PART 706—INFORMATION DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT Authority: 5 U.S.C. 552, Pub. L. 114-185; Pub. L. 115-254, sections 1401-1470. Source: 82 FR 20434, May 2, 2017, unless otherwise noted. Editorial Note: Nomenclature changes to part 706 appear at 84 FR 37751, Aug. 2, 2019. Subpart A—General § 706.1 Description. This part contains the rules that the US International Development Finance Corporation (“DFC”) follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552 as amended. These rules should be read together with the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with DFC's Privacy Act regulations at 22 CFR part 707 as well as under this subpart. § 706.2 Policy. It is DFC's policy to make its records available to the public to the greatest extent possible, in keeping with the spirit of the FOIA. This policy includes providing reasonably segregable information from records that also contain information that may be withheld under the FOIA. However, implementation of this policy also reflects DFC's view that the soundness and viability of many of its programs depend in large measure upon full and reliable commercial, financial, technical and business information received from applicants for DFC assistance and that the willingness of those applicants to provide such information depends on DFC's ability to hold it in confidence. Consequently, except as provided by law and in this part, information provided to DFC in confidence will not be disclosed without the submitter's consent. § 706.3 Scope. This part applies to all agency records in DFC's possession and control. This part does not compel DFC to create records or to ask outside parties to provide documents in order to satisfy a FOIA request. DFC may, however, in its discretion and in consultation with a FOIA requester, create a new record as a partial or complete response to a FOIA request. In responding to requests for information, DFC will ordinarily consider only those records within its possession and control as of the date of DFC's search. If any other date is used, DFC will inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not considered responsive to a request. § 706.4 Preservation and transfer of records. (a) Preservation of records. (b) Transfer of records to the National Archives. § 706.5 Other rights and services. Nothing in this subpart shall 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—Obtaining DFC Records § 706.10 Publicly available records. Records that the FOIA requires agencies to make available for public inspection in an electronic format may be accessed through DFC's FOIA Web site at www.dfc.gov. [82 FR 20434, May 2, 2017, as amended at 84 FR 37752, Aug. 2, 2019] § 706.11 Requesting non-public records. (a) General information How to submit. [email protected]. (2) Records about oneself. (3) Records about a third party. e.g., (b) Description of records sought. (c) Format. (d) Requester information. (e) Fees. [82 FR 20434, May 2, 2017, as amended at 84 FR 37752, Aug. 2, 2019] Subpart C—Fees for Requests of Non-Public Records. § 706.20 In general. DFC will charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. For purposes of assessing fees, the FOIA establishes three categories of requests: Commercial use requests, non-commercial scientific or educational institutions or news media requests, and all other requests. DFC will inform requesters as to which category their request has been placed into. Different fees are assessed depending on the category. Requesters may seek a fee waiver. DFC will consider requests for fee waiver in accordance with the requirements in § 706.24. To resolve any fee issues that arise under this section, DFC may contact a requester for additional information. DFC will ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. DFC ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States. § 706.21 Types of fees. (a) Direct costs are those expenses that DFC expends in searching for and duplicating (and, in the case of commercial-use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work ( i.e., (b) Duplication is reproducing a copy of a record or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others. (c) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 706.33(c) of this subpart, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions. (d) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records; and the reasonable efforts expended to locate and retrieve information from electronic records. § 706.22 Request categories. (a) A Commercial Use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. DFC's decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester's intended use of the information. (b) An Educational Use request is one made on behalf of an educational institution, defined as any school that operates a program of scholarly research. A requester in this category must show that the request is made in connection with his or her role at the educational institution. DFC may request verification from the requester that the request is in furtherance of scholarly research. (1) Example 1. (2) Example 2. (3) Example 3. (c) A Noncommercial Scientific Institution Use request is a request made on behalf of a noncommercial scientific institution, defined as an institution that is not operated on a “commercial” basis, as defined in paragraph (a) of this section, and that is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and not for a commercial use. (d) A News Media Request is a request made by a representative of the news media in that capacity. A representative of the news media is defined as any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast news to the public at large and publishers of periodicals that disseminate news and make their products available through a variety of means to the general public. A request for records that supports the news-dissemination function of the requester shall not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, DFC shall also consider a requester's past publication record in making this determination. (e) All other requests include any requests that do not qualify under one of the above categories. § 706.23 Fees charged. (a) Fees. (1) Search. (ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be as follows: Professional—$13.75; and administrative—$7.50. (iii) Requesters will be charged the direct costs associated with conducting any search that requires the creation of a new program to locate the requested records. Before incurring such costs, DFC will notify the requester and the requester must agree to pay. (iv) For requests that require the retrieval of records stored at a Federal Records Center operated by the National Archives and Records Administration (NARA), additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA. (2) Duplication. (3) Review. i.e., (b) Restrictions on charging fees. (2) Fees charged when DFC exceeds time limits. (i) When DFC fails to comply with the 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 paragraph (b)(1) of this section, may not charge duplication fees, except as described in (b)(2)(ii) through (iv) of this section. (ii) If DFC has determined that unusual circumstances as defined by the FOIA apply and DFC 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 ten days. (iii) If DFC has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, DFC may charge all applicable fees incurred in processing the request if the following steps are taken: (A) DFC has provided timely written notice of unusual circumstances to the requester in accordance with the FOIA; and (B) DFC 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). (iv) 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. (3) 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. (4) Except for requesters seeking records for a commercial use, DFC will provide without charge: (i) The first 100 pages of duplication (or the cost equivalent for other media); and (ii) The first two hours of search. (5) If, after deducting free entitlements, the total fee calculated under this section is $25.00 or less, no fee will be charged. (c) Notice of anticipated fees in excess of $25.00. (2) If DFC notifies the requester that the actual or estimated fees are in excess of $25.00, the request will 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. DFC is not required to accept payments in installments. (3) If the requester has indicated a willingness to pay some designated amount of fees, but DFC estimates that the total fee will exceed that amount, the processing of the request will be tolled when DFC notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. DFC will 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, DFC's time to respond will resume from where it was at the date of the notification. (4) DFC's FOIA Office or FOIA Public Liaison is available to assist any requester in reformulating a request to meet the requester's needs at a lower cost. (d) Charges for other services. (e) Charging interest. (f) Aggregating requests. (g) Advance payments. i.e., (2) When DFC determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. DFC may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment. (3) Where a requester has previously failed to pay a properly charged FOIA fee to any agency within thirty calendar days of the billing date, DFC may require that the requester pay the full amount due, plus any applicable interest on that prior request. DFC may also require that the requester make an advance payment of the full amount of any anticipated fee before DFC begins to process a new request or continues to process a pending request or any pending appeal. Where DFC has a reasonable basis to believe that a requester has misrepresented his or her identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity. (4) In cases in which DFC requires advance payment, DFC's response time will be tolled and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within thirty calendar days after the date of DFC's fee letter, DFC may administratively close the request. (h) Other statutes specifically providing for fees. § 706.24 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 and activities of the government and is not primarily in the interest of the requester. (b) DFC will furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (b)(1)-(3) of this section are satisfied. (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 is 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 his or her ability and intention to effectively convey information to the public shall be considered. It shall ordinarily be presumed that a representative of the news media satisfies 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, DFC will consider the following factors: (i) DFC shall 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 shall be given an opportunity to provide explanatory information regarding this consideration. (ii) If there is a commercial interest, DFC will determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (b)(1) and (2) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. DFC will ordinarily presume that when a news media requester has satisfied factors in paragraphs (b)(1) and (2) of this section, 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 DFC 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 will be required to pay any costs incurred up to the date the fee waiver request was received. Subpart D—Processing of Requests for Non-Public Records § 706.30 Responsibility for responding to requests. (a) Authority to grant or deny requests. (b) Consultation, referral, and coordination. (1) Consultation. (2) Referral. (ii) Whenever DFC refers any part of the responsibility for responding to a request to another agency, it will document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA contact information. (3) Coordination. (c) Classified information. (d) Timing of responses to consultations and referrals. (e) Agreements regarding consultations and referrals. § 706.31 Timing of responses to requests. (a) In general. (b) Multitrack processing. (c) Tolling of response time. (d) Unusual circumstances. (e) Aggregating requests. (f) Expedited processing. (i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (ii) An urgency to inform the public about an actual or alleged Federal government activity, if made by a person who is primarily engaged in disseminating information; (2) A request for expedited processing may be made at any time. (3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (f)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary activity or occupation is 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—one that extends 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 tDFC. DFC may waive the formal certification requirement in its administrative discretion. (4) DFC shall notify the requester within ten calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and shall be processed as soon as practicable. If DFC denies expedited processing, any appeal of that decision which complies with the procedures set forth in § 706.34 of this subpart shall be acted on expeditiously. § 706.32 Responses to requests. (a) In general. (b) Acknowledgments of requests. (c) Grants of requests. (d) Adverse determinations of requests. (e) Content of denial letter. (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 exemptions applied; (3) An estimate of the volume of any records or information withheld, for example, by providing the number of pages or some other reasonable form of estimation. This estimation 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; (4) A brief description of the types of information withheld and the reasons for doing so. A description and explanation are not required if providing it would harm an interest protected by an applicable exemption; (5) A statement that the denial may be appealed under Section 706.34(a) of this subpart, and a description of the appeal requirements; (6) A statement notifying the requester of the assistance available from DFC's FOIA Public Liaison and dispute resolution services offered by OGIS; and (7) Notice of any fees charged under § 706.23 of this part. (f) Markings on released documents. (g) Notice of record exclusions. (2) DFC will maintain an administrative record of the process of invocation and approval of the exclusion by OIP. § 706.33 Confidential commercial information. (a) Definitions Confidential commercial information (i) Trade secrets as defined under FOIA law; or (ii) Commercial or financial information that is privileged or confidential as defined under FOIA law. (2) 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 confidential commercial information protected from disclosure under Exemption 4; or (ii) DFC has 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) This notification will describe the nature and scope of the request, advise the submitter of its right to submit written objections in response to the request, and provide a reasonable time for response. The notice will either describe the commercial information requested or include copies of the requested records or portions of records containing the information. 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 inform the submitters of the proposed disclosure, instead of sending individual notifications. (d) Exceptions to submitter notice requirements. (1) DFC 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, DFC will 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. (1) DFC will specify a reasonable time period within which the submitter must respond to the notice referenced above. (2) If a submitter has any objections to disclosure, it should provide DFC with a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In setting forth such grounds, the submitter should explain the basis of its belief that the nondisclosure of any item of information requested is mandated or permitted by law. In order to rely on Exemption 4 as a basis for nondisclosure, the submitter shall explain why the information is considered a trade secret or commercial or financial information that is privileged or confidential as defined under FOIA law. (3) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. DFC 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. (4) The period for providing DFC with objections to disclosure of information may be extended by DFC upon receipt of a written request for an extension from the submitter. Such written request shall set forth the date upon which any objections are expected to be completed and shall provide reasonable justification for the extension. In its discretion, DFC may permit more than one extension. (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 a copy thereof; and (3) A specified disclosure date, which shall be a reasonable time subsequent to the notice. (h) Notice of FOIA lawsuit. (i) Requester notification. § 706.34 Administrative appeals. (a) Requirements for making an appeal. [email protected] (b) Adjudication of appeals. (c) Decisions on appeals. (d) Engaging in dispute resolution services provided by OGIS. (e) When appeal is required. [82 FR 20434, May 2, 2017, as amended at 84 FR 37752, Aug. 2, 2019]