PART 5—AVAILABILITY OF INFORMATION TO THE PUBLIC Authority: 5 U.S.C. 552, 20 U.S.C. 1221e-3, and 20 U.S.C. 3474. Source: 75 FR 33510, June 14, 2010, unless otherwise noted. Subpart A—General Provisions § 5.1 Purpose. This part contains the regulations that the United States Department of Education follows in processing requests for records under the Freedom of Information Act, as amended, 5 U.S.C. 552. These regulations must be read in conjunction with the FOIA, including its exemptions to disclosure, and, when appropriate, in conjunction with the Privacy Act of 1974, as amended, 5 U.S.C. 552a, and its implementing regulations in 34 CFR part 5b. (Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474) § 5.2 Definitions. As used in this part: (a) Act FOIA (b) Department (c) Component (d) FOIA request (e)(1) Agency records (i) Are either created or obtained by the Department; and (ii) Are under the Department's control at the time it receives a FOIA request. (2) Agency records (i) Records created, stored, and retrievable in electronic format; (ii) Records maintained for the Department by a private entity under a records management contract with the Federal Government; and (iii) Documentary materials preserved by the Department as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the Department or because of the informational value of data contained therein. (3) Agency records (Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474) Subpart B—Agency Records Available to the Public § 5.10 Public reading room. (a) Electronic inspection. (i) Final opinions and orders in adjudications; (ii) Statements of policy and interpretations adopted by the Department and not published in the Federal Register; (iii) Administrative staff manuals and instructions affecting the public; and (iv) Copies of all agency records regardless of form or format released to the public pursuant to a FOIA request that the Department determines are likely to be the subject of future FOIA requests or have been requested three or more times. (2) The Department currently makes the agency records described in paragraph (a)(1) of this section available for public inspection in an electronic format through its electronic reading room located on the Department's FOIA website at http://www2.ed.gov/policy/gen/leg/foia/readingroom.html. (b) Public reading room. [email protected]. (c) Hard copies. Federal Register (Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(2), 20 U.S.C. 3474) [75 FR 33510, June 14, 2010, as amended at 84 FR 67867, Dec. 12, 2019] § 5.11 Business information. (a) General. (b) Definitions. (1) Business information (2) Submitter (c) Designation of business information. (1) A submitter must use good faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portion of its submission that it considers to be business information protected from disclosure under Exemption 4 of the Act. (2) A submitter's designations are not binding on the Department and will expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period. (3) A blanket designation on each page of a submission that all information contained on the page is protected from disclosure under Exemption 4 presumptively will not be considered a good faith effort. (d) Notice to submitters. (e) Opportunity to object to disclosure. (1) If a submitter objects to disclosure, it must submit to the Department a detailed written statement specifying all grounds under Exemption 4 of the Act for denying access to the information, or a portion of the information sought. (2) A submitter's failure to object to the disclosure by the deadline established by the Department in the notice provided under paragraph (d) of this section constitutes a waiver of the submitter's right to object to disclosure under paragraph (e) of this section. (3) A submitter's response to a notice from the Department under paragraph (d) of this section may itself be subject to disclosure under the Act. (f) Notice of intent to disclose. (1) A statement of the reasons why the submitter's objections to disclosure were not sustained. (2) A description of the information to be disclosed. (3) A specified disclosure date that is a reasonable time subsequent to the notice. (g) Exceptions to notice requirements. (1) The Department does not disclose the business information of the submitter; (2) The Department has previously lawfully published the information; (3) The information has been made available to the public by the requester or by third parties; (4) Disclosure of the information is required by statute (other than the Act) or regulation issued in accordance with the requirements of Executive Order 12600 (52 FR 23781, 3 CFR, 1987 Comp., p. 235); or (5) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous, except that, in such case, the Department must provide the submitter with written notice of any final administrative disclosure determination in accordance with paragraph (f) of this section. (h) Notice of FOIA lawsuit. (i) Corresponding notice to requester. (j) Notice of reverse FOIA lawsuit. (Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474) § 5.12 Creation of agency records not required. In response to a FOIA request, the Department produces only those agency records that are not already publicly available and that are in existence at the time it receives a request. The Department does not create new agency records in response to a FOIA request by, for example, extrapolating information from existing agency records, reformatting available information, preparing new electronic programs or databases, or creating data through calculations of ratios, proportions, percentages, trends, frequency distributions, correlations, or comparisons. (Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474) § 5.13 Preservation of agency records. The Department does not destroy agency records that are the subject of a pending FOIA request, appeal, or lawsuit. (Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474) Subpart C—Procedures for Requesting Access to Agency Records and Disclosure of Agency Records § 5.20 Requirements for making FOIA requests. (a) Making a FOIA request. www.ed.gov/policy/gen/leg/foia/request_foia.html. (b) Description of agency records sought. (c) FOIA request deemed insufficient. (d) Verification of identity. (Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474) [75 FR 33510, June 14, 2010, as amended at 84 FR 67868, Dec. 12, 2019] § 5.21 Procedures for processing FOIA requests. (a) Acknowledgements of FOIA requests. (b) Consultation and referrals. (c) Decisions on FOIA requests. (d) Requests for additional information. (e) Extension of time period for processing a FOIA request. (1) The need to search for and collect the requested agency records from field facilities or other establishments that are separate from the office processing the request. (2) The need to search for, collect, and review and process voluminous agency records responsive to the FOIA request. (3) The need to consult with another agency or two or more agency components having a substantial interest in the determination on the FOIA request. (f) FOIA Public Liaison and FOIA Requester Service Center. http://www.ed.gov/policy/gen/leg/foia/contacts.html. (g) Notification of determination. (h) Denials of FOIA requests. (1) Only Departmental officers or employees delegated the authority to deny a FOIA request may deny a FOIA request on behalf of the Department. (2)(i) The Department notifies the requester in writing of any decision to deny a FOIA request in whole or in part. Denials under this paragraph can include the following: A determination to deny access in whole or in part to any agency record responsive to a request; a determination that a requested agency record does not exist or cannot be located in the Department's records; a determination that a requested agency record is not readily retrievable or reproducible in the form or format sought by the requester; a determination that what has been requested is not a record subject to the FOIA; a determination on any disputed fee matter, including a denial of a request for a fee waiver; and a denial of a request for expedited processing. (ii) All determinations denying a FOIA request in whole or in part are signed by an officer or employee designated under paragraph (h)(1) of this section, and include: (A) The name and title or position of the denying officer or employee. (B) A brief statement of the reason or reasons for the denial, including any exemptions applicable under the Act. (C) An estimate of the volume of agency records or information denied, by number of pages or other reasonable estimate (except where the volume of agency records or information denied is apparent from deletions made on agency records disclosed in part, or providing an estimate would harm an interest protected by an applicable exemption under the Act). (D) Where an agency record has been disclosed only in part, an indication of the exemption under the Act justifying the redaction in the agency record (unless providing this information would harm an interest protected by an applicable exemption under the Act). (E) A statement notifying the requester of the right to seek assistance from the Department's FOIA Public Liaison. (F) A statement notifying the requester of the right to seek dispute resolution services from the Department's FOIA Public Liaison or the Office of Government Information Services. (G) A statement of appeal rights and a list of requirements for filing an appeal under § 5.40. (i) Timing of responses to FOIA requests. (1) Multitrack processing. The Department may use two or more processing tracks to distinguish between simple and more complex FOIA requests based on one or more of the following: the time and work necessary to process the FOIA request, the volume of agency records responsive to the FOIA request, and whether the FOIA request qualifies for expedited processing as described in paragraph (i)(2) of this section. (2) Expedited processing. (i) The Department gives expedited treatment to FOIA requests and appeals whenever the Department determines that a FOIA request involves one or more of the following: (A) A circumstance in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual. (B) The urgent need of a person primarily engaged in disseminating information to inform the public about an actual or alleged Federal Government activity; or (C) Other circumstances that the Department determines demonstrate a compelling need for expedited processing. (ii) A requester may ask for expedited processing at the time of the initial FOIA request or at any time thereafter. (iii) A request for expedited processing must contain a detailed explanation of the basis for the request, and must be accompanied by a statement certifying the truth of the circumstances alleged or other evidence of the requester's compelling need acceptable to the Department. (iv) The Department makes a determination whether to grant or deny a request for expedited processing within 10 calendar days of its receipt by the component of the Department designated pursuant to § 5.20(a) to receive FOIA requests for agency records, and processes FOIA requests accepted for expedited processing as soon as practicable and on a priority basis. (Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474) [75 FR 33510, June 14, 2010, as amended at 84 FR 67868, Dec. 12, 2019] Subpart D—Fees § 5.30 Fees generally. The Department assesses fees for processing FOIA requests in accordance with § 5.32(a), except where fees are limited under § 5.32(b) or where a waiver or reduction of fees is granted under § 5.33. Requesters must pay fees by check or money order made payable to the U.S. Department of Education, and must include the FOIA request number on the check or money order. The Department retains full discretion to limit or adjust fees. (Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 3474) § 5.31 Fee definitions. (a) Commercial use request (b) Direct costs i.e., (c) Duplication (d) Educational institution (e) Noncommercial scientific institution (f) Representative of the news media, news media requester, (g) Review (h) Search (Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 3474) § 5.32 Assessment of fees. (a) Fees. (1) Search. (2) Review. (ii) No fees are charged for review at the administrative appeal level except in connection with— (A) The review of agency records other than agency records identified as responsive to the FOIA request in the initial decision; and (B) The Department's decision regarding whether to assert that an exemption exists under the Act that was not cited in the decision on the initial FOIA request. (iii) Review fees are not assessed for FOIA requests other than those made for a “commercial use,” as the term is defined in § 5.31(a). (3) Duplication. (b) Limitations on fees. (1) Fees are limited to charges for document duplication when agency records are not sought for commercial use and the request is made by— (i) An educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or (ii) A representative of the news media. (2) For FOIA requests other than commercial use FOIA requests, the Department provides the first 100 pages of agency records released (or the cost equivalent) and the first two hours of search (or the cost equivalent) without charge, pursuant to 5 U.S.C. 552(a)(4)(A)(iv)(II). (3) Whenever the Department calculates that the fees assessable for a FOIA request under paragraph (a) of this section total $25.00 or less, the Department processes the FOIA request without charge to the requester. (4) If the Department has failed to comply with any time limit in 5 U.S.C. 552(a)(4)(A)(viii)(I), the Department may not assess search fees, except as otherwise provided in this paragraph. If the Department has determined that unusual circumstances (as described in § 5.21(e)) apply, it may assess search fees (or, for requesters with preferred fee status, it may assess duplication fees) if the Department gives the requester timely written notice under § 5.21(e) and responds to the FOIA request within 10 additional working days. If unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the Department may assess search fees (or, for requesters with preferred fee status, duplication fees) if the Department gives the requester timely written notice under § 5.21(e) and the Department discussed with the requester via written mail, electronic mail, 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. (c) Notice of anticipated fees in excess of $25. (d) Charges for other services. (e) Charging interest. (f) Aggregating FOIA requests. (g) Advance payments. (1) For FOIA requests other than those described in paragraphs (g)(2) and (g)(3) of this section, the Department does not require the requester to pay fees in advance. (2) Where the Department estimates or determines that fees for processing a FOIA request will total more than $250, it may require the requester to pay the fees in advance, except where the Department receives a satisfactory assurance of full payment from a requester with a history of prompt payment of FOIA fees. (3) The Department may require a requester who has previously failed to pay a properly assessed FOIA fee within 30 calendar days of the billing date to pay in advance the full amount of estimated or actual fees before it further processes a new or pending FOIA request from that requester. (4) When the Department requires advance payment of estimated or assessed fees, it does not consider the FOIA request received and does not further process the FOIA request until payment is received. (h) Tolling. (i) Other statutory requirements. (Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 3474) [75 FR 33510, June 14, 2010, as amended at 84 FR 67868, Dec. 12, 2019] § 5.33 Requirements for waiver or reduction of fees. (a) The Department processes a FOIA request for agency records without charge or at a charge less than that established under § 5.32(a) when the Department determines that— (1) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and (2) Disclosure of the information is not primarily in the commercial interest of the requester. (b) To determine whether a FOIA request is eligible for waiver or reduction of fees pursuant to paragraph (a)(1) of this section, the Department considers the following factors: (1) Whether the subject of the request specifically concerns identifiable operations or activities of the government. (2) Whether the disclosable portions of the requested information will be meaningfully informative in relation to the subject matter of the request. (3) The disclosure's contribution to public understanding of government operations, i.e., (4) The significance of the disclosure's contribution to public understanding of government operations or activities, i.e., (c) To determine whether a FOIA request is eligible for waiver or reduction of fees pursuant to paragraph (a)(2) of this section, the Department considers the following factors: (1) The existence of the requester's commercial interest, i.e., (2) If a commercial interest is identified, whether the 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. (d) When the fee waiver requirements are met only with respect to a portion of a FOIA request, the Department waives or reduces fees only for that portion of the request. (e) A requester seeking a waiver or reduction of fees must submit evidence demonstrating that the FOIA request meets all the criteria listed in paragraphs (a) through (c) of this section. (f) A requester must seek a fee waiver for each FOIA request for which a waiver is sought. The Department does not grant standing fee waivers but considers each fee waiver request independently on its merits. (Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 3474) Subpart E—Administrative Review § 5.40 Appeals of adverse determinations. (a) In general. (b) Appeal requirements. (c) Determination on appeal. (2) The Department's determination on an appeal constitutes the Department's final action on the FOIA request. Any Department determination denying an appeal in whole or in part includes the reasons for the denial, including any exemptions asserted under the Act, and notice of the requester's right to seek judicial review of the determination in accordance with 5 U.S.C. 552(a)(4). Where the Department makes a determination to grant an appeal in whole or in part, it processes the FOIA request subject to the appeal in accordance with the determination on appeal. (Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(6), 20 U.S.C. 3474) [75 FR 33510, June 14, 2010, as amended at 84 FR 67868, Dec. 12, 2019; 89 FR 5098, Jan. 26, 2024; 89 FR 12244, Feb. 16, 2024]