PART 1820—FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF RECORDS OR TESTIMONY Authority: 5 U.S.C. 552, 301, and 1212(e). Source: 87 FR 63407, Oct. 19, 2022, unless otherwise noted. § 1820.1 General provisions. This part contains rules and procedures followed by the U.S. Office of Special Counsel (OSC) in processing requests for records under the Freedom of Information Act (FOIA), codified at 5 U.S.C. 552. These rules and procedures should be read together with the FOIA and the FOIA page of OSC's website ( https://osc.gov/FOIA Subpart A—FOIA Regulations § 1820.2 Requirements for making FOIA requests. (a) Submission of requests. (i) By email to: [email protected] https://osc.gov/FOIA (ii) Electronically to: www.foia.gov; (iii) By mail to: (2) Both the request letter and envelope or email subject line should be clearly marked “FOIA Request.” (3) A FOIA request will not be considered to have been received by OSC until it reaches the FOIA Officer. (b) Description of records sought. (c) Agreement to pay fees. § 1820.3 Consultations and referrals. When OSC receives a FOIA request for a record in its possession, it may determine that another Federal agency or entity is better able to decide whether the record is exempt from disclosure under the FOIA. If so, OSC will either respond to the request for the record after consulting with the other Federal agency or entity or refer the responsibility for responding to the request to the other Federal agency or entity deemed better able to determine whether to release it. OSC will ordinarily respond promptly to consultations and referrals from other Federal agencies or entities. § 1820.4 Timing of responses to requests. (a) In general. (b) Multitrack processing. (2) When using multitrack processing, OSC may provide requestors in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the faster track(s). (c) Expedited processing. (i) Failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (ii) An urgency exists to inform the public about an actual or alleged federal government activity and the requestor is primarily engaged in disseminating information; or (iii) The requestor with a personal interest in a case for which they face an imminent filing deadline with the Merit Systems Protection Board or other administrative tribunal or court of law in an individual right of action, or in a USERRA case referred to OSC under title 38 of the U.S. Code. Expedited status granted under this provision will apply only to the following requested records: PPP case closure and notice of appeal rights letters sent to the complainant by OSC and the official complaint form submitted to OSC by a USERRA complainant or the original referred USERRA complaint if referred to OSC under title 38 of the U.S. Code. (2) A request for expedited processing must be made in writing and sent to OSC's FOIA Officer. The expedited request is deemed received when it reaches the FOIA Officer. (3) A requestor who seeks expedited processing must submit a statement, certified to be true and correct to the best of that individual's knowledge and belief, explaining in detail the basis for requesting expedited processing. OSC may waive a certification as a matter of administrative discretion. (4) OSC shall decide whether to grant a request for expedited processing and notify the requestor of its decision within ten (10) calendar days of the FOIA Officer's receipt of the request. If OSC grants the request for expedited processing, it will process the request as soon as practicable. If OSC denies the request for expedited processing, OSC shall rule expeditiously on any administrative appeal of that decision. (d) Aggregated requests. § 1820.5 Responses to requests. (a) General. (1) In unusual circumstances, OSC may extend the twenty (20) business-day deadline by written notice to the requestor setting forth the unusual circumstances justifying the extension. OSC shall notify the requestor if OSC cannot process the request in 20 days and provide the requestor an opportunity to modify the request so that OSC can process the request within the 20-day time limit. OSC and the requestor can also negotiate an alternative time frame for processing the request or modified request. OSC's FOIA Public Liaison is available to assist in the resolution of any disputes between the requestor and OSC. OSC must also advise the requestor of the requestor's right to seek dispute resolution services from the National Archives and Records Administration's (NARA) Office of Government Information Services (OGIS). OSC may consider a requestor's refusal to reasonably modify the request or to negotiate an alternative time frame as a factor in determining whether unusual and/or exceptional circumstances exist. (2) Unusual circumstances (i) The need to search for and collect the requested records from OSC field offices, NARA storage facilities, or other locations away from OSC's FOIA office; (ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records demanded in a single request; or (iii) The need for consultation and/or referral with another OSC unit where the information concerns two or more components of OSC or with a Federal entity that has an interest in the information requested. (3) Exceptional circumstances (i) OSC has a backlog of pending requests and is making reasonable progress in reducing the backlog; and (ii) OSC estimates a search yield of more than 5000 pages. (b) OSC will notify the requestor in writing of its determination to grant or deny in full or in part a FOIA request. (c) Adverse determinations. (1) A brief statement of the reason(s) for the denial of the request, including any FOIA exemption applied by OSC in denying the request; and (2) A statement that the denial may be appealed under § 1820.6(a), with a description of the requirements of that subsection. (d) Dispute resolution program. § 1820.6 Appeals. (a) Appeals of adverse determinations. (1) By email to: [email protected], https://osc.gov/FOIA (2) By mail to: (b) Submission and content. (c) Responses to appeals. § 1820.7 Fees. (a) In general. See generally Uniform Freedom of Information Act Fee Schedule and Guidelines OMB Fee Guidelines (b) Definitions. All other requestors Commercial use request Direct costs Duplication Educational institution See Non-commercial scientific institution Representative of the news media news media requestor Review Search (c) Fees. (1) Search. (ii) OSC charges $5.50 per quarter hour spent by clerical personnel in searching for and retrieving a requested record; $9.00 per quarter hour of search time spent by professional personnel; and $17.50 per quarter hour for search assistance from managerial personnel. (iii) OSC charges the direct costs of conducting electronic searches, including the costs of operator or programmer staff time apportionable to the search. (iv) OSC may charge additional costs in accordance with the applicable billing schedule established by NARA for requests requiring the retrieval of records from any Federal Records Center. (2) Duplication. (3) Review. (d) Notice of anticipated fees in excess of $25.00. (e) Charges for other services. (f) Aggregating separate requests. (g) Advance payments. (2) OSC may require advance payment up to the amount of the entire anticipated fee before beginning to process the request if OSC determines or estimates that a total fee to be charged under this section will exceed $250.00. (3) OSC may require the requestor to make an advance payment in full of the anticipated fee where a requestor has previously failed to pay a properly charged FOIA fee within 30 business days of the date of billing. (h) Requirements for waiver or reduction of fees. (i) Release of the requested records 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) Release of the records is not primarily in the commercial interest of the requestor. (2) To determine whether the first fee waiver requirement is met, OSC will consider the following factors: (i) Whether the subject of the requested records concerns a direct and clear connection to “the operations or activities of the government,” not remote or attenuated. (ii) Whether the release is “likely to contribute” to an understanding of government operations or activities. 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 release of records already in the public domain is unlikely to contribute to such understanding. (iii) Whether release of the requested records will contribute to “public understanding.” The release must contribute to the understanding of a reasonably broad audience of individuals interested in the subject. OSC shall consider a requestor's expertise in the subject area and ability and intention to effectively convey information to the public. A representative of the news media presumptively satisfies this consideration. (iv) Whether the release is likely to contribute “significantly” to public understanding of government operations or activities. The requestor must demonstrate that the release would significantly enhance the public's understanding of the subject in question. (3) To determine whether the second fee waiver requirement is met, OSC will consider the following factors: (i) Whether the requestor has a commercial interest that would be furthered by the requested release. OSC shall consider any commercial interest of the requestor (with reference to the definition of “commercial use” in paragraph (b)(1) of this section), or of any individual on whose behalf the requestor may be acting, that would be furthered by the requested release. Requestors shall be given an opportunity to provide explanatory information about this consideration. (ii) Whether any identified commercial interest in the disclosure, is equal to or less than that of any identified public interest. OSC ordinarily shall presume that a news media requestor has satisfied the public interest standard. Release to data brokers or others who primarily compile and market government information for direct economic return shall be presumed not to primarily serve the public interest. (4) Where only a portion of the records to be released satisfies the requirements for a waiver of fees, a waiver shall be granted for that portion. (5) Requests for the waiver or reduction of fees should address the factors listed in paragraphs (h)(1), (2), and (3) of this section, insofar as they apply to each request. OSC fee reduction or waiver decisions may consider the cost-effectiveness of its allocation of administrative resources. (i) No assessment of fees. (1) If OSC determined that unusual circumstances apply and OSC provided a timely written notice to the requestor, OSC may extend the 20-day deadline by 10 business days. OSC may not assess any search fees, however, if it misses the extended deadline. (2) OSC may charge search fees if the search yield would exceed 5,000 pages, and if OSC provides a timely written notice to the requestor. (ii) [Reserved] § 1820.8 Business information. (a) In general. (b) Definitions. Business information Submitter (c) Designation of business information. (d) Notice to submitters. (e) When notice is required. (1) The submitter designated the records in good faith as considered protected from release under FOIA Exemption 4; or (2) OSC has reason to believe that the records or portions of records may be protected from release under FOIA Exemption 4. (f) Opportunity to object to release. (1) Notice of intent to release. (2) [Reserved] (g) Exceptions to notice requirements. (1) OSC determines that the information should not be released; (2) The information has been lawfully published or has been officially made available to the public; (3) Release of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or (4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous—except that, in such a case, OSC shall, within a reasonable time prior to a specified release date, give the submitter written notice of any final decision to release the information. (h) Notice of FOIA lawsuit. (i) Corresponding notice to requestors. § 1820.9 Other rights and services. This subpart does not create a right or entitlement for any individual to any service or to the release of any record other than those available under FOIA. Subpart B—Production of Records or Testimony § 1820.10 Scope and purpose. (a) This part establishes policy, assigns responsibilities, and prescribes procedures with respect to the production of official information, records, or testimony by current and former OSC employees, contractors, advisors, and consultants in connection with federal or state litigation or administrative proceedings in which OSC is not a party. (b) OSC intends this part to: (1) Conserve OSC employee time for conducting official business; (2) Minimize OSC employee involvement in issues unrelated to OSC's mission; (3) Maintain OSC employee impartiality in disputes between non-OSC litigants; and (4) Protect OSC's sensitive, confidential information and deliberative processes. (c) OSC does not waive the sovereign immunity of the United States when allowing OSC employees to provide testimony or records under this part. § 1820.11 Applicability. This part applies to demands and requests from non-OSC litigants for testimony from current and former OSC employees, contractors, advisors, and consultants relating to official OSC information and/or for production of official OSC records or information in legal proceedings in which OSC is not a party. § 1820.12 Definitions. The following definitions apply to this part. Demand General Counsel Legal proceeding OSC employee employee Records official records and information Request Testimony § 1820.13 General prohibition. No OSC employee may testify or produce official records or information in response to a demand or request without the General Counsel's prior written approval. § 1820.14 Factors OSC will consider. The General Counsel has discretion to grant an employee permission to testify on matters relating to official information or produce official records and information, in response to a demand or request, with the general proviso that OSC's release of information is subject to the Privacy Act, 5 U.S.C. 552a, and applicable privileges including but not limited to the attorney work product and deliberative process privileges. See especially §§ 1830.1(e)(2)(ii) and 1830.10(a) below. The General Counsel may also consider whether: (a) The purposes of this part are met; (b) Allowing such testimony or production of records would be necessary to prevent a miscarriage of justice; would assist or hinder OSC in performing its statutory duties; or would be in the best interest of OSC or the United States; (c) The records or testimony can be obtained from other sources; (d) The demand or request is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand or request arose; (e) Release would violate a statute, Executive Order, or regulation; would reveal trade secrets, confidential, sensitive, or privileged information, or information that would otherwise be inappropriate for release; or would impede or interfere with an ongoing law enforcement investigation or proceeding, or compromise constitutional rights or national security interests; (f) Allowing such testimony or production of records would result in OSC appearing to favor one litigant over another; (g) A substantial government interest is implicated; (h) The demand or request is within the authority of the party making it; and/or (i) The demand or request is sufficiently specific to be answered. § 1820.15 Service of requests or demands. Requests or demands for official records or information or testimony under this subpart must be served by mail to the U.S. Office of Special Counsel, Office of General Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505; or by email to [email protected]. § 1820.16 Requirements for litigants seeking documents or testimony. A litigant must comply with the following requirements when submitting a request for testimony or official records and information under this part. A request should be submitted before a demand is issued. (a) The request must be in writing (email suffices) and must be submitted to the General Counsel. (b) The written request must contain the following information: (1) The caption of the legal or administrative proceeding, docket number, and name and address of the court or other administrative or regulatory authority involved; (2) A copy of the complaint or equivalent document setting forth the assertions in the case and any other pleading or document necessary to show relevance; (3) A list of categories of records sought, a detailed description of how the information sought is relevant to the issues in the legal or administrative proceeding, and a specific description of the substance of the testimony or records sought; (4) A statement addressing the factors set out in § 1820.14; (5) A statement indicating that the information sought is not available from another source; (6) If testimony is requested, the intended use of the testimony, and a showing that no document could be provided and used in lieu of testimony; (7) A description of all prior decisions, orders, or pending motions in the case that bear upon the relevance of the requested records or testimony; (8) The name, address, and telephone number of counsel to each party in the case; and (9) An estimate of the amount of time that the requestor and other parties will require of each OSC employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding. (c) OSC reserves the right to require additional information to complete the request where appropriate. (d) The request should be submitted at least 14 days before the date that records or testimony is required. (e) The General Counsel may deny a request for records or testimony based on a requestor's failure to cooperate in good faith to enable the General Counsel to make an informed decision. (f) The request should state that the requestor will provide a copy of the OSC employee's testimony free of charge and that the requestor will permit OSC to have a representative present during the employee's testimony. § 1820.17 Processing requests or demands. (a) Absent exigent circumstances, OSC will issue a determination within 10 business days after the General Counsel received the request or demand. (b) The General Counsel may grant a waiver of any procedure described by this subpart where a waiver is considered necessary to promote a significant interest of OSC or the United States, or for other good cause. (c) On request, OSC may certify that records are true copies in order to facilitate their use as evidence. § 1820.18 Restrictions that apply to testimony. (a) The General Counsel may impose conditions or restrictions on OSC employee testimony including, for example: (1) Limiting the areas of testimony; (2) Requiring the requestor and other parties to the legal proceeding to agree that the transcript of the testimony will be kept under seal; (3) Requiring that the transcript will be used or made available only in the particular legal proceeding for which testimony was requested. (b) OSC may offer the employee's written declaration in lieu of testimony. (c) If authorized to testify under this part, employees may testify as to facts within their personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee shall not: (1) Reveal confidential or privileged information; or (2) For a current OSC employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or the functions of OSC unless testimony is being given on behalf of the United States (see also 5 CFR 2635.805). (d) The scheduling of an employee's testimony, including the amount of time that the employee will be made available for testimony, will be subject to OSC's approval. § 1820.19 Restrictions that apply to released records. (a) The General Counsel may impose conditions or restrictions on the release of official OSC records and information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. (b) If the General Counsel so determines, original OSC records may be presented for examination in response to a request, but they may not be presented as evidence or otherwise used in a manner by which they could lose their identity as official OSC records, nor may they be marked or altered. § 1820.20 Procedure in the event a decision is not made prior to the time a response is required. If a requestor needs a response to a demand or request before the General Counsel makes a determination whether to grant the demand or request, the employee upon whom the demand or request is made, unless otherwise advised by the General Counsel, will appear, if necessary, at the stated time and place, produce a copy of this part, state that the employee has been advised by counsel not to provide the requested testimony or produce documents at this time, and respectfully decline to comply with the demand or request, citing United States ex rel. Touhy Ragen, § 1820.21 Fees. (a) Witness fees. (b) Payment of fees. § 1820.22 Final determination. The General Counsel will notify the requestor and, when appropriate, the court or other body of the final determination, the reasons for the response to the request or demand, and any conditions that the General Counsel may impose on the testimony of an OSC employee or the release of OSC records or information. The General Counsel has the sole discretion to make the final determination regarding requests to employees for testimony or production of official records and information in litigation in which OSC is not a party. The General Counsel's decision exhausts administrative remedies for purposes of release of the information. § 1820.23 Penalties. (a) An employee who releases official records or information or gives testimony relating to official information, except as expressly authorized by OSC, or as ordered by a court after OSC has had the opportunity to be heard, may face the penalties provided under applicable laws. Additionally, former OSC employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216. (b) A current OSC employee who testifies or produces official records and information in violation of this part may be subject to disciplinary action. § 1820.24 Conformity with other laws and regulations; other rights. This regulation is not intended to conflict with 5 U.S.C. 2302(b)(13) or with any statutory or common law privilege against the release of protected information. This part does not create any right, entitlement, or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against the United States.