PART 1401—PUBLIC AVAILABILITY OF INFORMATION Authority: 5 U.S.C. 552 Source: 85 FR 65696, Oct. 16, 2020, unless otherwise noted. Subpart A—Freedom of Information Act Policies and Procedures § 1401.1 Purpose. The purpose of this part is to prescribe rules, guidelines and procedures to implement the Freedom of Information Act (FOIA), as amended, 5 U.S.C. 552. § 1401.2 The Office of National Drug Control Policy—organization and functions. (a) The Office of National Drug Control Policy (ONDCP or Agency) was created by the Anti-Drug Abuse Act of 1988, 21 U.S.C. 1501 et seq., et seq. (b) ONDCP's Office of External and Legislative Affairs is responsible for providing information to the press and to the general public. If members of the public have general questions about ONDCP, they may email the Office of External and Legislative Affairs at [email protected]. § 1401.3 Definitions. For the purpose of this part, all the terms defined in the Freedom of Information Act apply. Commercial use request Direct costs i.e., Duplicate Educational institution Fee waiver FOIA public liaison Noncommercial scientific institution OGIS Records Representative of the news media Request Requester category Review Search § 1401.4 Access to information. The Office of National Drug Control Policy makes available information pertaining to matters issued, adopted, or promulgated by ONDCP, that are within the scope of 5 U.S.C. 552(a)(2). Such information is located at https://www.whitehouse.gov/ondcp. § 1401.5 Records requiring consultation. Requests for records that are in ONDCP's custody but in which other agencies have equities shall be reviewed by ONDCP and then ONDCP will either consult with or refer the records to the other agency or agencies for further processing. (a) Consultation. (b) Referral Determination. (2) Documentation. (3) Coordination. (c) Classified information. (d) Timing of responses to consultations and referrals. (e) Agreements regarding consultations and referrals. § 1401.6 How to request records—form and content. (a) You must describe the records you seek in sufficient detail and in writing to enable ONDCP personnel to locate them with a reasonable amount of effort. To satisfy this requirement, you should be as detailed as possible when describing the records you seek. To the extent possible, each request must reasonably describe the record(s) sought including the type of document, specific event or action, title or name, author, recipient, subject matter of the record, date or time period, location, and all other pertinent data. Before or after submitting their requests, requesters may contact ONDCP's FOIA Public Liaison to discuss the records they seek and for assistance in describing the records. A list of Agency FOIA Public Liaisons is available at https://www.foia.gov/#agency-search. (b)(1) If you are making a request for records about yourself, you must comply with the verification of identity provision set forth in § 1401.21(f) of this part. (2) If a request for records pertains to a third party, you may receive greater access by submitting either a notarized authorization signed by that individual or an unsworn declaration under 26 U.S.C. 1746 by that individual authorizing disclosure of the records to you. If the other individual is deceased, you should submit proof of death such as a copy of the death certificate or an obituary. As an exercise of administrative discretion, ONDCP may require you to provide additional information if necessary in order to verify that a particular individual has consented to disclosure. (c) Requesters may specify the preferred form or format (including electronic formats) for the records they seek. ONDCP will try to accommodate formatting requests if the record is readily reproducible in that form or format. (d) Whenever it is appropriate to do so, ONDCP automatically processes a Privacy Act request for access to records under both the Privacy Act and the FOIA, following the rules contained in this part. ONDCP processes a request under both the FOIA and Privacy Act so you will receive the maximum amount of information available to you by law. (e) Requests must be received by ONDCP through methods specified on the FOIA page of ONDCP's website: https://www.whitehouse.gov/ondcp/about/foia-and-legal/. [email protected] (f) The words “FOIA REQUEST” or “REQUEST FOR RECORDS” should be clearly marked on all FOIA request communications. The time limitations imposed by § 1401.7(a) will not begin until ONDCP identifies a communication as a FOIA request. (g) You must provide contact information, such as your phone number, email address and mailing address, so we will be able to communicate with you about your request and provide released records. If we cannot contact you, or you do not respond within 20 calendar days to our request for clarification, we will close your request. (h) To protect our computer systems, ONDCP reserves the right to not open attachments to emailed request. Please include your request within the body of your email. § 1401.7 Responses—form and content. (a) Determinations. (b) Tracking number. (c) Adverse determinations. (d) Content of denial. (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 agency 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 to the Director or his/her designee within 90 days of the date of the response. The requirements for making an appeal are specified in § 1401.10. (5) A statement notifying the requester of the assistance available from the agency's FOIA Public Liaison and the dispute resolution services offered by OGIS. § 1401.8 Expedited process. (a) A request for expedited processing may be made at any time. ONDCP must process requests and appeals on an expedited basis whenever it is determined that they involve: (1) 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 (2) An urgency to inform the public about an actual or alleged Federal Government activity, beyond the public's right to know about government activity generally, and the request is made by a person primarily engaged in disseminating information. (b) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for requesting expedited processing. For example, under paragraph (a)(2) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person who is primarily engaged in 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, 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. The formality of certification may be waived as a matter of administrative discretion. (c) Within 10 days of receipt of a request for expedited processing, ONDCP will decide whether to grant it and will notify the requester of the decision. If a request for expedited treatment is granted, the request will be given priority and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously. § 1401.9 Extension of time. (a) In unusual circumstances, ONDCP may extend the time limit prescribed in § 1401.7(a), (b) or § 1401.8 by written notice to the FOIA requester. The notice will state the reasons for the extension. (b) The phrase “unusual circumstances” means: (1) The requested records are located in establishments that are separated from the office processing the request; (2) A voluminous amount of separate and distinct records are demanded in a single request; or (3) Another agency or two or more components in the same agency have substantial interest in the determination of the request. (c) Whenever ONDCP cannot meet the statutory time limit for processing a request because of “unusual circumstances,” as defined by 5 U.S.C. 552(a)(b)(B), and ONDCP extends the time limit on that basis, the agency must, 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 ONDCP estimates processing of the request will be completed. Where the extension exceeds 10 working days, ONDCP must, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. The Agency must make available its designated FOIA contact or its FOIA Public Liaison for this purpose. The Agency must also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services. (d) To satisfy unusual circumstances under the FOIA, ONDCP 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. ONDCP cannot aggregate multiple requests that involve unrelated matters. § 1401.10 Appeal procedures. (a) An appeal to the ONDCP must explain the reasoning and factual basis for the appeal. It must be received by email at [email protected] (b) The Director or designee will decide the appeal within 20 days (excepting Saturdays, Sundays, and legal public holidays). If the Director or designee deny an appeal in whole or in part, the written determination will contain the reason for the denial, the name and title of the person responsible for the denial, any FOIA exemptions applied, and the provisions for judicial review of the denial and ruling on appeal provided in 5 U.S.C. 552(a)(4). The denial will also inform the requester of the dispute resolution services offered by OGIS as a non-exclusive alternate to litigation. If ONDCP agrees to participate in voluntary dispute resolution services provided by OGIS, it will actively engage in an attempt to resolve the dispute. § 1401.11 Fees to be charged—general. ONDCP will assess a fee to process FOIA requests in accordance with the provisions of this section and Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). ONDCP shall ensure that searches, review and duplication are conducted in the most efficient and the least expensive manner. ONDCP will ordinarily collect all applicable fees before sending copies of records to a requester. ONDCP will charge the following fees unless a waiver or reduction of fees is granted under § 1401.15, or the total fee to be charged is less than $25.00. ONDCP will notify you if we estimate that charges will exceed $25.00 including a breakdown of the fees for search, review or duplication and whether applicable entitlements to duplication and search at no charge have been provided. ONDCP will not process your request until you either commit in writing to pay the actual or estimated total fee, or designate some amount of fees you are willing to pay. (a) Search for records. (b) Review of records. (c) Duplication of records. (d) Other charges. § 1401.12 Fees to be charged—miscellaneous provisions. (a) Payment for FOIA services may be made by check or money order made payable to the Treasury of the United States. (b) ONDCP may require advance payment where the estimated fee exceeds $250, or a requester previously failed to pay within 30 days of the billing date. (c) ONDCP may assess interest charges beginning the 31st day of billing. Interest will be at the rate prescribed in section 3717 of title 31 of the United States Code and will accrue from the date of the billing. (d) ONDCP may assess search charges where records are not located or where records are exempt from disclosure. (e) ONDCP may aggregate individual requests for fee purposes in accordance with 1401.16. § 1401.13 Fees to be charged—categories of requesters. (a) There are three categories of FOIA requesters: Commercial use requests; educational, non-commercial scientific institutions or representatives of the news media; and all other requesters. (b) The specific levels of fees for each of these categories are: (1) Commercial use request. (2) Educational and non-commercial scientific institution request. (3) Request from representative of the news media. (4) All other requesters. § 1401.14 Restrictions on charging fees. (a) 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. (b) If ONDCP fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in § 1401.13(b)(2), may not charge duplication fees, except as described in paragraphs (c), (d), and (e) of this section. (c) If ONDCP determines that unusual circumstances as defined by the FOIA apply and the agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days. (d) If ONDCP determines that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the agency may charge search fees, or, in the case of requesters described in § 1401.13(b)(2) of this section, may charge duplication fees if the following steps are taken. ONDCP must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the agency must have 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). If this exception is satisfied, ONDCP may charge all applicable fees incurred in the processing of the request. (e) If a court has determined that exceptional circumstances exist as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order. (f) 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. (g) 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. § 1401.15 Waiver or reduction of fees. Requirements for waiver or reduction of fees: (a) Requesters may seek a waiver of fees by submitting a written application demonstrating how 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 is not primarily in the commercial interest of the requester. (b) ONDCP must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that 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 is not primarily in the commercial interest of the requester. In deciding whether this standard is satisfied the agency must consider the factors described in paragraphs (b)(1) through (3) of this section: (1) Disclosure of the requested information would shed light on the operations or activities of the government. 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. (2) Disclosure of the requested information would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met: (i) Disclosure of the requested records must be meaningfully informative about government 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 be meaningfully informative if nothing new would be added to the public's understanding. (ii) 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 must be considered. ONDCP will presume that a representative of the news media will satisfy this consideration. (3) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, ONDCP will consider the following criteria: (i) ONDCP must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration. (ii) If there is an identified commercial interest, the component must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of § 1401.15(a) are satisfied and any commercial interest is not the primary interest furthered by the request. ONDCP ordinarily will presume that when a news media requester has satisfied the requirements of § 1401.15(a), the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest. (c) 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. (d) Requests for a waiver or reduction of fees should be made when the request is first submitted to ONDCP 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. § 1401.16 Aggregation of requests. When ONDCP 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 Agency may aggregate those requests and charge accordingly. The Agency 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, ONDCP 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 cannot be aggregated. § 1401.17 Markings on released documents. When requested records contain matters that are exempted under 5 U.S.C. 552(b), but such exempted matters can be reasonably segregated from the remainder of the records, the records shall be disclosed by ONDCP with the necessary redactions. If records are disclosed in part, ONDCP will mark them to show the amount and location of information redacted and the exemption(s) under which the redactions were made unless doing so would harm an interest protected by an applicable exemption. § 1401.18 Confidential commercial information. (a) Definitions. Confidential commercial information Submitter (b) Designation of confidential commercial information. (c) When notice to submitters is required. (i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (ii) ONDCP 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. (2) The notice must 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, ONDCP may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications. (d) Exceptions to submitter notice requirements. (1) ONDCP determines that the information is exempt under the FOIA, and therefore will not be disclosed; (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. In such case, ONDCP must give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date. (e) Opportunity to object to disclosure. (2) If a submitter has any objections to disclosure, it should provide ONDCP a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as the basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential. (3) A submitter who fails to respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. ONDCP is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA. (f) Analysis of objections. (g) Notice of intent to disclose. (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 or copies of the records as ONDCP intends to release them; and (3) A specified disclosure date, which must be a reasonable time after the notice. (h) Notice of FOIA lawsuit. (i) Requester notification. (j) No right or benefit. Subpart B—Privacy Act Policies and Procedures § 1401.19 Definitions. For purposes of this subpart: Access Amendmen Individual Maintain Privacy Act Office Record System of records § 1401.20 Purpose and scope. This subpart implements the Privacy Act, 5 U.S.C. 552a, a Federal law that requires Federal agencies to protect private information about individuals that the agencies collect or maintain. It establishes ONDCP's rules for access to records in systems of records we maintain that are retrieved by an individual's name or another personal identifier. It describes the procedures by which individuals may request access to records, request amendment or correction of those records, and request an accounting of disclosures of those records by ONDCP. Whenever it is appropriate to do so, ONDCP automatically processes a Privacy Act request for access to records under both the Privacy Act and the FOIA, following the rules contained in this part. ONDCP processes a request under both the Privacy Act and the FOIA so you will receive the maximum amount of information available to you by law. § 1401.21 How do I make a Privacy Act request? (a) In general. (b) How do I make a request? Where do I send my written request? [email protected]. (2) Security concerns. (c) What should my request include? (d) How do I request amendment of a record? (e) How do I request an accounting of record disclosures? (f) Verification of identity. (1) How do I verify my own identity? I declare under penalty of perjury that the foregoing is true and correct. Executed on [date]. (2) How do I verify parentage or guardianship? (i) The identity of the individual who is the subject of the record, by stating the individual's name, citizenship status, current address, and date and place of birth; (ii) Your own identity, as required in paragraph (f)(1) of this section; (iii) That you are the parent or legal guardian of the individual, which you may prove by providing a copy of the individual's birth certificate showing your parentage or a court order establishing your guardianship; and (iv) That you are acting on behalf of the individual in making the request. § 1401.22 How will ONDCP respond to my Privacy Act request? (a) When will we respond to your request? (b) What will our response include? (2) We will also notify the individual who is subject to the record in writing, if, based on your request, any system of records contains a record pertaining to him or her. (3) If ONDCP makes an adverse determination with respect to your request, our written response will identify the name and address of the person responsible for the adverse determination, that the adverse determination is not a final agency action, and describe the procedures by which you may appeal the adverse determination under § 1401.23. (4) An adverse determination is a response to a Privacy Act request that: (i) Withholds any requested record in whole or in part; (ii) Denies a request to amend a record in whole or in part; (iii) Declines to provide an accounting of disclosures; (iv) Advises that a requested record does not exist or cannot be located; (v) Finds that what you requested is not a record subject to the Privacy Act; or (vi) Advises on any disputed fee matter. § 1401.23 What can I do if I am dissatisfied with ONDCP's response to my Privacy Act request? (a) What can I appeal? (b) How do I make an appeal? What should I include? (2) Where do I send my appeal? [email protected]. (c) Who will decide your appeal? (2) We ordinarily will not adjudicate an appeal if the request becomes a matter of litigation. (3) On receipt of any appeal involving classified information, the Director or designee must take appropriate action to ensure compliance with applicable classification rules. (d) When will we respond to your appeal? (e) What will our response include? (1) Appeals concerning access to records. (2) Appeals concerning amendments. (f) Statements of disagreement What is a statement of disagreement? (2) How do I file a statement of disagreement? [email protected]. (3) What will we do with your statement of disagreement? (g) When appeal is required. § 1401.24 What does it cost to get records under the Privacy Act? (a) Agreement to pay fees. (b) How do we calculate fees?