PART 10000—PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT Authority: 5 U.S.C. 552, as amended; E.O. 12600, 52 FR 23781, 3 CFR 1987, 1987 Comp., p. 235; 3 CFR 235. Source: 80 FR 49118, Aug. 17, 2015, unless otherwise noted. § 10000.1 Purpose and scope. The regulations in this part implement the provisions of the FOIA. § 10000.2 Definitions. The following definitions apply to this part: Chairperson Chief FOIA Officer Commercial use request Confidential business information Council et seq. Direct costs i.e., Educational institution (1) Example 1. (2) Example 2. (3) Example 3. Fee waiver FOIA FOIA Officer FOIA Public Liaison Non-commercial scientific institution Person Record Redact Representative of the news media Requester category (1) Commercial requesters; (2) Non-commercial scientific or educational institutions or representatives of the news media; and (3) All other requesters. Submitter Unusual circumstances (1) The need to search for and collect the requested records from physically separate facilities; (2) The need to search for, collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request. [80 FR 49118, Aug. 17, 2015, as amended at 81 FR 93792, Dec. 22, 2016] § 10000.3 Availability of records. Records that are required by the FOIA to be made available for public inspection and copying may be accessed through the Agency's Web site at www.ncd.gov. § 10000.4 Categories of exemptions. (a) The FOIA does not require disclosure of matters that are: (1) Specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and are, in fact, properly classified under executive order; (2) Related solely to the internal personnel rules and practices of the Council; (3) Specifically exempted from disclosure by statute (other than the Government in the Sunshine Act, 5 U.S.C. 552b, as amended), provided that such statute: (i)(A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (B) Establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (ii) If enacted after October 28, 2009, specifically cites to Exemption 3 of the FOIA, 5 U.S.C. 552(b)(3); (4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) Inter-agency or intra-agency memoranda or letters, which would not be available at law to a party other than an agency in litigation with the Council; (6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information: (i) Could reasonably be expected to interfere with enforcement proceedings; (ii) Would deprive a person of a right to a fair trial or impartial adjudication; (iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy; (iv) Could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution that furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source; (v) Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or (vi) Could reasonably be expected to endanger the life or physical safety of any individual. (8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) Geological and geophysical information and data, including maps, concerning wells. § 10000.5 Request for records. (a) You may request copies of records under this part by email to [email protected] (b) Your request shall reasonably describe the records sought with sufficient specificity, and when possible, include names, dates, and subject matter, in order to permit the FOIA Officer to locate the records with a reasonable amount of effort. If the FOIA Officer cannot locate responsive records based on your written description, you will be notified and advised that further identifying information is necessary before the request can be fulfilled. Although requests are considered either FOIA or Privacy Act requests, the Council processes requests for records in accordance with both laws so as to provide the greatest degree of lawful access while safeguarding an individual's personal privacy. (c) Your request should specify your preferred form or format (including electronic formats) for the records you seek. We will accommodate your request if the record is readily available in that form or format. When you do not specify the form or format of the response, we will provide responsive records in the form or format most convenient to us. § 10000.6 Responsibility for responding to requests. (a) In general. (b) Responses. (1) FOIA case number and date of the original request; (2) The name(s) of any person responsible for the determination to deny the request in whole or in part; (3) A brief statement of the reason(s) for the denial, including any FOIA exemption applied in denying the request. The Chief FOIA Officer will indicate, if technically feasible, the amount of information deleted and the exemption under which a deletion is made on the released portion of the record, unless including that indication would harm an interest protected by the exemption; (4) An estimate of the volume of information withheld, if applicable. This estimate does not need to be provided if it is ascertainable based on redactions in partially disclosed records or if the disclosure of the estimate would harm an interest protected by an applicable FOIA exemption; and (5) A statement of the right to seek dispute resolution services from NCD's FOIA Public Liaison and the Office of Government Information Services. (c) Consultation, referral, and coordination. (1) Consultation. (2) Referral. (ii) Whenever the Council refers any part of the responsibility for responding to a request to another 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 agency to which the record was referred, including that agency's FOIA contact information. (3) Coordination. [80 FR 49118, Aug. 17, 2015, as amended at 81 FR 93792, Dec. 22, 2016] § 10000.7 Administrative appeals. (a) You may appeal an adverse determination related to your FOIA request, or the Council's failure to respond to your FOIA request within the prescribed time limits, by email at [email protected], (b) Your appeal must be in writing and must be postmarked or electronically received by the Executive Director within 90 days of the date of the letter denying your request, in whole or in part.
For the most expeditious handling, your appeal letter and envelope should be marked “Freedom of Information Act Appeal” and reference the request number. (c) The Executive Director shall respond to all administrative appeals in writing and within the time frame stated in § 10000.8(d). If the decision affirms, in whole or in part, the Chief FOIA Officer's determination, the letter shall contain a statement of the reasons for the affirmance, including any FOIA exemption(s) applied, and will inform you of the FOIA's provisions for court review. If the Executive Director reverses or modifies the Chief FOIA Officer's determination, in whole or in part, you will be notified in writing and your request will be reprocessed in accordance with that decision. The Council may work with Office of Government Information Services (OGIS) to resolve disputes between FOIA requestors and the Council. A requester may also seek dispute resolution services from NCD's FOIA Public Liaison and OGIS. Facsimile is also available at 202-741-5769. [80 FR 49118, Aug. 17, 2015, as amended at 81 FR 93792, Dec. 22, 2016] § 10000.8 Timeframe for Council's response to a FOIA request or administrative appeal. (a) In general. (b) Multi-track processing. (2) Using multitrack processing, the Council may provide requesters 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 Council's faster track(s). In doing so, the Council will contact the requester by telephone, letter, or email, whichever is more efficient in each case. (c) Initial decisions. (d) Administrative appeals. (e) Tolling timelines. (1) One time to await information that we reasonably requested from you, as permitted by 5 U.S.C. 552(a)(6)(A)(iii)(I); (2) As necessary to clarify with you any fee-related issue. (3) If we toll the time frame for response under paragraphs (e)(1) or (2) of this section, the tolling period ends upon our receipt of your response. (f) Unusual circumstances. (g) Aggregating requests. (h) Expedited processing. (1) For requests for expedited processing, a “compelling need” involves: (i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (ii) A request made by a person primarily engaged in disseminating information, with a time urgency to inform the public of actual or alleged federal government activity. (2) Your request for expedited processing must be in writing and may be made at the time of the initial FOIA request or at any later time. (3) Your request for expedited processing must include a statement, certified to be true and correct to the best of your knowledge and belief, explaining in detail the basis for requesting expedited processing. If you are a person primarily engaged in disseminating information, you must establish a particular urgency to inform the public about the federal government activity involved in the request. (4) The Chief FOIA Officer will decide whether to grant or deny your request for expedited processing and notify the requester within ten calendar days of receipt. You will be notified in writing of the determination. Appeals of adverse decisions regarding expedited processing shall be processed expeditiously. [80 FR 49118, Aug. 17, 2015, as amended at 81 FR 93792, Dec. 22, 2016] § 10000.9 Business information. (a) Designation of confidential business information. (b) Notice to submitters. (i) Give you an opportunity to object to disclosure of your information, in whole or in part; (ii) Describe the business information requested or include copies of the requested records or record portions containing the information; and (iii) Inform you of the time frame in which you must respond to the notice. (2) 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. (c) Opportunity to object to disclosure. (d) Notice of intent to disclose. (1) A statement of the reasons why each of your bases for withholding were not sustained; (2) A description of the business information to be disclosed; and (3) A specified disclosure date, which shall be a reasonable time after the notice. (e) Exceptions to the notice requirement. (d) of this section shall not apply if: (1) The Council determines that the information is exempt under the FOIA; (2) The information lawfully has been published or has been officially made available to the public; (3) Disclosure 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; (4) The designation made by the submitter under paragraph (a) of this section appears obviously frivolous, except that, in such a case, the Council shall, within a reasonable time prior to the date the disclosure will be made, give the submitter written notice of the final decision to disclose the information. (f) Requester notification. § 10000.10 Fees. (a) We will charge fees that recoup the full allowable direct costs we incur in processing your FOIA request. Fees may be charged for search, review or duplication. We will use the most efficient and least costly methods to comply with your request. (b) With regard to manual searches for records, we will charge the salary rate(s) (calculated as the basic rate of pay plus 16 percent of that basic rate to cover benefits) of the employee(s) performing the search. (c) In calculating charges for computer searches for records, we will charge at the actual direct cost of providing the service, including the cost of operating the central processing unit directly attributable to searching for records potentially responsive to your FOIA request and the portion of the salary of the operators/programmers performing the search. (d) Review fees shall be charged for requesters who make commercial use requests. Review fees shall be assessed only for the initial review—that is the review undertaken the first time we analyze the applicability of a specific exemption to a particular record or portion of a record. Records or portions of records withheld in full under an exemption that is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. We may assess the costs for such subsequent review. Review fees are charged at the same rates as those charged for a search. (e) Notice of anticipated fees in excess of $25.00: (1) When the Council determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the Council 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 Council 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 or equivalent at no charge. For example, 100 pages burned to a single CD would be considered equivalent to 100 pages of duplication. 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. The Council is not required to accept payments in installments. (3) If the requester has indicated a willingness to pay some designated amount of fees, but the Council estimates that the total fee will exceed that amount, the Council 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 Council 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) The Council shall make available its 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) We will charge you the full costs of providing you with the following services: (1) Certifying that records are true copies; or (2) Sending records by special methods such as express or certified mail. (g) We may assess interest charges on an unpaid bill starting on the 31st calendar day following the day on which the billing was sent. Interest shall be at the rate prescribed in 31 U.S.C. 3717 and will accrue from the date of the billing. (h) We will not charge a search fee for requests by educational institutions, non-commercial scientific institutions, or representatives of the news media. A search fee will be charged for a commercial use requests. (i) Except for a commercial use request, we will not charge you for the first 100 pages of duplication and the first two hours of search. (j) If the Council 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 requests by educational institutions (unless the records are sought for a commercial use), noncommercial scientific institutions, or representatives of the news media, may not charge duplication fees. (k) After processing, actual fees must be equal to or exceed $25, for the Council to require payment of fees. (l) You may not file multiple requests, each seeking portions of a document or documents, solely for the purpose of avoiding payment of fees. When the Council reasonably believes that a requester, or a group of requesters acting in concert, has submitted requests that constitute a single request involving clearly related matters, we may aggregate those requests and charge accordingly. (m) We may not require you to make payment before we begin work to satisfy the request or to continue work on a request, unless: (1) We estimate or determine that the allowable charges that you may be required to pay are likely to exceed $250; or (2) You have previously failed to pay a fee charged within 30 days of the date of billing. (n) Upon written request, we may waive or reduce fees that are otherwise chargeable under this part. If you request a waiver or reduction in fees, you must demonstrate that a waiver or reduction in fees is in the public interest because disclosure of the requested records is likely to contribute significantly to the public understanding of the operations or activities of the government and is not primarily in your commercial interest. (1) 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 of the government, the Council 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. (2) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the Council shall consider the following factors: (i) The Council shall identify any commercial interest of the requester, as defined in § 10000.2, 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. The Council 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. (3) 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. (4) 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.