PART 1304—PRODUCTION OR DISCLOSURE OF INFORMATION Authority: 5 U.S.C. 552, as amended. Source: 83 FR 35544, July 27, 2018, unless otherwise noted. Subpart A—Procedures for Requests for Disclosure of Records Under the Freedom of Information Act § 1304.1 General provisions. This part contains the rules that the Millennium Challenge Corporation (“MCC”) follows in processing requests for records under the Freedom of Information Act (“FOIA”) (5 U.S.C. 552). The rules in this part should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Act Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Fee Guidelines”). In addition, the MCC FOIA web page contains information about the specific procedures particular to MCC with respect to making FOIA requests. This resource is available at www.mcc.gov/resources/foia § 1304.2 Definitions. Administrative appeal. Agency. Business day or work day. Calendar days. Chief FOIA Officer. Commercial requester. Complex request. Confidential commercial information. Consultation. Direct costs. Discretionary disclosure. Duplication. Duplication fees. Educational institution. Educational requester. Exemptions. Fee waiver. FOIA Appeals Officer. FOIA Public Liaison. FOIA Program Officer. Non-commercial scientific institution. Record. Referral. Representative of the news media. Review. Requester category. Search. Search fees. Submitter. § 1304.3 Proactive disclosure of MCC records. Records that are required by the FOIA to be made available for public inspection in an electronic format may be accessed through the MCC website. MCC is responsible for determining which of its records are required to be made publicly available, identifying additional records in the interest of the public that are appropriate for public disclosure, and posting such records. MCC shall ensure that its website of posted records is reviewed and updated on an ongoing basis. The FOIA Program Officer may assist individuals in locating records on the MCC website and FOIA reading room. § 1304.4 Requirements for making requests. (a) Requests for access to, or copies of, MCC records other than those identified in § 1304.3, shall be in writing and addressed to the MCC Chief FOIA Officer at 1099 14th St. NW, Washington, DC 20005 or [email protected] (b) Each request shall include the following: (1) A description of the record(s) that provides sufficient detail to enable MCC to locate the record(s) with a reasonable amount of effort; such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. Before submitting their requests, requesters may contact the MCC FOIA Program Officer to discuss the records the are seeking and receive assistance in describing the records; (2) The preferred format of the records; (3) The requestor's full name, mailing address or email address, and telephone number where the requester can be reached during business hours; and (4) If applicable, the maximum amount the requester is willing to pay or dollar limit on the fees MCC may incur to respond to the request for records. When this information is specified, MCC shall not exceed such limit. (c) If a request does not meet all of the requirements of paragraph (b) of this section, the FOIA Program Officer may advise the requester that additional information is needed. Requesters who are attempting to reformulate or modify a request may engage with the MCC Program Officer to clarify their request. § 1304.5 Responsibility for acknowledgment and initial determinations. (a) Upon receipt of a request for records, the FOIA Program Officer will acknowledge receipt of the request in writing within ten (10) business days. In responding to a request for records, MCC shall make reasonable efforts to search for the records in electronic format, except when such efforts would significantly interfere with the operation of the agency's automated information system. (b) The Chief FOIA Officer shall make an initial determination, within twenty (20) business days, to either grant or deny, in whole or in part, a request for records. If the Chief FOIA Officer shall notify the requester making such a request of the following information: (1) The determination whether grant or deny the request and reasons for the determination; (2) The right of the requester to seek assistance from the FOIA Public Liaison; and in the case of an adverse determination; (3) The right of the requester to seek dispute resolution services via the Office of Government Information Services of the National Archives and Records Administration (OGIS); and (4) The right to file an administrative appeal to the FOIA Appeals Officer within 90 calendar days after the date of the adverse determination. § 1304.6 Timing of responses to requests. (a) General information. (b) Unusual circumstances. (c) Aggregating requests. (d) Multitrack processing. (e) Expedited processing of requests. (1) The requester can establish that failure to receive the records quickly could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (2) The requester is primarily engaged in disseminating information and can demonstrate that an urgency to inform the public concerning actual or alleged Federal Government activity exists; or (3) As determined by the Chief FOIA Officer. (f) Written expedited requests. § 1304.7 Responses to requests. (a) General information. (b) Acknowledgment of requests. (c) Estimated dates of completion and interim responses. (d) Granting requests. (e) Partial grant of requests. (f) Denial or adverse determination of requests. (1) It reasonably foresees that disclosure would harm an interest protected by an exemption under the FOIA or disclosure is prohibited by law; (2) The request does not reasonably describe the records sought; (3) The information sought is not a record subject to the FOIA; (4) The information sought does not exist, cannot be located, or has been destroyed; or (5) The records are not in the readily producible form or format sought by the requester. (g) Markings on released documents. § 1304.8 Confidential commercial information. (a) Designation of confidential commercial information. (b) Required notice. (1) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4 of the FOIA; or (2) MCC has reason to believe that the requested information may be protected from disclosure under Exemption 4 of the FOIA, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption. (c) Information. (d) Exceptions to notice requirements. (1) The Chief FOIA Officer determines that the information is exempt under the FOIA; (2) The information has been lawfully published or has officially been 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, except that, in such a case, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to the disclosure date. (e) Opportunity to object to disclosure. (f) Notice of intent to disclose. (g) Notice of lawsuit. § 1304.9 Administrative appeals. (a) Requirements for appealing an adverse determination. (b) Appeals address. [email protected] (c) Adjudication of appeals. (d) Final agency determinations. (e) Engaging in dispute resolution services provided by OGIS. (f) When an appeal is required. § 1304.10 Preservation of records. MCC shall preserve all correspondence pertaining to the requests that it receives under this part, as well as copies of all requested records, until disposition or destruction is authorized pursuant to Title 44 of the United States Code or the General Records Schedule 4.2 of the National Archives and Records Administration. MCC shall not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA. § 1304.11 Fees. (a) General information. (i) Commercial use; (ii) Non-commercial scientific or educational institutions; (iii) Representative of the news media; and (iv) All other requesters. (2) Fees will be assessed pursuant to the category of requester and detailed in paragraph (b) of this section. Requesters may seek a fee waiver. To resolve any fee issues that arise under this section, MCC may contact a requester for additional information. MCC will ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. MCC ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees to the Treasury of the United States. All fee information is available at www.mcc.gov/resources/foia (b) Charging fees. (1) Search time fees. (i) Requests made by education institutions, non-commercial scientific institutions, or representatives of the news media are not subject to search time fees. Search time fees shall be charged for all other requesters, subject to the restrictions identified in this section. MCC may properly charge for time spent searching even if no responsive records are located if it is determined that the records are entirely exempt from disclosure. (ii) Requesters shall be charged the direct costs associated with conducting any searches that require the creation of a new computer program to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred. (iii) For requests that require the retrieval of records stored by an agency at the Federal Records Centers operated by the National Archives and Records Administration (NARA), additional costs shall be charged in accordance with the Transactional Billing Range Schedule established by NARA. (2) Duplication fees. (3) Review. (c) Restrictions on charging fees. (1) If MCC fails to comply with the FOIA's time limits to respond to a request, MCC may not charge fees, except as described in paragraphs (c)(3) through (5) of this section; (2) If MCC has determined 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 ten (10) calendar days; (3) If MCC has determined that unusual circumstances as defined by the FOIA apply, and more than five-thousand (5,000) pages are necessary to respond to the request, MCC may charge search time fees or duplication fees where applicable, if MCC has provided timely written notice of the unusual circumstances to the requester in accordance with the FOIA and has discussed with the requester via written mail, email, or telephone (or made a minimum of three (3) good-faith attempts to do so) how the requester could effectively limit the scope of the request; (4) 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; and (5) No search time or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review. (d) Fee exceptions. (1) The first one-hundred (100) pages of duplication (or the cost equivalent for other media); and (2) The first two (2) hours of search time. When, after deducting the first one-hundred (100) free pages (or its cost equivalent) and the first two (2) hours of search time, a total fee calculated under this section is $25.00 or less for any request, no fee will be charged. (e) Notice of anticipated fees in excess of $25.00. (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 requester who is not a commercial 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. MCC is not required to accept payments in installments. (3) If the requester has indicated a willingness to pay some designated amount of fees, and MCC estimates that the total fee will exceed that amount, MCC 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. MCC 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 FOIA Program Officer will assist any requester in reformulating a request to meet the requester's needs at a lower cost. (f) Waiver or reduction of fees. (1) The subject of the request. Whether the subject of the requested records concerns the operations or activities of the government; (2) The informative value of the information to be disclosed; and (3) The significance of the contribution to public understanding. (g) Fees pending a waiver request. (h) Types of requesters. (1) Commercial requesters shall be charged the full direct costs of searching for, reviewing, and duplicating requested records; (2) Educational and non-commercial scientific institution requesters shall be charged for document duplication only and the first one-hundred (100) pages of paper copies shall be provided without charge; (3) Representative of the news media requesters shall be charged for document duplication costs only, except that the first one-hundred (100) pages of paper copies shall be provided without charge; and (4) All other requesters who do not fall into any of the categories in paragraphs (h)(1) through (3) of this section shall be charged fees which recover the full reasonable direct costs incurred for searching for and reproducing records if that total costs exceeds $25.00, except that the first one-hundred (100) pages of duplication and the first two hours of manual search time shall not be charged. (i) Charges for unsuccessful searches. (j) Charges for other services. (k) Charging interest. (l) Aggregating requests. (m) Advance payment of fees. (2) In cases in which MCC requires advance payment, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within thirty (30) calendar days after the date of the fee determination, the request will be closed. Where it is anticipated that the cost of providing the requested record will exceed $25.00 but falls below $250.00 after the free duplication and search time has been calculated, MCC may, in its discretion may require either an advance deposit of the entire estimated charges or written confirmation of the requester's willingness to pay such charges. (3) Where the requester has previously failed to pay a properly charged FOIA fee within thirty (30) calendar days of the billing date, MCC may require the requester to pay the full amount due plus any applicable interest on that prior request, and/or require that the requester make an advance payment of the full amount of the anticipated fee before MCC begins a new request or continues to process a pending request or any pending appeal. If MCC has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, MCC may require that the requester provide proof of identity. § 1304.12 Other rights and services. Nothing in this part shall be construed to entitle any person a right to any service or to the disclosure of any record to which such person is not entitled under the FOIA. Subpart B—[Reserved]