PART 2402—REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT Authority: 5 U.S.C. 552; E.O. 13392, 70 FR 75373, 3 CFR, 2005 Comp., p. 216. Source: 85 FR 70055, Nov. 4, 2020, unless otherwise noted. § 2402.1 Purpose and scope. The regulations in this part prescribe procedures by which individuals may obtain access to the Office of Science and Technology Policy's (OSTP) agency records under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, as well as the procedures OSTP must follow in response to requests for records under the FOIA. The regulations should be read together with the FOIA and the Office of Management and Budget's (OMB's) “Uniform Freedom of Information Fee Schedule and Guidelines,” which provides information about access to records. All requests for access to information contained within a system of records pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, shall be processed in accordance with these regulations as well as those contained in 32 CFR part 2403. § 2402.2 Delegation of authority and responsibilities. (a) The Director of OSTP designates the OSTP General Counsel as the Chief FOIA Officer and hereby delegates to the Chief FOIA Officer the authority to act upon all requests for agency records and to re-delegate such authority at his or her discretion. (b) The Chief FOIA Officer shall designate a FOIA Public Liaison, who shall serve as the supervisory official to whom a FOIA requester can raise concerns about the service the FOIA requestor has received following an initial request. The FOIA Public Liaison will be listed on the OSTP website ( https://www.whitehouse.gov/ostp/foia (c) The Director establishes a FOIA Requester Service Center that shall be staffed by the Chief FOIA Officer and the FOIA Public Liaison. The contact information for the FOIA Requester Service Center is: Address: Office of Science and Technology Policy, Eisenhower Executive Office Building, 1650 Pennsylvania Avenue NW, Washington, DC 20504; Telephone: (202) 456-4444; Fax: (202) 395-1224; Email: [email protected]. § 2402.3 General policy and definitions. (a) Non-exempt records available to public. Federal Register (b) Record availability on the OSTP website. (c) Definitions. (1) All of the terms defined in the FOIA and the definitions included in OMB's “Uniform Freedom of Information Act Fee Schedule and Guidelines” apply unless otherwise defined in this subpart. (2) The term agency record (i) Either created or obtained by OSTP; and (ii) Under OSTP's control at the time the FOIA request is received. (3) The term commercial use request (4) The terms disclose disclosure (5) The term direct cost i.e., (6) The term duplication e.g., (7) The term educational institution (8) The term fee waiver (9) The term FOIA Public Liaison (10) The term non-commercial scientific institution (11) The term perfected request (12) The terms representative of the news media news media requester news (13) The term requester (14) The term review i.e., (15) The term search (16) The term working day § 2402.4 Procedure for requesting records. (a) Format of requests. In general. (2) Records in electronic formats. readily reproducible (ii) In responding to a request for records, OSTP shall make reasonable efforts to search for the records in electronic format, except where such efforts would interfere with the operation of the agency's automated information system(s). For purposes of this paragraph, the term search (iii) Searches for records maintained in electronic format may require the application of codes, queries, or other minor forms of programming to retrieve the requested records. (3) Attachment restrictions. (b) Contents. (c) Date of receipt. (d) Contact information. (e) 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 OSTP must notify the requester of the destruction or disposal of the requested records. § 2402.5 Responses to requests. (a) In general. (b) Authority to grant or deny requests. (c) Granting of requests. (d) Adverse determinations. (e) Content of adverse determinations. (1) A brief statement of the reason(s) for the adverse determination, including any FOIA exemption applied by the agency in denying access to a record unless such inclusion 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 § 2402.8 of this subpart and a description of the appeal requirements; and (4) A statement notifying the requester of the assistance available from OSTP's FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services. (f) Consultations, referrals, and coordinations. (1) Consultation. (2) Referral. (ii) Whenever OSTP refers any part of the responsibility for responding to a request to another agency, OSTP must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral. (iii) After OSTP refers a record to another Federal 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 therefrom. (3) Coordination. § 2402.6 Timing of responses to requests. (a) In general. (b) Initial determinations. (c) Extensions of response time in “unusual circumstances.” (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 separate and distinct records which are demanded in a single request; or (iii) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein. (2) After OSTP notifies the requester of the reasons for the delay, the requester will have an opportunity to modify the request or arrange for an alternative time frame for completion of the request. To assist in this process, OSTP shall advise the requester of the availability of OSTP's FOIA Public Liaison to aid in the resolution of any disputes between the requester and OSTP, 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 is made at the end of the twenty-day period provided for in paragraph (b) of this section, including any extension provided for in paragraph (c)(1) of this section, 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, OSTP 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, OSTP may waive the formal certification requirement. (4) Administrative appeals of denials of expedited processing will be given expeditious consideration. If the FOIA Appeals Officer upholds the denial of expedited processing, that decision is immediately subject to judicial review in the appropriate Federal district court. (e) Multi-track processing. (i) Track one—expedited requests. (ii) Track two—simple requests. (iii) Track three—complex requests. (2) OSTP may provide requesters with requests in slower track(s) the opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of faster track(s). OSTP will do so by contacting the requester by letter, telephone, email, or facsimile, whichever is more efficient in each case. When providing a requester with the opportunity to limit the scope of a request, OSTP shall also advise the requester of OSTP's FOIA Public Liaison to aid in the resolution of any dispute arising between the requester and OSTP as well as the requester's right to seek dispute resolution services from the Office of Government Information Services. (f) Aggregating requests. § 2402.7 Confidential commercial information. (a) In general. (b) Definitions. (1) Confidential commercial information (2) Submitter (c) Designation of business information. (d) Notice to submitters. (e) Where notice is required. (1) The information has been designated in good faith by the submitter as information considered protected from disclosure under 5 U.S.C. 552(b)(4); or (2) OSTP has reason to believe that the information may be protected from disclosure under 5 U.S.C. 552(b)(4). (f) Opportunity to object to disclosure. (g) Notice of intent to disclose. (1) A statement of the reason(s) why each of the submitter's objections to disclosure was not sustained; (2) A description of the business information to be disclosed; and (3) A specified disclosure date, which shall be a reasonable time subsequent to the notice. (h) Exceptions to notice requirements. (1) OSTP determines that the information should 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 statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; (4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous. In such a case, OSTP shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information, but no opportunity to object will be offered; or (5) The information requested was not designated by the submitter as exempt from disclosure in accordance with this part, when the submitter had an opportunity to do so at the time of submission of the information or a reasonable time thereafter, unless OSTP has substantial reason to believe that disclosure of the information would result in competitive harm. (i) Notice of FOIA lawsuit. (j) Notice to requesters. § 2402.8 Appeal of denials. (a) Right to administrative appeal. (b) Notice of appeal. Time for appeal. (2) Form of appeal. [email protected]. (c) Decisions on appeals. (1) Notify the requester that judicial review is available pursuant to 5 U.S.C. 552(a)(4)(B)-(G); and (2) Notify the requester that the Office of Government Information Services (OGIS) offers mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. Contact information for OGIS is: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, MD 20740, Email: [email protected], (d) Dispute resolution services. (e) When appeal is required. § 2402.9 Fees. (a) Fees generally required. (b) Calculation of fees. (1) Search fees. (i) Educational, scientific, or news media requests. (ii) Other non-commercial requests. (iii) Requests for records about oneself. (2) Review fees. (3) Duplication fees. (c) Aggregation of requests. (d) Fees likely to exceed $25. (e) Advance payments. (1) Obtain satisfactory assurance from the requester, in writing, of full payment; or (2) OSTP may require the requester to pay the full amount of any fees owed or make an advance payment of the full amount of OSTP's estimated charges. (3) If OSTP does not receive an adequate response, assurance, or advance payment within thirty (30) calendar days of a fee determination or notification issued under the authority of this section, OSTP will administratively close the corresponding request. (f) Other charges. (1) Certifying that records are true copies; and (2) Sending records by special methods, such as express mail. (g) Remittances. (h) Receipts and refunds. § 2402.10 Waiver of fees. (a) In general. (1) Disclosure of the requested information would shed light on the operations or activities of the Federal 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 already in the public domain, in either the same or a substantially similar 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 the requester's ability and intention to effectively convey information to the public must be considered. OSTP will presume that a representative of the news media will satisfy 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, OSTP will consider the following criteria: (i) OSTP will 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 are encouraged to provide explanatory information regarding this consideration. (ii) If there is an identified commercial interest, OSTP will determine whether that is the primary interest furthered by the request. OSTP will ordinarily presume that when a news media requester has satisfied the conditions in paragraphs (a)(1) and (2) of this section, the request is not primarily in the commercial interest of the requester. Data brokers or others who merely compile and market government information for direct economic return will not receive the benefit of this presumption. (b) Timing of fee waivers. (c) Clarification. (d) Restrictions on charging fees. (1) If OSTP 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 ten (10) days. (2) If OSTP determines that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, then OSTP may charge search fees and duplication fees, where applicable, if the following steps are taken. OSTP must: (i) Provide timely written notice of unusual circumstances to the requester in accordance with the FOIA; and (ii) Discuss with the requester via postal 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). (3) If a court determines that exceptional circumstances exist, as defined by the FOIA, then a failure to comply with the statutory time limits shall be excused for the length of time provided by the court order. § 2402.11 Maintenance of statistics. (a) OSTP shall maintain records sufficient to allow accurate reporting of FOIA processing statistics, as required under 5 U.S.C. 552(e) and all guidelines for the preparation of annual FOIA reports issued by the Department of Justice. (b) OSTP shall annually, on or before February 1 of each year, prepare and submit to the Attorney General an annual report compiling the statistics maintained in accordance with paragraph (a) of this section for the previous fiscal year. A copy of the report will be available for public inspection on the OSTP website. § 2402.12 Disclaimer. Nothing in this part shall be construed to entitle any person, as a right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.