PART 1600—PUBLIC AVAILABILITY OF DOCUMENTS AND RECORDS Authority: 5 U.S.C. 552, 552a, 553; 20 U.S.C. 5608(a)(3). Subpart A is also issued under 5 U.S.C. 571-574. Source: 66 FR 15034, Mar. 15, 2001, unless otherwise noted. Subpart A—Procedures for Disclosure of Records Under the Freedom of Information Act § 1600.1 General provisions. (a) This subpart contains the rules that the Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation (the Foundation) follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should be read together with the FOIA, which provides additional information about access to records. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, which are processed under subpart B of this part, are processed under this subpart also. Information routinely provided to the public as part of a regular Foundation activity (for example, press releases, annual reports, informational brochures and the like) may be provided to the public without following this subpart. As a matter of policy, the Foundation makes discretionary disclosures of records or information exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption, but this policy does not create any right enforceable in court. (b) This subpart applies to all Foundation programs, including the U.S. Institute for Environmental Conflict Resolution (USIECR). § 1600.2 Public reading room. (a) The Foundation maintains a public reading room that contains the records that the FOIA requires to be made regularly available for public inspection and copying. An index of reading room records shall be available for inspection and copying and shall be updated at least quarterly. (b) The public reading room is located at the offices of the Foundation, 110 S. Church Avenue, Suite 3350, Tucson, Arizona. (c) The Foundation also makes reading room records created on or after November 1, 1996, available electronically, if possible, at the Foundation's web site (which can be found at www.udall.gov § 1600.3 Requests for records. (a) How made and addressed. (b) Description of records sought. (c) 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 the Foundation must notify the requester that the requested records have been destroyed or disposed of. (d) Agreement to pay fees. § 1600.4 Timing of responses to requests. (a) In general. (b) Multitrack processing. (2) If the Foundation uses multitrack processing, it may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of its faster track(s). (c) Unusual circumstances. (2) Where the Foundation reasonably believes that multiple requests submitted by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated. Multiple requests involving unrelated matters will not be aggregated. (d) Expedited processing. (i) Circumstances 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; or (ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information; (2) You may ask for expedited processing of a request for records at any time. (3) In order to request expedited processing, you must submit a statement, certified to be true and correct to the best of your knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, if you are a requester within the category in paragraph (d)(1)(ii) of this section, and you are not a full-time member of the news media, you must establish that you are a person whose main professional activity or occupation is information dissemination, though it need not be your sole occupation; you also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public's right to know about government activity generally. The formality of certification may be waived as a matter of administrative discretion. (4) Within 10 calendar days of receipt of a request for expedited processing, the Foundation will decide whether to grant it and will notify you of the decision. If a request for expedited treatment is granted, the request will be given priority and processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously. § 1600.5 Responses to requests. (a) Acknowledgments of requests. (b) Referral to another agency. (c) Grants of requests. (d) Adverse determinations of requests. (1) The name and title or position of the person responsible for the denial; (2) A brief statement of the reason(s) for the denial, including any FOIA exemption applied by the component in denying the request; (3) An estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption; and (4) A statement that the denial may be appealed under § 1600.8(a) and a description of the requirements for appeal. § 1600.6 Disclosure of requested records. (a) The Foundation shall make requested records available to the public to the greatest extent possible in keeping with the FOIA, except that the following records are exempt from the disclosure requirements: (1) Records specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and which are, in fact, properly classified pursuant to such Executive order; (2) Records related solely to the internal personnel rules and practices of the Foundation; (3) Records specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)), provided that such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or that the statute establishes particular criteria for withholding information or refers to particular types of matters to be withheld. An example that applies to the Foundation is the confidentiality protection for dispute resolution communications provided by the Administrative Dispute Resolution Act of 1996 (ADRA, 5 U.S.C. 571-574). (4) Records containing trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) Interagency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the Foundation; (6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information: (i) could reasonably be expected to interfere with enforcement proceedings; (ii) would deprive a person of a right to a fair trial or an impartial adjudication; (iii) could reasonably be expected to constitute an unwarranted invasion of personal privacy; (iv) could reasonably be expected to disclose the identity of a confidential source, including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and in the case of a recorded or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source; (v) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or (vi) could reasonably be expected to endanger the life or physical safety of any individual. (8) Records contained in or related to examination, operating, or condition reports prepared by, or on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; (9) Geological or geophysical information and data, including maps, concerning wells. (b) If a requested record contains exempted material along with nonexempted material, all reasonable segregable nonexempt material shall be disclosed. (c) Even if an exemption described in paragraph (a) of this section may be reasonably applicable to a requested record, or portion thereof, the Foundation may elect under the circumstances of any particular request not to apply the exemption to such requested record, or portion thereof, subject to the provisions in § 1600.7 for confidential commercial information. The fact that the exemption is not applied by the Foundation to any requested record, or portion thereof, has no precedential significance as to the application or non-application of the exemption to any other requested record, or portion thereof, no matter when the request is received. § 1600.7 Special procedures for confidential commercial information. (a) Definitions. (1) Business submitter (2) Commercial-use requester (3) Confidential commercial information (b) In general. (c) Designation of business information. (d) Predisclosure notification. (2) Whenever the Foundation provides a business submitter with the notice set forth in paragraph (e)(1) of this section, the Foundation shall notify the requester that the request includes information that may arguably be exempt from disclosure under Exemption 4 of the FOIA and that the person or entity who submitted the information to the Foundation has been given the opportunity to comment on the proposed disclosure of information. (e) When notice is required. (1) The business submitter has in good faith designated the information as business information deemed protected from disclosure under 5 U.S.C. 552(b)(4); or (2) The Foundation has reason to believe that the request seeks business information the disclosure of which may result in substantial commercial or financial injury to the business submitter. (f) Opportunity to object to disclosure. (g) 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 confidential commercial information to be disclosed, and (iii) A specified disclosure date. (2) Such notice of intent to disclose likewise shall be forwarded to the requester at least 10 working days prior to the specified disclosure date. (h) Notice of FOIA lawsuit. (i) Exceptions to predisclosure notification. (1) The Foundation determines that the information should not be disclosed; (2) The information lawfully has been published or has been officially made available to the public; (3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or (4) The designation made by the submitter in accordance with paragraph (c) of this section appears obviously frivolous; except that, in such a case, the Foundation will provide the submitter with written notice of any final decision to disclose confidential commercial information within a reasonable number of days prior to a specified disclosure date. § 1600.8 Appeals. (a) Appeals of adverse determinations. (b) Responses to appeals. (c) When appeal is required. § 1600.9 Preservation of records. The Foundation will preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 14. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA. § 1600.10 Fees. (a) In general. (b) Definitions. (1) Commercial use request (2) Direct costs (3) Duplication (4) Educational institution (5) Noncommercial scientific institution (6) Representative of the news media, news media requester, news news freelance (7) Review (8) Search (c) Fees. (1) Search. (2) Duplication. (3) Review. (4) Searches and reviews—amounts of fees. (ii) For computer searches of records, you will be charged the direct costs of conducting the search, although certain requesters (as provided in paragraph (d)(1) of this section) will be charged no search fee and certain other requesters (as provided in paragraph (d)(4) of this section) will be entitled to the cost equivalent of two hours of manual search time without charge. These direct costs will include the cost of operating a central processing unit for that portion of operating time that is directly attributable to searching for responsive records, as well as the costs of operator/programmer salary apportionable to the search. (d) Limitations on charging fees. (2) Review fees will be charged only for commercial use requests. (3) No search fee or review fee will be charged for a quarter-hour period unless more than half of that period is required for search or review. (4) Except for commercial use requests, the Foundation will provide the first 100 pages of duplication and the first two hours of search time to requesters without charge. These provisions work together, so that the Foundation will not begin to assess fees until after providing the free search and reproduction. For example, if a request involves three hours of search time and duplication of 105 pages of documents, the Foundation will charge only for the cost of one hour of search time and five pages of reproduction. (5) Whenever a total fee calculated under paragraph (d) of this section is $14.00 or less for any request, no fee will be charged. (e) Notice of anticipated fees in excess of $25.00. (f) Charging interest. (g) Aggregating requests. (h) Advance payments. (2) Where the Foundation determines or estimates that a total fee to be charged under this section will be more than $250.00, it may require you to make an advance payment of an amount up to the amount of the entire anticipated fee before beginning to process the request, except where it receives satisfactory assurance of full payment from you and you have a history of prompt payment. (3) If you have previously failed to pay a properly charged FOIA fee within 30 days of the date of billing, the Foundation may require you to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before it begins to process a new request or continues to process a pending request from you. (4) In cases in which the Foundation requires advance payment or payment due under paragraph (h)(2) or (3) of this section, the request shall not be considered received and further work will not be done on it until the required payment is received. (i) Requirements for waiver or reduction of fees. (i) 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 (ii) Disclosure of the information is not primarily in the commercial interest of the requester. (2) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver will be granted for those records. (3) If you request a waiver or reduction of fees, your request should address the factors listed in paragraph (i)(1) of this section. Subpart B—Protection of Privacy and Access to Individual Records Under the Privacy Act of 1974 § 1600.21 General provisions. (a) Purpose and scope. (b) Applicability. (c) Definitions. (1) Request for access to a record means a request (2) Request for amendment or correction of a record (3) Request for an accounting (4) Requester § 1600.22 Requests for access to records. (a) How made and addressed. (b) Description of records sought. Federal Register http://www.access.gpo.gov/su_docs (c) Agreement to pay fees. (d) Verification of identity. (e) Verification of guardianship. (1) The identity of the individual who is the subject of the record, by stating the name, current address, date and place of birth, and, at your option, the social security number of the individual; (2) Your own identity, as required in paragraph (d) of this section; (3) That you are the parent or guardian of that individual, which you may prove by providing a copy of the individual's birth certificate showing your parentage or by providing a court order establishing your guardianship; and (4) That you are acting on behalf of that individual in making the request. § 1600.23 Responsibility for responding to requests for access to records. (a) In general. (b) Authority to grant or deny requests. (c) Consultations and referrals. (1) Respond to the request regarding that record, after consulting with the agency best able to determine whether the record is exempt from access and with any other agency that has a substantial interest in it; or (2) Refer the responsibility for responding to the request regarding that record to another agency that originated the record (but only if that agency is subject to the Privacy Act). Ordinarily, the agency that originated a record will be presumed to be best able to determine whether it is exempt from access. (d) Notice of referral. (e) Timing of responses to consultations and referrals. § 1600.24 Responses to requests for access to records. (a) Acknowledgments of requests. (b) Grants of requests for access. (c) Adverse determinations of requests for access. (1) The name and title or position of the person responsible for the denial; (2) A brief statement of the reason(s) for the denial, including any Privacy Act exemption(s) applied by the Foundation in denying the request; and (3) A statement that the denial may be appealed under § 1600.25(a) and a description of the requirements of § 1600.25(a). § 1600.25 Appeals from denials of requests for access to records. (a) Appeals. (b) Responses to appeals. (c) When appeal is required. § 1600.26 Requests for amendment or correction of records. (a) How made and addressed. (b) Foundation responses. (1) The reason(s) for the denial; and (2) The procedure for appeal of the denial under paragraph (c) of this section, including the name and business address of the official who will act on your appeal. (c) Appeals. (d) Statements of Disagreement. (e) Notification of amendment/correction or disagreement. § 1600.27 Requests for an accounting of record disclosures. (a) How made and addressed. (b) Where accountings are not required. (c) Appeals. § 1600.28 Preservation of records. The Foundation will preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 14. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the Act. § 1600.29 Fees. The Foundation will charge fees for duplication of records under the Privacy Act in the same way in which it charges duplication fees under § 1600.10. No search or review fee will be charged for any record. § 1600.30 Notice of court-ordered and emergency disclosures. (a) Court-ordered disclosures. (b) Emergency disclosures.