PART 2507—PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT Authority: 5 U.S.C. 552, 42 U.S.C. 12501 et seq. Source: 87 FR 55309, Sept. 9, 2022, unless otherwise noted. Subpart A—General Provisions § 2507.1 Scope. This part contains the rules that the Corporation for National and Community Service, operating as AmeriCorps (“the Agency” or “AmeriCorps”), follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. These rules should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with AmeriCorps' Privacy Act regulations, 45 CFR part 2508, as well as under this part. § 2507.2 Policy. (a) AmeriCorps follows a balanced approach in administering the FOIA. The Agency recognizes the right of the public to seek access to information in its possession. It also recognizes the legitimate interests of organizations or persons who have submitted records to AmeriCorps or who would otherwise be affected by release of records. AmeriCorps has no discretion to release certain records, such as trade secrets and confidential commercial information, prohibited from release by law. The Agency provides the fullest responsible disclosure that is consistent with the requirements of the FOIA. (b) When a FOIA exemption gives Federal agencies the discretion to either withhold or release records, AmeriCorps releases the records or information unless it reasonably foresees that disclosure would harm an interest that the exemption protects. § 2507.3 Definitions. As used in this part: Agency AmeriCorps the Agency Complex request Consultation Exemptions Expedited processing FOIA request Freedom of Information Act (FOIA) Frequently requested records (1) Have been requested from AmeriCorps three or more times; or (2) Because of their subject matter, AmeriCorps determines have become or are likely to become the subject of subsequent requests for the same records. Multitrack processing Office of Government Information Services Proactive disclosures Record Referral Search Simple request Tolling § 2507.4 Agency FOIA officials. The following are AmeriCorps' authorized FOIA officials, each of whom will be identified on americorps.gov (a) The Chief FOIA Officer: (1) Has overall responsibility for AmeriCorps' compliance with the FOIA; (2) Provides high-level oversight and support to AmeriCorps' FOIA program; (3) Recommends adjustments to AmeriCorps' practices, personnel, and funding, as needed, to improve FOIA administration, including through Chief FOIA Officer Reports submitted to the U.S. Department of Justice; (4) Tells the Agency's FOIA Officers of all significant developments with respect to the FOIA; (5) Is responsible for offering training to agency staff regarding their FOIA responsibilities; (6) Serves as the primary liaison with the Office of Government Information Services and the U.S. Department of Justice's Office of Information Policy; and (7) Reviews, at least annually, all aspects of AmeriCorps' administration of the FOIA to ensure compliance with the FOIA's requirements. (b) The FOIA Officer (c) The FOIA Appeals Officer (d) The FOIA Public Liaison Subpart B—Proactive Disclosures of Agency Records § 2507.5 Records available on agency website. (a) AmeriCorps regularly updates and posts the following on its public website, americorps.gov (1) Information that is required to be published in the Federal Register (2) Administrative staff manuals and instructions to staff that affect any member of the public. (3) Statements of policy and interpretation adopted by AmeriCorps and not published in the Federal Register (4) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of administrative cases. (5) Records that AmeriCorps determines are or will be the subject of widespread media, historical, or academic interest and that may properly be publicly posted. (b) On the FOIA page of its public website, americorps.gov (c) For help from the FOIA Officer or the FOIA Public Liaison in finding proactively disclosed records, members of the public may contact AmeriCorps at [email protected] Subpart C—Filing a FOIA Request § 2507.6 Requirements for FOIA requests. (a) General information. (b) Directions for making requests. (1) By email: [email protected]. (2) By online submission: www.FOIA.gov. (3) By mail: (4) By fax: (c) Description of records sought. [email protected]. (1) If a request does not reasonably describe the records sought, AmeriCorps' response to the request may be delayed or denied. (2) When AmeriCorps determines that a request does not sufficiently describe the records sought, it will ask the requester for further information. If the requester does not respond to a request for additional information within thirty (30) working days, the request may be administratively closed at AmeriCorps' discretion. A requester may, after administrative closure of a request, submit a new request with additional information for further consideration. (d) Third-party requests. (e) Date range for requested records. (f) Contact information. § 2507.7 Requests for archived records. In accordance with agency records schedules and General Records Schedules, AmeriCorps transfers permanent records to the National Archives and Records Administration (“National Archives”). Once these records are transferred, they are in the physical and legal custody of the National Archives. Accordingly, requests for retired AmeriCorps records should be submitted to the National Archives by mail addressed to: Special Access and FOIA Staff (NWCTF), 8601 Adelphi Road, Room 5500, College Park, MD 20740; by fax to (301) 837-1864; or by email to [email protected]. Subpart D—Agency Processing and Response to FOIA Requests § 2507.8 Processing of requests. (a) Authority to grant or deny requests. (b) Providing records. (1) AmeriCorps is required to provide only one copy of a record. (2) AmeriCorps will ordinarily provide the record in electronic form. Requesters may specify the preferred form or format for the records they seek, and AmeriCorps will provide releasable records in that form or format if they are readily reproducible in that way and the format allows for any necessary redactions. (3) If AmeriCorps cannot make a legible copy of a record to be released, it is not required to reconstruct the record. Instead, AmeriCorps will furnish the best copy possible and note the record's poor quality in its reply. (c) Records previously released. (d) Consultation and referral. (1) Consultation. (2) Referral. (ii) Whenever AmeriCorps refers any part of the responsibility for responding to a request to another agency, it will document the referral, maintain a copy of the record that it refers, notify the requester of the referral, and tell the requester the name(s) of the agency to which the record was referred and that agency's FOIA contact information. § 2507.9 Reasons for withholding some records. (a) AmeriCorps records will be made available to the public unless it determines that such records should be withheld from disclosure under subsection 552(b) of the Act and/or in accordance with this part. Section 552(b) of the FOIA contains nine exemptions to the mandatory disclosure of records. (b) AmeriCorps will: (1) Withhold information under the FOIA only if disclosure is prohibited by law or it reasonably foresees that disclosure would harm an interest protected by an exemption. (2) Consider whether partial disclosure of information is possible whenever it determines that a full disclosure of a requested record is not possible. (3) Take reasonable steps necessary to segregate and release nonexempt information. (4) Note in the record and response letter the basis for a redaction when it withholds information in a record, or an entire record. (c) To the extent it properly can under an exemption, AmeriCorps will withhold information it obtains from any submitter that gave it to the agency in reliance on a statutory or regulatory provision for confidentiality. This section does not authorize the giving of any pledge of confidentiality by any officer or employee of AmeriCorps. (d) The deliberative process privilege of Exemption 5 of the FOIA will not apply to records created 25 years or more before the date when the records were requested. § 2507.10 Timing of responses to requests. (a) In General. (b) Multitrack processing. (1) AmeriCorps uses three tracks: (i) A track for simple requests that can be processed in 20 working days; (ii) A track for complex requests that require more than 20 working days; and (iii) A track for expedited processing. (2) Within each track, processing will ordinarily proceed on a “first-in, first-out” basis, and rank-ordered by the date of receipt of the request, unless there are unusual circumstances as set forth in paragraph (c) of this section, or the requester is entitled to expedited processing as set forth in paragraph (e) of this section. (3) If a request does not qualify as simple, AmeriCorps may give the requester an opportunity to limit the scope of the request in order to qualify for faster processing. (c) Unusual circumstances. (1) Before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances and when AmeriCorps expects to complete processing the request; and (2) When the extension exceeds 10 working days, AmeriCorps will: (i) Notify the requester in writing of the right to seek dispute resolution services from the Office of Government Information Services (OGIS); (ii) Give the requester an opportunity to modify the request or arrange an alternative time period for processing; and (iii) Provide contact information for the FOIA Public Liaison. (d) Aggregating Requests to Satisfy Unusual Circumstances. (e) Expedited processing. (i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of a person; (ii) An urgency to inform the public about an actual or alleged Federal Government activity, if the request is made by a person who is primarily engaged in disseminating information; (iii) The loss of substantial due process rights; or (iv) A matter of widespread and exceptional media interest in which there exist possible questions about the Government's integrity that affect public confidence. (2) A requester who seeks expedited processing must submit a statement, certified to be true and correct, that explains in detail the basis for requesting expedited processing. (i) For example, under paragraphs (e)(1)(ii) and (iv) of this section, a requester who is not a full-time member of the news media must establish that their primary professional activity or occupation is information dissemination, though it need not be their sole occupation. They must also clearly describe why there is a particular urgency to inform the public about the government activity or questions about integrity involved in the request—one that extends beyond the public's right to know about government activity generally. (ii) As a matter of administrative discretion, AmeriCorps may waive the formal certification requirement. (3) Within 10 calendar days of receiving a request for expedited processing, AmeriCorps will notify the requester of its decision whether to grant or deny the request. If AmeriCorps grants expedited processing, the request will be placed in the expedited processing track and be processed as soon as practicable. If AmeriCorps denies a request for expedited processing, it will act expeditiously on any appeal of that decision. (f) Tolling. (1) The FOIA Officer may make one request to the requester for information and will toll the 20-day period while waiting for the information. The time from this request to the FOIA Officer's receipt of a response that addresses the questions will be tolled. (2) If the requester has indicated that they are willing to pay fees up to a certain amount, but the estimated fee exceeds that amount, the FOIA Officer will notify them of the higher estimated fees and ask if they wish to revise the amount of fees they are willing to pay or modify the request. The time from this request to the FOIA Officer's receipt of a response that addresses the questions will be tolled. § 2507.11 Responses to requests. (a) In general. (b) Acknowledgment of requests. (c) Determinations on requests. (1) Grants of requests for records. (2) Grants for other matters. (3) Adverse determinations on requests. (i) Adverse determinations, or denials of requests for records, include decisions that a record, or portion of it, is exempt; that the request does not reasonably describe the records sought; that the record is not subject to the FOIA, is not an agency record, does not exist, cannot be located, or has been destroyed; or that the record is not readily reproducible in the format sought by the requester. (ii) Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited proceeding. (4) Information provided in the case of a denial. (i) In the case of records withheld in whole or in part, a general description of what has been withheld and, where not evident, an estimate of the volume of material withheld, unless providing the description or estimate would harm an interest protected by an exemption; (ii) The reasons for the denial, including, as applicable, a reference to the specific FOIA exemption that authorizes the withholding; (iii) An explanation of the requester's appeal rights as described in Subpart F and the name and contact information of the Agency's FOIA Appeals Officer. Subpart E—Confidential Commercial Information § 2507.12 Definitions for this subpart. In addition to the definitions in § 2507.3, the following definitions apply to this subpart: Submitter Confidential commercial information § 2507.13 Procedures for release of commercial information. (a) Notification to submitters of confidential commercial or financial information. (1) Notify the submitter about the request and provide copies of the requested records; (2) Tell the submitter what information it proposes to disclose and withhold in accordance with Exemption (b)(4) of the Act; and (3) Require the submitter to inform the agency in writing, within 10 business days from the date the notice is sent, if they object to any proposed disclosure of commercial or financial information in the records. (b) When notice to submitter is not required. (1) The Agency determines that the information shall not be disclosed; (2) The information has previously been published or otherwise lawfully been made available to the public; or (3) Disclosure of the information is required by law (other than 5 U.S.C. 552). (c) Analysis of objection. (d) Disclosure over the objection of a submitter. (1) A description of the commercial or financial information to be released to the requester; (2) The reasons why the submitter's objection to release was not sustained; (3) The date when the records will be disclosed, which shall be not less than 5 business days after the notice is sent. (e) Notice of suit for release. (f) Notification to requestor. (1) AmeriCorps provides the submitter with notice and the opportunity to object to disclosure; (2) AmeriCorps notifies the submitter of its intent to disclose requested information; and (3) The submitter files a lawsuit to prevent disclosure of the information. Subpart F—Appeals and Alternative Dispute Resolution § 2507.14 Administrative appeals. Whenever AmeriCorps denies a FOIA request, it will inform the requester of the reasons for the denial and of the requester's right to appeal the denial to the FOIA Appeals Officer. (a) What a requester may appeal. (1) The withholding of a document or part of a document; (2) Denial of a fee waiver request; (3) The type or amount of fees they were charged; (4) Any other type of adverse determination under the FOIA; or (5) A failure by AmeriCorps to conduct an adequate search for the requested records. (b) What a requester may not appeal. (c) When appeal is required. (d) Requirements for making an appeal. (1) Make the appeal in writing; (2) Transmit or postmark the appeal within 90 calendar days after the date of adverse determination; (3) Clearly identify the assigned request number and the Agency determination they are appealing; (4) Mark the subject line of the appeal email, or letter and envelope, with “FOIA Appeal.” (e) Where to file an appeal. [email protected] (f) Adjudication of appeals. de novo (2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation. (g) Decisions on appeals. (1) If the FOIA Appeals Officer's decision upholds the Agency's determination, the decision will: (i) State the reasons for the affirmance, including any FOIA exemptions applied; (ii) Notify the requester of their statutory right to file a lawsuit; and (iii) Inform the requester of the mediation services offered by OGIS as a non-exclusive alternative to litigation. (2) If the FOIA Appeals Officer's decision remands or modifies the Agency determination, either in whole or in part, they will notify the requester of that determination in writing. Thereafter, AmeriCorps will re-process the FOIA request in accordance with that determination and, if applicable, promptly send the releasable records to the requester, unless a reasonable delay is justified. [87 FR 55309, Sept. 9, 2022; 87 FR 57643, Sept. 21, 2022] § 2507.15 Mediation and dispute resolution services. If a requester receives an adverse determination on a FOIA request, they have the right to seek dispute resolution services from the FOIA Public Liaison or mediation services from OGIS. Congress has charged OGIS with resolving FOIA disputes between Federal agencies and requesters. OGIS's mediation services are an alternative to litigation, but do not preclude it. Subpart G—Fees § 2507.16 Definitions for this subpart. In addition to the definitions in § 2507.3, the following definitions apply to this subpart: Commercial use request Direct costs Duplication fees Educational institution Fee waiver Noncommercial scientific institution Representative of the news media Review fees Search fees § 2507.17 Fees overview. (a) AmeriCorps will charge fees for processing FOIA requests in accordance with the provisions of this subpart and with the OMB Guidelines, unless a waiver or reduction of fees has been granted under § 2507.24. (b) AmeriCorps will search for, review, and duplicate records in the most efficient and the least expensive manner. (c) AmeriCorps may properly charge for time spent searching even if it does not locate any responsive records or if it determines that the records are entirely exempt from disclosure. (d) When a request is made for commercial purposes, review fees will be assessed for the Agency's time spent on its initial analysis to determine whether an exemption applies to a record or portion of a record. (e) No charge will be made at the administrative review stage for review of exemptions that were applied at the initial review stage. However, if one or more exemptions are deemed to no longer apply, the costs associated with the Agency's re-review of the records to consider the use of other exemptions may be assessed as review fees. (f) Requesters may seek a fee waiver. AmeriCorps will consider requests for a fee waiver in accordance with the requirements in § 2507.24. (g) To resolve any fee issues that arise under this section, AmeriCorps may contact a requester for additional information. § 2507.18 Requester categories and fees charged. (a) The FOIA establishes the following categories of requesters and, depending on the category, these types of fees to be paid: (1) Commercial use requesters: these pay search, review, and duplication fees. (2) Non-commercial scientific institutions, educational institutions whose purpose is scholarly or scientific research, or news media requesters: these pay only duplication fees. (3) All other requesters: these pay search and duplication fees. (b) The fee schedule for search, review, and duplication is as follows: Table 1 to Paragraph ( b Requester Search fee Review fee Duplication fee Commercial use requester $70.00 per hour $70.00 per hour For photocopies, 20¢ per page. Educational & Non-Commercial Scientific institutions No fee No fee For photocopies, the first 100 pages are free; after that, 20¢ per page. Representatives of the news media No fee No fee For photocopies, the first 100 pages are free; after that, 20¢ per page. All others The first two hours are free; after that, $70.00 per hour No fee For photocopies, the first 100 pages are free; after that, 20¢ per page. § 2507.19 Circumstances in which fees may not be charged. (a) If AmeriCorps fails to comply with the time limits for responding to a request, and if no unusual or exceptional circumstances, as defined by the FOIA, apply to processing the request, it may not charge search fees (or, for requesters with preferred fee status, may not charge duplication fees). (b) If AmeriCorps fails to comply with the extended time limit for unusual circumstances under § 2705.10(c), it may not charge search fees (or, for requesters with preferred fee status, may not charge duplication fees), except as follows: (1) If unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, AmeriCorps may charge search fees (or, for requesters with preferred fee status, may charge duplication fees), so long as AmeriCorps has given the requester timely written notice and has discussed with the requester via email, telephone, or paper mail (or made at least three good-faith attempts to do so) how the requester could limit the scope of the request. (2) If a court determines that exceptional circumstances exist, AmeriCorps' failure to comply with a time limit will be excused for the length of time provided by the court order. (c) AmeriCorps will charge search or review fees for a quarter-hour period only when more than half of that period is required for search or review. (d) AmeriCorps will not charge any fee if the total fee calculated according to § 2507.18 is $25.00 or less for any request. § 2507.20 Notice of anticipated fees in excess of $25.00. (a) When AmeriCorps estimates that fees will exceed $25.00 and the requester has not stated in writing their willingness to pay fees as high as anticipated, it will inform the requester of the estimated fees, including a breakdown for search, review, or duplication. (1) AmeriCorps will inform the requester if only a portion of the fee can be readily estimated. (2) For non-commercial-use requesters subject to search fees, the notice will tell them that they are entitled to two hours of search time at no charge. For all requesters who ask for non-electronic copies of the records, AmeriCorps will inform them that they are entitled to 100 pages of duplication at no charge. In both cases, AmeriCorps will tell the requester whether those entitlements are included in the estimate. (b) When AmeriCorps notifies a requester that the actual or estimated total fee exceeds $25.00, it will stop work on the request and the processing time will be tolled until the requester, in writing: (1) Commits to paying the actual or estimated total fee; or (2) Designates a specific dollar amount of fees they are willing to pay; or (3) Tells AmeriCorps that they seek only that which can be provided with two free hours of search time and 100 free pages of duplication, in the case that they are eligible for these entitlements. (c) If the requester has specified a fee amount they are willing to pay, but AmeriCorps estimates that the total fee will be greater than that: (1) It will notify the requester of the estimated excess and ask if they wish to either revise the amount of fees they are willing to pay or modify the request, and (2) The Agency will stop work on the request and toll the processing time according to § 2507.10(f). (d) The FOIA Officer or FOIA Public Liaison will be available to help any requester reformulate a request to meet the requester's needs at a lower cost. § 2507.21 Other charges. (a) Charges for other services. (b) Charging interest. § 2507.22 Aggregating requests to ensure payment of fees. (a) When AmeriCorps reasonably believes that a requester or a group of requesters acting together is attempting to divide a single request into multiple smaller requests so as to avoid fees, AmeriCorps may aggregate those requests and charge accordingly. (1) AmeriCorps may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. (2) For requests separated by more than 30 days, AmeriCorps will aggregate them only where there is a reasonable basis for determining that aggregation is justified in view of all the circumstances involved. (b) Multiple requests involving unrelated matters will not be aggregated. § 2507.23 Collection and payment of fees. (a) AmeriCorps must ordinarily receive all applicable fees before it sends copies of records to a requester. This is payment for work already completed, not an advance payment. (b) AmeriCorps may require an advance payment before work begins or is continued on a request when one of the following two circumstances exists. In these cases, AmeriCorps will not consider the FOIA request to have been received and will not conduct further work on the request until it receives the required payment. If the requester does not pay the advance payment within 30 calendar days after the date of AmeriCorps' fee determination, the request will be closed. (1) If AmeriCorps determines or estimates that a total fee will be greater than $250.00, it may require that the requester pay in advance, up to the amount of the entire anticipated fee, before starting to process the request. AmeriCorps may choose to process the request before it collects fees if it receives a satisfactory assurance of full payment from a requester with a history of prompt payment. (2) When a requester has previously failed to pay a properly charged FOIA fee to the Agency within 30 calendar days of the billing date, AmeriCorps may require the requester to pay the full amount past due, plus any applicable interest on that prior request, and may also require the requester to pay in advance the full amount of any anticipated fee before it begins to process a new request or continues to process a pending request or any pending appeal. If AmeriCorps has a reasonable basis to believe that a requester has misrepresented their identity in order to avoid paying outstanding fees, it may require the requester to provide proof of identity. (c) Requesters must pay fees by check or money order made payable to the Treasury of the United States. (d) AmeriCorps is not required to accept payments in installments. § 2507.24 Fee waivers or fee reductions. (a) Requests for a waiver or reduction of fees should be made when the FOIA request is first submitted to AmeriCorps and should address in specific detail the factors below. However, a requester may ask for a fee waiver at a later time, if their FOIA request is still pending or is on administrative appeal. (b) AmeriCorps will grant a waiver of fees, or a one-time reduction of the rate established under § 2507.18, when it determines that the requester has demonstrated that disclosure of the requested information is in the public interest and is not primarily in the commercial interest of the requester. (1) To determine whether 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, AmeriCorps will consider the following factors: (i) The subject of the request must concern identifiable operations or activities of the Federal Government, with a connection that is direct and clear, not remote or attenuated. (ii) Disclosure of the requested records must be meaningfully informative about Federal Government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. Disclosure of information that is already in the public domain, in either the same or a substantially identical form, would not contribute to such understanding. (iii) 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 their ability and intention to effectively convey information to the public, will be considered. A representative of the news media making the request for professional purposes satisfies this consideration. (iv) The public's understanding of the subject in question must be enhanced by the disclosure to a significant extent. However, AmeriCorps will not make value judgments about whether the information at issue is “important” enough to be made public. (2) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, AmeriCorps will give requesters an opportunity to explain the purpose of the request. The Agency will consider the following factors: (i) If there is an identified commercial interest, AmeriCorps will determine whether that is the primary interest furthered by the request. (ii) The identified commercial interest is not the primary interest furthered by the request (such that a waiver or reduction of fees is justified) where the public interest in disclosure is greater than the identified commercial interest in disclosure. AmeriCorps ordinarily will presume that when a news media requester has satisfied the public interest standard, it is a public interest that is primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest. (c) 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 only. (d) A requester may appeal the denial of a fee waiver. Subpart H—Miscellaneous § 2507.25 Preservation of records. AmeriCorps will preserve all correspondence relating to FOIA requests it receives, and all records processed for those requests, until the destruction of the correspondence and records is authorized by Title 44 of the United States Code and the records disposition authority granted by NARA. The records will not be sent to a Federal Records Center, transferred to the permanent custody of NARA, or destroyed while they are the subject of a pending request, appeal, or civil action under the FOIA. § 2507.26 Reporting requirements. (a) AmeriCorps will submit to the Attorney General a statistical report on FOIA requests, processing, disposition, and appeals. (b) As required, the Chief FOIA Officer will submit to the Attorney General a Chief FOIA Officer Report containing a narrative description of the steps taken by the agency to support and improve FOIA compliance and transparency. § 2507.27 Rights and services qualified by the FOIA statute. Nothing in this part may be construed to entitle any person, as a right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.