PART 517—FREEDOM OF INFORMATION ACT PROCEDURES Authority: 5 U.S.C. 552 Source: 83 FR 3593, Jan. 26, 2018, unless otherwise noted. § 517.1 General provisions. This part contains the regulations the National Indian Gaming Commission (Commission) follows in implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552. These regulations provide procedures by which you may obtain access to records compiled, created, and maintained by the Commission, along with procedures the Commission must follow in response to such requests for records. These regulations should be read together with the FOIA, which provides additional information about access to records maintained by the Commission. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552(a), are processed in accordance with the Commission's Privacy Act regulations, 25 CFR part 515, as well as under this part. § 517.2 Public reading room. Records that are required to be maintained by the Commission shall be available for public inspection and copying at 90 K Street NE, Suite 200, Washington, DC 20002. Reading room records created on or after November 1, 1996, shall be made available electronically via the Commission's website. § 517.3 Definitions. (a) Commercial use requester (b) Confidential commercial information (c) Direct costs i.e., (d) Duplication e.g., (e) Educational institution (f) Freedom of Information Act Officer (g) Non-commercial scientific institution (h) Record (i) Representative of the news media (j) Requester (k) Review (l) Search (m) Submitter (n) Working day § 517.4 Requirements for making requests. (a) How to make a FOIA request. [email protected] (b) First person requests for records. (c) Requests for records about another individual. (d) Description of records sought. (e) Agreement to pay fees. (f) Form or format of records requested. (g) Types of records not available. (1) Compile or create records solely for the purpose of satisfying a request for records; (2) Provide records not yet in existence, even if such records may be expected to come into existence at some future time; or (3) Restore records destroyed or otherwise disposed of, except that the FOIA Officer must notify the requester that the requested records have been destroyed or disposed. § 517.5 Responsibility for responding to requests. (a) In general. (b) Authority to grant or deny requests. (c) Granting of requests. (d) Adverse Determinations. (e) Content of adverse determination. (1) A brief statement of the reasons for the adverse determination, including any FOIA exemption applied by the agency in denying access to a record unless to do so would harm the interest protected by an applicable exemption; (2) An estimate of the volume of any records or information withheld, such as the number of pages or 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; (3) A statement that the adverse determination may be appealed under § 517.8 of this part and a description of the appeal requirements; and (4) A statement notifying the requester of the assistance available from the Commission's FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services. (f) Consultation, referral, and coordination. (1) Consultation. (2) Referral. (ii) Whenever the FOIA Officer refers any part of the responsibility for responding to a request to another agency, he or she must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral. (iii) After the FOIA Officer refers a record to another Federal Government agency, the agency receiving the referral shall make a disclosure determination and respond directly to the requester. The referral of a record is not an adverse determination and no appeal rights accrue to the requester by this act. (3) Coordination. § 517.6 Timing of responses to requests. (a) In general. (b) Multitrack processing. (2) The FOIA Officer 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 faster track(s). The FOIA Officer will do so either by contacting the requester by letter, telephone, electronic mail, or facsimile whichever is more efficient in each case. When providing a requester with the opportunity to limit the scope of their request, the FOIA Officer shall also advise the requester of the availability of the Commission's FOIA Public Liaison to aid in the resolution of any dispute arising between the requester and the Commission as well as the requester's right to seek dispute resolution services from the Office of Government Information Services. (c) Initial determinations. (i) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (ii) The need to search for, collect, and appropriately examine a voluminous amount of records which are demanded in a single request; or (iii) The need for consultation with another agency having a substantial interest in the determination of the request, which consultation shall be conducted with all practicable speed. (2) If the FOIA Officer decides that an initial determination cannot be reached within the time limits specified in paragraph (c)(1) of this section, the FOIA Officer shall notify the requester of the reasons for the delay and include an estimate of when a determination will be made. The requester will then have the opportunity to modify the request or arrange for an alternative time frame for completion of the request. To assist in this process, the FOIA Officer shall advise the requester of the availability of the Commission's FOIA Public Liaison to aid in the resolution of any disputes between the requester and the Commission, and notify the requester of his or her right to seek dispute resolution services from the Office of Government Information Services. (3) If no initial determination has been made at the end of the 20 day period provided for in paragraph (c)(1) of this section, including any extension, the requester may appeal the action to the FOIA Appeals Officer. (d) Expedited processing of request. (2) When a request for expedited processing is received, the FOIA Officer must determine whether to grant the request for expedited processing within ten (10) calendar days of its receipt. Requests will receive expedited processing if one of the following compelling needs is met: (i) 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; or (ii) 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. (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. As a matter of administrative discretion, the FOIA Officer may waive the formal certification requirement. (4) Administrative appeals of denials of expedited processing will be given expeditious consideration. If the denial of expedited processing is upheld by the FOIA Appeals Officer, that decision is immediately subject to judicial review in the appropriate Federal district court. § 517.7 Confidential commercial information. (a) Notice to submitters. (b) Where notice is required. (1) The information has been designated by the submitter as confidential commercial information protected from disclosure. Submitters of confidential commercial information shall use good faith efforts to designate, either at the time of submission or a reasonable time thereafter, those portions of their submissions they deem protected from disclosure under Exemption 4 of the FOIA. Such designation shall be deemed to have expired ten years after the date of submission, unless the requester provides reasonable justification for a designation period of greater duration; or (2) The FOIA Officer has reason to believe that the information may be protected from disclosure under Exemption 4 of the FOIA. (c) Where notice is discretionary. (d) Opportunity to object to disclosure. (e) Notice of intent to disclose. (f) Notice of lawsuit. (g) Exceptions to the notice requirements under this section. (1) The FOIA Officer determines that the information should not be disclosed pursuant to Exemption 4 and/or any other exemption of the FOIA; (2) The information lawfully has been published or officially made available to the public; (3) Disclosure of the information is required by law (other than the FOIA); (4) The information requested is not designated by the submitter as exempt from disclosure in accordance with this part, when the submitter had the opportunity to do so at the time of submission of the information or within a reasonable time thereafter, unless the agency has substantial reason to believe that disclosure of the information would result in competitive harm; or (5) The designation made by the submitter in accordance with this part appears obviously frivolous. When the FOIA Officer determines that a submitter was frivolous in designating information as confidential, the FOIA Officer must provide the submitter with written notice of any final administrative disclosure determination within a reasonable number of days prior to the specified disclosure date, but no opportunity to object to disclosure will be offered. § 517.8 Appeals. (a) Right of appeal. (b) Notice of Appeal Time for appeal. (2) Form of appeal. [email protected] (c) Final agency determinations. (d) When appeal is required. § 517.9 Fees. (a) In general. (b) Charges for responding to FOIA requests. (1) Duplication. 1/2 (2) Searches Manual searches. e.g., (ii) Computer searches. (3) Review fees. (c) Statutory waiver. (1) The subject of the request. (2) The informative value of the information to be disclosed. (3) The contribution to an understanding of the subject by the general public likely to result from disclosure. (4) The significance of the contribution to public understanding. (5) The existence and magnitude of commercial interest. (6) The primary interest in disclosure. (d) Types of requesters. (1) Commercial use requesters. (2) Educational and non-commercial scientific institutions requesters. (3) News media requesters. (4) All other requesters. (e) Restrictions on charging fees. (2) If the Commission fails to comply with the FOIA's time limits for responding to a request, it may not charge search fees or, in cases where records are not sought for commercial use and the request is made by an educational institution, non-commercial scientific institution, or representative of the news media, duplication fees, except as described in paragraphs (e)(2)(i)-(iii) of this section. (i) If the FOIA Officer determines that unusual circumstances, as defined by the FOIA, apply and provides timely written notice to the requester in accordance with the FOIA, then a failure to comply with the statutory time limit shall be excused for an additional 10 days. (ii) If the FOIA Officer determines that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, then the Commission may charge search fees and duplication fees, where applicable, if the following steps are taken. The FOIA Officer must: (A) Provide timely written notice of unusual circumstances to the requester in accordance with the FOIA and (B) Discuss 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). (iii) If a court determines that exceptional circumstances exist, as defined by the FOIA, then a failure to comply with the time limits shall be excused for the length of time provided by the court order. (f) Charges for interest. (g) Aggregating requests. (h) Advance payment of fees. (i) Payment of fees.