PART 1250—NARA RECORDS SUBJECT TO FOIA Authority: 44 U.S.C. 2104(a) and 2204 (3)(c)(1); 5 U.S.C. 552; Public Law 114-185; E.O. 13526; E.O. 12600; 52 FR 23781; 3 CFR, 1987 Comp., p. 235. Source: 79 FR 56504, Sept. 22, 2014, unless otherwise noted. Subpart A—General Information About Freedom of Information Act (FOIA) Requests § 1250.1 Scope of this part. This part implements the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, for NARA operational records and archival records that are subject to FOIA. This part contains the rules that we follow to process FOIA requests, such as the amount of time we have to make a determination regarding the release of records and what fees we may charge. Other NARA regulations in 36 CFR parts 1254 through 1275 provide detailed guidance for conducting research at NARA. § 1250.2 Presumption of Openness and Proactive Disclosures. NARA, consistent with its core mission, has always been committed to providing public access to as many of our records as possible. We therefore continue to affirmatively release and post records, or descriptions of such records, on our Web site at www.archives.gov § 1250.3 Definitions. The following definitions apply to this part: (a) Archival records (b) Commercial use request (c) Confidential commercial information (d) Educational institution request (e) Expedited processing (f) Fee category (g) Fee waiver (h) FOIA Public Liaison (i) FOIA request (j) Freedom of Information Act (FOIA) (k) Non-commercial scientific institution request (l) Operational records (m) Original Classification Authority (n) Other request (o) Presidential records (p) Presidential Records Act (q) Representative of the news media (r) Review (s) Search (t) Submitter § 1250.4 Who can file a FOIA request? Any individual, partnership, corporation, association, or public or private organization other than a Federal agency, regardless of nationality, may file a FOIA request with NARA. The Administrative Procedure Act, 5 U.S.C. 551(2), excludes Federal agencies from filing FOIA requests. However, state and local governments may file FOIA requests. § 1250.6 Does the FOIA apply to all of the records at NARA? No, the FOIA applies only to the records of the executive branch of the Federal Government and certain Presidential and Vice Presidential records: If you want access to . . . Then access is governed by . . . (a) Records of executive branch agencies This CFR part and parts 1254 through 1260 of this chapter. FOIA applies to these records. (b) Records of the Federal courts and judicial branch agencies Parts 1254 through 1260 of this chapter. FOIA does not apply to these records. (c) Records of Congress and legislative branch agencies Parts 1254 through 1260 of this chapter. FOIA does not apply to these records. (d) Presidential records (created by Presidents and Vice Presidents holding office since 1981) This part and parts 1254 through 1270 of this chapter. FOIA applies to these records five years after the President and Vice President leave office. (e) Documents created by Presidents holding office before 1981 and housed in a NARA Presidential library The deed of gift under which they were given to NARA. These documents are not agency records and FOIA does not apply to these materials. (f) Nixon Presidential materials Part 1275 of this chapter. FOIA does not apply to these materials. § 1250.8 Does NARA provide access under FOIA to all the executive branch records housed at NARA facilities? (a) NARA provides access under FOIA to the records NARA creates ( operational archival (b) NARA's National Personnel Records Center (NPRC), located in St. Louis, Missouri, is the repository for twentieth- and twenty-first-century personnel and medical records of former members of the military and personnel records of former civilian employees of the Federal Government. (1) Those official personnel and medical files that have been transferred to NARA's legal custody are processed by NARA according to this part, at §§ 1250.20 through 1250.32. (2) Those personnel and medical records that remain in the legal custody of the agencies that created them are governed by the FOIA and other access regulations of the originating agencies, which the NPRC processes under authority delegated by the originating agencies, not under the provisions of this part. Because of the intricacies of other agencies' FOIA regulations, further explanation here is not feasible. More information about the NPRC processes, including access to NPRC records, is available on NARA's Web site at http://www.archives.gov/st-louis/military-personnel/ http://www.archives.gov/st-louis/civilian-personnel. (c) NARA's Federal records centers store records that agencies no longer need for day-to-day business. These records remain in the legal custody of the agencies that created them. Requests for access to another agency's records in a NARA Federal records center should be made directly to the originating agency. We do not process FOIA requests for these records. (d) If your FOIA request includes a record in the legal custody of an originating agency, we forward that request to the originating agency for processing. We also provide you with notification that we have done so and with contact information for the originating agency. (See 36 CFR 1256.2 for more information about how to access records that are stored in Federal records centers.) [79 FR 56504, Sept. 22, 2014, as amended at 82 FR 8902, Feb. 1, 2017] § 1250.10 Do I need to use FOIA to gain access to records at NARA? (a) Most archival (b) If you are seeking access to archival (c) You must also file a FOIA request when you request access to NARA operational (d) If you are requesting records that you know are classified to protect national security interests, you may wish to use the Mandatory Declassification Review process, which is set forth at 36 CFR 1260.70. (Please see NARA's FOIA Guide, available online at http://www.archives.gov/foia/foia-guide.html, § 1250.12 What types of records are available in NARA's FOIA library? (a) We make available certain materials (listed in the FOIA) for public inspection and copying in both our physical FOIA Library as well as on NARA's Web site, available at http://www.archives.gov/foia/electronic-reading-room.html. (b) The materials provided through NARA's FOIA Library include: (1) Final NARA orders; (2) Written statements of NARA policy which are not published in the Federal Register (3) Operational staff manuals and instructions to staff that affect members of the public; (4) At our discretion, copies of operational records requested three or more times under FOIA and other records that have been, or are likely to become, the subject of subsequent FOIA requests for substantially the same records; (5) An index, updated quarterly, to these materials; and (6) FOIA logs including opening and closing date, requester's and organization's name, description of the records, and final disposition. (c) You may inspect and copy these materials during normal working hours at the NARA facility where the records are located. See 36 CFR part 1253 and NARA's Web site at http://www.archives.gov/ (d) You may also access much of these materials on the NARA Web site. Any of these materials created after October 31, 1996, are on NARA's Web site at http://www.archives.gov/foia/electronic-reading-room.html. (e) For a paper copy of the index to these online materials, write to: NARA FOIA Officer (NGC); Room 3110; National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740-6001. § 1250.14 Preservation of FOIA-related records. Each NARA component preserves all correspondence pertaining to the requests that it receives under this part, as well as copies of all requested records, until Title 44 of the United States Code or NARA's General Records Schedule 4.2 authorizes disposition or destruction. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA. [79 FR 56504, Sept. 22, 2014, as amended at 82 FR 8902, Feb. 1, 2017] Subpart B—How To Request Records Under FOIA § 1250.20 What do I include in my FOIA request? In your FOIA request, which must be submitted in writing: (a) Describe the records you seek in sufficient detail to enable NARA staff to locate them with a reasonable amount of effort. The more information you provide, the better possibility NARA has of finding the records you are seeking. Information that will help NARA find the records includes: (1) The agencies, offices, or individuals involved; (2) The approximate date(s) when the records were created; (3) The subject, title, or description of the records sought; and (4) Author, recipient, case number, file designation, or reference number. (b) Include your name and full mailing address as well as phone number and email address. This information allows us to reach you faster if we have any questions about your request. It is your responsibility to keep your current mailing address up to date with the office where you have filed the FOIA request. (c) If you request records about yourself, you must do so in accordance with the Privacy Act and our implementing regulations at 36 CFR part 1202. This includes requirements to verify your identity (see 36 CFR 1202.40). If you request records about someone other than yourself, you may receive greater access if you submit either a notarized document signed by the other person that certifies their identity and gives their permission for you to have access, or proof that the other person is deceased (e.g., a copy of a death certificate or an obituary). NARA may, at its discretion, require you to supply additional information if necessary to verify that a particular individual has consented to disclosure of records about them. (d) Mark both your letter and envelope, or the subject line of your email, with the words “FOIA Request.” (e) Before filing your request, you may find it helpful to consult NARA's “Freedom of Information Act Reference Guide”—which is available electronically at http://www.archives.gov/foia/foia-guide.html, http://www.foia.gov. [79 FR 56504, Sept. 22, 2014, as amended at 82 FR 8902, Feb. 1, 2017] § 1250.22 Where do I send my FOIA request? (a) NARA has several FOIA Customer Service Centers that process FOIA requests. You should send your FOIA request to the appropriate FOIA Customer Service Center that you believe would have the records you seek: For: Mail or email request to: (1) Archival records located in the Washington, DC, area . . Chief, Special Access and FOIA Staff (RD-F), Room 5500, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 OR by e-mail to [email protected]. (2) Archival records maintained in other parts of the country . . . . . the director of the facility in which the records are located. You can find locations and contact information for NARA facilities at http://www.archives.gov/locations/ (3) Presidential records subject to FOIA . . . . . . the director of the Presidential library in which the records are located. You can find locations and contact information for NARA's Presidential libraries at http://www.archives.gov/locations/ (4) Operational records of any NARA unit except the Office of the Inspector General . . NARA FOIA Officer (NGC), Room 3110, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 OR by email to [email protected] https://foiaonline.regulations.gov. (5) Operational records of the Office of the Inspector General . . Office of the Inspector General (OIG), FOIA Request, Room 1300, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. (6) Any other records, or if you are unable to determine where to send your request or if you do not have access to the internet for a list of NARA's FOIA (7) Public Liaisons and Customer Service Centers . . NARA FOIA Officer (NGC), Room 3110, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 OR call (301) 837-FOIA (3642) ** Within 10 working days of receiving a request, this office will forward your request to the office(s) that is likely to have the records you are seeking. (b) NARA officially receives your request when it reaches the proper office's FOIA staff, but no later than 10 working days after the request first arrives at one of the offices in the table above. Receipt by the appropriate office initiates the time period for responding to your request (see 36 CFR 1250.26). (c) If you have questions concerning the processing of your FOIA request, you may contact the designated FOIA Customer Service Center for the facility processing your request. If that initial contact does not resolve your concerns, you may wish to contact the designated FOIA Public Liaison for the facility processing your request. You can find a list of NARA's FOIA Customer Service Centers and Public Liaisons at http://www.archives.gov/foia/contacts.html. [79 FR 56504, Sept. 22, 2014, as amended at 82 FR 8902, Feb. 1, 2017] § 1250.24 Does NARA accept electronic FOIA requests? Yes. You may submit and track requests for NARA operational FOIAonline https://foiaonline.regulations.gov, [email protected]. § 1250.26 How does NARA process my FOIA request? (a) Acknowledgement. (b) Clarification of requests. (c) Search cut-off date. (d) Stops in processing time, clarification requests, and administrative closure. (e) Confidential commercial information. (f) Processing queues. http://www.archives.gov/foia-guide.html (g) Complex processing queue factors. (1) Search for and collect the records from one or more field facilities; (2) Search for, collect, and review a voluminous amount of records that are part of a single request; (3) Consult with another Federal agency before releasing records; or (4) Refer records to another Federal agency for declassification. (h) Complex processing schedule. (i) Complex processing: National security declassification and release. (j) Complex processing: Presidential or Vice Presidential records. [79 FR 56504, Sept. 22, 2014, as amended at 82 FR 8902, Feb. 1, 2017] § 1250.27 How does NARA determine estimated completion dates for FOIA requests? (a) When you ask for an estimated completion date for records that do not require consultation with another agency, we estimate the completion date on the basis of our reasonable judgment at that point as to how long it will take to complete the request. Given the uncertainty inherent in establishing any estimate, the estimated completion date may be subject to change at any time. (b) When you ask for an estimated completion date for records that must be reviewed by another agency, our estimate is also based on information from the other agency: (1) When we send documents for consultation to another agency, we ask the agency to provide an estimated completion date for its portion of the processing. (2) We keep the consulting agency's estimated completion date for its portion of the processing in the request file and use it in addition to our own processing time estimate to provide you with an overall estimated completion date. (3) If the consulted agency or agencies do not provide us with an estimated completion date, we provide you with an estimate based on our general experience working with the agency or agencies and the types and volumes of records at issue. § 1250.28 How do I request expedited processing? (a) NARA processes requests and appeals on an expedited basis whenever we determine that one or more of the following criteria exist: (1) A reasonable expectation of an imminent threat to an individual's life or physical safety; (2) A reasonable expectation of an imminent loss of a substantial due process right; (3) An urgent need to inform the public about an actual or alleged Federal Government activity (this criterion applies only to those requests made by a person primarily engaged in disseminating information to the public); or (4) A matter of widespread and exceptional media interest in which there exist possible questions that affect public confidence in the Government's integrity. (b) NARA can expedite requests, or segments of requests, only for records over which we have control. If NARA must refer a request to another agency, we will inform you and suggest that you seek expedited review from that agency. NARA cannot expedite the review of classified records nor can we shorten the Presidential notification period described in 36 CFR 1250.26(j). (c) To request expedited processing, you must submit a statement, certified to be true and correct, explaining the basis for your need for expedited processing. You must send the request to the appropriate official at the address listed in § 1250.22 of this subpart. You may request expedited processing when you first request records or at any time during NARA's processing of your request or appeal. (d) We will respond to your request for expedited processing within 10 calendar days of our receipt of your request to expedite. If we grant your request, the NARA office responsible for the review of the requested records will process your request as a priority, and it will be processed as soon as practicable. We will inform you if we deny your request for expedited processing. If you decide to appeal that denial, we will expedite our review of your appeal. § 1250.30 How does NARA respond to my request? (a) NARA sends you a response informing you of our release determination, including whether any responsive records were located, how much responsive material was located, whether the records have been released in full or withheld in full or in part, where you may review the records, and any fees you must pay for the request. We will use plain language in all written communications with requesters. (b) If we deny any part of your request, our response will explain the reasons for the denial, which FOIA exemptions apply to withhold records, your right to appeal that determination, and your right to seek dispute resolution services from the FOIA Public Liaison or OGIS. (c) NARA may withhold records in full or in part if any of the nine FOIA exemptions apply. NARA withholds information only where disclosure is prohibited by law (such as information that remains classified, or information that is specifically exempt by statute) or where we reasonably foresee that disclosure would cause harm to an interest protected by one of the FOIA exemptions. If we must withhold part of a record, we provide access to the rest of the information in the record. On the released portion of the record, we indicate the amount of information we redacted and the exemption(s) we applied, unless including that indication would harm an interest the exemption protects. NARA may also determine that a request does not reasonably describe the records sought; the information requested is not a record subject to FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format you sought. Information that may be exempt from disclosure under the FOIA is: Section of the FOIA: Reason for exemption: 5 U.S.C. 552(b)(1) “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. 552(b)(2) “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. 552(b)(3) “specifically exempted from disclosure by statute (other than § 552(b) of this title), provided that the statute: 5 U.S.C. 552(b)(4) “trade secrets and commercial or financial information obtained from a person that are privileged or confidential;” 5 U.S.C. 552(b)(5) “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;” 5 U.S.C. 552(b)(6) “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;” 5 U.S.C. 552(b)(7) “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information: 5 U.S.C. 552(b)(8) “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;” or 5 U.S.C. 552(b)(9) “geological and geophysical information and data, including maps, concerning wells.” (d) If a request involves a voluminous amount of material or searches in multiple locations, we provide you with interim responses, releasing the records on a rolling basis. (e) NARA may not withhold Presidential records subject to FOIA under 5 U.S.C. 552(b)(5) as defined in the table in paragraph (c) of this section. However, NARA may withhold Presidential records under the remaining FOIA exemptions. In addition, Presidential records may be withheld under the six PRA restrictions for a period of 12 years from when a President leaves office, in accordance with 44 U.S.C. 2204 and 36 CFR part 1270. Representatives of the current and former Presidents may also review Presidential records, and may assert constitutionally-based privileges that would prevent NARA from releasing some or all or the information requested. [79 FR 56504, Sept. 22, 2014, as amended at 82 FR 8902, Feb. 1, 2017] § 1250.32 How may I request assistance with the FOIA process? (a) For assistance at any point in the FOIA process, you may contact the NARA FOIA Public Liaison. That individual is responsible for assisting you to reduce delays, increase transparency and understanding of the status of requests, and resolve any FOIA disputes. You can find a list of our FOIA Public Liaisons at http://www.archives.gov/foia/contacts.html. (b) The Office of Government Information Services (OGIS), part of NARA, serves as the Federal FOIA Ombudsman and assists requesters and agencies to prevent and resolve FOIA disputes. OGIS also reviews agencies' FOIA policies, procedures, and compliance. You may contact OGIS using the information provided below in 36 CFR 1250.74(c). [79 FR 56504, Sept. 22, 2014, as amended at 82 FR 8902, Feb. 1, 2017] § 1250.38 In what format does NARA provide copies? After all applicable fees are paid, we provide you copies of records in the format you request if the records already exist in that format, or if they are readily reproducible in the format you request. Subpart C—Fees § 1250.50 General information on fees for all FOIA requests. (a) If you have failed to pay FOIA fees in the past, we will require you to pay your past-due bill and we may also require that you pay the anticipated fee before we begin processing your current request. If we estimate that your fees may be greater than $250, we may also require advance payment or a deposit before we begin processing your request. If you fail to make an advance payment within 60 calendar days after the date of NARA's fee letter, we will close the request. (b) If we determine that you (acting either alone or with other requesters) are breaking down a single request into a series of requests in order to avoid or reduce fees, we may aggregate all of these requests when calculating the fees. In aggregating requests, we may consider the subject matter of the requests and whether the requests were filed close in time to one another. (c) If, in the course of negotiating fees, you do not respond to a NARA component within 60 calendar days, we reserve the right to administratively close the FOIA request after 60 calendar days have passed from the date of our last correspondence to you. § 1250.51 What fee policies apply to archival records? (a) NARA is specifically authorized to charge fees for copying archival records under a separate fee statute, 44 U.S.C. 2116(c). As a result, archival records are exempt from the FOIA fee waiver provisions, per 5 U.S.C. 552(a)(4)(A)(vi), and we do not grant fee waivers for archival records requested under the FOIA. However, we make most of our archival records available for examination at the NARA facility where the records are located. Whenever this is possible, you may review the records in a NARA research room at that facility free of charge and may also use your own equipment to make copies. (b) We do not charge search fees for FOIA requests for archival records, but we do limit the search to two hours. (c) If you would like us to make copies of archival records, we typically require you to pay all applicable fees (in accordance with the fee schedule) before we provide the copies. (d) You can find our Fee Schedule for archival records at: www.archives.gov/research/order/fees.html. § 1250.52 What fee policies apply to operational records? (a) For operational records, we may charge search fees even if the records are not releasable or we do not find any responsive records during our search. (b) If you are a noncommercial FOIA requester entitled to receive 100 free pages, but the records cannot be copied onto standard-sized (8.5″ by 11″) photocopy paper, we copy them on larger paper and reduce the copy fee by the normal charge for 100 standard-sized photocopies. If the records are not on textual media (e.g., they are photographs or electronic files), we provide the equivalent of 100 pages of standard-sized paper copies for free. (c) We do not charge you any fee if the total cost for processing your request is $25 or less. (d) If estimated search or review fees exceed $50, we will contact you. If you have specified a different limit that you are willing to spend, we will contact you only if we estimate the fees will exceed that specified amount. § 1250.53 What is the FOIA fee schedule for operational records? In responding to FOIA requests for operational records, NARA charges the following fees, where applicable, unless we have given you a reduction or waiver of fees under § 1250.56. (a) Search fees Manual searching. (2) Computer searching. (b) Review fees. (2) The review fee is $33 per hour (or fraction thereof). (3) NARA does not charge review fees for time we spend resolving general legal or policy issues regarding the application of exemptions. However, NARA does charge review fees for time we spend obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter. (c) Reproduction fees Self-service photocopying. (2) Photocopying standard-sized pages. (3) Reproductions of electronic records. (4) Copying other media. § 1250.54 How does NARA calculate FOIA fees for operational records? (a) If you are a commercial use requester, NARA charges you fees for searching, reviewing, and copying responsive records. (b) If you are an educational or scientific institution requester, or a member of the news media, you are entitled to search time, review time, and up to 100 pages of copying without charge. NARA charges copying fees only beyond the first 100 pages. (c) If you do not fall into either of the categories in paragraphs (a) and (b) of this section, and are an “other requester,” you are entitled to two hours of search and review time, and up to 100 pages of copying without charge. NARA may charge for search time beyond the first two hours and for copying beyond the first 100 pages. (d) NARA does not charge a fee for processing a FOIA request if it exceeds any time limit under 5 U.S.C. 552(a)(6) in processing that request, unless unusual or exceptional circumstances (defined under the FOIA statute) are relevant. § 1250.56 How may I request a fee waiver for operational records? (a) We waive or reduce your fees for NARA operational records only if your request meets both (1) The request is in the public interest ( i.e., (2) The request is not primarily in your commercial interest. (b) To be eligible for a fee waiver or reduction you must explain: (1) How the records you are requesting pertain to the operations and activities of the Federal Government. There must be a clear connection between the identifiable operations or activities of the Federal Government and the subject of your request; (2) How the release will reveal meaningful information that the public does not already know about Federal Government activities. Disclosing information that is already in the public domain, in either the same or a substantially-identical form, does not add anything new to the public's understanding of Government activities; (3) How disclosure to you will advance public understanding of the issue; (4) Your expertise or understanding of the requested records as well as your ability and intention to effectively convey information to the public. NARA ordinarily presumes that a representative of the news media satisfies this consideration; (5) How you intend to disseminate the requested information to a broad spectrum of the public; and (6) How disclosure will lead to a significantly greater understanding of the Government by the public. (c) After reviewing your request and determining that there is a substantial public interest in release, we also determine if the request primarily furthers your commercial interests. If it does, you are not eligible for a fee waiver. (d) You should ask for waiver or reduction of fees when you first submit your request to NARA, and should address the criteria referenced above. You may also ask for a fee waiver at a later time while the underlying record request is still pending or during an administrative appeal. (e) We may also waive (either partially or in full) or reduce fees for operational records in additional circumstances as a matter of administrative discretion. Subpart D—Appeals § 1250.70 When may I appeal NARA's FOIA determination? You may appeal when there is any adverse determination, including: (a) Refusal to release a record, either in whole or in part; (b) Determination that a record does not exist or cannot be found; (c) Determination that the record you sought was not subject to the FOIA; (d) Denial of a request for expedited processing; (e) Denial of a fee waiver request; or (f) Fee category determination. § 1250.72 How do I file an appeal? (a) You may submit your appeal via mail or electronically. All appeals must be in writing and received by NARA within 90 calendar days from the date of our determination letter. (1) For appeals submitted via mail, you should mark both your letter and envelope with the words “FOIA Appeal,” and include either your tracking number or a copy of your initial request and our determination letter. (i) If NARA's Inspector General denied your request, send your appeal to the Archivist of the United States; (ATTN: FOIA Appeal Staff); Room 4200, National Archives and Records Administration; 8601 Adelphi Road; College Park, Maryland 20740-6001. (ii) Send all other appeals for denial of access to Federal records to the Deputy Archivist of the United States; (ATTN: FOIA Appeal Staff); Room 4200; National Archives and Records Administration; 8601 Adelphi Road; College Park, Maryland 20740-6001. (iii) For Presidential records, send appeals to the appropriate Presidential library director at the address listed in 36 CFR 1253.3. (2) For all appeals submitted electronically, except those regarding Presidential records, send an email to [email protected]. (b) In your appeal correspondence, clearly identify NARA's initial determination letter (including the assigned request number, if known) from which you are appealing. Please explain why you believe our response does not meet the requirements of the FOIA, including why we should release the records, grant your fee waiver request, or expedite the processing of your request. If we were not able to find the records you wanted, explain why you believe NARA's search was inadequate. If we denied you access to records and told you that those records were not subject to FOIA, please explain why you believe the records are subject to FOIA. [79 FR 56504, Sept. 22, 2014, as amended at 82 FR 8902, Feb. 1, 2017] § 1250.74 How does NARA process appeals? (a) We respond to your appeal within 20 working days after the appeal official designated in 36 CFR 1250.72(a)(1)(i) and (ii) receives it. NARA has adopted the practice of generally handling backlogged appeals on a first-in, first-out basis. (1) An adverse determination by the Archivist or Deputy Archivist will be the final action by NARA; and (2) In the event you decide to file a FOIA lawsuit, NARA will administratively close your request. (b) We notify you of your right to seek judicial review of an adverse determination as set forth in the FOIA at 5 U.S.C. 552(a)(4)(B). If you wish to seek judicial review of any adverse determination, you must first appeal it administratively under this section. (c) We also inform you that OGIS offers dispute resolution services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. Dispute resolution is a voluntary process. If we agree to participate in the dispute resolution services provided by OGIS, we will actively engage as a partner to the process in an attempt to resolve the dispute. You may contact OGIS in any of the following ways: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road—OGIS, College Park, MD 20740, ogis.archives.gov, [email protected] [79 FR 56504, Sept. 22, 2014, as amended at 82 FR 8902, Feb. 1, 2017] Subpart E—Confidential Commercial Information § 1250.80 How does a submitter identify records containing confidential commercial information? At the time of submission, a submitter of business information is expected to designate, by appropriate markings, any portions of its submission that it considers to be protected from disclosure under FOIA Exemption 4. Although these portions may be designated, this does not preclude NARA from conducting a full FOIA review of all such documents if a FOIA request for those records has been received. These designations will expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period, or NARA extends the designation period at its discretion. § 1250.82 How does NARA process FOIA requests for confidential commercial information? If NARA receives a FOIA request for records containing confidential commercial information or for records that we believe may contain confidential commercial information, we follow these procedures: (a) If the records are less than 10 years old or are still covered under an extended FOIA Exemption 4 designation period, we review the records in response to a FOIA request. If we then believe that we should release the records under FOIA, we make reasonable efforts to inform the submitter. The notice to the submitter describes the business information requested or includes copies of the requested records. NARA does not notify the submitter when we determine that: (1) We must withhold the information under FOIA's exemptions; (2) The information has been lawfully published or made available to the public; or (3) We are required by a statute (other than the FOIA), or by a regulation issued in accordance with the requirements of Executive Order 12600, to disclose the information. (b) If the records are 10 or more years old, we review the records in response to a FOIA request as we would any other records, and at our discretion, inform the submitter. NARA releases the records if we determine that neither Exemption 4 nor any other exemption applies. (c) When the request is for information from a single or small number of submitters, we send a notice via registered mail to the submitter's last known address. NARA's notice to the submitter includes a copy of the FOIA request and tells the submitter the time limits and procedures for objecting to the release of the requested material. (d) When the request involves information from a voluminous number of submitters, we may post or publish the notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending letters. (e) We provide the submitter with 20 working days from the date of NARA's notice to object to the release and to explain a basis for the objection, including justification and support for the claim. The NARA FOIA Officer may extend this period as appropriate. (f) We review and consider all objections to release that we receive within the time limit. Any information provided by a submitter under this provision may itself be subject to disclosure under FOIA. NARA considers a submitter who fails to respond within the time period specified in the notice to have no objection to disclosure of the information. If we decide to release the records, we inform the submitter in writing, along with NARA's reasons for the decision to release. We include with the notice copies of the records as we intend to release them. We also inform the submitter that we intend to release the records within a reasonable time after the date of the notice unless a U.S. District Court forbids disclosure. NARA will not consider any information we receive after the date of a disclosure decision. (g) If the requester files a lawsuit under the FOIA for access to any withheld records, we promptly notify the submitter. (h) NARA notifies the requester in three circumstances: (1) When we notify the submitter of the opportunity to object to disclosure, or to extend the time for objecting; (2) When we notify the submitter of our intent to disclose the requested information; and (3) When a submitter files a lawsuit to prevent the disclosure of the information.