PART 2604—FREEDOM OF INFORMATION ACT RULES AND SCHEDULE OF FEES FOR THE PRODUCTION OF PUBLIC FINANCIAL DISCLOSURE REPORTS Authority: 5 U.S.C. 552; 5 U.S.C. App. 101-505; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235; E.O. 13392, 70 FR 75373, 3 CFR, 2005 Comp., p. 216. Source: 80 FR 57073, Sept. 22, 2015, unless otherwise noted. Subpart A—General Provisions § 2604.101 Purpose. This part contains the regulations of the U.S. Office of Government Ethics (OGE) implementing the Freedom of Information Act (FOIA), as amended. It describes how any person may obtain records from OGE under the FOIA. It also implements section 105(b)(1) of the Ethics in Government Act of 1978 (Ethics Act), as amended, which authorizes an agency to charge reasonable fees to cover the cost of reproduction and mailing of public financial disclosure reports requested by any person. § 2604.102 Applicability. (a) General. (b) The relationship between the FOIA and the Privacy Act of 1974. (c) Records available through routine distribution procedures. § 2604.103 Definitions. As used in this part: Agency Business information Business submitter Chief FOIA Officer Commercial use Direct costs Duplication Educational institution Fee waiver FOIA Officer FOIA Public Liaison FOIA Requester Service Center Freedom of Information Act FOIA Noncommercial scientific institution Office or OGE Person Records Representative of the news media Request Requester Requester category Review Search Working days [80 FR 57073, Sept. 22, 2015, as amended at 81 FR 94216, Dec. 23, 2016] § 2604.104 Preservation of records. OGE will preserve all correspondence pertaining to the requests that it receives under this part, as well as copies of all responsive records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit. § 2604.105 Other rights and services. Nothing in this part will 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. Subpart B—FOIA Public Reading Room Facility and Web Site; Index Identifying Information for the Public § 2604.201 Public reading room facility and Web site. (a)(1) Location of public reading room facility. (2) Web site. www.oge.gov (b) Records available. (1) Any final opinions, as well as orders, made in the adjudication of cases; (2) Any statements of policy and interpretation which have been adopted by OGE and are not published in the Federal Register (3) Any administrative staff manuals and instructions to staff that affect a member of the public, and which are not exempt from disclosure under section (b) of the FOIA; (4) Copies of records created by OGE that have been released to any person under subpart C of this part and that, because of the nature of their subject matter, OGE determines have become or are likely to become the subject of subsequent requests for substantially the same records or that have been requested three or more times; and (5) A general index of the records referred to under § 2604.201(b)(4). (c) OGE may delete from the copies of materials made available under this section any identifying details necessary to prevent a clearly unwarranted invasion of personal privacy. Any such deletions will be explained in writing and the extent of such deletions will be indicated on the portion of the records that are made available or published, unless the indication would harm an interest protected by the FOIA exemption pursuant to which the deletions are made. If technically feasible, the extent of any such deletions will be indicated at the place in the records where they are made. [80 FR 57073, Sept. 22, 2015, as amended at 81 FR 94216, Dec. 23, 2016] § 2604.202 Index identifying information for the public. (a) OGE will maintain and make available for public inspection in an electronic format a current index of the materials available on its Web site that are required to be indexed under 5 U.S.C. 552(a)(2). (b) The Director of the Office of Government Ethics has determined that it is unnecessary and impracticable to publish quarterly or more frequently and distribute (by sale or otherwise) copies of each index and supplements thereto, as provided in 5 U.S.C. 552(a)(2). The Office will provide copies of such indexes upon request, at a cost not to exceed the direct cost of duplication and mailing, if sending records by other than ordinary mail. [80 FR 57073, Sept. 22, 2015, as amended at 81 FR 94216, Dec. 23, 2016] Subpart C—Production and Disclosure of Records Under FOIA § 2604.301 Requests for records. (a) Addressing requests. [email protected] (b) Description of records. (1) Wherever possible, a request should include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record. (2) If the FOIA Officer determines that a request does not reasonably describe the records sought, the FOIA Officer will either advise the requester what additional information is needed to locate the record, or otherwise state why the request is insufficient. The FOIA Officer will also extend to the requester an opportunity to confer with OGE personnel with the objective of reformulating the request in a manner which will meet the requirements of this section. (c) Agreement to pay fees. (d) Requests for records relating to corrective actions. (e) Seeking expedited processing. (2) “Compelling need” means: (i) Circumstances in which failure to obtain copies of the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (ii) An urgency to inform the public about an actual or alleged Federal Government activity, if the request is made by a person primarily engaged in disseminating information. (3) A requester seeking expedited processing should so indicate in the initial request, and should state all the facts supporting the need to obtain the requested records quickly. The requester must also certify in writing that these facts are true and correct to the best of the requester's knowledge and belief. § 2604.302 Response to requests. (a) Acknowledgement of requests. (b) Response to initial request. (c) Referral to, or consultation with, another agency. (d) Honoring form or format requests. (e) Record cannot be located. § 2604.303 Form and content of responses. (a) Form of notice granting a request. (b) Form of notice denying a request. (1) The name and title or position of the person making the denial; (2) A brief statement of the reason or reasons for the denial, including the FOIA exemption or exemptions which the FOIA Officer has relied upon in denying the request; (3) When only a portion of a document is being withheld, the amount of information deleted and the FOIA exemption(s) justifying the deletion will generally be indicated on the copy of the released portion of the document. If technically feasible, such indications will appear at the place in the copy of the document where any deletion is made. If a document is withheld in its entirety, an estimate of the volume of the withheld material will generally be given. However, neither an indication of the amount of information deleted nor an estimation of the volume of material withheld will be included in a response if doing so would harm an interest protected by any of the FOIA exemptions pursuant to which the deletion or withholding is made; and (4) A statement that the denial may be appealed under § 2604.304, and a description of the requirements of that section; and (5) A statement of the right of the requester to seek dispute resolution services from the FOIA Public Liaison or the Office of Government Information Services (OGIS). [80 FR 57073, Sept. 22, 2015, as amended at 81 FR 94216, Dec. 23, 2016] § 2604.304 Appeal of denials. (a) Right of appeal. [email protected] (b) Letter of appeal. (c) Action on appeal. (d) Judicial review. (e) Dispute Resolution Services. [80 FR 57073, Sept. 22, 2015, as amended at 81 FR 94216, Dec. 23, 2016] § 2604.305 Time limits. (a)(1) Initial request. (2) Tolling. (3) Request for expedited processing. (b) Appeal. (c) Extension of time limits. (d) For the purposes of paragraph (c) of this section, unusual circumstances (1) Search for and collect records from archives; (2) Search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (3) Consult with another agency having a substantial interest in the determination of the request, or consult with various OGE components that have substantial subject matter interest in the records requested. [80 FR 57073, Sept. 22, 2015, as amended at 81 FR 94216, Dec. 23, 2016] Subpart D—Exemptions Under FOIA § 2604.401 Policy. (a) Foreseeable harm standard. (b) Pledge of confidentiality. (c) Exception for law enforcement information. (1) The investigation or proceeding involves a possible violation of criminal law; (2) There is reason to believe that the subject of the investigation or proceeding is unaware of its pendency; and (3) The disclosure of the existence of the records could reasonably be expected to interfere with the enforcement proceedings. (d) Partial application of exemptions. [80 FR 57073, Sept. 22, 2015, as amended at 81 FR 94216, Dec. 23, 2016] § 2604.402 Business information. (a) In general. (b) Designation of business information. (c) Predisclosure notification. (1) The information has been designated by the submitter as information deemed protected from disclosure under Exemption 4 of the FOIA; or (2) The FOIA Officer has reason to believe that the information may be protected from disclosure under Exemption 4 of the FOIA. Such written notice will either describe the exact nature of the business information requested or provide copies of the records containing the business information. The requester also will be notified that notice and an opportunity to object are being provided to a submitter. (d) Opportunity to object to disclosure. (e) Notice of intent to disclose. (1) A statement of the reasons why the submitter's objections were not sustained; (2) A copy of the records which will be disclosed or a written description of the records; and (3) A specified disclosure date. The requester will also be notified of the FOIA Officer's determination to disclose records over a submitter's objections. (f) Notice of FOIA lawsuit. (g) Exceptions to predisclosure notification. (1) The FOIA Officer determines that the information should not be disclosed; (2) The information has been published previously or has been officially made available to the public; (3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or (4) The designation made by the submitter in accordance with paragraph (b) of this section appears obviously frivolous; except that, in such a case, the FOIA Officer will provide the submitter with written notice of any final decision to disclose business information within a reasonable number of days prior to a specified disclosure date. Subpart E—Schedule of Fees § 2604.501 Fees to be charged—general. (a) Policy. (b) Types of charges. (1) Searches Manual searches for records. i.e., (ii) Computer searches for records. (iii) Unproductive searches. (2) Duplication. (3) Review. i.e., i.e., (4) Other services and materials. § 2604.502 Fees to be charged—categories of requesters. (a) Fees for various requester categories. (b) Commercial use requester. (c) Educational and noncommercial scientific institutions and news media. (d) All other requesters. § 2604.503 Limitations on charging fees. (a) In general. (b) Minimum fees. (c) Waiver or reduction of fees. (1) In determining whether disclosure is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government, OGE will consider the following factors: (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 information is likely to contribute to an understanding of Government operations or activities. (iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to public understanding. (iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute significantly to public understanding of Government operations or activities. (2) In determining whether disclosure of the requested information is not primarily in the commercial interest of the requester, OGE will consider the following factors: (i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. (ii) The primary interest in disclosure: Whether the magnitude of 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) Where only a portion of the requested record satisfies the requirements for a waiver or reduction of fees under this paragraph (c), a waiver or reduction will be granted only as to that portion. (4) A request for a waiver or reduction of fees must accompany the request for disclosure of records, and should include: (i) A clear statement of the requester's interest in the documents; (ii) The proposed use of the documents and whether the requester will derive income or other benefit from such use; (iii) A statement of how the public will benefit from release of the requested documents; and (iv) If specialized use of the documents is contemplated, a statement of the requester's qualifications that are relevant to the specialized use. (5) A requester may appeal the denial of a request for a waiver or reduction of fees in accordance with the provisions of § 2604.304. (d) If OGE does not comply with one of the time limits under § 2604.305, it will not assess search fees (or in the case of a requester described under § 2604.502(c), duplication fees), except as provided in paragraphs (d)(1) through (d)(3) of this section. (1) If OGE has determined that unusual circumstances apply, as defined in 5 U.S.C. 552(a)(6)(B), and OGE provided timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), a failure to comply with the time limit is excused for an additional 10 days. (2) If OGE has determined that unusual circumstances apply, as defined in 5 U.S.C. 552(a)(6)(B), and more than 5,000 pages are necessary to respond to the request, OGE may charge search fees (or in the case of requesters described under § 2604.502(c), duplication fees) if OGE has provided timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B) and OGE has discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5. U.S.C. 552(a)(6)(B)(ii). (3) If a court has determined that exceptional circumstances exist, as defined in 5 U.S.C. 552(a)(6)(B), a failure to comply with the time limits shall be excused for the length of time provided by the court order. [80 FR 57073, Sept. 22, 2015, as amended at 81 FR 94216, Dec. 23, 2016] § 2604.504 Miscellaneous fee provisions. (a) Notice of anticipated fees in excess of $25.00. (b) Aggregating requests. (c) Advance payments. (1) OGE estimates or determines that the total fee to be assessed under this section is likely to exceed $250.00. When a determination is made that the allowable charges are likely to exceed $250.00, the requester will be notified of the likely cost and will be required to provide satisfactory assurance of full payment where the requester has a history of prompt payment of FOIA fees, or will be required to submit an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or (2) A requester has previously failed to pay a fee charged in a timely fashion ( i.e., (3) When OGE requests an advance payment of fees, the administrative time limits described in subsection (a)(6) of the FOIA will begin to run only after OGE has received the advance payment. (d) Billing and payment. (e) Interest charges. et seq. Subpart F—Annual OGE FOIA Report § 2604.601 Electronic posting and submission of annual OGE FOIA report. On or before February 1 of each year, OGE will submit to the Office of Information Policy at the United States Department of Justice and to the Director of OGIS an Annual FOIA Report. The report will include the information required by 5 U.S.C. 552(e). OGE will electronically post on its Web site the report and the raw statistical data used in each report, in accordance with 5 U.S.C. 552(e)(3). [80 FR 57073, Sept. 22, 2015, as amended at 81 FR 94216, Dec. 23, 2016] Subpart G—Fees for the Reproduction and Mailing of Public Financial Disclosure Reports § 2604.701 Policy. Fees for the reproduction and mailing of public financial disclosure reports requested pursuant to section 105 of the Ethics in Government Act of 1978, as amended, and § 2634.603 of this chapter will be assessed according to the schedule contained in § 2604.702. Requesters will pay fees by check or money order made payable to the Treasury of the United States. Except as provided in § 2604.702(d), nothing concerning fees in subpart E of this part supersedes the charges set forth in this subpart for records covered in this subpart. § 2604.702 Charges. (a) Duplication. (b) Mailing. (c) Minimum fees. (d) Miscellaneous fee provisions.