(4),
concerning the definition of the term educational institution.
Specifically, the commenter objected to the phrase indicating that the
educational institution must ``operate[] a program of scholarly
research'' and argued that this requirement would effectively exclude
various types of schools other than universities. The commenter
mistakenly asserted that the provision would be new; in fact, not only
is it not new, but the requirement that an educational institution have
as its purpose ``scholarly'' research derives from the FOIA itself, see
5 U.S.C. 552(a)(4)(A)(ii)(II), and the specific language was taken
directly from the OMB Guidelines. 52 FR at 10018; see also id. at 10014
(addressing rationale for this requirement). As the OMB Guidelines
note, whether a school qualifies must be determined on a case-by-case
basis:
As a practical matter, it is unlikely that a preschool or elementary
or secondary school would be able to qualify for treatment as an
``educational'' institution since few preschools, for example, could
be said to conduct programs of scholarly research. But,
[[Page 18101]]
agencies should be prepared to evaluate requests on an individual
basis when requesters can demonstrate that the request is from an
institution that is within the category, that the institution has a
program of scholarly research, and that the documents sought are in
furtherance of the institution's program of scholarly research and
not for a commercial use.
52 FR at 10014.
Two commenters objected to the provision in proposed Sec.
16.10(b)(4) stating that ``[r]ecords requested for the intention of
fulfilling credit requirements are not considered to be sought for a
scholarly purpose.'' This requirement is also taken from the OMB
Guidelines, which distinguish individual research goals from an
institution's research goals. The addition of this language was
intended to reflect longstanding Department practice and to alleviate
any confusion among student requesters. The statute indicates that the
relevant question is whether the request is made ``by an educational or
noncommercial scientific institution.'' 5 U.S.C. 552(a)(4)(A)(ii)(II).
The OMB Guidelines address how that inquiry is to be made:
Agencies should ensure that it is apparent from the nature of the
request that it serves a scholarly research goal of the institution,
rather than an individual goal. Thus, for example, a request from a
professor of geology at a State university for records relating to
soil erosion, written on letterhead of the Department of Geology,
could be presumed to be from an educational institution. A request
from the same person for drug information from the Food and Drug
Administration in furtherance of a murder mystery he is writing
would not be presumed to be an institutional request, regardless of
whether it was written on institutional stationary [sic] . . . .
The institutional versus individual test would apply to student
requests as well. A student who makes a request in furtherance of
the completion of a course of instruction is carrying out an
individual research goal and the request would not qualify, although
the student in this case would certainly have the opportunity to
apply to the agency for a reduction or waiver of fees.
52 FR at 10014.
The final rule clarifies this provision by replacing the sentence
that commenters flagged with a series of examples based on the OMB
Guidelines discussion quoted above, thereby making clear that this
inquiry applies to professors as well. Students and professors who do
not qualify for reduced fees under this provision, and who do not seek
the records for a commercial use, will, of course, be afforded the
benefits of the two free hours of search time and one hundred pages of
duplication without cost that are afforded to any other non-commercial
use requester. See Sec. 16.10(d)(4) of the final rule. And like all
requesters, they may apply for a fee waiver under the fee waiver
provision of the FOIA, pursuant to Sec. 16.10(k) of the final rule.
One commenter suggested that the provision in proposed Sec.
16.10(b)(6) stating that ``[a] component's decision to grant a
requester media status will be made on a case-by-case basis based upon
the requester's intended use'' should be deleted. The Department agrees
and believes that the language is better placed under the definition of
a ``commercial use'' requester. In the OMB Guidelines, the requester's
intended use of the requested records determines whether the requester
will fall within the ``commercial use'' fee category, or one of the
other categories. See 52 FR at 10013, 10017-18. As the OMB Guidelines
explain, ``it is possible to envision a commercial enterprise making a
request that is not for a commercial use'' and ``[i]t is also possible
that a non-profit organization could make a request that is for a
commercial use.'' Id. at 10013. To make this point clearer, the
Department moves the reference to case-by-case determinations to the
``commercial use'' definition. Within the definition of
``representative of the news media,'' the Department retains the
statement from its existing regulations that ``a request for records
supporting the news-dissemination function of the requester shall not
be considered to be for a commercial use.''
This commenter also suggested including a reference to news
organizations that operate solely on the Internet in the list of
examples of ``representatives of the news media.'' The Department
concurs and adds such an example.
Another commenter suggested that the definition of ``representative
of the news media'' in proposed Sec. 16.10(b)(6) should not require
that the person or entity be ``organized and operated to publish or
broadcast news.'' This requirement is being retained because it comes
directly from the definition of ``representative of the news media'' in
the OMB Guidelines, see 52 FR at 10018, which is in turn based on the
statute's inclusion of the term ``news'' in this fee category, see id.
at 10015.
One commenter suggested that proposed Sec. 16.10(c)(1)(iii),
regarding the direct costs associated with creating computer programs
to extract information, require that requesters be notified of any such
costs before the costs are incurred. The Department agrees and revises
this provision accordingly. Another commenter suggested that the
regulations address the provision of the OPEN Government Act of 2007,
codified at 5 U.S.C. 552(a)(4)(A)(viii), that limits the charging of
fees in certain instances where time limits are not met. This statutory
provision, in fact, has been expressly addressed in proposed Sec.
16.10(d)(2), which sets forth restrictions on charging fees.
One commenter suggested that under proposed Sec. 16.10(e), when
components notify requesters of anticipated fees in excess of $25.00,
they provide non-commercial use requesters with their statutory
entitlements of one hundred free pages and, when search fees are
assessed, their two hours of free search time or the cost equivalent.
The Department believes that requesters should be apprised of the
option to receive their statutory entitlements regardless of whether
estimated fees exceed $25.00 and has revised the provision to account
for that. However, the Department believes it is preferable not to
require components to perform the statutorily entitled free search and
duplication before the requester responds to the notice because it
would not be an efficient use of limited FOIA resources, inasmuch as
the requester might choose to revise the request after receipt of the
notice. The Department also adds a provision to permit requesters to
designate a specific amount of fees that they are willing to pay. If it
turns out that the total cost of processing the request is higher, the
component must still process the request up to the amount of fees the
requester agreed to pay, unless the requester withdraws the request.
Finally, the Department adds language to clarify that when a requester
has indicated a willingness to pay some amount of fees, the time to
respond is tolled when the Department informs the requester that the
total cost of processing the request is higher than the amount the
requester indicated a willingness to pay. Once the agency receives the
requester's response to the notice, the time to respond to the request
will resume from where it was at the date of the notification.
One commenter suggested that Department components should make fee
waiver determinations based ``on the face of the request'' under
proposed Sec. 16.10(k) and not defer such decisions ``until after
search costs are incurred.'' The commenter misinterprets the effect of
the six factors contained in proposed Sec. 16.10(k). The regulations
do not provide for the assessment of fees as part of the process of
making a fee waiver determination. Rather, the six factors set out in
the regulations guide
[[Page 18102]]
Department components in applying the statutory standard for waiving
fees. Requesters do not incur any charge as a result of this process.
Another commenter suggested that the Department delete the word
``ordinarily'' from proposed Sec. 16.10(k)(2)(iii), concerning the
third fee waiver factor, which discusses whether disclosure will
contribute to public understanding of the subject. The Department
accepts this comment and reinstates the original language: ``It shall
be presumed that a representative of the news media will satisfy this
consideration.''
This commenter also suggested reinstatement of language in the
existing regulations regarding presumptions about disclosures made to
data brokers. The Department agrees and reinstates that language in
Sec. 16.10(k)(3)(ii) as well as the related language about
presumptions regarding disclosure to the news media.
One commenter suggested adding a provision containing a statement
that components may waive fees as a matter of discretion. The FOIA
establishes a standard for waiver or reduction of fees. The
Department's regulations are intended to define the manner in which
this standard is to be applied. In some cases, components may need to
make discretionary judgments, but they must do so within the confines
of the statutory standard.
An agency commenter suggested that proposed Sec. 16.10(e) be
revised to include a provision that when components notify requesters
of the actual or estimated amount of fees that they include in that
estimate a breakdown of the fees for search, review, or duplication.
The Department agrees and makes that revision.
Exclusion Provision
A number of commenters raised concerns regarding proposed Sec.
16.6(f)(2), which pertained to responses to requests involving records
excluded from the requirements of the FOIA by 5 U.S.C. 552(c). Section
552(c), enacted as an amendment to the FOIA in 1986, see Public Law 99-
570, secs. 1801-04, 100 Stat. 3207, provides special protection for
three categories of particularly sensitive law enforcement records. The
first exclusion protects against disclosure of a pending criminal law
enforcement investigation where there is reason to believe that the
target is unaware of the investigation and disclosure of its existence
could reasonably be expected to interfere with enforcement proceedings.
The second exclusion, which applies only to records maintained by
criminal law enforcement agencies, protects against disclosure of
unacknowledged, confidential informants. The third exclusion, which
applies only to the Federal Bureau of Investigation, protects against
disclosure of foreign intelligence or counterintelligence, or
international terrorism records, when the existence of those records is
classified.
Proposed Sec. 16.6(f)(2) provided as follows: ``When a component
applies an exclusion to exclude records from the requirements of the
FOIA pursuant to 5 U.S.C. 552(c), the component utilizing the exclusion
will respond to the request as if the excluded records did not exist.
This response should not differ in wording from any other response
given by the component.'' Commenters suggested that this language would
impede governmental transparency and accountability.
Proposed Sec. 16.6(f)(2) was intended to incorporate guidance
issued more than 20 years ago by Attorney General Edwin Meese. See
Attorney General's Memorandum on the 1986 Amendments to the Freedom of
Information Act 18-30 (December 1987), available at http://www.justice.gov/oip/86agmemo.htm (``Meese Guidance''). The Meese
Guidance provided, among other things, that where the only records
responsive to a request were excluded from the FOIA by statute, that
``a requester can properly be advised in such a situation that `there
exist no records responsive to your FOIA request.' '' Id. at 27. The
Meese Guidance also advised agencies that they must ensure that their
FOIA responses are consistently worded so that a requester is not able
to determine from the wording of a response that an exclusion was
invoked. See id.
In September 2012, in order to bring greater awareness to the
public about the existence and effect of these statutory provisions,
the Office of Information Policy (``OIP'') issued guidance outlining
the steps all agencies should take to ensure proper implementation of
exclusions and setting forth the new requirements for their use. See
Office of Information Policy, ``Implementing FOIA's Statutory Exclusion
Provisions'' (September 14, 2012), available at http://www.justice.gov/oip/foiapost/2012foiapost9.html (``OIP Exclusion Guidance'').
The OIP Exclusion Guidance establishes a new approach for all
agencies to take when responding to requests, in lieu of the approach
that had been set forth in proposed Sec. 16.6(f)(2). Specifically, all
agency components that maintain criminal law enforcement records now
include a notification in their FOIA response letters advising
requesters that Congress excluded certain records from the requirements
of the FOIA and that the agency's response addresses those records that
are subject to the requirements of the FOIA. The Department instructed
these law enforcement components to include the following language in
response to all FOIA requests:
For your information, Congress excluded three discrete categories of
law enforcement and national security records from the requirements
of the FOIA. See 5 U.S.C. 552(c) (2006 & Supp. IV 2010). This
response is limited to those records that are subject to the
requirements of the FOIA. This is a standard notification that is
given to all our requesters and should not be taken as an indication
that excluded records do, or do not, exist.
See OIP Exclusion Guidance.
As explained in greater length in the OIP Exclusion Guidance, the
Department believes that the use of this language addresses the
concerns raised by the commenters who had criticized proposed Sec.
16.6(f)(2), while preserving the integrity of the sensitive law
enforcement records at stake.
The final rule retains two provisions in the proposed rule aimed at
ensuring proper use of exclusions. Before applying an exclusion, the
component must first obtain approval from OIP. See Sec. 16.6(g)(1).
Furthermore, any component invoking an exclusion must maintain records
of its use and approval. See Sec. 16.6(g)(2). These provisions are
intended to enhance accountability in the use of exclusions.
One commenter suggested that the last sentence of proposed Sec.
16.4(a), which provides that ``[a] record that is excluded from the
requirements of the FOIA pursuant to 5 U.S.C. 552(c), shall not be
considered responsive to a request'' should be changed to say that the
records ``may not be considered responsive.'' This sentence was
designed to provide notice that records determined by a component to be
properly subject to an exclusion are not considered to be responsive to
the FOIA request. The FOIA provides that agencies ``may,'' under
certain defined circumstances, treat records ``as not subject to the
requirements of [the FOIA],'' 5 U.S.C. 552(c). As a result, components
may choose not to apply an exclusion even if the FOIA would allow them
to do so. This provision addresses those situations where a component
does decide to lawfully apply an exclusion. The provision makes clear
that in those cases the excluded records are not responsive to the
request. For clarity, we have changed the wording in the final rule to
replace the word
[[Page 18103]]
``shall'' with ``is'' so that the regulation more clearly conveys that
it is addressing the consequence of those situations where a component
has decided to apply an exclusion.
An agency commenter suggested that requiring components to obtain
OIP approval before applying an exclusion would conflict with OIP's
role as the adjudicator of any subsequent administrative appeal. The
commenter questioned whether, if OIP approved the use of an exclusion
beforehand, it could review impartially its own decision on appeal. The
commenter therefore recommended that components be required only to
consult with OIP, rather than obtain its approval, before applying an
exclusion. The Department declines to make this change. OIP is both a
guidance office and an appeal authority, and aims to assist components
as early as possible in the process to ensure that requests are
processed properly and to obviate the need for appeals where possible.
In light of the importance of invoking exclusions properly, the
Department believes it is critical that OIP approve their use
beforehand, given that only a subset of requesters file administrative
appeals.
Other Provisions
Section 16.2 (Proactive Disclosure of Department Records)
One commenter expressed concern that the proposed rule removes a
reference to the requirement that records required to be made available
for public inspection be indexed as well. In fact, the rule does not
remove this requirement; rather, it states that each component is
responsible for posting and indexing such records, and for updating
posted records and indices on an ongoing basis.
The same commenter suggested that proposed Sec. 16.2 should be
modified to require that Department components post online the
responses to all FOIA requests that do not involve individuals seeking
access to their own records. The Department encourages the posting of
all records, particularly records likely to be of interest to the
public. However, given that resources are needed to properly code
records for posting, it is important that Department components retain
flexibility to decide how best to use those resources, including
flexibility to use other options such as posting logs of FOIA
responses.
Section 16.3 (Requirements for Making a Request)
One commenter expressed concern that proposed Sec. 16.3(a) ``will
allow the agency to summarily deny requests when the requester fails to
write to the correct `FOIA office of the Department component.''' This
scenario was not the intention of that provision, nor will it be a
consequence of the provision. Indeed, as noted in Sec. 16.5(a) of the
proposed regulations and as is contemplated in the FOIA itself,
components are expected to re-route misdirected requests to the proper
component. See 5 U.S.C. 552(a)(6)(A)(ii). For emphasis, the Department
adds a new Sec. 16.4(c) that expressly states the obligation to re-
route misdirected requests.
In addition, the Department adds language to the provision to
explain that the requester will receive the quickest response if the
request is directed to the component that maintains the records.
Requesters have another option as well. For any requester who is
uncertain as to which Department component may maintain responsive
records, or who simply chooses to do so, proposed Sec. 16.3(a)(2)
provides the requester with the option of submitting the request to the
FOIA/PA Mail Referral Unit, which will then direct the request to the
component(s) that it determines is most appropriate. The Mail Referral
Unit is a long-standing service the Department provides to assist
requesters who are uncertain as to where to direct their requests.
The same commenter asserted that proposed Sec. 16.3(a)(3), which
requires the submission of a certification of identity for first-party
requesters and references the Department's Privacy Act regulation in
subpart D on that point, should be clarified as only applying to U.S.
citizens or lawful alien residents. This provision of the regulations
is intended to apply to all first-party requesters, regardless of their
country of origin and is intended to protect the privacy of
individuals. The reference to subpart D of the regulations is merely
meant to inform requesters as to the location of the requirements for
verifying their identities when making requests for their own records.
As a matter of policy, the Department requires verification of identity
for all first-party requesters, not just requesters who are covered by
the Privacy Act, to appropriately protect the privacy of all
individuals and ensure that an individual's private records are not
improperly disclosed to a third party. This is not a new requirement
and is in the existing regulations.
One commenter expressed concern that the change in language
proposed for Sec. 16.3(c), (redesignated as Sec. 16.3(b) in the final
rule), which addresses the requirement to reasonably describe the
records sought, would ``establish new barriers to access.'' That was
not the Department's intention. We revise this section to conform to
the existing regulations and add further resources for requesters to
assist them in reasonably describing the records they seek. The section
now provides that requesters may discuss their requests with the
component's FOIA contact or its FOIA Public Liaison in advance of
making a request, as well as to clarify a request already made.
Further, requesters may also contact a representative of OIP for
assistance. All these officials will be available to assist requesters
in reasonably describing the records sought.
Section 16.4 (Responsibility for Responding to Requests)
One commenter noted that the proposed rule deleted existing Sec.
16.7 concerning classified information. This commenter also indicated
that it was unclear whether the citation to part 17 in proposed Sec.
16.4(d) (redesignated as Sec. 16.4(e) in the final rule) reflects the
Department's obligations with respect to such material. The Department
further clarifies this provision to make clear that, in responding to
requests for classified information, the component must determine
whether the information remains currently and properly classified.
With respect to proposed Sec. 16.4(e) (now incorporated into Sec.
16.4(d) in the final rule), regarding notice of referrals, one
commenter was concerned with the reference to protecting the identities
of recipients of document referrals when disclosure of the recipient
would itself disclose a sensitive, exempt fact. In the intervening
period since the close of the second comment period, the Department has
issued new guidance on consultations and referrals that requires
agencies to use coordination procedures, rather than making a referral,
if the recipient cannot be identified due to law enforcement or
national security concerns. As a result, this provision, as well as
proposed Sec. 16.4(c) (now incorporated into Sec. 16.4(d) in the
final rule), is being revised to reflect that new Department guidance.
See Office of Information Policy, ``Referrals, Consultations, and
Coordination: Procedures for Processing Records When Another Agency or
Entity Has an Interest in Them,'' (December 2011), available at
www.justice.gov/oip/foiapost/2011foiapost42.html (explaining exceptions
to standard procedures for making referrals and procedures for
coordinating responses).
One commenter suggested that any agreements between Department
[[Page 18104]]
components as to the processing of certain records, which was discussed
in proposed Sec. 16.4(g), should be made publicly available. This
provision is intended to hasten processing by eliminating certain
consults or referrals for components that share or encounter the same
types of records on a regular basis. There is no requirement, however,
that components create formal agreements appropriate for posting with
respect to these records. In the interests of maintaining flexibility
and enhancing efficiency, which are the goals of this section, no
changes are being made to the provision.
Section 16.5 (Timing of Responses to Requests)
One commenter contended that the portion of proposed Sec. 16.5(a)
concerning the commencement of response time for misdirected requests
should be deleted. The commenter is referred to 5 U.S.C.
552(a)(6)(A)(ii) of the FOIA, which is the statutory provision
establishing the time period to route misdirected requests.
Another commenter recommended that proposed Sec. 16.5(a) require
components to forward any misdirected requests to the Justice
Management Division's Mail Referral Unit, rather than to the Department
component that the receiving component deems most appropriate. While
components are free to do so when they are uncertain as to the proper
component, imposing a requirement to route all misdirected requests
through the Mail Referral Unit rather than directly to the proper
component would unnecessarily delay the receipt of the request by the
appropriate Department component. The Department has issued guidance on
the handling of misdirected requests, see Office of Information Policy,
``OIP Guidance: New Requirement to Route Misdirected FOIA Requests,''
(November 11, 2008), available at http://www.justice.gov/oip/foiapost/2008foiapost31.htm.
One commenter took issue with the use of the term ``unusual
circumstances'' contained in proposed Sec. 16.5(c) and suggested
instead using the term ``unforeseen circumstances.'' However, ``unusual
circumstances'' is a term of art that is taken directly from, and
defined by, the FOIA. See 5 U.S.C. 552(a)(6)(B)(i).
One commenter asserted that the language from the existing
regulation stating that information dissemination ``need not be a
[requester's] sole occupation,'' 28 CFR 16.5(d)(3) should be restored
in proposed Sec. 16.5(e)(3), which pertains to expedited processing.
It was not the Department's intention to narrow this standard--indeed,
the example provided in the provision references a requester who is not
a full-time member of the news media. To provide even greater clarity,
the final rule provides that information dissemination ``need not be
the requester's sole occupation.''
The commenter also suggested deletion of a sentence from proposed
Sec. 16.5(e)(3) regarding the provision of news articles. The
commenter noted that requesters frequently make use of news articles to
demonstrate a need for expedited processing. While acknowledging that
provision of news articles does not ``necessarily require[] the grant
of expedited processing'' in all instances, the commenter objected to
the proposed sentence as not recognizing the usefulness of providing
articles. The Department modifies this sentence to make it clear that
provision of news articles on a topic ``can be helpful'' to
establishing that the standard is met. This language conveys more
appropriately the impact of providing numerous news articles. Finally,
the Department revises the final sentence of proposed Sec. 16.5(e)(4),
regarding administrative appeal of any component denial of expedited
processing, to maintain the language used in the existing regulations.
Section 16.6 (Responses to Requests)
One commenter suggested adding a sentence to proposed Sec. 16.6(d)
(redesignated as Sec. 16.6(e) in the final rule), which concerns
estimating the volume of information withheld, to require a listing of
any documents withheld in full. Another commenter suggested that a
brief description of the withheld information be provided if doing so
would not reveal exempt information. While the Department understands
the desire for such further detail, and encourages components to use
their judgment to provide additional helpful information when
practical, the Department must balance the time involved with imposing
such a requirement against the heavy demands faced by many components
to process thousands or tens of thousands of requests each year. In
light of those demands, imposing such a requirement would be
counterproductive. Contrary to the first commenter's assertion, a
listing is not required at the administrative stage of processing a
FOIA request. See Bangoura v. U.S. Dep't of the Army, 607 F. Supp. 2d
134, 143 n.8 (D.D.C. 2009) (holding that list of withheld documents is
not required at administrative stage of processing FOIA requests and
appeals).
One commenter mistakenly thought that proposed Sec. 16.6(e) had
eliminated the requirement that a denial be signed by the head of the
component or a designee. The first line of Sec. 16.6(e) in the final
rule continues to contain this requirement.
An agency commenter recommended that acknowledgments of requests
include a brief description of the subject of the request in order to
help requesters keep track of multiple pending requests. The Department
agrees and has included such language in Sec. 16.6(b) of the final
rule.
The same commenter recommended that the rule reference the
statutory requirement that agencies indicate, if technically feasible,
the amount of information deleted and the exemption under which each
deletion is made unless doing so would harm an interest protected by an
applicable exemption. The Department adds such language in Sec. 16.6
of the final rule.
Section 16.7 (Confidential Commercial Information)
One commenter approved of the change to proposed Sec. 16.7(b)
which states that ``[a] submitter of confidential commercial
information must use good faith efforts to designate by appropriate
markings . . . any portion of its submission that it considers to be
protected from disclosure under Exemption 4.'' A similar requirement is
also contained in proposed Sec. 16.7(e) for submitters relying on
Exemption 4 as a basis for nondisclosure after receipt of submitter
notice. However, the commenter objected to the language of proposed
Sec. 16.7(e) that also states that a submitter should provide the
component with detailed reasons for withholding under any FOIA
exemption. The commenter suggested the use of the word ``must'' instead
of ``should.''
The difference in the requirements is based on the nature of the
information at issue. Submitters are in the best position to explain
why information should be considered confidential commercial
information pursuant to Exemption 4, but would not have any specialized
insight into the application of other FOIA exemptions. Accordingly,
although a submitter's opinion on the applicability of other FOIA
exemptions is solicited, the Department does not require it because the
components are best suited to make such disclosure determinations.
Section 16.8 (Administrative Appeals)
Two commenters took issue with the timing associated with
submitting an administrative appeal set forth in
[[Page 18105]]
proposed Sec. 16.8(a). In response, the Department increases the time
period from 45 days to 60 days. The Department notes that the use of
the postmark or transmission date, rather than a ``received'' date,
will provide a date certain for requesters to ensure, and components to
ascertain, the timeliness of an appeal.
The Department also adds language in Sec. 16.8(c) of the final
rule to indicate that, when issuing a decision on appeal, it will
inform the requester of the mediation services offered by the Office of
Government Information Services (``OGIS'') of the National Archives and
Records Administration as a non-exclusive alternative to litigation.
Section 16.9 (Preservation of Records)
One commenter objected to the language in proposed Sec. 16.9
concerning document preservation. The purpose of proposed Sec. 16.9 is
to ensure that components appropriately preserve all records that are
subject to a pending request, appeal, or lawsuit under the FOIA. It was
not the Department's intention to narrow the scope of the obligation
and so the Department is revising the language to state: ``Records will
not be disposed of or destroyed while they are the subject of a pending
request, appeal, or lawsuit under the FOIA.''
Miscellaneous
One commenter recommended that the regulations restate various
provisions included in the 2009 President's Memorandum on the FOIA,
Presidential Memorandum for Heads of Executive Departments and Agencies
Concerning the Freedom of Information Act, 74 FR 4683 (Jan. 21, 2009),
and the 2009 Attorney General FOIA Guidelines, Attorney General
Holder's Memorandum for Heads of Executive Departments and Agencies
Concerning the Freedom of Information Act, 74 FR 51879 (Oct. 8, 2009).
For example, the commenter requested that the rule restate the
provision in the Attorney General's FOIA Guidelines that the Department
will defend in litigation a denial of a FOIA request only if the
disclosure is prohibited by law or if the agency reasonably foresees
that disclosure would harm an interest protected by a statutory
exemption. Because this rule addresses the procedures for making and
responding to FOIA requests, rather than the conduct of FOIA
litigation, the Department declines to make this change. The commenter
also requested that the rule restore the provision in Sec. 16.1(a) of
the existing regulations with regard to the Department's policy on
making discretionary disclosures. The Department has decided to do so.
In response to the public comments and feedback from Department
components with respect to the phrasing of certain provisions, the
Department is revising for clarity the following provisions: Sec. 16.1
(General provisions), Sec. 16.3 (Requirements for making requests),
Sec. 16.4 (Responsibility for responding to requests), Sec. 16.6
(Responses to requests), Sec. 16.8 (Administrative appeals), and Sec.
16.10 (Fees). The new wording more precisely states the Department's
obligations with respect to consultations and referrals of documents,
classified information, acknowledging receipt of requests, marking
documents before release, and determining fee status.
In recognition of the greater efficiency of electronic
communication, the final rule makes clear that requesters may submit
requests and appeals electronically, and instructs components to
communicate electronically with requesters to the extent practicable.
This language is being added in Sec. 16.3(a) (Requirements for making
requests) (General information), Sec. 16.6(a) (Responses to requests)
(In general), and Sec. 16.8(a) (Administrative appeals) (Requirements
for making an appeal).
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that it will not have a significant economic impact on a
substantial number of small entities. Under the FOIA, agencies may
recover only the direct costs of searching for, reviewing, and
duplicating the records processed for requesters. Thus, fees assessed
by the Department are nominal. Further, the ``small entities'' that
make FOIA requests, as compared with individual requesters and other
requesters, are relatively few in number.
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866 (``Regulatory Planning and Review''), section
1(b) (``The Principles of Regulation''), and in accordance with
Executive Order 13563 (``Improving Regulation and Regulatory Review''),
section 1 (``General Principles of Regulation'').
The Department of Justice has determined that this rule is a
``significant regulatory action'' under Executive Order 12866, section
3(f), and, accordingly, this rule has been reviewed by the Office of
Management and Budget.
Further, both Executive Orders 12866 and 13563 direct agencies to
assess all costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. The Department has assessed the costs and
benefits of this regulation and believes that the regulatory approach
selected maximizes net benefits.
The rule benefits the public by updating and streamlining the
language in the Department's existing FOIA regulation. For example, the
rule simplifies the assessment of fees in two ways: (1) By eliminating
the presumption that requesters will pay fees up to $25 and instead
providing that no fees will be assessed if the fees are under $25; and
(2) by collapsing three categories of personnel into two for purposes
of calculating search fees.
The rule also benefits the public by incorporating references to
procedures reflecting Department guidance issued subsequent to the
existing version of the regulations, such as guidance on conducting
consultations, referrals, and coordination, use of exclusions,
assigning tracking numbers, notifying requesters of mediation services,
and routing of misdirected requests. Updating the regulation to reflect
existing procedures enhances transparency and reduces the risk of
confusion for requesters. There are only de minimis costs associated
with incorporating the guidance changes into the rule. Many of the
provisions addressed in the guidance are implemented simply by
inserting standard language into correspondence, such as the language
advising requesters of the mediation services offered by OGIS. Other
provisions, such as those requiring assignment of tracking numbers,
routing of misdirected requests, and provision of status estimates,
reference procedures that components were already doing to varying
degrees and so incur no meaningful new costs, and to the extent those
procedures are now standardized, the time expended to comply is
minimal.
The Department does not have statistics as to how many requests
fall within the $15 to $25 range. Based on our experience, the
Department does not
[[Page 18106]]
expect that raising the fee threshold to $25 will have a significant
effect on the number of FOIA submissions. Further, for the subset of
requests where the fees are more than $14, but less than $25, the
public benefits by receiving the additional value of $11 of services
without charge. While the Department will incur the cost for those
additional services, the cost is minimal since it is only a difference
of $11 per request, and it is counterbalanced by the time savings
incurred by having the rule simplified. As a result, the Department
believes that the effect of the threshold change will be de minimis. It
simplifies matters for Department personnel as now there is a clear
line between what requesters get for free--services under $25--and when
components start assessing fees--at $25. That simplification for
Department personnel is a benefit. The fees that the Department
currently collects from requesters represent only 0.17% of the
Department's processing costs and so the slight change in the threshold
for assessing fees simply does not have a measurable cost impact on the
Department.
The rule further benefits requesters by changing the way in which
timeliness is determined for filing administrative appeals. The rule
replaces the difficult-to-determine ``received'' date with a date
certain (a postmark), which provides requesters with clarity as to
timeliness while imposing no cost on the Department.
Lastly, the rule promotes understanding of requesters' statutory
fee entitlements by requiring Department components to advise non-
commercial-use requesters of their right to obtain 100 pages and two
hours of search time for free. This will impose few if any costs on the
Department; some components already follow this procedure, and the
remainder can implement it easily.
In sum, the Department is confident that the rule provides multiple
benefits to the public while imposing minimal costs.
Unfunded Mandates Reform 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 one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
List of Subjects in 28 CFR Part 16
Administrative practice and procedure, Freedom of information,
Privacy.
For the reasons stated in the preamble, the Department of Justice
amends 28 CFR chapter I, part 16, as follows:
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
0
1. Revise the authority citation for part 16 to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717.
0
2. Revise subpart A of part 16 to read as follows:
Subpart A--Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec.
16.1 General provisions.
16.2 Proactive disclosure of Department records.
16.3 Requirements for making requests.
16.4 Responsibility for responding to requests.
16.5 Timing of responses to requests.
16.6 Responses to requests.
16.7 Confidential commercial information.
16.8 Administrative appeals.
16.9 Preservation of records.
16.10 Fees.
16.11 Other rights and services.
Subpart A--Procedures for Disclosure of Records Under the Freedom
of Information Act
Sec. 16.1 General provisions.
(a) This subpart contains the rules that the Department of Justice
follows in processing requests for records under the Freedom of
Information Act (``FOIA''), 5 U.S.C. 552. The rules in this subpart
should be read in conjunction with the text of the FOIA and the Uniform
Freedom of Information Fee Schedule and Guidelines published by the
Office of Management and Budget (``OMB Guidelines''). Additionally, the
Department's ``FOIA Reference Guide'' and its attachments contain
information about the specific procedures particular to the Department
with respect to making FOIA requests and descriptions of the types of
records maintained by different Department components. This resource is
available at http://www.justice.gov/oip/04_3.html. Requests made by
individuals for records about themselves under the Privacy Act of 1974,
5 U.S.C. 552a, are processed under subpart D of part 16 as well as
under this subpart. As a matter of policy, the Department makes
discretionary disclosures of records or information exempt from
disclosure under the FOIA whenever disclosure would not foreseeably
harm an interest protected by a FOIA exemption, but this policy does
not create any right enforceable in court.
(b) As referenced in this subpart, component means each separate
bureau, office, division, commission, service, center, or
administration that is designated by the Department as a primary
organizational entity.
(c) The Department has a decentralized system for processing
requests, with each component handling requests for its records.
Sec. 16.2 Proactive disclosure of Department records.
Records that are required by the FOIA to be made available for
public inspection and copying may be accessed through the Department's
Web site at http://www.justice.gov/oip/04_2.html. Each component is
responsible for determining which of its records are required to be
made publicly available, as well as identifying additional records of
interest to the public that are appropriate for public disclosure, and
for posting and indexing such records. Each component shall ensure that
its Web site of posted records and indices is reviewed and updated on
an ongoing basis. Each component has a FOIA Public Liaison who can
assist individuals in locating records particular to a component. A
list of the Department's FOIA Public Liaisons is available at http://www.justice.gov/oip/foiacontact/index-list.html.
Sec. 16.3 Requirements for making requests.
(a) General information. (1) The Department has a decentralized
system for responding to FOIA requests, with each component designating
a FOIA office to process records from that component. All components
have the capability to receive requests electronically either through
email or a web portal. To make a request for
[[Page 18107]]
records of the Department, a requester should write directly to the
FOIA office of the component that maintains the records being sought. A
request will receive the quickest possible response if it is addressed
to the FOIA office of the component that maintains the records sought.
The Department's FOIA Reference Guide, which may be accessed as
described in Sec. 16.1(a), contains descriptions of the functions of
each component and provides other information that is helpful in
determining where to make a request. Each component's FOIA office and
any additional requirements for submitting a request to a given
component are listed in Appendix I to this part. Part 0 of this chapter
also summarizes the functions of each component. These references can
all be used by requesters to determine where to send their requests
within the Department.
(2) A requester may also send requests to the FOIA/PA Mail Referral
Unit, Justice Management Division, Department of Justice, 950
Pennsylvania Avenue NW., Washington, DC 20530-0001, or via email to
MRUFOIA.Requests@usdoj.gov, or via fax to (202) 616-6695. The Mail
Referral Unit will forward the request to the component(s) that it
determines to be most likely to maintain the records that are sought.
(3) A requester who is making a request for records about himself
or herself must comply with the verification of identity provision set
forth in subpart D of this part.
(4) Where a request for records pertains to a third party, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual or a declaration made in
compliance with the requirements set forth in 28 U.S.C. 1746 by that
individual authorizing disclosure of the records to the requester, or
by submitting proof that the individual is deceased (e.g., a copy of a
death certificate or an obituary). As an exercise of administrative
discretion, each component can require a requester to supply additional
information if necessary in order to verify that a particular
individual has consented to disclosure.
(b) Description of records sought. Requesters must describe the
records sought in sufficient detail to enable Department personnel to
locate them with a reasonable amount of effort. To the extent possible,
requesters should include specific information that may assist a
component in identifying the requested records, such as the date, title
or name, author, recipient, subject matter of the record, case number,
file designation, or reference number. Requesters should refer to
Appendix I to this part for additional, component-specific
requirements. In general, requesters should include as much detail as
possible about the specific records or the types of records that they
are seeking. Before submitting their requests, requesters may contact
the component's FOIA contact or FOIA Public Liaison to discuss the
records they are seeking and to receive assistance in describing the
records. If after receiving a request a component determines that it
does not reasonably describe the records sought, the component shall
inform the requester what additional information is needed or why the
request is otherwise insufficient. Requesters who are attempting to
reformulate or modify such a request may discuss their request with the
component's designated FOIA contact, its FOIA Public Liaison, or a
representative of the Office of Information Policy (``OIP''), each of
whom is available to assist the requester in reasonably describing the
records sought. If a request does not reasonably describe the records
sought, the agency's response to the request may be delayed.
Sec. 16.4 Responsibility for responding to requests.
(a) In general. Except in the instances described in paragraphs (c)
and (d) of this section, the component that first receives a request
for a record and maintains that record is the component responsible for
responding to the request. In determining which records are responsive
to a request, a component ordinarily will include only records in its
possession as of the date that it begins its search. If any other date
is used, the component shall inform the requester of that 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.
(b) Authority to grant or deny requests. The head of a component,
or designee, is authorized to grant or to deny any requests for records
that are maintained by that component.
(c) Re-routing of misdirected requests. Where a component's FOIA
office determines that a request was misdirected within the Department,
the receiving component's FOIA office shall route the request to the
FOIA office of the proper component(s).
(d) Consultation, referral, and coordination. When reviewing
records located by a component in response to a request, the component
shall determine whether another component or another agency of the
Federal Government is better able to determine whether the record is
exempt from disclosure under the FOIA and, if so, whether it should be
released as a matter of discretion. As to any such record, the
component shall proceed in one of the following ways:
(1) Consultation. When records originated with the component
processing the request, but contain within them information of interest
to another component, agency, or other Federal Government office, the
component processing the request should typically consult with that
other component or agency prior to making a release determination.
(2) Referral. (i) When the component processing the request
believes that a different component, agency, or other Federal
Government office is best able to determine whether to disclose the
record, the component typically should refer the responsibility for
responding to the request regarding that record, as long as the
referral is to a component or agency that is subject to the FOIA.
Ordinarily, the component or 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 component
or agency jointly agree that the former is in the best position to
respond regarding the record, then the record may be handled as a
consultation.
(ii) Whenever a component refers any part of the responsibility for
responding to a request to another component or agency, it shall
document the referral, maintain a copy of the record that it refers,
and notify the requester of the referral and inform the requester of
the name(s) of the component or agency to which the record was
referred, including that component's or agency'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
[[Page 18108]]
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 harms. 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 disclosability of the record. The release determination for the
record that is the subject of the coordination should then be conveyed
to the requester by the component that originally received the request.
(e) Classified information. On receipt of any request involving
classified information, the component shall determine whether the
information is currently and properly classified and take appropriate
action to ensure compliance with part 17 of this title. Whenever a
request involves a record containing information that has been
classified or may be appropriate for classification by another
component or agency under any applicable executive order concerning the
classification of records, the receiving component shall refer the
responsibility for responding to the request regarding that information
to the component or agency that classified the information, or that
should consider the information for classification. Whenever a
component's record contains information that has been derivatively
classified (for example, when it contains information classified by
another component or agency), the component shall refer the
responsibility for responding to that portion of the request to the
component or agency that classified the underlying information.
(f) Timing of responses to consultations and referrals. All
consultations and referrals received by the Department will be handled
according to the date that the FOIA request initially was received by
the first component or agency.
(g) Agreements regarding consultations and referrals. Components
may establish agreements with other components or agencies to eliminate
the need for consultations or referrals with respect to particular
types of records.
Sec. 16.5 Timing of responses to requests.
(a) In general. Components ordinarily will respond to requests
according to their order of receipt. Appendix I to this part contains
the list of the Department components that are designated to accept
requests. In instances involving misdirected requests that are re-
routed pursuant to Sec. 16.4(c), the response time will commence on
the date that the request is received by the proper component's office
that is designated to receive requests, but in any event not later than
10 working days after the request is first received by any component's
office that is designated by these regulations to receive requests.
(b) Multitrack processing. All components must designate a specific
track for requests that are granted expedited processing, in accordance
with the standards set forth in paragraph (e) of this section. A
component may also designate additional processing tracks that
distinguish between simple and more complex requests based on the
estimated amount of work or time needed to process the request. Among
the factors a component may consider are the number of pages involved
in processing the request and the need for consultations or referrals.
Components shall advise requesters of the track into which their
request falls and, when appropriate, shall offer the requesters an
opportunity to narrow their request so that it can be placed in a
different processing track.
(c) Unusual circumstances. Whenever the statutory time limit for
processing a request cannot be met because of ``unusual
circumstances,'' as defined in the FOIA, and the component extends the
time limit on that basis, the component shall, before expiration of the
20-day period to respond, notify the requester in writing of the
unusual circumstances involved and of the date by which processing of
the request can be expected to be completed. Where the extension
exceeds 10 working days, the component shall, as described by the FOIA,
provide the requester with an opportunity to modify the request or
arrange an alternative time period for processing. The component shall
make available its designated FOIA contact and its FOIA Public Liaison
for this purpose.
(d) Aggregating requests. For the purposes of satisfying unusual
circumstances under the FOIA, components may aggregate requests in
cases where it reasonably appears that multiple requests, submitted
either by a requester or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances. Components shall not aggregate multiple requests that
involve unrelated matters.
(e) Expedited processing. (1) Requests and appeals shall be
processed on an expedited basis whenever it is determined that they
involve:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by a person who is primarily
engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the government's integrity that
affect public confidence.
(2) A request for expedited processing may be made at any time.
Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section
must be submitted to the component that maintains the records
requested. When making a request for expedited processing of an
administrative appeal, the request should be submitted to OIP. Requests
for expedited processing that are based on paragraph (e)(1)(iv) of this
section must be submitted to the Director of Public Affairs at the
Office of Public Affairs, Department of Justice, 950 Pennsylvania
Avenue NW., Washington, DC 20530-0001. A component that receives a
misdirected request for expedited processing under the standard set
forth in paragraph (e)(1)(iv) of this section shall forward it
immediately to the Office of Public Affairs for its determination. The
time period for making the determination on the request for expedited
processing under paragraph (e)(1)(iv) of this section shall commence on
the date that the Office of Public Affairs receives the request,
provided that it is routed within 10 working days.
(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 (e)(1)(ii) of this section, a requester who is not a
full-time member of the news media must establish that the requester is
a person whose primary 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, a component
[[Page 18109]]
may waive the formal certification requirement.
(4) A component shall notify the requester within 10 calendar days
of the receipt of a request for expedited processing of its decision
whether to grant or deny expedited processing. If expedited processing
is granted, the request shall be given priority, placed in the
processing track for expedited requests, and shall be processed as soon
as practicable. If a request for expedited processing is denied, any
appeal of that decision shall be acted on expeditiously.
Sec. 16.6 Responses to requests.
(a) In general. Components should, to the extent practicable,
communicate with requesters having access to the Internet using
electronic means, such as email or web portal.
(b) Acknowledgments of requests. A component shall acknowledge the
request and assign it an individualized tracking number if it will take
longer than 10 working days to process. Components shall include in the
acknowledgment a brief description of the records sought to allow
requesters to more easily keep track of their requests.
(c) Grants of requests. Once a component makes a determination to
grant a request in full or in part, it shall notify the requester in
writing. The component also shall inform the requester of any fees
charged under Sec. 16.10 and shall disclose the requested records to
the requester promptly upon payment of any applicable fees.
(d) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, include decisions that: the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees or fee waiver matters or denials of
requests for expedited processing.
(e) Content of denial. The denial shall be signed by the head of
the component, or designee, and shall include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the component in denying the request;
(3) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the volume is
otherwise indicated by deletions marked on records that are disclosed
in part or if providing an estimate would harm an interest protected by
an applicable exemption; and
(4) A statement that the denial may be appealed under Sec.
16.8(a), and a description of the requirements set forth therein.
(f) Markings on released documents. Markings on released documents
must be clearly visible to the requester. Records disclosed in part
shall 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 shall also be indicated on the record, if
technically feasible.
(g) Use of record exclusions. (1) In the event that a component
identifies records that may be subject to exclusion from the
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component
must confer with OIP to obtain approval to apply the exclusion.
(2) Any component invoking an exclusion shall maintain an
administrative record of the process of invocation and approval of the
exclusion by OIP.
Sec. 16.7 Confidential commercial information.
(a) Definitions. (1) Confidential commercial information means
commercial or financial information obtained by the Department from a
submitter that may be protected from disclosure under Exemption 4 of
the FOIA, 5 U.S.C. 552(b)(4).
(2) Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides information, either directly or
indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, either at the time of submission or
within a reasonable time thereafter, any portion of its submission that
it considers to be protected from disclosure under Exemption 4. These
designations shall expire 10 years after the date of the submission
unless the submitter requests and provides justification for a longer
designation period.
(c) When notice to submitters is required. (1) A component shall
promptly provide written notice to a submitter of confidential
commercial information whenever records containing such information are
requested under the FOIA if, after reviewing the request, the
responsive records, and any appeal by the requester, the component
determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The component has a reason to believe that the requested
information may be protected from disclosure under Exemption 4, but has
not yet determined whether the information is protected from disclosure
under that exemption or any other applicable exemption.
(2) The notice shall either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information. In cases involving a voluminous
number of submitters, notice may be made by posting or publishing the
notice in a place or manner reasonably likely to accomplish it.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section shall not apply if:
(1) The component determines that the information is exempt under
the FOIA;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous, except that, in such a case,
the component shall give the submitter written notice of any final
decision to disclose the information and must provide that notice
within a reasonable number of days prior to a specified disclosure
date.
(e) Opportunity to object to disclosure. (1) A component shall
specify a reasonable time period within which the submitter must
respond to the notice referenced above. If a submitter has any
objections to disclosure, it should provide the component a detailed
written statement that specifies all grounds for withholding the
particular
[[Page 18110]]
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.
(2) A submitter who fails to respond within the time period
specified in the notice shall be considered to have no objection to
disclosure of the information. Information received by the component
after the date of any disclosure decision shall not be considered by
the component. Any information provided by a submitter under this
subpart may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. A component shall consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose the requested information.
(g) Notice of intent to disclose. Whenever a component decides to
disclose information over the objection of a submitter, the component
shall provide the submitter written notice, which shall include:
(1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, the component shall promptly notify the submitter.
(i) Requester notification. The component shall notify a requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
Sec. 16.8 Administrative appeals.
(a) Requirements for making an appeal. A requester may appeal any
adverse determinations to OIP. The contact information for OIP is
contained in the FOIA Reference Guide, which is available at http://www.justice.gov/oip/04_3.html. Appeals can be submitted through the web
portal accessible on OIP's Web site. Examples of adverse determinations
are provided in Sec. 16.6(d). The requester must make the appeal in
writing and to be considered timely it must be postmarked, or in the
case of electronic submissions, transmitted, within 60 calendar days
after the date of the response. The appeal should 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.''
(b) Adjudication of appeals. (1) The Director of OIP or designee
will act on behalf of the Attorney General on all appeals under this
section.
(2) An appeal ordinarily will not be adjudicated if the request
becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, OIP
shall take appropriate action to ensure compliance with part 17 of this
title.
(c) Decisions on appeals. A decision on an appeal must be made in
writing. A decision that upholds a component's determination will
contain a statement that identifies the reasons for the affirmance,
including any FOIA exemptions applied. The decision will provide the
requester with notification of the statutory right to file a lawsuit
and will inform the requester of the mediation services offered by the
Office of Government Information Services of the National Archives and
Records Administration as a non-exclusive alternative to litigation. If
a component's decision is remanded or modified on appeal, the requester
will be notified of that determination in writing. The component will
thereafter further process the request in accordance with that appeal
determination and respond directly to the requester.
(d) When appeal is required. Before seeking review by a court of a
component's adverse determination, a requester generally must first
submit a timely administrative appeal.
Sec. 16.9 Preservation of records.
Each component shall 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 or the General Records
Schedule 14 of the National Archives and Records Administration.
Records shall not be disposed of or destroyed while they are the
subject of a pending request, appeal, or lawsuit under the FOIA.
Sec. 16.10 Fees.
(a) In general. Components shall charge for processing requests
under the FOIA in accordance with the provisions of this section and
with the OMB Guidelines. In order to resolve any fee issues that arise
under this section, a component may contact a requester for additional
information. Components shall ensure that searches, review, and
duplication are conducted in the most efficient and the least expensive
manner. A component ordinarily will collect all applicable fees before
sending copies of records to a requester. Requesters must pay fees by
check or money order made payable to the Treasury of the United States.
(b) Definitions. For purposes of this section:
(1) Commercial use request is a request that asks for information
for a use or a purpose that furthers a commercial, trade, or profit
interest, which can include furthering those interests through
litigation. A component's decision to place a requester in the
commercial use category will be made on a case-by-case basis based on
the requester's intended use of the information.
(2) Direct costs are those expenses that an agency incurs in
searching for and duplicating (and, in the case of commercial use
requests, reviewing) records in order to respond to a FOIA request. 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. Direct
costs do not include overhead expenses such as the costs of space, and
of heating or lighting a facility.
(3) Duplication is reproducing a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
(4) Educational institution is any school that operates a program
of scholarly research. A requester in this fee category must show that
the request is authorized by, and is made under the auspices of, an
educational institution and that the records are not sought for a
commercial use, but rather are sought to further scholarly research. To
fall within this fee category, the request must serve the scholarly
research goals of the institution rather than an individual research
goal.
Example 1. A request from a professor of geology at a university
for records relating to soil erosion, written on letterhead of the
Department of Geology, would be presumed to be from an educational
institution.
Example 2. A request from the same professor of geology seeking
drug information from the Food and Drug Administration in furtherance
of a
[[Page 18111]]
murder mystery he is writing would not be presumed to be an
institutional request, regardless of whether it was written on
institutional stationery.
Example 3. A student who makes a request in furtherance of the
completion of a course of instruction would be presumed to be carrying
out an individual research goal, rather than a scholarly research goal
of the institution and would not qualify as part of this fee category.
(5) Noncommercial scientific institution is an institution that is
not operated on a ``commercial'' basis, as defined in paragraph (b)(1)
of this section and that is operated solely for the purpose of
conducting scientific research the results of which are not intended to
promote any particular product or industry. A requester in this
category must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are
sought to further scientific research and are not for a commercial use.
(6) Representative of the news media is any person or entity
organized and operated to publish or broadcast news to the public that
actively gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. The term
``news'' means information that is about current events or that would
be of current interest to the public. Examples of news media entities
include television or radio stations that broadcast ``news'' to the
public at large and publishers of periodicals that disseminate ``news''
and make their products available through a variety of means to the
general public, including news organizations that disseminate solely on
the Internet. A request for records supporting the news-dissemination
function of the requester shall not be considered to be for a
commercial use. ``Freelance'' journalists who demonstrate a solid basis
for expecting publication through a news media entity shall be
considered as a representative of the news media. A publishing contract
would provide the clearest evidence that publication is expected;
however, components shall also consider a requester's past publication
record in making this determination.
(7) Review is the examination of a record located in response to a
request in order to determine whether any portion of it is exempt from
disclosure. Review time includes processing any record for disclosure,
such as doing all that is necessary to prepare the record for
disclosure, including the process of redacting the record and marking
the appropriate exemptions. Review costs are properly charged even if a
record ultimately is not disclosed. Review time also includes time
spent both obtaining and considering any formal objection to disclosure
made by a confidential commercial information submitter under Sec.
16.7, but it does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(8) Search is the process of looking for and retrieving records or
information responsive to a request. Search time includes page-by-page
or line-by-line identification of information within records and the
reasonable efforts expended to locate and retrieve information from
electronic records.
(c) Charging fees. In responding to FOIA requests, components shall
charge the following fees unless a waiver or reduction of fees has been
granted under paragraph (k) of this section. Because the fee amounts
provided below already account for the direct costs associated with a
given fee type, components should not add any additional costs to
charges calculated under this section.
(1) Search. (i) Requests made by educational institutions,
noncommercial scientific institutions, or representatives of the news
media are not subject to search fees. Search fees shall be charged for
all other requesters, subject to the restrictions of paragraph (d) of
this section. Components may properly charge for time spent searching
even if they do not locate any responsive records or if they determine
that the records are entirely exempt from disclosure.
(ii) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require
new programming, the fees shall be as follows: professional--$10.00;
and clerical/administrative--$4.75.
(iii) Requesters shall be charged the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. Requesters shall be notified
of the costs associated with creating such a program and must agree to
pay the associated costs before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by
an agency at a Federal records center operated by the National Archives
and Records Administration (NARA), additional costs shall be charged in
accordance with the Transactional Billing Rate Schedule established by
NARA.
(2) Duplication. Duplication fees shall be charged to all
requesters, subject to the restrictions of paragraph (d) of this
section. A component shall honor a requester's preference for receiving
a record in a particular form or format where it is readily
reproducible by the component in the form or format requested. Where
photocopies are supplied, the component shall provide one copy per
request at a cost of five cents per page. For copies of records
produced on tapes, disks, or other media, components shall charge 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 shall pay the direct costs associated with scanning those
materials. For other forms of duplication, components shall charge the
direct costs.
(3) Review. Review fees shall be charged to requesters who make
commercial use requests. Review fees shall be assessed in connection
with the initial review of the record, i.e., the review conducted by a
component to determine whether an exemption applies to a particular
record or portion of a record. No charge will be made for review at the
administrative appeal stage of exemptions applied at the initial review
stage. However, if a particular exemption is deemed to no longer apply,
any costs associated with a component'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.
(d) Restrictions on charging fees. (1) No search fees will be
charged for requests by educational institutions (unless the records
are sought for a commercial use), noncommercial scientific
institutions, or representatives of the news media.
(2) If a component fails to comply with the time limits in which to
respond to a request, and if no unusual or exceptional circumstances,
as those terms are defined by the FOIA, apply to the processing of the
request, it may not charge search fees, or, in the instances of
requests from requesters described in paragraph (d)(1) of this section,
may not charge duplication fees.
(3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(4) Except for requesters seeking records for a commercial use,
components shall provide without charge:
[[Page 18112]]
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(5) When, after first deducting the 100 free pages (or its cost
equivalent) and the first two hours of search, a total fee calculated
under paragraph (c) of this section is $25.00 or less for any request,
no fee will be charged.
(e) Notice of anticipated fees in excess of $25.00. (1) When a
component determines or estimates that the fees to be assessed in
accordance with this section will exceed $25.00, the component shall
notify the requester of the actual or estimated amount of the fees,
including a breakdown of the fees for search, review or duplication,
unless the requester has indicated a willingness to pay fees as high as
those anticipated. If only a portion of the fee can be estimated
readily, the component shall advise the requester accordingly. If the
requester is a noncommercial use requester, the notice shall specify
that the requester is entitled to the statutory entitlements of 100
pages of duplication at no charge and, if the requester is charged
search fees, two hours of search time at no charge, and shall advise
the requester whether those entitlements have been provided.
(2) In cases in which a requester has been notified that the actual
or estimated fees are in excess of $25.00, the request shall not be
considered received and further work will not be completed until the
requester commits in writing to pay the actual or estimated total fee,
or designates some amount of fees the requester is willing to pay, or
in the case of a noncommercial use requester who has not yet been
provided with the requester's statutory entitlements, designates that
the requester seeks only that which can be provided by the statutory
entitlements. The requester must provide the commitment or designation
in writing, and must, when applicable, designate an exact dollar amount
the requester is willing to pay. Components are not required to accept
payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but the component estimates that the total
fee will exceed that amount, the component shall toll the processing of
the request when it notifies the requester of the estimated fees in
excess of the amount the requester has indicated a willingness to pay.
The component shall inquire whether the requester wishes to revise the
amount of fees the requester is willing to pay or modify the request.
Once the requester responds, the time to respond will resume from where
it was at the date of the notification.
(4) Components shall make available their 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. Components may charge interest on any unpaid
bill starting on the 31st day following the date of billing the
requester. Interest charges shall be assessed at the rate provided in
31 U.S.C. 3717 and will accrue from the billing date until payment is
received by the component. Components shall 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 a component reasonably believes that
a requester or a group of requesters acting in concert is attempting to
divide a single request into a series of requests for the purpose of
avoiding fees, the component may aggregate those requests and charge
accordingly. Components 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 shall not be aggregated.
(i) Advance payments. (1) For requests other than those described
in paragraphs (i)(2) or (i)(3) of this section, a component shall not
require the requester to make an advance payment before work is
commenced or continued on a request. Payment owed for work already
completed (i.e., payment before copies are sent to a requester) is not
an advance payment.
(2) When a component determines or estimates that a total fee to be
charged under this section will exceed $250.00, it may require that the
requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. A component
may elect to process the request prior to collecting fees when it
receives a satisfactory assurance of full payment from a requester with
a history of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to any component or agency within 30 calendar days of
the billing date, a component may require that the requester pay the
full amount due, plus any applicable interest on that prior request,
and the component may require that the requester make an advance
payment of the full amount of any anticipated fee before the component
begins to process a new request or continues to process a pending
request or any pending appeal. Where a component has a reasonable basis
to believe that a requester has misrepresented the requester's identity
in order to avoid paying outstanding fees, it may require that the
requester provide proof of identity.
(4) In cases in which a component requires advance payment, the
request shall not be considered received and further work will not be
completed until the required payment is received. If the requester does
not pay the advance payment within 30 calendar days after the date of
the component's fee determination, the request will be closed.
(j) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. In instances where records responsive
to a request are subject to a statutorily-based fee schedule program,
the component shall inform the requester of the contact information for
that program.
(k) Requirements for waiver or reduction of fees. (1) Records
responsive to a request shall be furnished without charge or at a
reduced rate below the rate established under paragraph (c) of this
section, where a component determines, based on all available
information, that the requester has demonstrated that:
(i) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government, and
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(2) In deciding whether disclosure of the requested information is
in the public interest because it is likely to contribute significantly
to public understanding of operations or activities
[[Page 18113]]
of the government, components shall consider all four of the following
factors:
(i) The subject of the request must concern identifiable operations
or activities of the Federal Government, with a connection that is
direct and clear, not remote or attenuated.
(ii) Disclosure of the requested records must be meaningfully
informative about government operations or activities in order to be
``likely to contribute'' to an increased public understanding of those
operations or activities. The disclosure of information that already is
in the public domain, in either the same or a substantially identical
form, would not contribute to such understanding where nothing new
would be added to the public's understanding.
(iii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public shall be
considered. It shall be presumed that a representative of the news
media will satisfy this consideration.
(iv) The public's understanding of the subject in question must be
enhanced by the disclosure to a significant extent. However, components
shall not make value judgments about whether the information at issue
is ``important'' enough to be made public.
(3) To determine whether disclosure of the requested information is
primarily in the commercial interest of the requester, components shall
consider the following factors:
(i) Components shall identify any commercial interest of the
requester, as defined in paragraph (b)(1) of this section, that would
be furthered by the requested disclosure. Requesters shall be given an
opportunity to provide explanatory information regarding this
consideration.
(ii) A waiver or reduction of fees is justified where the public
interest is greater than any identified commercial interest in
disclosure. Components ordinarily shall presume that where a news media
requester has satisfied the public interest standard, the public
interest will be the interest primarily served by disclosure to that
requester. Disclosure to data brokers or others who merely compile and
market government information for direct economic return shall not be
presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(5) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the component and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time so long as the underlying record request is pending or
on administrative appeal. When a requester who has committed to pay
fees subsequently asks for a waiver of those fees and that waiver is
denied, the requester shall be required to pay any costs incurred up to
the date the fee waiver request was received.
Sec. 16.11 Other rights and services.
Nothing in this subpart shall be construed to entitle any person,
as of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
0
3. Revise Appendix I to part 16 to read as follows:
Appendix I to Part 16--Components of the Department of Justice
Please consult Attachment B of the Department of Justice FOIA
Reference Guide for the contact information and a detailed
description of the types of records maintained by each Department
component. The FOIA Reference Guide is available at http://www.justice.gov/oip/04_3.html or upon request to the Office of
Information Policy.
The FOIA offices of Department components and any component-
specific requirements for making a FOIA request are listed below.
The Certification of Identity form, available at http://www.justice.gov/oip/forms/cert_ind.pdf, may be used by individuals
who are making requests for records pertaining to themselves. For
each of the six components marked with an asterisk, FOIA and Privacy
Act (PA) access requests must be sent to OIP, which handles initial
requests for those six components.
Antitrust Division, FOIA/PA Unit
Bureau of Alcohol, Tobacco, Firearms, and Explosives, Disclosure
Division
Civil Division, FOIA/PA Officer
Requests for records from case files must include a case caption
or name, civil court case number, and judicial district.
Civil Rights Division, FOIA/PA Branch
Community Relations Service, FOIA/PA Coordinator
Criminal Division, FOIA/PA Unit
Drug Enforcement Administration, Freedom of Information Operations
Unit, FOI/Records Management Section
Environment and Natural Resources Division, FOIA Coordinator, Law
and Policy Section
Requests for records from case files must include a case caption
or name, civil or criminal court case number, and judicial district.
Executive Office for Immigration Review, Office of the General
Counsel
When seeking access to records concerning a named alien
individual, requesters must include an alien registration number
(``A'' number). If the ``A'' number is not known or the case
occurred before 1988, the date of an Order to Show Cause, country of
origin, and location of the immigration hearing must be provided.
Executive Office for United States Attorneys, FOIA/Privacy Unit
Executive Office for Organized Crime Drug Enforcement Task Forces
Requests for records from case files must include the judicial
district in which the investigation/prosecution or other litigation
occurred.
Executive Office for United States Trustees, FOIA/PA Counsel, Office
of the General Counsel
Requests for records from bankruptcy case files must include a
case caption or name, case number, and judicial district.
Federal Bureau of Investigation, Record/Information Dissemination
Section, Records Management Division
Federal Bureau of Prisons, FOIA/PA Section
Foreign Claims Settlement Commission
INTERPOL-U.S. National Central Bureau, FOIA/PA Specialist, Office of
General Counsel
Justice Management Division, FOIA Contact
National Security Division, FOIA Initiatives Coordinator
Office of the Associate Attorney General*
Office of the Attorney General*
Office of Community Oriented Policing Services, FOIA Officer, Legal
Division
Office of the Deputy Attorney General*
Office of Information Policy
Office of the Inspector General, Office of the General Counsel
Office of Justice Programs, Office of the General Counsel
Office of Legal Counsel
Office of Legal Policy*
Office of Legislative Affairs*
Office of the Pardon Attorney, FOIA Officer
Office of Professional Responsibility, Special Counsel for Freedom
of Information and Privacy Acts
Office of Public Affairs*
Office of the Solicitor General
Requests for records from case files must include a case name,
docket number, or citation to case.
Office on Violence Against Women
Professional Responsibility Advisory Office, Information Management
Specialist
Tax Division, Division Counsel for FOIA and PA Matters
Requests for records from case files must include a case caption
or name, civil or criminal court case number, and judicial district.
United States Marshals Service, Office of the General Counsel
Requests for records concerning seized property must specify the
judicial district of the seizure, civil court case number, asset
identification number, and an accurate description of the property.
United States Parole Commission, FOIA/PA Specialist
[[Page 18114]]
Dated: March 27, 2015.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2015-07772 Filed 4-2-15; 8:45 am]
BILLING CODE 4110-BE-P
