PART 1204—AVAILABILITY OF OFFICIAL INFORMATION Authority: 5 U.S.C. 552 and 1204, Pub. L. 99-570, Pub. L. 104-231, and E.O. 12600. Source: 64 FR 51039, Sept. 21, 1999, unless otherwise noted. Subpart A—Purpose and Scope § 1204.1 Purpose. This part implements the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, by stating the procedures to follow when requesting information from the Board, and by stating the fees that will be charged for that information. § 1204.2 Scope. (a) For the purpose of this part, the term record (b) When the subject of the record, or the subject's representative, requests a record from a Privacy Act system of records, as that term is defined by 5 U.S.C. 552a(a)(5), and the Board retrieves the record by the subject's name or other personal identifier, the Board will handle the request under the procedures and fees shown in part 1205 of this chapter. When a third party requests access to those records, without the written consent of the subject of the record, the Board will handle the request under this part. (c) When a party to an appeal requests a copy of a tape recording, video tape, or transcript (if one has been prepared) of a hearing that the Board or a judge held under part 1201 or part 1209 of this chapter, the Board will handle the request under § 1201.53 of this chapter. When someone other than a party to the appeal makes this request, the Board will handle the request under this part. (d) In accordance with 5 U.S.C. 552(a)(2), the Board's final opinions and orders (including concurring and dissenting opinions), those statements of policy and interpretations adopted by the Board and that are not published in the Federal Register, http://www.mspb.gov. [64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48885, Aug. 10, 2000] Subpart B—Procedures for Obtaining Records Under the Freedom of Information Act § 1204.11 Request for access to Board records. (a) Sending a request. http://www.mspb.gov. (b) Description. (c) Time limits and decisions. (1) Extension of time. (i) To limit the request so that it may be processed within the time limit, or (ii) To arrange with the Board a different time frame for processing the request or a changed request. (2) Expedited processing. [64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000] § 1204.12 Fees. (a) General. (b) Definitions. direct costs (2) The term search, (3) The term duplication (4) The term review (5) The term commercial use request (6) The term educational institution (7) The term noncommercial scientific institution (8) The term representative of the news media news (c) Categories of requesters. (d) The Board will not charge a requester if the fee for any request is less that $100 (the cost to the Board of processing and collecting the fee). (1) When the Board receives a request: (i) From a commercial use requester, it will charge fees that recover the full direct costs for searching for the information requested, reviewing it for release at the initial request stage, reviewing it after an appeal to determine whether other exemptions not considered before the appeal apply to it, and copying it. (ii) From an educational and noncommercial scientific institution or, to the extent copying exceeds 100 pages, from a representative of the news media, it will charge fees only for the cost of copying the requested information. (iii) From all other requesters, to the extent copying exceeds 100 pages and search time exceeds 2 hours, it will charge fees for the full direct cost of searching for and copying requested records. (2) When the Board reasonably believes that a requester or group of requesters is attempting to divide a request into more than one request to avoid payment of fees, the Board will combine the requests and charge fees accordingly. The Board will not combine multiple requests on unrelated subjects from one requester. (3) When the Board decides that charges for a request are likely to exceed $250, the Board will require the requester to pay the entire fee in advance before continuing to process the request. (4) When a requester has an outstanding fee charge or has not paid a fee on time, the Board will require the requester to pay the full amount of the estimated fee in advance before the Board begins to process a new or pending request from that requester, and before it applies administrative time limits for making a decision on the new or pending request. (e) Fee schedule. (2) Fees for computer searches for records will be $5 per quarter hour spent by each employee operating the computer equipment and/or developing a new inquiry or report. (3) Fees for review at the initial administrative level to determine whether records or portions of records are exempt from disclosure, and for review after an appeal to determine whether the records are exempt on other legal grounds, will be charged, for commercial use requests, at a rate of $5 per quarter hour spent by each reviewing employee. (4) Fees for photocopying records is 20 cents a page, the fee for copying audio tapes is the direct cost up to $15 per cassette tape; the fee for copying video tapes is the direct cost up to $20 per tape; and the fee for computer printouts is 10 cents a page. The fee for duplication of electronically maintained information in the requester's preferred format will be $21 for copying computer tapes and $4 for copying records on computer diskettes, if it is feasible for the Board to reproduce records in the format requested. Fees for certified copies of the Board's records will include a $4 per page charge for each page displaying the Board's seal and certification. When the Board estimates that copying costs will exceed $100, it will notify the requester of the estimated amount unless the requester has indicated in advance a willingness to pay an equal or higher amount. (f) Fee waivers. (i) The subject of the request: Whether the subject of the requested records concerns the operations or activities of the government; (ii) The informative value of the information to be disclosed: Whether the disclosure is likely to contribute to an understanding of government operations or activities; (iii) Whether disclosure of the requested information is likely to contribute to public understanding of the subject of the disclosure; and (iv) The significance of the contribution the disclosure would make to public understanding of government operations or activities. (2) If information is to be furnished without charge or at reduced rates, the requester must also establish that disclosure of the information is not primarily in the commercial interest of the requester. This decision will be based on: (i) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so, (ii) Whether the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requester. (3) The requester must establish eligibility for a waiver of fees or for reduced fees. The denial of a request for waiver of fees may be appealed under subpart C of this part. § 1204.13 Denials. (a) The Board may deny: A request for reduced fees or waiver of fees; a request for a record, either in whole or in part; a request for expeditious processing based on the requester's compelling need; or a request that records be released in a specific electronic format. The denial will be in writing, will state the reasons, and will notify the requester of the right to appeal. (b) If the Board applies one or more of the exemptions provided under the FOIA to deny access to some or all of the information requested, it will respond in writing, identifying for the requester the specific exemption(s), providing an explanation as to why the exemption(s) to withhold the requested information must be applied, and providing an estimate of the amount of material that has been denied to the requester, unless providing such an estimate would harm an interest protected by the exemptions. (c) The amount of information deleted will be indicated on the released portion of the record at the place in the record where the deletion is made, if technically feasible and unless the indication would harm an interest protected by the exemption under which the deletion is made. § 1204.14 Requests for access to confidential commercial information. (a) General. (b) Definitions. confidential commercial information (2) The term submitter submitter (c) Notice to business submitters. (d) When initial notice is required. (i) The information is less than 10 years old; or (ii) The Board has reason to believe that releasing the information could reasonably be expected to cause substantial competitive harm. (2) With respect to confidential commercial information received by the Board on or after January 1, 1988, the Board will give notice to the business submitter whenever: (i) The business submitter has designated the information in good faith as commercially or financially sensitive information; or (ii) The Board has reason to believe that releasing the information could reasonably be expected to cause substantial competitive harm. (3) Notice of a request for commercially confidential information that was received by January 1, 1988, is required for a period of not more than 10 years after the date on which the information is submitted unless the business submitter requests, and provides justification for, a longer specific notice period. Whenever possible, the submitter's claim of confidentially must be supported by a statement or certification, by an officer or authorized representative of the company, that the information in question is confidential commercial information and has not been disclosed to the public. (e) Opportunity to object to disclosure. (f) Notice of intent to release information. (1) A statement of the reasons for which the business submitter's objections to the release were not sufficient; (2) A description of the confidential commercial information to be released; and (3) A specified release date. (g) Notice of Freedom of Information Act lawsuit. (h) Exceptions to notice requirements. (1) The Board decides that the information should not be released; (2) The information lawfully has been published or otherwise made available to the public; (3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or (4) The disclosure is required by an agency rule that: (i) Was adopted after notice and public comment; (ii) Specifies narrow classes of records submitted to the agency that are to be released under the FOIA; or (iii) Provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that release of the information could reasonably be expected to cause substantial competitive harm. (5) The information requested is not designated by the submitter as exempt from release according to agency regulations issued under this section, when the submitter has an opportunity to do so at the time of sending the information or a reasonable time thereafter, unless the agency has good reason to believe that disclosure of the information would result in competitive harm; or (6) The designation made by the submitter according to Board regulations appears obviously frivolous; except that, in such case, the Board must provide the submitter with written notice of any final administrative release decision within a reasonable period before the stated release date. § 1204.15 Records of other agencies. Requests for Board records that were created by another agency may, in appropriate circumstances, be referred to that agency for discussion or processing. In these instances, the Board will notify the requester. Subpart C—Appeals § 1204.21 Submission. (a) A person may appeal the following actions, or failure to act by the Clerk of the Board, a Regional Director, or Chief Administrative Judge: (1) A denial of access to agency records; (2) A denial of a request for a waiver or reduced fees; (3) A decision that it is technically not possible to reproduce electronically maintained information in the requester's preferred format; (4) A denial of a request for expedited processing of information under this part; or (5) A failure to decide a request for expedited processing within 10 workdays from the date of the request. (b) Appeals must be filed with the Chairman, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001 within 10 workdays from the date of the denial. Any appeal must include a copy of the initial request, a copy of the letter denying the request, and a statement of the reasons why the requester believes the denying employee erred. [64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000] § 1204.22 Decision on appeal. A decision on an appeal will be made within 20 workdays after the appeal is received. A decision not to provide expeditious processing of a request will be made within 15 workdays after the appeal is received. The decision will be in writing and will contain the reasons for the decision and information about the appellant's right to seek court review of the denial.