[Federal Register Volume 76, Number 161 (Friday, August 19, 2011)]
[Rules and Regulations]
[Pages 51890-51901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20774]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 1 and 2
RIN 2009-AN72
Release of Information From Department of Veterans Affairs
Records
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
regulations governing the submission and processing of requests for
information under the Freedom of Information Act (FOIA) in order to
implement provisions of the OPEN Government Act of 2007, and to
reorganize and clarify existing regulations.
DATES: Effective Date: This final rule is effective September 19, 2011.
FOR FURTHER INFORMATION CONTACT: Catherine Nachmann, Staff Attorney,
Office of General Counsel (024), Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC 20420, (202) 461-7684. (This is not
a toll-free number.)
SUPPLEMENTARY INFORMATION: On October 14, 2010, VA published a proposed
rule in the Federal Register (75 FR 63120). We proposed to amend VA's
regulations pertaining to release of information under 5 U.S.C. 552 and
implementation of the FOIA, which are codified at 38 CFR 1.550 through
1.562. In addition, we proposed to update VA's FOIA regulations to
implement FOIA amendments in Open Government Act of 2007, Public Law
110-175. We also proposed to accommodate various means of communication
with VA, streamline existing procedures, incorporate changes in the
procedural requirements of the FOIA and make VA's procedures easier for
the public to understand, and generally reorganize and renumber the
applicable provisions. VA provided a 60-day comment period, which ended
on December 13, 2010.
We received comments from one commenter, which generally expressed
support for the proposed rule. The comments included five
recommendations for modification of the proposed-rule provisions. We
address each of those recommendations below.
First, the commenter suggested that VA modify proposed Sec.
1.561(h)(2) to direct VA's FOIA professionals to provide requesters
with a breakdown of the total fee estimate for their FOIA request.
Proposed Sec. 1.561(h)(2) prescribed that under circumstances in which
the requester owes a fee, the FOIA Officer will provide the requester
with an estimate of the fee. We agree with the commenter that,
particularly under certain circumstances, such as where the estimated
fee is substantial, a breakdown of the fee would provide more
clarification for the requester. We believe that as written, however,
Sec. 1.561(h)(2) adequately addresses the needs of the public in
receiving an estimate of the fee owed while allowing necessary
flexibility. Providing the appropriate detail in a particular estimate
will be addressed through training and internal procedural guidance for
FOIA Officers. The procedural guidance will be a subject covered by
VA's FOIA Handbook. In our view, the level of detail required for any
estimate provided under this final rule will depend upon the complexity
of the request. Accordingly, we decline to prescribe a specific
standard for the estimates required by Sec. 1.561(h)(2).
Second, while the commenter supported proposed Sec. 1.559(a),
which would allow for informal resolution of a request before an appeal
in appropriate cases, the commenter recommended that VA add language to
this section that also directs requesters to work with VA's FOIA public
liaisons to resolve disputes.
We note that VA referred to the availability of FOIA public
liaisons in proposed Sec. 1.552(b) in order to advise requesters that
public liaisons would be available to assist in the resolution of
requests and to refer requesters to VA's FOIA internet home page for
additional information. VA intends to provide information regarding
public liaisons, as necessary, on its FOIA home page. We also intend to
address the role of VA's public liaison personnel in internal guidance.
Overall, we are satisfied that the proposal for providing notice
regarding public liaisons, without actually requiring requesters to
work with liaisons, is consistent with the FOIA, as amended.
Third, proposed Sec. 1.559 addressed appeals of initial agency
determinations under the FOIA. The commenter suggested adding language
to Sec. 1.559(e) directing VA to work with the Office of Government
Information Services (OGIS) to resolve disputes between FOIA requesters
and VA as a non-exclusive alternative to litigation. In a related
comment, the commenter recommended that the Office of the General
Counsel (OGC) provide notice regarding the OGIS mediation program in
its final appeal determinations.
The FOIA, as revised, establishes OGIS's authority to provide
mediation services. The proposed rule concerned VA's administration of
the FOIA. VA proposed to establish binding rules for the public
regarding FOIA requests and for VA personnel responsible for processing
such requests. Accordingly, the commenter's suggestion in this regard
is beyond the scope of this rulemaking.
Regarding the commenter's recommendation that OGC provide notice
concerning OGIS mediation, we note that DOJ provided guidance to
agencies recommending the inclusion of notice of OGIS mediation
services in final agency decisions. VA follows DOJ's guidance and
includes OGIS's recommended language in its final agency
determinations. Accordingly, we
[[Page 51891]]
believe that VA fully addresses OGIS's concerns in this regard.
Finally, the commenter suggested that VA include language in its
FOIA regulations directing agency personnel to coordinate
collaboratively with OGIS in its review of agencies' policies and
procedures, as established in 5 U.S.C. 552(h). However, as described
above, the proposed rule concerned VA's administration of the FOIA; it
addressed the agency's practices and procedures to implement the FOIA.
VA's compliance with OGIS policies and collaboration with OGIS in FOIA
matters, therefore, is beyond the scope of this rulemaking.
In summary, we appreciate the commenter's review of VA's proposed
rule. VA is committed to providing service to FOIA requesters that is
in keeping with current law and policy pertaining to the release of
information. We believe that as written, VA's proposed rule reflected
this commitment and addressed the commenter's concerns.
We proposed to clarify in Sec. 1.559(b) that appeals regarding
FOIA requests for Office of Inspector General (OIG) records should be
referred to OIG for review. However, we neglected to propose a
corresponding change to VA's delegations of authority in 38 CFR part 2.
Accordingly, consistent with Sec. 1.559(b), we are amending 38 CFR
2.6(g) to add a new paragraph (3) regarding OIG's authority to decide
appeals involving OIG records. This is not a substantive change. The
amendment is for the limited purpose of providing notice that the
Secretary of Veterans Affairs has delegated authority to make decisions
regarding these appeals to OIG.
In the proposed rule, we included a definition of ``sensitive
medical or mental health records.'' We do not use the term, however, in
the regulatory text. Accordingly, we determined that the definition was
unnecessary and we removed it from the final rule. This is not a
substantive change. The revision merely eliminates an unnecessary
definition from the final rule.
In addition, as noted above, we amended 38 CFR 2.6(g) to reflect a
delegation of authority to OIG to decide appeals involving OIG records;
we included 38 U.S.C. 552a as authority for this delegation of
authority. Citation to 38 U.S.C. 552a was erroneous; accordingly, we
deleted it from the authority section following 38 CFR 2.6(g). This is
not a substantive change; it merely eliminates an erroneous citation.
With regard to OIG appeal authority, as indicated above, we
proposed in Sec. 1.559(b) that FOIA appeals regarding requests for OIG
records should be referred to OIG for review. By using the phrase
``should be referred'' however, we may have inadvertently implied that
the requester has the option of sending the appeal to OGC or to OIG; we
did not intend the language to appear to provide that option. For
clarification, therefore, we changed the language in the final rule to
``must be sent'' to eliminate any potential for confusion or
misunderstanding and to clarify VA's intended procedure.
We have also made minor, non-substantive changes to the proposed
rule to correct typographical or grammatical errors and to make the
language of the text more consistent.
Based on the rationale provided in the preamble to the proposed
rule and in this preamble, VA adopts the proposed rule as a final rule
with the minor changes noted above.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in an expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any year. This final rule would have no such effect on
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary of Veterans Affairs hereby certifies that the final
rule will not have a significant economic impact on a substantial
number of small entities as they are defined in the Regulatory
Flexibility Act, 5 U.S.C. 601-612. This final rule concerns the
procedures for requesting information from VA and the payment of
certain fees for processing such requests. The fees prescribed by this
final rule will generally comprise only an insignificant portion of a
small entity's expenditures. Therefore, this final rule is exempt,
pursuant to 5 U.S.C. 605(b), from the final regulatory flexibility
analysis requirements of section 604.
Executive Order 12866
Executive Order 12866, Regulatory Planning and Review, directs
agencies to assess all costs and benefits of available regulatory
alternatives and, when regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety, and other advantages;
distributive impacts; and equity). The Executive Order classifies a
``significant regulatory action,'' requiring review by the Office of
Management and Budget (OMB) unless OMB waives such review, as any
regulatory action that is likely to result in a rule that may: (1) Have
an annual effect on the economy of $100 million or more, or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2)
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined and it has
been determined not to be a significant regulatory action under
Executive Order 12866.
Catalog of Federal Domestic Assistance
There is no Catalog of Federal Domestic Assistance number for the
program affected by this final rule.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on August 1, 2011, for publication.
List of Subjects
38 CFR Part 1
Administrative practice and procedure, Archives and records,
Cemeteries, Claims, Courts, Crime, Flags, Freedom of information,
Government contracts, Government employees, Government property,
Infants and children, Inventions and patents, Parking, Penalties,
Privacy, Reporting and recordkeeping requirements, Seals and insignia,
Security measures, Wages.
[[Page 51892]]
38 CFR Part 2
Authority delegations (Government agencies).
Dated: August 11, 2011.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, VA amends 38 CFR parts 1
and 2 as follows:
PART 1--GENERAL PROVISIONS
0
1. The authority citation for part 1 continues to read as follows:
Authority: 38 U.S.C. 501(a), and as noted in specific sections.
0
2. In Part 1, revise the undesignated center heading immediately
preceding Sec. 1.550 to read as follows:
Procedures for Disclosure of Records Under the Freedom of Information
Act
* * * * *
0
2a. In Part 1, following the newly revised undesignated center heading
remove the Note and authority citation preceding Sec. 1.550.
0
3. Revise Sec. 1.550 to read as follows:
Sec. 1.550 Purpose.
(a) Sections 1.550 through 1.562 contain the rules followed by VA
in processing requests for records under the Freedom of Information Act
(FOIA), 5 U.S.C. 552, as amended. These regulations should be read
together with the FOIA, which provides the underlying legal basis for
the regulations and other information regarding requests for records in
the custody of a Federal agency. The regulations also should be read
together with VA's FOIA Reference Guide, available on VA's FOIA home
page (see Sec. 1.552(a) for the pertinent Internet address) and FOIA
fee guidance provided by the Office of Management and Budget (OMB),
Uniform Freedom of Information Act Fee Schedule and Guidelines,
available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/foia_fee_schedule_1987.pdf.
(b) Requests for records about an individual protected by the
Privacy Act, 5 U.S.C. 552a, including one's own records and records
that pertain to an individual and that may be sensitive, will be
processed under the FOIA and the Privacy Act. In addition to the
following FOIA regulations, see Sec. Sec. 1.575 through 1.584 for
regulations applicable to Privacy Act records.
(c) Requests for records relating to a claim administered by VA
pursuant to 38 U.S.C. 5701 will be processed under the FOIA and 38
U.S.C. 5701. In addition to the following FOIA regulations, see
Sec. Sec. 1.500 through 1.527 for regulations implementing 38 U.S.C.
5701.
(d) Requests for records relating to healthcare quality assurance
reviews pursuant to 38 U.S.C. 5705 will be processed under the FOIA and
38 U.S.C. 5705. In addition to the following FOIA regulations, see 38
CFR 17.500 through 17.511 for regulations implementing 38 U.S.C. 5705.
(e) Requests for records relating to treatment for the conditions
specified in 38 U.S.C. 7332, such as drug abuse, alcoholism or alcohol
abuse, infection with the Human Immunodeficiency Virus (HIV), or sickle
cell anemia, will be processed under the FOIA and 38 U.S.C. 7332. In
addition to the following FOIA regulations, see Sec. Sec. 1.460
through 1.499 of this part for regulations implementing 38 U.S.C. 7332.
Authority: Sections 1.550 to 1.562 issued under 72 Stat. 1114; 38
U.S.C. 501, 552, 552a, 5701, 5705, 7332.
0
4. Add Sec. 1.551 to read as follows:
Sec. 1.551 Definitions.
As used in Sec. Sec. 1.550 through 1.562, the following
definitions apply:
Agency means any executive department, military department,
government corporation, government controlled corporation, or other
establishment in the executive branch of the Federal government, or
independent regulatory entity.
Appeal means a requester's written disagreement with an adverse
determination under the FOIA.
Beneficiary means a veteran or other individual who has received
benefits (including medical benefits) or has applied for benefits
pursuant to title 38, United States Code.
Benefits records means an individual's records, which pertain to
programs under any of the benefits laws administered by the Secretary
of Veterans Affairs.
Business day means the time during which typical Federal government
offices are open for normal business. It does not include Saturdays,
Sundays, or Federal legal public holidays. The term ``day'' means
business day unless otherwise specified.
Business information means confidential or privileged commercial or
financial information obtained by VA from a submitter that may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
Component means each distinct VA entity, including Administrations,
staff offices, services, or facilities.
Expedited processing means giving a FOIA request priority for
processing ahead of other pending requests because VA has determined
that the requester has shown an exceptional need or urgency for the
records as provided in these regulations.
Fees. For fees and fee-related definitions, see Sec. 1.561.
FOIA Officer means the individual within a VA component whose
responsibilities include addressing and granting or denying requests
for records under the FOIA.
Perfected request means a written FOIA request that meets the
requirements set forth in Sec. 1.554 of this part and for which there
are no remaining issues about the payment of applicable fees or any
other matter that requires resolution prior to processing.
Reading room means space made available, as needed, in VA
components where records are available for review pursuant to 5 U.S.C.
552(a)(2). Ordinarily, the VA component providing a public reading room
space will be the component that maintains the record.
Record means a document, a portion of a document, and information
contained within a document, and can include information derived from a
document or a database. Such documents may be maintained in paper,
electronic, and other forms, but do not include objects, such as tissue
slides, blood samples, or computer hardware.
Request means a written demand for records under the FOIA as
described below. The term request includes any action emanating from
the initial demand for records, including an appeal related to the
initial demand.
Requester means, generally, any individual, partnership,
corporation, association, or foreign or state or local government,
which has made a demand to access an agency record.
Submitter means any person or entity (including corporations,
state, local and tribal governments and foreign governments) from whom
VA obtains trade secrets or confidential commercial or financial
information either directly or indirectly.
VA means the Department of Veterans Affairs.
VA Central Office (VACO) means the headquarters of the Department
of Veterans Affairs. The mailing address is 810 Vermont Avenue, NW.,
Washington, DC 20420.
Written or in writing means communications such as letters,
photocopies of letters, electronic mail, and facsimiles (faxes), and
does not include any form of oral communication.
[[Page 51893]]
0
5. Revise Sec. Sec. 1.552 and 1.553 to read as follows:
Sec. 1.552 General provisions.
(a) Additional information. The following Internet link will
provide access to VA's information that is electronically available
under the FOIA: http://www.foia.va.gov/.
(b) Public Liaisons. VA has made available FOIA Public Liaisons to
assist in the resolution of disputes between the agency and the
requester. Contact information for VA's FOIA Public Liaisons can be
found on VA's FOIA home page. See Sec. 1.552(a) for the pertinent
Internet address.
(c) FOIA Annual Report. Under 5 U.S.C. 552(e), VA is required to
prepare an annual report regarding its FOIA activities. The report
includes information about FOIA requests and appeals. Copies of VA's
annual FOIA report may be obtained from VA's Chief FOIA Officer or by
visiting VA's FOIA Web site. See Sec. 1.552(a) for the pertinent
Internet address.
Sec. 1.553 Public reading rooms and discretionary disclosures.
(a) VA maintains a public reading room electronically at its FOIA
home page on the Internet, which contains the records that the FOIA
requires to be regularly made available for public inspection and
copying. See Sec. 1.552(a) for the pertinent Internet address.
Information routinely provided to the public (press releases, for
example) may be provided without following these sections. In addition,
as a matter of policy, VA may make discretionary releases of records or
information exempt from disclosure under the FOIA when permitted to do
so in accordance with current law and governmental policy. Each VA
component is responsible for determining which of its records are
required to be made available and for making its records available
electronically.
(b) VA may process, in accordance with the FOIA, records that it
makes publicly available. Information in a public reading room record
will be redacted, for example, if its release would be a clearly
unwarranted invasion of an individual's personal privacy.
(c) Some VA components may also maintain physical public reading
rooms. Information regarding these components and their contact
information is available on VA's FOIA home page on the Internet. See
Sec. 1.552(a) for the pertinent Internet address. If the requester
does not have access to the Internet and wishes to obtain information
regarding publicly available information or components that have a
physical reading room, he or she may write VA's Chief FOIA Officer at
the following address: Department of Veterans Affairs, FOIA Service
(005R1C), 810 Vermont Avenue, NW., Washington, DC 20420.
Sec. 1.553a [Removed]
0
6. Remove Sec. 1.553a.
0
7. Revise Sec. 1.554 to read as follows:
Sec. 1.554 Requirements for making requests.
(a) Requests by letter and facsimile (fax). The FOIA request must
be in writing. VA accepts facsimiles (faxes) as written FOIA requests.
If the request concerns documents involving a personal privacy interest
or documents protected by another confidentiality statute, the request
must contain an image of the requester's handwritten signature. To make
a request for VA records, write directly to the FOIA Officer for the VA
component that maintains the records. If requesting records from a
particular medical facility or regional office, for example, the
request should be sent to the FOIA Office at the address listed for
that component. If requesting records from a component within VA's
Central Office, the request should be sent to the Central Office
address of the FOIA Office listed for that component. A list of FOIA
contacts is available on the Internet. A legible return address must be
included with the FOIA request; the requester may wish to include other
contact information as well, such as a telephone number and electronic
mail (e-mail) address. If the requester is not sure where to send the
request, he or she should seek assistance from the FOIA Contact for the
office believed to manage the programs whose records are being
requested or send the request to the Director, FOIA Service (005R1C),
810 Vermont Avenue, NW., Washington, DC 20420, who will refer it for
action to the FOIA contact at the appropriate component. For the
quickest possible handling, the request letter and the envelope of any
FOIA request should be marked ``Freedom of Information Act Request.''
The requester may find it helpful to refer to VA's FOIA home page on
the Internet when making the request; available reference material
includes VA's FOIA Reference Guide and the text of the FOIA. See Sec.
1.552(a) for the pertinent Internet address.
(b) Requests by e-mail. VA will accept an e-mail request. If the
request concerns documents protected by another confidentiality
statute, the e-mail transmission must contain an image of the
requester's handwritten signature, such as an attachment that shows the
requester's handwritten signature. In order to assure prompt
processing, e-mail FOIA requests must be sent to official VA FOIA
mailboxes established for the purpose of receiving FOIA requests. An e-
mail FOIA request that is sent to an individual VA employee's mailbox,
or to any other entity, will not be considered a perfected FOIA
request. Mailbox addresses designated to receive e-mail FOIA requests
are available on VA's FOIA home page. See Sec. 1.552(a) for the
pertinent Internet address.
(c) Making a request for another individual's records. If the
requester is making a request for records about another individual, it
will be helpful under certain circumstances to provide proof that the
requester is authorized to obtain the records, such as a legally
sufficient prior written authorization for the release of information
signed by that individual, proof that the individual is deceased (e.g.,
a copy of a death certificate), or proof that the requester is the
authorized representative of the individual or the individual's estate.
This information will assist in determining whether and to what degree
the records may be released.
(d) Description of records sought. (1) The requester must describe
the records sought in enough detail to allow VA personnel to locate
them with a reasonable amount of effort. To the extent possible, the
requester should include specific information about each record sought,
such as the date, title or name, author, recipient, and subject matter
of the document. Generally, the more information the requester provides
about the record sought, the more likely VA personnel will be able to
locate any responsive records. Wide-ranging requests that lack
specificity, or contain descriptions of very general subject matters,
with no description of specific records, may be considered ``not
reasonably described'' and thus not subject to further processing.
(2) Requests for voluminous amounts of records may be placed in a
complex track of a multitrack processing system pursuant to Sec.
1.556(b); such requests also may meet the criteria for ``unusual
circumstances,'' which are processed in accordance with Sec. 1.556(c)
and may require more than twenty (20) business days to process despite
the agency's exercise of due diligence.
(3) If the FOIA Officer determines that the request does not
reasonably describe the records sought, the FOIA Officer will tell the
requester why the request is insufficient. The FOIA Officer will also
provide an opportunity to discuss the request by documented telephonic
communication or written
[[Page 51894]]
correspondence in order to modify it to meet the requirements of this
section.
(4) The time limit for VA to process the FOIA request will not
start until the FOIA Officer determines that the requester has
reasonably described the records sought in the FOIA request. If the
FOIA Officer seeks additional clarification regarding the request and
does not receive the requester's written response within thirty (30)
calendar days of the date of its communication with the requester, he
or she will conclude that the requester is no longer interested in
pursuing the request and will close VA's files on the request.
(e) Agreement to pay fees. The time limit for processing the
request will be tolled while any fee issue is unresolved. If the FOIA
Officer anticipates that the fees for processing the request will
exceed the amount that the requester has stated that he or she is
willing to pay or will amount to more than $25.00 or the amount set by
OMB fee guidelines, whichever is higher, the FOIA Officer will notify
the requester. In such cases, the FOIA Officer may require the
requester to agree in writing to pay the estimated fee. In addition, if
the estimated fee amount exceeds $250.00 or the requester previously
has failed to pay a FOIA fee in a timely manner, the FOIA Officer may
require the requester to pay the FOIA fee in advance, before beginning
to process the FOIA request. If the FOIA Officer does not receive a
written response within ten (10) business days of the date of the FOIA
Officer's communication with the requester, the FOIA Officer will
conclude that the requester is no longer interested in pursuing the
request and will close the request. If the requester seeks a fee waiver
under Sec. 1.561, he or she nonetheless may state a willingness to pay
a fee up to an identified amount in the event that the fee waiver is
denied; this will allow the component to process the requester's FOIA
request while considering the fee waiver request. If the requester is
required to pay a fee in advance, and pays the fee, and if VA later
determines that the requester overpaid or is entitled to a full or
partial fee waiver, a refund will be made. (For more information on the
collection of fees under the FOIA, see Sec. 1.561.)
(f) The requester must meet all of the requirements of this section
in order for the request to be perfected.
Sec. 1.554a [Removed]
0
8. Remove Sec. 1.554a.
0
9. Revise Sec. Sec. 1.555 through 1.557 to read as follows:
Sec. 1.555 Responsibility for responding to requests.
(a) General. Except as stated in paragraphs (c) and (d) of this
section, the FOIA Officer of the component that first receives a
request for records is responsible for either processing the request or
referring it to the designated FOIA Officer for the appropriate
component. Offices that are within the component responsible for
processing the FOIA request shall provide the component FOIA Officer
all documents responsive to the request that are in their possession as
of the date the search for responsive records begins.
(b) Authority to grant or deny requests. Each component shall
designate a FOIA Officer who is responsible for making determinations
pursuant to the FOIA.
(c) Consultations and referrals. When a component FOIA Officer
determines that the component maintains responsive records that either
originated with another component or agency, or which contain
information provided by, or of substantial interest to, another
component or agency, then the FOIA Officer shall either:
(1) Respond to the request, after consulting with the component or
the agency that originated or has a substantial interest in the records
involved; or
(2) Refer the responsibility for responding to the request or
portion of the request to the component best able to determine whether
to disclose the relevant records, or to the agency that created or
initially acquired the record as long as that agency is subject to the
FOIA. Ordinarily, the component or agency that created or initially
acquired the record will be presumed to be best able to make the
disclosure assessment. The referring component shall document the
referral and maintain a copy of the records that it refers.
(d) Classified information. The FOIA Officer will refer requests
for records containing classified information to the component or
agency that classified the information for processing.
(e) Notice of referral. Whenever a FOIA Officer refers all or part
of a request and responsibility for processing the request to another
component or agency, the FOIA Officer will notify the requester in
writing of the referral and provide the requester the name and contact
information of the entity to which the request has been referred, after
consulting with the entity to which the request is to be referred to
ensure that the request is being referred to the correct entity. If
only part of the request was referred, the FOIA Officer will inform the
requester and identify the referred part at the time of the referral or
in the final response.
Sec. 1.556 Timing of responses to requests.
(a) General. Components ordinarily shall respond to requests
according to their order of receipt and within the time frames
established under the FOIA. If a request for expedited processing is
granted in accordance with paragraph (d) of this section, such request
will be processed prior to requests in either of the tracks described
in paragraph (b) of this section.
(b) Multitrack processing. (1) VA will use two processing tracks in
addressing a request for records: Simple and complex, based upon the
amount of work and/or time needed to process the request, including
consideration of the number of pages involved.
(2) The FOIA Officer shall advise the requester of the track into
which the request has been placed and of the criteria of the faster
track. The FOIA Officer will provide requesters in the slower track the
opportunity to limit the scope of their requests in order to qualify
for processing in the faster track. The FOIA Officer may contact the
requester either by telephone or in writing, whichever the FOIA Officer
determines is most efficient and expeditious; telephonic communication
will be documented.
(c) Unusual circumstances. (1) FOIA Officers may encounter
``unusual circumstances,'' where it is not possible to meet the
statutory time limits for processing the request. In such cases, the
FOIA Officer will extend the twenty (20)-business day time limit for
ten (10) more business days and notify the requester in writing of the
unusual circumstances and of the date by which it expects to complete
processing of the request. Where the extension is for more than ten
(10) business days, the FOIA Officer will provide the requester with an
opportunity to either modify the request so that it may be processed
within the time limits or to arrange an alternative time period with
the FOIA Officer for processing the request or a modified request.
Unusual circumstances consist of the following:
(i) The need to search for and collect the requested records from
field facilities or other components other than the office processing
the request;
(ii) The need to search for, collect and examine a voluminous
amount of separate and distinct records that are the subject of a
single request; or
(iii) The need for consultation with two or more components or
another agency having a substantial interest in the subject matter of a
request.
[[Page 51895]]
(2) Where the FOIA Officer reasonably believes that certain
requests from the same requester, or a group of requesters acting in
concert, actually constitute the same request that would otherwise
satisfy the unusual circumstances specified in this paragraph, and the
requests involve clearly related matters, the FOIA Officer may
aggregate those requests. Multiple requests involving unrelated matters
will not be aggregated.
(d) Expedited processing. (1) Requests will be processed out of the
order in which they were received by the component responsible for
processing the FOIA request and given expedited treatment when VA
determines that:
(i) The failure to obtain the requested records on an expedited
basis could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual;
(ii) There is an urgency to inform the public concerning actual or
alleged Federal government activity, if the request is made by a person
primarily engaged in disseminating information;
(iii) In the discretion of the FOIA Officer, the request warrants
such treatment; or
(iv) There is widespread and exceptional interest in which possible
questions exist about the government's integrity which affect public
confidence.
(2) A requester who is seeking expedited processing must submit a
statement, certified to be true to the best of the requester's
knowledge and belief, providing a detailed basis for how there is a
compelling need. VA may waive the requirement for certification of the
statement of compelling need as a matter of administrative discretion.
(3) Within ten (10) calendar days of its receipt of a request for
expedited processing, the FOIA Officer shall determine whether to grant
the request and will provide the requester written notice of the
decision. If the FOIA Officer grants a request for expedited
processing, the FOIA Officer shall give the request priority and
process it as soon as practicable. If the FOIA Officer denies the
request for expedited processing, the requester may appeal the denial,
which appeal shall be addressed expeditiously.
Sec. 1.557 Responses to requests.
(a) Acknowledgement of requests. When a request for records is
received by a component designated to receive requests, the component's
FOIA Officer will assign a request number for future reference and send
the requester a written acknowledgement of receipt.
(b) Processing of requests. Upon receipt of a perfected request by
the appropriate component, the FOIA Officer will make a reasonable
effort to search for records responsive to the request. The FOIA
Officer ordinarily will include as responsive those records in its
possession and control as of the date the search for responsive records
began. This includes searching for records in electronic form or
format, unless to do so would interfere significantly with the agency's
automated information systems. If fees for processing the request are
due under Sec. 1.561, the FOIA Officer shall inform the requester of
the amount of the fee as provided in Sec. 1.554(e) and Sec. 1.561.
When a request is granted in part, the FOIA Officer shall mark, redact,
or annotate the records to be released to show the amount of
information deleted and, where technically feasible, indicate the
exemption at the place of redaction unless doing so would harm an
interest protected by an applicable exemption. The FOIA Officer will
provide the records in the form or format sought by the requester, if
readily reproducible in that form or format.
(c) Time limits for processing requests. Ordinarily, a component
will have twenty (20) business days from the date of VA's receipt of
the request to make a determination whether to grant the request in its
entirety, grant the request in part, or deny the request in its
entirety. If the request must be referred to another component, the
response time will begin on the date that the request was received by
the appropriate component, but in any event not later than ten (10)
business days after the referring office receives the FOIA request.
(d) Adverse determinations of requests. Whenever a component makes
an adverse determination denying the request in any respect, the
component FOIA Officer shall promptly notify the requester of the
adverse determination in writing. Adverse determinations include the
following: A determination to withhold a requested record in whole or
in part; a determination that the requested record does not exist or
cannot be located; a determination that a record is not readily
reproducible in the form or format sought by the requester; a
determination that what has been sought is not a record subject to the
FOIA; a determination on any disputed fee matter, including the denial
of a fee waiver; and a denial of a request for expedited treatment. The
adverse determination notice must be signed by the component head or
the component's FOIA Officer, and will include the following:
(1) The name and title or position of the person responsible for
the adverse determination;
(2) A brief statement of the reason(s) for the denial, including
any FOIA exemptions applied by the FOIA Officer in denying the request;
(3) The amount of information withheld in number of pages or other
reasonable form of estimation; an estimate is not necessary if the
volume is indicated on redacted pages disclosed in part or if providing
an estimate would harm an interest provided by an applicable exemption;
and
(4) Notice that the requester may appeal the adverse determination
and a description of the requirements for an appeal under Sec. 1.559
of this part.
0
10. Add Sec. Sec. 1.558 through 1.562 to read as follows:
* * * * *
Sec.
1.558 Business information.
1.559 Appeals.
1.560 Maintenance and preservation of records.
1.561 Fees.
1.562 Other rights and services.
* * * * *
Sec. 1.558 Business information.
(a) General. Business information received by VA from a submitter
will be considered under the FOIA pursuant to this section and in
accordance with the requirements set forth in Sec. 1.557 of this part.
(b) Designation of business information. The submitter of business
information may designate that specific records or portions of records
submitted are business information, at the time of submission or within
a reasonable time thereafter. The submitter must use good faith efforts
in designating records that the submitter claims could be expected to
cause substantial competitive harm and thus warrant protection under
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). The submitter may mark the
record submission as confidential or use the words ``business
information'' or describe the specific records that contain business
information. Such designation will be considered, but will not control,
the FOIA Officer's decision on disclosing the material. A designation
will remain in effect for a period of not more than 10 years after
receipt by VA, unless the submitter provides acceptable justification
for a longer period. The submitter may designate a shorter period by
including an expiration date.
(c) Notices to submitters. (1) The FOIA Officer shall promptly
notify the submitter in writing of a FOIA request seeking the
submitter's business information whenever the FOIA Officer has reason
to believe that the information may be protected under
[[Page 51896]]
FOIA Exemption 4, 5 U.S.C. 552(b)(4), regarding business information.
The written notice will provide the submitter an opportunity to object
to disclosure of any specified portion of the records within the
reasonable time period specified in the notice. The notice will either
describe in detail the business information requested (e.g., an entire
contract identified by a unique number) or shall provide copies of the
requested record(s) or record portions containing the business
information. When notification of a voluminous number of submitters is
required, the FOIA Officer may notify the submitters by posting or
publishing the notice in a place reasonably likely to accomplish
notification.
(2) If the FOIA Officer determines to release business information
over the objection(s) of the submitter, the FOIA Officer will notify
the submitter pursuant to paragraph (e) of this section.
(3) Whenever the FOIA Officer notifies the requester of a final
decision, the FOIA Officer will also notify the submitter by separate
correspondence. This notification may be contained in VA's FOIA
decision.
(4) Exceptions to this notice provision are contained in paragraph
(f) of this section.
(d) Opportunity to object to disclosure. When notification to a
submitter is made pursuant to paragraph (c)(1) of this section, the
submitter may object to the disclosure of any specified portion(s) of
the record(s). The submitter's objection(s) must be in writing,
addressed to the FOIA Officer, and must be received by the reasonable
date specified in the FOIA Officer's notice in order for VA to consider
such objections. If the submitter has any objection to disclosure of
the record(s) requested, or any specified portion(s) thereof, the
submitter must identify the specific record(s) or portion(s) of records
for which objection(s) are made. The objection will specify in detail
all grounds for withholding any record(s) or portion(s) of the
record(s) upon which disclosure is opposed under any exemption of the
FOIA. In particular, if the submitter is asserting that the record is
protected under Exemption 4, 5 U.S.C. 552(b)(4), it must show why the
information is a trade secret or commercial or financial information
that is privileged or confidential. The submitter must explain in
detail how and why disclosure of the specified records would likely
cause substantial competitive harm in the case of a required submission
or state whether the records would customarily be disclosed by the
submitter upon a request from the public in the case of a voluntary
submission. The submitter's objections must be contained within a
single written response; oral responses or subsequent, multiple
responses generally will not be considered. If the submitter does not
respond to the notice described in paragraph (c)(1) of this section
within the specified time limit, the submitter will be considered to
have no objection to disclosure of the information.
(e) Consideration of objection(s) and notice of intent to disclose.
The FOIA Officer will consider all pertinent factors, including but not
limited to the submitter's timely objection(s) to disclosure and the
specific grounds provided by the submitter for non-disclosure in
deciding whether to disclose business information. Information provided
by the submitter after the specified time limit and after the component
has made its disclosure decision generally will not be considered. In
addition to meeting the requirements of Sec. 1.557, when a FOIA
Officer decides to disclose business information over the objection of
the submitter, the FOIA Officer will provide the submitter with written
notice, which includes:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date of not less than ten (10) days from
the date of the notice (to allow the submitter time to take necessary
legal action).
(f) Exceptions to notice requirements. The notice requirements set
forth in paragraphs (c) and (g) of this section will not apply if:
(1) The FOIA Officer determines that the information should not be
disclosed;
(2) The information lawfully has been published or has been
officially made available to the public; or
(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 or any other Executive Order.
(g) Notice to requesters. When VA receives a request for records
that may contain confidential commercial information protected by FOIA
Exemption 4, 5 U.S.C. 552(b)(4), regarding business information, the
requester will be notified that the request is being processed under
the provisions of this regulation and, as a consequence, there may be a
delay in receiving a response. The notice to the requester will not
include any of the specific information contained in the records being
requested.
Sec. 1.559 Appeals.
(a) Informal resolution prior to appeal. Before filing an appeal,
the requester may wish to communicate with the contact person listed in
the FOIA response or the component's FOIA Officer to see if the issue
can be resolved informally. Informal resolution of the requester's
concerns may be appropriate, for example, where additional details may
be required for a search for responsive records. Communication with VA
at this level does not toll the time limit for filing an administrative
appeal.
(b) How to file and address a written appeal. The requester may
appeal an adverse determination denying the request, in any respect,
except for those concerning Office of Inspector General records, to the
VA Office of the General Counsel (024), 810 Vermont Avenue, NW.,
Washington, DC 20420. Any appeals concerning Office of Inspector
General records must be sent to the VA Office of Inspector General,
Office of Counselor (50), 810 Vermont Avenue, NW., Washington, DC
20420. The FOIA appeal must be in writing. VA accepts facsimiles
(faxes) as written FOIA appeals. If the appeal concerns documents
protected by another confidentiality statute, the appeal must contain
an image of the requester's handwritten signature, such as an
attachment that shows the requester's handwritten signature.
Information regarding where to fax the FOIA appeal is available on VA's
FOIA home page on the Internet. See Sec. 1.552(a) for the pertinent
Internet address. A legible return address must be included with the
FOIA appeal; the requester may include other contact information as
well, such as a telephone number and electronic mail (e-mail) address.
(c) How to file an e-mail appeal. VA will accept a FOIA appeal by
e-mail. If the appeal concerns documents protected by another
confidentiality statute, the email transmission must contain an image
of the requester's handwritten signature, such as an attachment that
shows the requester's handwritten signature. In order to assure prompt
processing, e-mail FOIA appeals must be sent to official VA FOIA
mailboxes established for the purpose of receiving FOIA appeals; an e-
mail FOIA appeal that is sent to an individual VA employee's mailbox,
or to any other entity, will not be considered a perfected FOIA appeal.
Mailbox addresses designated to receive e-mail FOIA appeals are
available on VA's FOIA home page. See Sec. 1.552(a) for the pertinent
Internet address.
(d) Time limits and content of appeal. The appeal to the VA OGC
(024), or VA
[[Page 51897]]
Office of Inspector General (50), as appropriate, must be postmarked no
later than sixty (60) calendar days after the date of the adverse
determination. The appeal must clearly identify the determination being
appealed, including any assigned request number. Other information
should also be included, such as the name of the FOIA officer, the
address of the component, the date of the component's determination, if
any, and the precise subject matter of the appeal. If appealing only a
portion of the component's determination, the requester must specify
which part of the determination he or she is appealing. Copies of the
request and VA's response, if any, should be included with the appeal.
An appeal is not perfected until VA either receives the information
identified above or the appeal is otherwise sufficiently defined.
Appeals should be marked ``Freedom of Information Act Appeal.'' The
General Counsel, Deputy General Counsel, or Assistant General Counsel
with jurisdiction over information disclosure matters (024) will act on
behalf of the Secretary on all appeals under this section, except those
pertaining to the Office of Inspector General. The designated official
in the Office of Inspector General will act on all appeals pertaining
to Office of Inspector General records. A determination by the General
Counsel, Deputy General Counsel, or Assistant General Counsel, or
designated official within the Office of Inspector General, will be the
final VA action.
(e) Responses to appeals. The Office of the General Counsel or the
Office of Inspector General, as applicable, will provide the requester
a decision on the appeal in writing. The decision will include a brief
statement of the reasons for the decision, including, if applicable,
any FOIA exemptions applied and notice of the right to judicial review
of the decision.
(f) Court review. Unless the requester has been deemed to have
exhausted all administrative remedies, he or she must first appeal the
adverse determination in accordance with this section before seeking
review by a court.
Sec. 1.560 Maintenance and preservation of records.
(a) Each component will preserve all correspondence pertaining to
FOIA requests as well as copies of pertinent records, until disposition
is authorized under title 44, U.S.C., or the National Archives and
Records Administration's General Records Schedule 14.
(b) The FOIA Officer must maintain copies of records that are the
subject of a pending request, appeal, or lawsuit under the FOIA. A copy
of all records shall be provided promptly to the Office of the General
Counsel upon request.
Sec. 1.561 Fees.
(a) General. Components will charge for processing requests under
the FOIA in accordance with paragraph (c) of this section, except where
fees are limited under paragraph (e) of this section or where a waiver
or reduction of fees is granted under paragraph (n) of this section.
The FOIA Officer will collect all applicable fees before releasing
copies of requested records to the requester. Requesters must pay fees
by check or money order made payable to the Treasury of the United
States. Note that fees associated with requests from VA beneficiaries,
applicants for VA benefits, or other individuals, for records
retrievable by their names or individual identifiers processed under 38
U.S.C. 5701 (records associated with claims for benefits) and 5 U.S.C.
552a (the Privacy Act), will be assessed fees in accordance with the
applicable regulatory fee provisions relating to VA benefits and VA
Privacy Act records.
(b) Definitions. For purposes of assessing or determining fees, the
following definitions apply:
(1) All other requests means a request that does not fit into any
of the categories in this section.
(2) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers his or her
commercial, trade, or profit interests, to include furthering those
interests through litigation. To the extent possible, the FOIA Officer
shall determine the use to which the requester will put the requested
records. When the intended use of the records is unclear from the
request or when there is reasonable cause to doubt the use to which the
requester will put the records sought, the FOIA Officer will provide
the requester a reasonable opportunity to submit further clarification.
(3) Direct costs mean expenses that VA incurs in responding to a
FOIA request, including searching for and duplicating (and in the case
of commercial use requesters, reviewing) records to respond to a FOIA
request. Direct costs include, for example, the salary of the employee
performing the work (the basic rate of pay for the employee, plus 16
percent of that rate to cover benefits costs) and the cost of operating
duplication machinery. Direct costs do not include overhead expenses,
such as the costs of space or heating and lighting of the facility
where the records are kept.
(4) Duplication means making a copy of a record necessary to
respond to a FOIA request; copies may take the form of paper,
microform, audiovisual materials or machine readable-documentation
(e.g., magnetic tape or disk), among others. The copy provided must be
in a form that is reasonably usable by requesters.
(5) Educational institution means a pre-school, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education, or
an institution of vocational education, which operates a program or
programs of scholarly research. To be in this category, the FOIA
Officer must make a determination that the request is authorized by and
made under the auspices of a qualifying institution and that the
records are sought to further a scholarly research goal of the
institution and not the individual goal of the requester or a
commercial goal of the institution.
(6) Non-commercial scientific institution means an institution that
is not operated on a ``commercial'' basis (as that term is defined in
paragraph (b)(2) of this section) and that is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry. To be in this
category, the requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are sought to further scientific research and are not sought
for a commercial use.
(7) Representative of the news media means any person or entity
that gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. The term news
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only if such entities qualify as
disseminators of ``news'') who make their products available for
purchase or subscription or free distribution to the general public.
These examples are not all-inclusive. As methods of news delivery
evolve (for example, the adoption of the electronic dissemination of
newspapers through telecommunications services), such alternative media
that otherwise meet the criteria for news media shall be considered to
be news-media entities.
[[Page 51898]]
Freelance journalists may be regarded as working for a news-media
entity if they can demonstrate a solid basis for expecting publication
through that entity, even though not actually employed by it. A
publication contract would be the clearest proof, but the requester's
publication history may also be considered. To be in this category, the
requester must not be seeking the requested records for a commercial
use; a records request supporting the requester's news-dissemination
function shall not be considered to be for a commercial use.
(8) Review means examining a record including audiovisual,
electronic mail, data bases, documents and the like in response to a
commercial use request to determine whether any portion of it is exempt
from disclosure. Review includes the deletion of exempt material or
other processing necessary to prepare the record(s) for disclosure.
Review time includes time spent contacting any submitter and
considering or responding to any objections to disclosure made by a
submitter under Sec. 1.558(d) but does not include time spent
resolving general legal or policy issues regarding the application of
exemptions. Review costs are recoverable even if, after review, a
record is not disclosed.
(9) Search means the process of looking for and retrieving records
that are responsive to a request, including line-by-line or page-by-
page identification of responsive information within records. Search
also includes reasonable efforts to locate and retrieve information
from records maintained in electronic form or format. The component
will conduct searches in the most efficient and least expensive manner
reasonably possible. The FOIA Officer may charge for time spent
searching even if he or she does not locate any responsive record(s) or
if any record(s) located is withheld as entirely exempt from
disclosure.
(c) Categories of requesters and fees to be charged each category.
There are four categories of FOIA requesters: Commercial use
requesters, educational and non-commercial scientific institutional
requesters, representatives of the news media, and all other
requesters. Unless a waiver or reduction of fees is granted under
paragraph (n) of this section or is limited in accordance with
paragraph (e) of this section, specific levels of fees will be charged
for each category as follows:
(1) Commercial use requesters. Subject to the limitations in
paragraph (e) of this section, commercial use requesters will be
charged the full direct costs of the search, review, and duplication of
records sought. Commercial use requesters are not entitled to 2 hours
of free search time or the first 100 pages of reproduced documents free
of charge.
(2) Educational and non-commercial scientific institution
requesters. Subject to the limitations in paragraph (e) of this
section, educational and non-commercial scientific institution
requesters will be charged for the cost of reproduction only, excluding
charges for the first 100 pages.
(3) Representative of the news media. Subject to the limitations in
paragraph (e) of this section, representatives of the news media will
be charged for the cost of reproduction only, excluding charges for the
first 100 pages.
(4) All other requesters. Subject to the limitations in paragraph
(e) of this section, a requester who does not fit into any of the
categories in this section will be charged fees to recover the full,
reasonable direct cost of searching for and reproducing records
responsive to a request, except that the first 2 hours of search time
and the first 100 pages of reproduction will be furnished without cost.
(d) Fees to be charged. The following fees will be used when
calculating the fee owed pursuant to a request or appeal. The fees also
apply to making documents available for public inspection and copying
under Sec. 1.553 of this part.
(1) Search. (i) Search fees. When a FOIA Officer determines that a
search fee applies, the fee will be based on the hourly salary of VA
personnel performing the search, plus 16 percent of the salary. The
type and number of personnel involved in addressing the request or
appeal depends on the nature and complexity of the request and
responsive records. Fees are charged in quarter hour increments.
(ii) Computer search. In cases where a computer search is required,
the requester will be charged the direct costs of conducting the
search, although certain requesters (as provided in paragraph (e)(1) of
this section) will be charged no search fee and certain other
requesters (as provided in paragraph (e)(4) of this section) will be
entitled to the cost of 2 hours of employee search time without charge.
When a computer search is required, VA will combine the hourly cost of
operating the computer with the employee's salary, plus 16 percent of
the salary. When the cost of the search (including the employee time,
to include the cost of developing a search methodology, and the cost of
the computer to process a request) equals the dollar amount of 2 hours
of the salary of the employee performing the search, VA will begin to
assess charges for a computer search.
(2) Duplication. When a duplication fee applies, the FOIA Officer
will charge a fee of 15 cents per one-sided page for a paper photocopy
of a record; no more than one copy will be provided. For other forms of
duplication, including electronic copies, the FOIA Officer will charge
the direct costs of that duplication.
(3) Review. When review fees apply, review fees will be charged at
the initial level of review only, when the component responsible for
processing the request determines whether an exemption applies to a
record or portion of a record. For review at the appeal level, no fee
will be charged for an exemption that has already been applied and is
determined to still apply. However, record or record portions withheld
under an exemption that is subsequently determined not to apply may be
reviewed again to determine whether any other exemption not previously
considered applies; the costs of that review are chargeable. Review
fees will be charged at the same rates as those charged for search
under paragraph (d)(1) of this section.
(e) Limitations on charging fees. (1) No search fee will be charged
for requests by educational institutions, non-commercial scientific
institutions, or representatives of the news media.
(2) No search or review fee will be charged for a quarter hour
period unless more than half of that period is required for search or
review.
(3) No search fee (or duplication fee, when records are not sought
for commercial use and the request is made by an educational or
noncommercial scientific institution whose purpose is scholarly or
scientific research, or a representative of the news media) will be
charged in accordance with this section if the agency fails to comply
with the time limit under Sec. 1.556(a), and if no unusual or
exceptional circumstances apply to the processing of the request
pursuant to Sec. 1.556(c). Duplication and search fees may still be
charged to commercial use requesters. Duplication fees may still be
charged for ``all other'' requesters.
(4) Except for requesters seeking records for a commercial use, the
following will be provided without charge:
(i) The first 100 pages of duplication (or the cost equivalent).
(ii) The first 2 hours of search time (or the cost equivalent).
(5) Whenever a total fee calculated under paragraph (d) of this
section is less than $25.00, no fee will be charged.
[[Page 51899]]
(6) VA may provide free copies of records or free services in
response to an official request from other government agencies and
Congressional offices and when a component head or designee determines
that doing so will assist in providing medical care to a VA patient or
will otherwise assist in the performance of VA's mission.
(f) The following table summarizes the chargeable fees for each
category of requester.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category Search fees Review fees Duplication fees
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Commercial Use................. Yes.................................. Yes.................................. Yes.
(2) Educational Institution........ No................................... No................................... Yes (100 pages free).
(3) Non-Commercial Scientific No................................... No................................... Yes (100 pages free).
Institution.
(4) News Media..................... No................................... No................................... Yes (100 pages free).
(5) All other...................... Yes (2 hours free)................... No................................... Yes (100 pages free).
--------------------------------------------------------------------------------------------------------------------------------------------------------
(g) Fee schedule. If it is determined that a fee will be charged
for processing the FOIA request, VA will charge the requester to search
for, review, and duplicate the requested records according to his or
her fee category (see Sec. 1.561(c)) and the following fee schedule.
In addition, VA will charge the requester for any special handling or
services performed in connection with processing the request and/or
appeal. The following fees will be used by VA; these fees apply to
services performed in making documents available for public inspection
and copying under Sec. 1.553 as well. The duplicating fees also are
applicable to records provided in response to requests made under the
Privacy Act. Fees will not be charged under either the FOIA or the
Privacy Act where the total amount of fees for processing the request
is $25.00 or less or where the requester has met the requirements for a
statutory fee waiver.
(1) Search and review (review applies to commercial-use requesters
only). Fees are based on the average hourly salary (base salary plus DC
locality payment), plus 16 percent for benefits, of employees in the
following three categories. Fees will be increased annually consistent
with Congressionally approved pay increases. Fees are charged in
quarter-hour increments.
(i) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and
below).
(ii) Professional--Based on GS-11, Step 7, pay (all employees at
GS-8 through GS-12).
(iii) Managerial--Based on GS-14, Step 2, pay (all employees at GS-
13 and above).
Note to paragraph (g)(1): Fees for the current fiscal year are
posted on VA's FOIA home page (see Sec. 1.552(a) for the pertinent
Internet address).
(2) Schedule of fees:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(i) Duplication of standard size (8\1/ $0.15 per page.
2\'' x 11''; 8\1/2\'' x 14''; 11'' x
14'') paper records.
(ii) Duplication of non-paper items Direct cost to VA.
(e.g., x-rays), paper records which
are not of a standard size (e.g.,
architectural drawings/construction
plans or EKG tracings), or other items
which do not fall under category (1),
in paragraph (c)(1) of this section.
(iii) Record search by manual (non- Basic hourly salary rate of the
automated) methods. employee(s), plus 16 percent.
*Note--If a component uses a
single class of personnel for
a search, e.g., all clerical
or professional, an average
rate for the grades of
employees involved in the
search may be used.
(iv) Record search using automated Direct cost to perform search.
methods, such as by computer.
(v) Record review (for Commercial Use Basic hourly rate of employees
Requesters only). performing review to determine
whether to release records and
to prepare them for release,
plus 16 percent.
(vi) Other activities, such as: Direct cost to VA.
Attesting under seal or certifying
that records are true copies; sending
records by special methods; forwarding
mail; compiling and providing special
reports, drawings, specifications,
statistics, lists, abstracts or other
extracted information; generating
computer output; providing files under
court process where the federal
government is not a party to, and does
not have an interest in, the
litigation.
------------------------------------------------------------------------
(h) Notification of fee estimate or other fee issues. (1)
Threshold for charging fees: VA will not charge the requester if the
fee is $25.00 or less.
(2) When a FOIA Officer determines or estimates that the fees to be
charged under this section will amount to more than $25.00 or the
amount set by OMB fee guidelines, whichever is higher, the FOIA Officer
will notify the requester in writing of the actual or estimated amount
of the fees, and ask the requester to provide written assurance of the
payment of all fees or fees up to a designated amount, unless he or she
has indicated a willingness to pay fees as high as those anticipated.
Any such agreement to pay the fees shall be memorialized in writing. In
addition, when the requester does not provide sufficient information
upon which VA can identify a fee category (see paragraphs (c)(1)
through (4) of this section), or an issue otherwise arises regarding
fee assessment, the FOIA Officer may seek clarification from the
requester. In either case, the timeline for responding to the request
will be tolled and no further work will be done on it until the fee
issue has been resolved. If VA does not receive a written response
within ten (10) days after contacting the requester regarding a fee
issue, it will assume that the requester no longer wishes to pursue the
request and will close the file on the request.
(i) Charges for other services. Apart from the other provisions of
this section, when special service, such as certifying that records are
true copies or sending them by other than ordinary mail, is requested,
and the FOIA Officer chooses
[[Page 51900]]
to provide such a service as a matter of administrative discretion, the
direct costs of providing the service ordinarily will be charged.
(j) Charging interest. The FOIA Officer may charge interest on any
unpaid bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue until payment is received by the component.
Components will follow the provisions of the Debt Collection Act of
1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its
administrative procedures, including the use of consumer reporting
agencies, collection agencies, and offset.
(k) Aggregating requests. Whenever a FOIA Officer reasonably
believes that a requester or group of requesters acting together is
attempting to divide a request into a series of requests for the
purpose of avoiding fees, the FOIA Officer may aggregate those requests
and charge accordingly. FOIA Officers may presume that multiple
requests of this type made within a 30-day period have been made in
order to avoid fees. Where requests are separated by a longer period,
the FOIA Officer will aggregate them only where there exists a solid
basis for determining that aggregation is warranted under all the
circumstances involved. Multiple requests involving unrelated matters
will not be aggregated.
(l) Advance payments. (1) For requests other than those described
in paragraphs (l)(2) and (l)(3) of this section, a FOIA Officer shall
not require the requester to make an advance payment--in other words, a
payment made before work is begun or continued on a request. Payment
owed for work already completed (i.e., a prepayment before copies are
sent to the requester) is not an advance payment.
(2) Where a FOIA Officer determines or estimates that a total fee
to be charged under this section will be more than $250.00, the FOIA
Officer 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.
(3) Where the requester previously has failed to pay a properly
charged FOIA fee to any component within thirty (30) days of the date
of billing, a FOIA Officer may require the requester to pay the full
amount due, plus any applicable interest as specified in this section,
and to make an advance payment of the full amount of any anticipated
fee, before the FOIA Officer begins to process a new request or
continues to process a pending request from that requester.
(4) When the requester has a history of prompt payment, the FOIA
Officer may accept a satisfactory assurance of full payment from the
requester rather than an advance payment.
(5) In cases in which a FOIA Officer requires advance payment or
payment is due under this section, the timeline for responding to the
request will be tolled and further work will not be done on it until
the required payment is received.
(m) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. Where records responsive to requests
are maintained for distribution by agencies operating such statutorily-
based fee schedule programs, the FOIA Officer will inform requesters of
the steps for obtaining records from those sources so that they may do
so most economically.
(n) Requirements for waiver or reduction of fees. (1) Waiving or
reducing fees. Fees for processing the request may be waived if the
requester meets the criteria listed in this section. The requester must
submit adequate justification for a fee waiver; without adequate
justification, the request will be denied. The FOIA Officer may, at his
or her discretion, communicate with the requester to request additional
information, if necessary, regarding the fee waiver request. If such
additional information is not received within ten (10) business days,
VA will assume that the requester does not agree to pay the required
fees and the file will be closed pending receipt of the requester's
notice that he or she will pay the required fee. Requests for fee
waivers are decided on a case-by-case basis; receipt of a fee waiver in
the past does not establish entitlement to a fee waiver each time a
request is submitted.
(2) Records responsive to a request will be furnished without
charge or at a charge reduced below that established under paragraph
(d) of this section where a FOIA Officer determines, based on all
available evidence, that the requester has demonstrated that:
(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.
(3) To determine whether the fee waiver requirement under paragraph
(n)(2)(i) of this section is met, the FOIA Officer will consider the
following factors:
(i) The subject of the request: Whether the subject of the
requested records concerns ``the operations or activities of the
government.'' 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 informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities. 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. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be as
likely to contribute to such understanding where nothing new would be
added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' 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. The requester's expertise in
the subject area and ability and intention to effectively convey
information to the public shall be considered. It shall be presumed
that a representative of the news media will satisfy this
consideration.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a significant extent. The FOIA Officer
will not make value judgments about whether information that would
contribute significantly to public understanding of the operations or
activities of the government is important enough to be made public.
(4) To determine whether the fee waiver requirement under paragraph
(n)(2)(ii) of this section is met, the FOIA Officer will consider the
following factors:
[[Page 51901]]
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. The FOIA Officer shall consider any commercial
interest of the requester (with reference to the definition of
``commercial use'' in paragraph (b)(2) of this section), or of any
person on whose behalf the requester may be acting, that would be
furthered by the requested disclosure. Requesters shall be given an
opportunity in the administrative process to provide explanatory
information regarding this consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. The FOIA Officer
ordinarily shall presume that where a news media requester has
satisfied the public interest standard, the public interest will be the
interest 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.
(5) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a fee waiver will be granted only
for those records which so qualify.
(6) Requests for the waiver or reduction of fees should address the
factors listed in paragraph (n)(3) and (4) of this section, insofar as
they apply to each request. FOIA Officers will exercise their
discretion to consider the cost-effectiveness of their investment of
administrative resources in this decision-making process, however, in
deciding to grant waivers or reductions of fees.
(7) An appeal from an adverse fee determination will be processed
in accordance with Sec. 1.559.
(8) When considering a request for fee waiver, VA may require proof
of identity.
Sec. 1.562 Other rights and services.
Nothing in this part shall 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.
Authority: Sections 1.550 to 1.562 issued under 72 Stat. 1114;
38 U.S.C. 501.
PART 2--DELEGATIONS OF AUTHORITY
0
11. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 302, 552a; 38 U.S.C. 501, 512, 515, 1729,
1729A, 5711; 44 U.S.C. 3702, and as noted in specific sections.
0
12. Amend Sec. 2.6 by:
0
a. Revising paragraph (e)(10).
0
b. Adding paragraph (g)(3).
0
c. Revising the authority citation at the end of paragraph (g).
The revisions and addition read as follows:
Sec. 2.6 Secretary's delegations of authority to certain officials
(38 U.S.C. 512).
* * * * *
(e) * * *
(10) Except as prescribed in paragraph (g)(3) of this section, the
General Counsel, Deputy General Counsel, and the Assistant General
Counsel for Professional Staff Group IV are authorized to make final
Departmental decisions on appeals under the Freedom of Information Act,
the Privacy Act, and 38 U.S.C. 5701, 5705 and 7332.
(Authority: 38 U.S.C. 512)
* * * * *
(g) * * *
(3) The Office of Inspector General is authorized to make final
decisions on appeals submitted pursuant to the Freedom of Information
Act concerning any Office of Inspector General records.
(Authority: 38 U.S.C. 512)
[FR Doc. 2011-20774 Filed 8-18-11; 8:45 am]
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