PART 1800—PUBLIC ACCESS TO NACIC RECORDS UNDER THE FREEDOM OF INFORMATION ACT (FOIA) Authority: 5 U.S.C. 552. Source: 64 FR 49879, Sept. 14, 1999, unless otherwise noted. Subpart A—General § 1800.1 Authority and purpose. This part is issued under the authority of and in order to implement the Freedom of Information Act (FOIA), as amended (5 U.S.C. 552); and section 102 of the National Security Act of 1947, as amended (50 U.S.C. 403). It prescribes procedures for: (a) Requesting information on available NACIC records, or NACIC administration of the FOIA, or estimates of fees that may become due as a result of a request; (b) Requesting records pursuant to the FOIA; and (c) Filing an administrative appeal of an initial adverse decision under the FOIA. § 1800.2 Definitions. For purposes of this part, the following terms have the meanings indicated: NACIC Days Control Coordinator Direct-costs (1) Pages (2) Reproduction (3) Review (4) Search Expression of interest Federal agency Fees (1) Commercial (2) Non-commercial educational or scientific institution (3) Representative of the news media news (4) All other Freedom of Information Act FOIA Interested party Originator Potential requester Reasonably described records Records or agency records (1) Books, newspapers, magazines, journals, magnetic or printed transcripts of electronic broadcasts, or similar public sector materials acquired generally and/or maintained for library or reference purposes; to the extent that such materials are incorporated into any form of analysis or otherwise distributed or published by NACIC, they are fully subject to the disclosure provisions of the FOIA; (2) Index, filing, or museum documents made or acquired and preserved solely for reference, indexing, filing, or exhibition purposes; and (3) Routing and transmittal sheets and notes and filing or destruction notes which do not also include information, comment, or statements of substance; Responsive records § 1800.3 Contact for general information and requests. For general information on this part, to inquire about the FOIA program at NACIC, or to file a FOIA request (or expression of interest), please direct your communication in writing to the Information and Privacy Coordinator, Executive Secretariat Office, National Counterintelligence Center, 3W01 NHB, Washington, DC 20505. Such inquiries will also be accepted by facsimile at (703)874-5844. For general information or status information on pending cases only, the telephone number is (703)874-4121. Collect calls cannot be accepted. § 1800.4 Suggestions and complaints. NACIC welcomes suggestions or complaints with regard to its administration of the Freedom of Information Act. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. NACIC will respond to all substantive communications and take such actions as determined feasible and appropriate. Subpart B—Filing of FOIA Requests § 1800.11 Preliminary information. Members of the public shall address all communications to the NACIC Coordinator as specified at § 1800.03 and clearly delineate the communication as a request under the Freedom of Information Act and this regulation. NACIC employees receiving a communication in the nature of a FOIA request shall expeditiously forward same to the Coordinator. Requests and appeals on requests, referrals, or coordinations received from members of the public who owe outstanding fees for information services at this or other federal agencies will not be accepted and action on all pending requests shall be terminated in such circumstances. § 1800.12 Requirements as to form and content. (a) Required information. (b) Additional information for fee determination. (c) Otherwise. § 1800.13 Fees for record services. (a) In general. (b) Fee waiver requests. (1) That, as a matter of administrative discretion, the interest of the United States Government would be served, or (2) That it is in the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester; NACIC shall consider the following factors when making this determination: (i) Whether the subject of the request concerns the operations or activities of the United States Government; and, if so, (ii) Whether the disclosure of the requested documents is likely to contribute to an understanding of United States Government operations or activities; and, if so, (iii) Whether the disclosure of the requested documents will contribute to public understanding of United States Government operations or activities; and, if so, (iv) Whether the disclosure of the requested documents is likely to contribute significantly to public understanding of United States Government operations and activities; and (v) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so, (vi) Whether the disclosure is primarily in the commercial interest of the requester. (c) Fee waiver appeals. (d) Time for fee waiver requests and appeals. (e) Agreement to pay fees. (f) Deposits. (g) Schedule of fees In general. (i) Personnel Search and Review Clerical/Technical_Quarter hour_$ 5.00_Professional/Supervisory_Quarter hour_ 10.00__Manager/Senior Professional_Quarter hour_18.00 (ii) Computer Search and Production Search (on-line)_Flat rate_10.00_Search (off-line)_Flat rate_30.00_Other activity_Per minute_10.00_Tapes (mainframe cassette)_Each_9.00_Tapes (mainframe cartridge)_Each_9.00_Tapes (mainframe reel)_Each_20.00_Tapes (PC 9mm)_Each_25.00_Diskette (3.5″) _Each_4.00_CD (bulk recorded)_Each_10.00_CD (recordable)_Each_20.00_ Telecommunications _Per minute_.50_ Paper (mainframe printer)_Per page_.10_Paper (PC b&w laser printer)_Per page_.10_Paper (PC color printer)_Per page_1.00 (iii) Paper Production Photocopy (standard or legal)_Per page_.10_Microfiche_Per frame_.20_Pre-printed (if available)_Per 100 pages_5.00_Published (if available)_Per item_NTIS_ (2) Application of schedule. (3) Other services. (h) Limitations on collection of fees In general. (2) Requests for personal information. (i) Fee categories. (1) “Commercial use” requesters: Charges which recover the full direct costs of searching for, reviewing, and duplicating responsive records (if any); (2) “Educational and non-commercial scientific institution” requesters as well as “representatives of the news media” requesters: Only charges for reproduction beyond the first 100 pages; (3) “All other” requesters: Charges which recover the full direct cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time which will be furnished without charge. (j) Associated requests. § 1800.14 Fee estimates (pre-request option). In order to avoid unanticipated or potentially large fees, a requester may submit a request for a fee estimate. Pursuant to the Electronic Freedom of Information Act Amendments of 1996, NACIC will endeavor within twenty (20) days to provide an accurate estimate, and, if a request is thereafter submitted, NACIC will not accrue or charge fees in excess of our estimate without the specific permission of the requester. Subpart C—NACIC Action On FOIA Requests § 1800.21 Processing of requests for records. (a) In general. (b) Database of “officially released information.” (c) Effect of certain exemptions. (d) Time for response. § 1800.22 Action and determination(s) by originator(s) or any interested party. (a) Initial action for access. (i) Determine whether a record exists; (ii) Determine whether and to what extent any FOIA exemptions apply; (iii) Approve the disclosure of all non-exempt records or portions of records for which they are the originator; and (iv) Forward to the Coordinator all records approved for release or necessary for coordination with or referral to another originator or interested party. (2) In making these decisions, the NACIC component officers shall be guided by the applicable law as well as the procedures specified at § 1800.31 and § 1800.32 regarding confidential commercial information and personal information (about persons other than the requester). (b) Referrals and coordinations. § 1800.23 Payment of fees, notification of decision, and right of appeal. (a) Fees in general. (b) Notification of decision. (c) Availability of reading room. Subpart D—Additional Administrative Matters § 1800.31 Procedures for business information. (a) In general. Business information Confidential commercial information Submitter (b) Designation of confidential commercial information. (c) Process in event of FOIA request Notice to submitters. (i) The submitter has in good faith designated the information as confidential commercial information, or (ii) NACIC believes that disclosure of the information could reasonably be expected to cause substantial competitive harm, and (iii) The information was submitted within the last ten (10) years unless the submitter requested and provided acceptable justification for a specific notice period of greater duration. (2) Form of notice. (3) Response by submitter. (A) Specify that the information has not been disclosed to the public; (B) Explain why the information is contended to be a trade secret or confidential commercial information; (C) Explain how the information is capable of competitive damage if disclosed; (D) State that the submitter will provide NACIC and the Department of Justice with such litigation defense as requested; and (E) Be certified by an officer authorized to legally bind the corporation or similar entity. (ii) It should be noted that information provided by a submitter pursuant to this provision may itself be subject to disclosure under the FOIA. (4) Decision and notice of intent to disclose. (A) A statement of the reasons for which the submitter's disclosure objections were not sustained; (B) A description of the information to be disclosed; and (C) A specified disclosure date which is seven (7) days after the date of the instant notice. (ii) When notice is given to a submitter under this section, NACIC shall also notify the requester and, if NACIC notifies a submitter that it intends to disclose information, then the requester shall be notified also and given the proposed date for disclosure. (5) Notice of FOIA lawsuit. (6) Exceptions to notice requirement. (i) The information should not be disclosed in light of other FOIA exemptions; (ii) The information has been published lawfully or has been officially made available to the public; (iii) The disclosure of the information is otherwise required by law or federal regulation; or (iv) The designation made by the submitter under this section appears frivolous, except that, in such a case, NACIC will, within a reasonable time prior to the specified disclosure date, give the submitter written notice of any final decision to disclose the information. [64 FR 49879, Sept. 14, 1999; 64 FR 53769, Oct. 4, 1999] § 1800.32 Procedures for information concerning other persons. (a) In general. Personal information Public interest (b) Determination to be made. (c) Otherwise. § 1800.33 Allocation of resources; agreed extensions of time. (a) In general. (1) The totality of resources available to the component, (2) The business demands imposed on the component by the Director of NACIC or otherwise by law, (3) The information review and release demands imposed by the Congress or other governmental authority, and (4) The rights of all members of the public under the various information review and disclosure laws. (b) Discharge of FOIA responsibilities. (c) Requests for extension of time. § 1800.34 Requests for expedited processing. (a) In general. (b) Procedure. (1) When the matter involves an imminent threat to the life or physical safety of an individual; or (2) When the request is made by a person primarily engaged in disseminating information and the information is relevant to a subject of public urgency concerning an actual or alleged Federal government activity. Subpart E—NACIC Action On FOIA Administrative Appeals § 1800.41 Appeal authority. The Director, NACIC will make final NACIC decisions from appeals of initial adverse decisions under the Freedom of Information Act and such other information release decisions made under parts 1801, 1802, and 1803 of this chapter. Matters decided by the Director, NACIC will be deemed a final decision by NACIC. § 1800.42 Right of appeal and appeal procedures. (a) Right of Appeal. (b) Requirements as to time and form. (c) Exceptions. (d) Receipt, recording, and tasking. (e) Time for response. § 1800.43 Determination(s) by Office Chief(s). Each Office Chief in charge of an office which originated or has an interest in any of the records subject to the appeal, or designee, is a required party to any appeal; other interested parties may become involved through the request of the Coordinator when it is determined that some or all of the information is also within their official cognizance. These parties shall respond in writing to the Coordinator with a finding as to the exempt status of the information. This response shall be provided expeditiously on a “first-in, first-out” basis taking into account the business requirements of the parties and consistent with the information rights of members of the general public under the various information review and release laws. § 1800.44 Action by appeals authority. (a) Preparation of docket. (b) Decision by the Director, NACIC. § 1800.45 Notification of decision and right of judicial review. The Coordinator shall promptly prepare and communicate the decision of the Director, NACIC to the requester. With respect to any decision to deny information, that correspondence shall state the reasons for the decision, identify the officer responsible, and include a notice of a right to judicial review.