PART 1171—PUBLIC ACCESS TO NEH RECORDS UNDER THE FREEDOM OF INFORMATION ACT Authority: 5 U.S.C. 552; 20 U.S.C. 959; 31 U.S.C. 3717; E.O. 12600. Source: 79 FR 9415, Feb. 19, 2014, unless otherwise noted. § 1171.1 About the National Endowment for the Humanities. The National Endowment for the Humanities (NEH) was established by the National Foundation on the Arts and Humanities Act of 1965, 20 U.S.C. 951 et seq., § 1171.2 General provisions. This part contains the regulations the NEH follows in processing requests for NEH records under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. The NEH also follows these regulations to process all FOIA requests made to the Federal Council on the Arts and the Humanities (FCAH), an organization established by the National Foundation on the Arts and Humanities Act of 1965 for which the NEH provides legal counsel. These regulations should be read together with the FOIA and OMB's Free Guidelines, which provides additional information about access to NEH and FCAH records. FOIA applies to requests for records concerning the general activities of the government and of the NEH in particular. When individuals seek records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, NEH processes those requests under both NEH's Privacy regulations at part 1115 of this chapter, and this part. Although requests are considered either FOIA requests or Privacy Act requests, agencies process requests in accordance with both laws, which provides the greatest degree of lawful access while safeguarding an individual's personal privacy. § 1171.3 Information policy. The NEH may provide information the agency routinely makes available to the public through its regular activities (for example, program announcements and solicitations, press releases, and summaries of awarded grant applications) without following this part. As a matter of policy, the NEH makes discretionary disclosures of records or information otherwise exempt under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption. This policy, however, does not create any right enforceable in court. § 1171.4 Public availability of records. (a) In accordance with 5 U.S.C. 552(a)(2), the NEH will make the following records available for public inspection in an electronic format (unless they are published and copies are offered for sale) without a FOIA request: (1) Final opinions, including concurring and dissenting opinions, as well as orders made in the adjudication of cases, (2) Statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register (3) Administrative staff manuals and instructions to staff that affect a member of the public, (4) Copies of all records, regardless of format, which have been released to any person under 5 U.S.C. 552(a)(3) and which because of their subject matter, the NEH determines have become or are likely to become subject to subsequent requests for substantially the same records, or have been requested three (3) or more times; and (5) A general index of the records referred to in paragraph (b) of this section. (b) The NEH will also maintain and make available for public inspection in an electronic format current indexes as required by 5 U.S.C. 552(a)(2) of the FOIA. However, since the NEH has determined that publication and distribution of these indexes is unnecessary and impracticable, the NEH will provide these indexes upon request at a cost not to exceed the direct cost of the duplication. (c) NEH proactively identifies records of interest to the public, such as past awards, press releases, grant guidelines, and grant terms and conditions, and makes these records available on the NEH's Web site at www.neh.gov. [79 FR 9415, Feb. 19, 2014, as amended at 82 FR 45, Jan. 3, 2017] § 1171.5 Requests for records. (a) How to make a request. (b) Agreement to pay fees. (c) Where to send a request. [email protected], www.neh.gov. (2) For NEH Office of the Inspector General records, write to: The Inspector General, Office of the Inspector General, National Endowment for the Humanities, 400 7th Street SW., Room 2200, Washington, DC 20506. You may also send your request to the Inspector General by facsimile at 202-606-8329 or by email at [email protected]. [79 FR 9415, Feb. 19, 2014, as amended at 80 FR 42066, July 16, 2015] § 1171.6 Responsibilities for processing and responding to requests. (a) Processing requests. (b) Authority to grant or deny requests. (c) Consultations and referrals. (1) If the NEH determines that it is the agency best able to process the record in response to the request, then it will do so, after consultation with the other agency that has a substantial interest in the requested records. (2) If the NEH determines that it is not the agency best able to process the record, then it will refer the record (or portion thereof) to the other Federal agency, but only if that agency is subject to the FOIA. (d) Notice of referral. § 1171.7 Timing of responses to requests. (a) In general. (b) Timing for initial response. (c) Tolling of time limits. (1) Make one request for information it reasonably requests from the requester; or (2) Clarify the applicability or amount of any fees, if necessary, with the requester. (3) Under paragraphs (c)(1) or (2) of this section, the tolling period ends upon the NEH's receipt of the information or clarification from the requester. (d) Unusual circumstances. (i) If the extension will be for ten (10) or fewer working days (i.e., weekends and Federal holidays excluded), the NEH will notify the requester as soon as practicable in writing of the unusual circumstances and the expected response date; and (ii) If the extension will be for more than ten (10) working days, the NEH will provide the requester with an opportunity either to modify the request so that it may be processed within the time limit or to arrange an alternative time period to process the request or a modified request. To aid the requester, NEH shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency, and shall notify the requester of his or her right to seek dispute resolution services from the Office of Government Information Services. (2) If the NEH reasonably believes that multiple requests submitted by a requester, or a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, the NEH may aggregate the requests. The NEH will not aggregate multiple requests involving unrelated matters. (e) 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 actual or alleged Federal government activity if the expedited processing request is made by a person primarily engaged in disseminating information. (2) A requester may seek expedited processing at the time of the requester's initial request for records or at any later time. (3) To request expedited processing, a requester must submit a statement, certified to be true and correct to the requester's best knowledge and belief, explaining in detail the basis for requesting expedited processing. (4) Within ten (10) calendar days of receipt of a request for expedited processing, the NEH will decide whether to grant it and will notify the requester of the decision. If the NEH grants a request for expedited processing, the NEH will place the request in the expedited processing track and then process the request as soon as practicable. If the NEH denies a request for expedited processing, the NEH will act upon any appeal of that decision expeditiously. [79 FR 9415, Feb. 19, 2014, as amended at 82 FR 45, Jan. 3, 2017] § 1171.8 Responses to requests. (a) Acknowledgment of requests. (b) Grants of requests. (c) Denials 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 NEH in denying the request; (3) An estimate of the volume of records or information withheld, if applicable, although such an estimate is not required if the volume is otherwise indicated through deletion on the records disclosed in part, or if providing such an estimate would harm an interest protected by an applicable exemption; (4) The requester's right to seek dispute resolution services from NEH's FOIA Public Liaison or the Office of Government Information Services; and (5) A statement that the requester may appeal the denial under § 1171.10 and a description of the requirements to appeal. [79 FR 9415, Feb. 19, 2014, as amended at 82 FR 45, Jan. 3, 2017] § 1171.9 Confidential commercial information. (a) In general. (b) Definitions. (1) Confidential commercial information (2) Submitter (c) Designation of confidential commercial information. (d) When notice to submitters is required. (i) The submitter, in good faith, has designated the requested information as information considered protected from disclosure under Exemption 4; or (ii) The NEH has reason to believe that the information may be protected from disclosure under Exemption 4. (2) The notice will either describe the confidential commercial information requested or include copies of the requested records or record portions containing the information. In cases involving a voluminous number of submitters, the NEH may make notice by posting or publishing the notice in a place reasonably likely to accomplish it. (e) Exceptions to submitter notice requirements. (1) The NEH determines that the requested information is exempt under the FOIA; (2) The information lawfully has been 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; or (4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous, except that, in such a case, the NEH will give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date. (f) Opportunity to object to disclosure. (2) The NEH will consider a submitter who fails to respond with the time period specified on the notice to have no objection to disclosure of the information. The NEH will not consider information it receives from a submitter after the date of any disclosure decision. Any information provided by a submitter under this section may itself be subject to disclosure under the FOIA. (g) Notice of intent to disclose. (1) A statement of the reason(s) why each of the submitter's disclosure objections was not sustained; (2) A description of the business information to be disclosed; and (3) A specified disclosure date, which will be a reasonable time after the notice. (h) Notice of FOIA lawsuit. (i) Requester notification. § 1171.10 Administrative appeals. (a) You may appeal a denial of your request for NEH records (except NEH OIG records) and/or FCAH records to The Deputy Chairman, National Endowment for the Humanities, 400 7th Street SW., Room 4053, Washington, DC 20506. You may also send your appeal to the NEH General Counsel by facsimile at 202-606-8600, by email at [email protected], www.neh.gov. [email protected] (b) Responses to appeals. https://ogis.archives.gov; [email protected]; (c) When appeal is required. [79 FR 9415, Feb. 19, 2014, as amended at 80 FR 42066, July 16, 2015; 82 FR 46, Jan. 3, 2017] § 1171.11 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 (7) Review (8) Search (c) Fee schedule. (1) Search. (ii) For computer searches of records, the NEH will charge the actual direct cost of conducting the search. (2) Duplication. 1/2 (3) Review. (d) Limitations on charging requesters. (i) The first 100 pages of duplication (or the cost equivalent); and (ii) The first two hours of search (or the cost equivalent). (2) When, after first deducting the 100 pages (or its cost equivalent) and the first two hours of search, the total fee is $25.00 or less for any request, the NEH will not charge a fee. (3) If NEH fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraphs (b)(4) through (6) of this section, may not charge duplication fees, except as described in paragraphs (d)(3)(i) through (iii) of this section. (i) If NEH has determined that unusual circumstances, as defined by the FOIA, apply and NEH has provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional ten (10) working days. (ii) If NEH has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, NEH may charge search fees, or, in the case of requesters described in paragraphs (b)(4) through (6) of this section, may charge duplication fees, provided NEH provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and NEH discussed with the requester via written 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). (iii) If a court has determined that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order. (e) Categories of requesters. (1) Commercial use requesters. (2) Educational and non-commercial scientific institution requesters. (3) News media requesters. (4) All other requesters. (f) Requirements for fee waivers 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) To determine whether the first fee requirement is met, the NEH will consider the following factors: (i) The subject of the requested records must concern identifiable operations or activities of the Federal government, with a connection that is direct and clear, not remote or attenuated. (ii) The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. Disclosure of information already in the public domain, in either duplicative or substantially identical form, is unlikely to contribute to such understanding where nothing new would be added to the public's understanding. (iii) 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 his or her ability and intention to effectively convey information to the public will be considered. It will ordinarily be presumed that a representative of the news media satisfies this consideration. (iv) The public's understanding of the subject in question must be enhanced by the disclosure to a significant extent. The NEH will make no value judgments about whether the information at issue is “important” enough to be made public. (3) To determine whether the second fee waiver requirement is met, the NEH will consider the following factors: (i) The NEH will identify any commercial interest of the requester, as defined in paragraph (b)(1) of this section, that would be furthered by the requested disclosure. Requesters will be given an opportunity to provide explanatory information regarding this consideration. (ii) A fee waiver or reduction is justified where the public interest is greater than any identified commercial interest in disclosure. (4) Where only some of the requested records satisfy the requirements for a fee waiver, a waiver will be granted for those records. (5) Requesters should make fee waiver or reduction requests when they first submit a FOIA request to the NEH. Fee waiver or reduction requests should address the factors listed in paragraphs (f)(2) and (3) of this section. Fee waiver or reduction requests may be submitted at a later time so long as the underlying record request is pending or on administrative appeal. (g) Notice of anticipated fees in excess of $25.00. (2) The notice will offer the requester an opportunity to confer with NEH personnel in order to reformulate the request to meet the requester's needs at a lower cost and inform the requester of paragraph (d)(1) of this section, if applicable. A commitment by the requester to pay the anticipated fee must be in writing and must be received by the NEH within thirty (30) calendar days from the date of notification of the fee estimate. Until the requester agrees to pay the anticipated fee, the NEH will not consider the request as received by the agency and no further work will be done on the request. If a requester fails to respond within this timeframe, the NEH will administratively close the request. (h) Charges for other services. (i) Charging interest. (j) Advance payment. (2) When the NEH determines or estimates that a total fee to be charged under this section will be more than $250.00, it may require the requester 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 a satisfactory assurance of full payment from a requester that has a history of prompt payment. (3) When a requester has previously failed to pay a properly charged fee to the NEH within thirty (30) days of the billing date, the NEH may require the requester 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 the NEH begins to process a new request or continues to process a pending request from that requester. (4) When there is an advance payment request, the NEH will not consider the request as received by the agency and no further work will be done on the request until the required payment is received. If the requester fails to respond within thirty (30) calendar days after the date of the advance payment request, the NEH will administratively close the request. (k) Aggregating requests. [79 FR 9415, Feb. 19, 2014, as amended at 82 FR 46, Jan. 3, 2017] § 1171.12 Preservation of records. NEH will preserve all correspondence pertaining to the requests that it receives as well as copies of all requested records, until disposition or destruction is authorized by the agency's General Records Schedule of the National Archives and Records Administration (NARA) or other NARA-approved records schedule. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the Act. § 1171.13 Other rights and services. Nothing in this part will be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.