PART 701—PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT Authority: 5 U.S.C. 552. Source: 53 FR 8895, Mar. 18, 1988, unless otherwise noted. § 701.10 General provisions. (a) This part contains the regulations of the Office of Independent Counsel implementing the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. Information customarily furnished to the public in the regular course of the performance of official duties may continue to be furnished to the public without complying with this part, provided that the furnishing of such information would not violate the Privacy Act of 1974, 5 U.S.C. 552a, and would not be inconsistent with regulations issued pursuant to the Privacy Act. To the extent permitted by other laws, the Office will also consider making available records that it is permitted to withhold under the FOIA if it determines that such disclosure would be in the public interest and would not interfere with the functioning of the Office. (b) As used in this part, the following terms shall have the following meanings: (1) Appeal (2) Agency (3) Request (4) Requester (5) Business information (6) Business submitter (c) The FOIA/PA Officer of the Office of Independent Counsel shall be responsible to Independent Counsel for all matters pertaining to the administration of this part. (d) The Office of Independent Counsel shall comply with the time limits set forth in the FOIA for responding to and processing requests and appeals, unless there are exceptional circumstances within the meaning of 5 U.S.C. 552(a)(6)(C). The Office shall notify a requester whenever it is unable to respond to or process the request or appeal within the time limits established by the FOIA. The Office shall respond to and process requests and appeals in their approximate order of receipt, to the extent consistent with sound administrative practice. § 701.11 Requirements pertaining to requests. (a) How made and addressed. (b) Request must reasonably describe the records sought. (c) Agreement to pay fees. (2) If a waiver of fees up to $25 is sought in the requester's request to the Office, the Office will make its determination on the fee waiver (and notify the requester as soon as possible) after receipt of the request. The submission of a request for fee waiver will not delay the Office's responsibility to search for responsive records. (3) If the fee waiver is denied by the Office, and the fees involved total $25 or less, the Office will send the responsive documents to the requester, along with a bill for fees. The collection of the unpaid bill shall follow the procedures found herein at § 701.18 (g)(2) and (h). § 701.12 Responses by the Office to requests. (a) Authority to grant or deny requests. (b) Initial action by the Office. (1) Respond to the request, after consulting with the other agency best able to determine whether to disclose the record and with any other agency having a substantial interest in the requested record or the information contained therein; or (2) Refer the responsibility for responding to the request to another agency that generated or originated the record, but only if that other agency is subject to the provisions of the FOIA. Under ordinary circumstances, the agency that generated or originated a requested record shall be presumed to be the agency best able to determine whether to disclose the record in response to the request. (c) Law-enforcement information. (d) Classified information. (e) Notice of referral. (f) Agreements regarding consultations and referrals. (g) Separate referrals of portions of a request. (h) Date for determining responsive records. § 701.13 Form and content of Office responses. (a) Form of notice granting a request. (b) Form of notice denying a request. (1) The name and title or position of the person responsible for the denial; (2) A brief statement of the reason or reasons for the denial, including the FOIA exemption or exemptions that the Office has relied upon in denying the request and a brief explanation of the manner in which the exemption or exemptions apply to each record withheld; and (3) A statement that the denial may be appealed under § 701.16(a) and a description of the requirements of that subsection. (c) Record cannot be located or has been destroyed. § 701.14 Classified information. In processing a request for information that is classified or classifiable under Executive Order 12356 or any other Executive Order concerning the classification of records, the Office shall review the information to determine whether it warrants classification. Information that does not warrant classification shall not be withheld from a requester on the basis of 5 U.S.C. 552(b)(1). The Office shall, upon receipt of any appeal involving classified or classifiable information, take appropriate action to ensure compliance with Executive Order 12356 or any other Executive Order concerning the classification of records. § 701.15 Business information. (a) In general. (b) Notice to business submitters. (c) When notice is required. (d) Opportunity to object to disclosure. (e) Notice of intent to disclose. (i) A statement of the reasons for which the business submitter's disclosure objections were not sustained; (ii) A description of the business information to be disclosed; and (iii) A specified disclosure date. (2) Such notice of intent to disclose shall be forwarded a reasonable number of days, as circumstances permit, prior to the specified date upon which disclosure is intended. A copy of such disclosure notice shall be forwarded to the requester at the same time. (f) Notice of FOIA lawsuit. (g) Exceptions to notice requirements. (1) The Office determines that the information should not be disclosed; (2) The information lawfully has been published or otherwise made available to the public; (3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or (4) The Office is a criminal law-enforcement agency that acquired information in the course of a lawful investigation of a possible violation of criminal law. § 701.16 Appeals. (a) Appeals to Independent Counsel. (b) Action on appeals by the Office of Independent Counsel. (c) Form of action on appeal. § 701.17 Preservation of records. The Office shall preserve all correspondence relating to the requests it receives under this part, and all records processed pursuant to such requests, until such time as the destruction of such correspondence and records is authorized pursuant to title 44 of the United States Code. Under no circumstances shall records be destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA. § 701.18 Fees. (a) In general. (b) Charges. (1) Search. (ii) For each quarter hour spent by clerical personnel in searching for and retrieving a requested record, the fee shall be $2.25. When the search and retrieval cannot be performed entirely by clerical personnel—for example, when the identification of records within the scope of the request requires the use of professional personnel—the fee shall be $4.50 for each quarter hour of search time spent by such professional personnel. When the time of managerial personnel is required, the fee shall be $7.50 for each quarter hour of time spent by such managerial personnel. (iii) For computer searches of records, which may be undertaken through the use of existing programming, requesters shall be charged the actual direct costs of conducting the search, although certain requesters (as defined in paragraph (c)(2) of this section) shall be entitled to the cost equivalent of two hours of manual search time without charge. These direct costs shall include the cost of operating a central processing unit for that portion of operating time that is directly attributable to searching for records responsive to a request, as well as the costs of operator/programmer salary apportionable to the search (at no more than $4.50 per quarter hour of time so spent). The Office is not required to alter or develop programming to conduct a search. (2) Duplication. (3) Review. i.e., (c) Limitations on charging fees. (2) Except for requesters seeking records for a commercial use (as defined in paragraph (j)(5) of this section), the Office shall provide without charge (i) The first 100 pages of duplication (or its cost equivalent), and (ii) The first two hours of search (or its cost equivalent). (3) Whenever a total fee calculated under this section is $8.00 or less, no fee shall be charged. (4) The provisions of paragraphs (c) (2) and (3) of this section work together. For requesters other than those seeking records for a commercial use, no fee shall be charged unless the cost of search in excess of two hours plus the cost of duplication in excess of 100 pages exceeds $8.00. (d) Waiver or reduction of fees. (2) In order to determine whether the first fee waiver requirement is met— i.e., (i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” (ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding or government operations or activities. (iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” e.g., (iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities. (3) In order to determine whether the second fee waiver requirement is met— i.e., (i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. (ii) The primary interest in disclosure: Whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” (4) When only a portion of the requested records satisfies both of the requirements for a waiver or reduction of fees under this paragraph, a waiver or reduction shall be granted only as to that portion. (5) Requests for the waiver or reduction of fees shall address each of the factors listed in paragraphs (d) (2) and (3) of this section, as they apply to each record request. (e) Notice of anticipated fees in excess of $25.00. (f) Aggregating requests. e.g., (g) Advance payments. (2) When a requester has previously failed to pay a records access fee within 30 days of the date of billing, the Office may require the requester to pay the full amount owned, plus any applicable interest (as provided for in paragraph (h) of this section), and to make an advance payment of the full amount of may estimated fee before the Office begins to process a new request or continues to process a pending request from that requester. (3) For requests other than those described in paragraphs (g) (1) and (2) of this section, the Office shall not require the requester to make an advance payment, i.e., (4) When a component acts under paragraphs (g) (1) or (2) of this section, the administrative time limits prescribed in subsection (a)(6) of the FOIA for the processing of an initial request or an appeal, plus permissible extensions of these time limits, shall be deemed not to begin to run until the Office has received payment of the assessed fee. (h) Charging interest. (i) Other statutes specifically providing for fees. i.e., (i) Serve both the general public and private sector organizations by conveniently making available government information; (ii) Ensure that groups and individuals pay the cost of publications and other services that are for their special use so that these costs are not borne by the general taxpaying public; (iii) Operate an information-dissemination activity on a self-sustaining basis to the extent possible; or (iv) Return revenue to the Treasury for defraying, wholly or in part, appropriated funds used to pay the cost of disseminating government information. (2) When records responsive to requests are maintained for distribution by agencies operating statutorily based fee schedule programs, the Office shall inform requesters of the steps necessary to obtain records from those sources. (j) Definitions. (1) The term direct costs (2) The term search (3) The term duplication e.g., (4) The term review e.g., (5) The term commercial use (6) The term educational institution (7) The term noncommercial scientific institution (8) The term representative of the news media news (k) Charges for other services and materials. § 701.19 Other rights and services. Nothing in this part 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 5 U.S.C. 552.