[Federal Register Volume 80, Number 144 (Tuesday, July 28, 2015)]
[Proposed Rules]
[Pages 44898-44910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17856]
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DEPARTMENT OF STATE
22 CFR Part 171
RIN 1400-AD44
[Public Notice: 9198]
Public Access to Information
AGENCY: Department of State.
ACTION: Proposed rule.
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SUMMARY: The Department of State proposes to revise its regulations of
November 3, 2004 and October 11, 2007 governing the availability to the
public of information that is under the control of the Department.
There have been several changes in the law and regulations governing
disclosure of such information, including the OPEN Government Act of
2007 and the OPEN FOIA Act of 2009. This proposed rule reflects changes
in the FOIA and other statutes and consequent changes in the
Department's procedures since the last revision of the Department's
regulations on this subject.
DATES: The Department will consider comments from the public that are
received within September 28, 2015.
ADDRESSES: You may make comments by any of the following methods, and
you must include the RIN in the subject line of your message.
Mail (paper, disk, or CD-ROM submissions): Director,
Office of Information Programs and Services, U.S. Department of State,
State Annex 2 (SA-2), 515 22nd Street NW., Washington, DC 20522-8100.
Fax: (202) 261-8579.
Hand Delivery or Courier: State Annex 2 (SA-2), 515 22nd
Street NW., Washington, DC.
Persons with access to the Internet may view this rule and
submit comments by going to www.regulations.gov.
Inspection of public comments: All comments received before the
close of the comment period will be available for public inspection,
including any personally identifiable or confidential business or
financial information that is included in a comment. The Department of
State will post all comments received before the close of the comment
period at www.regulations.gov.
[[Page 44899]]
FOR FURTHER INFORMATION CONTACT: Marianne Manheim, FOIA Public Liaison,
Office of Information Programs and Services, [email protected], (202)
261-8359, U.S. Department of State, State Annex 2 (SA-2), 515 22nd
Street NW., Washington, DC 20522-8100.
SUPPLEMENTARY INFORMATION: This proposed rule updates 22 CFR part 171.
Notably, the former subpart C pertaining to declassification of
national security information and access to classified information by
historical researchers and certain former government personnel has been
removed from Part 171 and incorporated into 22 CFR part 9 on National
Security Information (See final rule at 79 FR 35935). The former
subpart F pertaining to appeals no longer exists, and the information
formerly contained within that subpart was added to subparts B and C of
Part 171 and 22 CFR part 9. Additionally, the responsibility for
responding to requests for public financial disclosure reports has been
transferred to the Department of State's Office of the Legal Adviser.
Accordingly, any such requests are processed by the Office of the Legal
Adviser rather than the Office of Information Programs and Services
(see subpart D).
Regulatory Findings
Administrative Procedure Act. The Department of State is publishing
this proposed rule consistent with the provisions of 5 U.S.C. 553, with
a 60-day public comment period.
Regulatory Flexibility Act. The Department of State, in accordance
with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this
regulation and, by approving it, certifies that this rule will not have
a significant economic impact on a substantial number of small
entities.
Unfunded Mandates Act of 1995. This rule will not result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any year, and it
will not significantly or uniquely affect small governments. Therefore,
no actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996. This
rule is not a major rule as defined by section 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This rule will
not result in an annual effect on the economy of $100 million or more;
a major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and import markets.
Executive Order 12988--Civil Justice Reform. The Department has
reviewed this regulation in light of Executive Order 12988 to eliminate
ambiguity, minimize litigation, establish clear legal standards, and
reduce burden.
Executive Orders 12372 and 13132--Federalism. This regulation will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, in accordance with Executive Order 13132, it is determined
that this rule does not have sufficient federalism implications to
require consultations or warrant the preparation of a federalism
summary impact statement. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities do not apply to this regulation.
Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments. The Department has determined that this rulemaking
will not have tribal implications, will not impose substantial direct
compliance costs on Indian tribal governments, and will not pre-empt
tribal law. Accordingly, the requirements of Executive Order 13175 do
not apply to this rulemaking.
Executive Orders 12866 and 13563--Improving Regulation and
Regulatory Review. The Department has considered this proposed rule in
light of these Executive Orders and affirms that this regulation is
consistent with the guidance therein. The benefits of this rulemaking
for the public include, but are not limited to, providing an up-to-date
procedure for requesting information from the Department. The
Department is aware of no cost to the public from this rulemaking.
Paperwork Reduction Act. This rule does not impose or revise any
reporting or record-keeping requirements subject to the Paperwork
Reduction Act, 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 171
Administrative practice and procedure, freedom of information,
privacy.
For the reasons set forth in the preamble, the Department of State
proposes to revise 22 CFR part 171 to read as follows:
PART 171--PUBLIC ACCESS TO INFORMATION
Subpart A--General Policy and Procedures
Sec.
171.1 General provisions.
171.2 Types of records maintained.
171.3 Records available on the Department's Web site.
171.4 Requests for information--types and how made.
171.5 Archival records.
Subpart B--Freedom of Information Act Provisions
171.10 Purpose and scope.
171.11 Processing requests.
171.12 Business information.
171.13 Appeal of denial of request for records.
171.14 Fees to be charged.
171.15 Miscellaneous fee provisions.
171.16 Waiver or reduction of fees.
171.17 Resolving disputes.
171.18 Preservation of records.
Subpart C--Privacy Act Provisions
171.20 Purpose and scope.
171.21 Definitions.
171.22 Request for access to records.
171.23 Request to amend or correct records.
171.24 Request for an accounting of record disclosures.
171.25 Appeals of denial of PA requests and PA amendment requests.
171.26 Exemptions.
Subpart D--Process To Request Public Financial Disclosure Reports
171.30 Purpose and scope.
171.31 Requests.
Authority: 22 U.S.C. 2651a; 5 U.S.C. 552, 552a; E.O. 12600 (52
FR 23781); the Ethics in Government Act of 1978, Pub. L. 95-521, 92
Stat. 1824 (codified as amended at 5 U.S.C. app. 101-505); 5 CFR
part 2634.
Subpart A--General Policy and Procedures
Sec. 171.1 General provisions.
(a) This subpart contains the rules that the Department of State
and the Foreign Service Grievance Board (FSGB), an independent body,
follow in processing requests for records under the Freedom of
Information Act (FOIA), 5 U.S.C. 552, as amended, and the Privacy Act
of 1974 (PA), 5 U.S.C. 552a, as amended. Records of the Department
shall be made available to the public upon request made in compliance
with the access procedures established in this Part, except for any
records exempt by law from disclosure. Regulations at 22 CFR 172.1-9
govern, inter alia, the service of subpoenas, court orders, and other
demands or requests for official Department information or action, as
well as the Department's response to demands or requests for official
Department information or action in
[[Page 44900]]
connection with legal proceedings in the United States to which the
Department is not a party.
(b) Definitions. (1) For purposes of subparts A, B, and D, record
means information regardless of its physical form or characteristics--
including information created, stored, and retrievable by electronic
means--that is created or obtained by the Department and under the
control of the Department at the time of the request, including
information maintained for the Department by an entity under Government
contract for records management purposes. It does not include records
that are not already in existence and that would have to be created
specifically to respond to a request. Information available in
electronic form shall be searched and compiled in response to a request
unless such search and compilation would significantly interfere with
the operation of the Department's automated information systems.
(2) For purposes of subparts A, B, C, and D, Department means the
United States Department of State, including its field offices and
Foreign Service posts abroad.
Sec. 171.2 Types of records maintained.
Most of the records maintained by the Department pertain to the
formulation and execution of U.S. foreign policy. The Department also
maintains certain records that pertain to individuals, such as
applications for U.S. passports, applications for visas to enter the
United States, records on consular assistance given abroad by U.S.
Foreign Service posts to U.S citizens and legal permanent residents,
and records on Department employees. Further information on the types
of records maintained by the Department may be obtained by reviewing
the Department's records disposition schedules, which are available on
the Department's Web site at www.foia.state.gov.
Sec. 171.3 Records available on the Department's Web site.
Information that is required to be published in the Federal
Register under 5 U.S.C. 552(a)(1) is regularly updated by the
Department and found on its public Web site: www.state.gov. Records
that are required by the FOIA to be made available for public
inspection and copying under 5 U.S.C. 552(a)(2) also are available on
the Department's public Web site. Included on the Department's FOIA
home page, www.foia.state.gov, are links to other sites where
Department information may be available, links to the Department's PA
systems of records, and the Department's records disposition schedules.
Also available on the FOIA Web site are certain records released by the
Department pursuant to requests under the FOIA and compilations of
records reviewed and released in certain special projects. In addition,
see 22 CFR part 173 regarding materials disseminated abroad by the
Department.
Sec. 171.4 Requests for information--types and how made.
(a) Requests for records made in accordance with subparts A, B, and
C must be made in writing and may be made by mail addressed to the
Office of Information Programs and Services (IPS), U.S. Department of
State, State Annex 2 (SA-2), 515 22nd Street NW., Washington, DC 20522-
8100, or by fax to (202) 261-8579, or through the Department's FOIA Web
site (www.foia.state.gov). PA requests may be made by mail or fax only.
IPS does not accept requests submitted by email.
(1) Requests for passport records that are covered under PA System
of Records Notice 26, including passport records issued from 1925 to
present, should be mailed to U.S. Department of State, Law Enforcement
Liaison Division, CA/PPT/S/L/LE, 44132 Mercure Cir, P.O. Box 1227,
Sterling, VA 20166. Further guidance on obtaining passport records is
available on the Department's Web site: travel.state.gov/content/passports/english/passports/services/obtain-copies-of-passport-records.html.
(2) Requests for records of the Office of Inspector General (OIG)
may be submitted to U.S. Department of State, Office of Inspector
General, Office of General Counsel, Washington, DC 20520-0308, ATTN:
FOIA officer. In addition, FOIA requests seeking OIG records may be
submitted via email to [email protected], which is preferred. PA
requests are accepted by mail only. Guidance is available on the OIG's
Web site: oig.state.gov/foia/index.htm.
(3) All other requests for other Department records must be
submitted to the Office of Information Programs and Services by one of
the means noted above. The Office of Information Programs and Services,
the Law Enforcement Liaison Division of the Office of Passport
Services, and the OIG are the only Department components authorized to
accept FOIA requests submitted to the Department.
(4) Providing the specific citation to the statute under which a
requester is requesting information will facilitate the processing of
the request by the Department. The Department automatically processes
requests for information maintained in a PA system of records under
both the FOIA and the PA to provide the requester with the greatest
degree of access to the requester. Such information may be withheld
only if it is exempt from access under both laws; if the information is
exempt under only one of the laws, it must be released.
(b) Although no particular format is required, a request must
reasonably describe the Department records that are sought. To the
extent that requests are specific and include all pertinent details
about the requested information, it will be easier for the Department
to locate responsive records. For FOIA requests, such details include
the subject, timeframe, names of any individuals involved, a contract
number (if applicable), and reasons why the requester believes the
Department may have records on the subject of the request.
(c) While every effort is made to guarantee the greatest possible
access to all requesters regardless of the statute(s) under which the
information is requested, the following guidance is provided for the
benefit of requesters:
(1) The Freedom of Information Act applies to requests for records
concerning the general activities of government and of the Department
in particular (see subpart B of this Part).
(2) The Privacy Act applies to requests from U.S. citizens or legal
permanent resident aliens for records that pertain to them that are
maintained by the Department in a system of records retrievable by the
individual's name or personal identifier (see subpart C of this Part).
(d) As a general matter, information access requests are processed
in the order in which they are received. However, if the request is
specific and the search can be narrowed, it may be processed more
quickly. Additionally, FOIA requests granted expedited processing will
be placed in the expedited processing queue (see section 171.11(f) of
this Part for more information). Multi-tracking of FOIA requests is
also used to manage requests (see section 171.11(h)).
Sec. 171.5 Archival records.
The Department ordinarily transfers records designated as
historically significant to the National Archives when they are 25
years old. Accordingly, requests for some Department records 25 years
old or older 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
[[Page 44901]]
[email protected]. The Department's Web site,
www.foia.state.gov, has additional information regarding archival
records.
Subpart B--Freedom of Information Act Provisions
Sec. 171.10 Purpose and scope.
This subpart contains the rules that the Department follows under
the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. The
rules should be read together with the FOIA, which provides additional
information about access to records and contains the specific
exemptions that are applicable to withholding information, the Uniform
Freedom of Information Fee Schedule and Guidelines published by the
Office of Management and Budget (OMB Guidelines), and information
located at www.foia.state.gov. The Department processes records
maintained in a Privacy Act (PA) system of records that are determined
to be exempt from disclosure under the PA under the FOIA as well. As a
result, requests that seek such records are also subject to this
subpart.
Sec. 171.11 Processing requests.
(a) In general. The Director of the Office of Information Programs
and Services (IPS) is responsible for initial action on all FOIA
requests for Department records with two exceptions: Requests submitted
directly to the Office of Inspector General (OIG), which receives and
processes requests for OIG records; and the Office of Passport Services
in the Bureau of Consular Affairs (PPT), which receives and processes
requests for passport records (see section 171.4(a)). Once received by
IPS, all requests for records coming under the jurisdiction of the
following bureaus or offices are processed by those bureaus, although
IPS may provide review and coordination support to these bureaus/
offices in some situations: The Bureau of Consular Affairs' Office of
Visa Services, Office of Passport Services (except for information
identified in 171.4(a)), and Office of Overseas Citizens Services; the
Bureau of Diplomatic Security; the Bureau of Human Resources; the
Office of Medical Services; and the Foreign Service Grievance Board
(FSGB). Additionally, the FSGB, as an independent body, processes all
FOIA requests seeking access to its records and responds directly to
requesters.
(b) Definitions. The following definitions apply for purposes of
this section:
(1) Control means the Department's legal authority over a record,
taking into account the ability of the Department to use and dispose of
the record, the intent of the record's creator to retain or relinquish
control over the record, the extent to which Department personnel have
read or relied upon the record, and the degree to which the record has
been integrated into the Department's record-keeping systems or files.
(2) Urgently needed information. The information has a particular
value that will be lost if not disseminated quickly. Ordinarily this
means a breaking news story of general public interest. Information of
historical interest only or information sought for litigation or
commercial activities would not generally qualify, nor would a news
media publication or broadcast deadline unrelated to the breaking
nature of the story.
(3) Actual or alleged Federal government activity. The information
concerns actual or alleged actions taken or contemplated by the
government of the United States, or by one of its components or
agencies, including the Congress.
(4) Unusual circumstances means:
(i) The need to search for and collect the requested records from
Foreign Service posts or Department offices other than IPS; (ii) the
need to search for, collect, and appropriately examine a voluminous
amount of distinct records; or
(iii) The need to consult with another agency or other agencies
that has/have a substantial interest in the records, or among two or
more Department components that have a substantial subject-matter
interest therein. In the majority of requests received by the
Department unusual circumstances exist due to the need to search in
multiple bureaus/offices/posts located around the globe.
(c) Form of request and response. A requester may ask for any
information he or she believes the Department has in its possession or
control. The requester must describe the records sought in sufficient
detail to enable Department personnel to locate them with a reasonable
amount of effort. The more specific the information the requester
furnishes, the more likely that Department personnel will be able to
locate responsive records if they exist. Any records provided in
response to a request shall be provided in the form or format requested
if the records are readily reproducible in that form or format.
(d) Agreement to pay fees. By making a FOIA request, the requester
shall be considered to have agreed to pay all applicable fees up to
$25, unless a fee waiver is granted. IPS will confirm this agreement in
an acknowledgement letter. When making a request, the requester may
specify a willingness to pay a greater or lesser amount. If the
Department determines that costs and fees will exceed the amount agreed
to by the requester, the Department shall inform the requester of
estimated fees and process up to the amount of the original agreement,
unless a new agreement is made.
(e) Receipt of request. The Department is in receipt of a request
when it reaches IPS, OIG, or PPT, depending on which office is the
intended recipient. At that time, the Department (IPS, OIG, or PPT) has
20 working days in which to determine whether to comply with a
perfected request. Regardless of which of the three offices authorized
to receive FOIA requests receives the request (whether IPS, OIG, or
PPT), the Department shall have no more than 10 working days to direct
a request to the appropriate office (whether IPS, OIG, or PPT), at
which time the 20-day limit for responding to the request will
commence. The 20-day period shall not be tolled by the Department
except:
(1) The Department may make one request to the requester for
clarifying information and toll the 20-day period while waiting for the
requester's response; or
(2) If necessary to clarify with the requester issues regarding
fees. In either case, the Department's receipt of the information from
the requester ends the tolling period.
(f) Expedited processing. Requests shall receive expedited
processing when a requester demonstrates that a ``compelling need'' for
the information exists. A ``compelling need'' is deemed to exist where
the requester can demonstrate one of the following:
(1) Failure to obtain requested information on an expedited basis
could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual.
(2) The information is urgently needed by an individual primarily
engaged in disseminating information in order to inform the public
concerning actual or alleged Federal government activity. Requesters
must demonstrate that their primary activity involves publishing or
otherwise disseminating information to the public in general, not just
to a particular segment or group.
(3) Failure to release the information would impair substantial due
process rights or harm substantial humanitarian interests.
(4) A request for expedited processing may be made at the time of
the initial
[[Page 44902]]
request for records or at any later time. The request for expedited
processing shall set forth with specificity the facts on which the
request is based. A notice of the determination whether to grant
expedited processing shall be provided to the requester within 10
calendar days of the date of the receipt of the request in the
appropriate office (whether IPS, OIG, or PPT). A denial of a request
for expedited processing may be appealed to the Director of IPS within
30 calendar days of the date of the Department's letter denying the
request. A decision in writing on the appeal will be issued within 10
calendar days of the receipt of the appeal. See section 171.4 of this
subpart for contact information.
(g) Time limits. The statutory time limit for responding to a FOIA
request or to an appeal from a denial of a FOIA request is 20 working
days. Whenever the statutory time limit for processing a request cannot
be met because of ``unusual circumstances'' as defined in the FOIA, and
the Department extends the time limit on that basis, the Department
shall, before expiration of the 20-day period to respond, notify the
requester in writing of the unusual circumstances involved and of the
date by which processing of the request can be expected to be
completed. See 22 CFR 171.11(b)(4). Where the extension exceeds 10
working days, the Department shall, as described by the FOIA, provide
the requester with an opportunity to modify the request or arrange an
alternative time period for processing. The Department shall make
available its designated FOIA contact and its FOIA Public Liaison for
this purpose.
(h) Multi-track processing. The Department uses three processing
tracks by distinguishing between simple and more complex requests based
on the amount of work and/or time needed to process the request. The
Department also uses a processing track for requests in which the
Department has granted expedited processing. The Department may provide
requesters in a slower track an opportunity to limit the scope of their
request in order to qualify for faster processing.
(i) Tracking requests. Requesters may contact IPS using the
individualized tracking number provided to the requester in the
acknowledgment letter, and the Department will provide, at a minimum,
information indicating the date on which the agency received the
request and an estimated date for completion.
(j) Cut-off date. In determining which records are responsive to a
request, the Department ordinarily will include only records in its
possession as of the date of initiation of the search for responsive
records, unless the requester has specified an earlier cut-off date.
(k) Electronic records. Information maintained in electronic form
shall be searched and compiled in response to a request unless such
search and compilation would significantly interfere with the operation
of the Department's automated information systems.
(l) Segregation of records. The Department will release any
reasonably segregable portion of a record after redaction of the exempt
portions. The amount of information redacted and the exemption under
which the redaction is made shall be indicated on the released portion
of the record unless including that indication would harm an interest
protected by the exemption. If technically feasible, the amount of
information redacted and the exemption under which the redaction is
made shall be indicated at the place in the record where the redaction
was made.
(m) Referrals and consultations. (1) If the Department determines
that records retrieved as responsive to the request were created by
another agency, it ordinarily will refer the records to the originating
agency for direct response to the requester. If the Department
determines that Department records retrieved as responsive to the
request are of interest to another agency, it may consult with the
other agency before responding to the request.
(2) Whenever the Department refers any part of the responsibility
for responding to a request to another agency, it shall document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral.
(3) Agreements regarding consultations and referrals. The
Department may make agreements with other agencies to eliminate the
need for consultations or referrals for particular types of records.
(4) The Department will make efforts to handle referrals and
consultations according to the date that the referring agency initially
received the FOIA request .
(5) The standard referral procedure is not appropriate where
disclosure of the identity of the agency to which the referral would be
made could harm an interest protected by an applicable exemption, such
as the exemptions that protect personal privacy or national security
interests. In such instances, the Department will coordinate with the
originating agency to seek its views on the disclosability of the
record(s).
(n) Requests for information about individuals to be processed
under the FOIA--(1) First-party requests. A first-party request is one
that seeks access to information pertaining to the person making the
request.
(2) Verification of personal identity. To protect the personal
information found in its files, the Department recommends that first-
party requesters provide the following information so that the
Department can ensure that records are disclosed only to the proper
persons: The requester's full name, current address, citizenship or
legal permanent resident alien status, and date and place of birth
(city, state, and country). A first-party request should be signed, and
the requester's signature should be either notarized or made under
penalty of perjury pursuant to 28 U.S.C. 1746 as a substitute for
notarization.
(3) Third-party requests. A third-party request is one that seeks
access to information pertaining to a third party (i.e., an individual
other than the person submitting the request). A third-party requester
who is the legal representative of another person covered under the PA,
and submits all requirements under subpart C, will be treated as a
first-party requester.
(i) A third-party requester may receive greater access to requested
information by submitting information about the subject of the request
that is set forth in subsection 171.11(n)(1), and providing proof that
that third party is deceased or the third party's authorization to the
Department to release information about him- or herself to the
requester. The third-party authorization: Should take one of the
following forms:
(ii) A signed and notarized authorization by the third party; or
(iii) A declaration by the third party made in compliance with the
requirements set forth in 28 U.S.C. 1746 authorizing disclosure
pertaining to the third party to the requester. The third-party
authorization or declaration should be dated within six months of the
date of the request. In addition, the Department's Certification of
Identity form, DS-4240, can be used to provide authorization from a
third party.
(iv) Please note that if a requester is seeking information about a
third party and the information is located in a PA system of records,
the requester should review subpart C of this section. By providing
verification of identity and authorization under that subpart, the
third party is treated as a first party for processing purposes.
Without providing the required information listed in that subpart, the
request will still be processed under the FOIA procedures in subpart B.
[[Page 44903]]
(4) Requests for visa information. According to the Immigration and
Nationality Act, 222(f) (8 U.S.C. 1202(f)), the records of the
Department of State and of diplomatic and consular offices of the
United States pertaining to the issuance or refusal of visas or permits
to enter the United States shall be considered confidential and shall
be used only for the formulation, amendment, administration, or
enforcement of the immigration, nationality, and other laws of the
United States. Other information found in the visa file, such as
information submitted as part of the application and information not
falling within section 222(f) or another FOIA exemption may be
provided. In order to provide more information to requesters seeking
visa records, the following information should be provided with the
FOIA request for both the petitioner and the beneficiary: Full name, as
well as any aliases used; current address; date and place of birth
(including city, state, and country); the type of visa (immigrant or
non-immigrant); the country and Foreign Service post where the visa
application was made; when the visa application was made; and whether
the visa application was granted or denied; and if denied, on what
grounds. Providing additional information regarding the records sought
will assist the Department in properly identifying the responsive
records and in processing the request. In order to gain maximum access
to any visa records that exist, attorneys or other legal
representatives requesting visa information on behalf of a represented
individual should submit a statement signed by both the petitioner and
the beneficiary authorizing release of the requested visa information
to the representative. Alternatively, the Department's form, DS-4240,
may be used to certify the identity of the requester and to provide
authorization from the petitioner and the beneficiary to release the
requested information to the legal representative. Forms created by
other Federal agencies will not be accepted.
(5) Requests for passport records: All passport records requests
must meet the requirements found in subpart C, section 171.22(d). If
the PA requirements are not met, the requests will be processed under
this subpart and access may be limited.
Sec. 171.12 Business information.
(a) Definitions. The following definitions apply for purposes of
this section:
(1) Business information means commercial or financial or
proprietary intellectual information obtained by the Department from a
submitter that may be exempt from disclosure as privileged or
confidential under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from which the Department
obtains business information, directly or indirectly. The term includes
corporations, partnerships, and sole proprietorships; state, local, and
tribal governments; foreign governments, NGOs and educational
institutions.
(b) Designation of business information. A submitter of information
must use good-faith efforts to designate, by appropriate markings,
either at the time of submission or at a reasonable time thereafter,
any portions of its submission that it considers exempt from disclosure
under FOIA Exemption 4. These designations will expire ten years after
the date of the submission unless the submitter requests, and provides
justification for, a longer designation period.
(c) Notice to submitters. The Department shall provide a submitter
with prompt written notice of a FOIA request that seeks its business
information, or of an administrative appeal of a denial of such a
request, whenever required under paragraph (d) of this section, except
as provided in paragraph (e) of this section, in order to give the
submitter an opportunity to object to disclosure of any specified
portion of that information under paragraph (f) of this section. The
notice shall either describe the information requested or include
copies of the requested records or record portions containing the
business information.
(d) When notice is required. Notice shall be given to a submitter
whenever:
(1) The information has been designated in good faith by the
submitter as information considered exempt from disclosure under
Exemption 4; or
(2) The Department has reason to believe that the information may
be exempt from disclosure under Exemption 4, but has not yet determined
whether the information is protected from disclosure under that
exemption or any other applicable exemption.
(e) When notice is not required. The notice requirements of
paragraphs (c) and (d) of this section shall not apply if:
(1) The Department determines that the information is exempt from
disclosure;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous, except that, in such a case,
the Department shall, within a reasonable time prior to a specified
disclosure date, give the submitter written notice of any final
decision to disclose the information.
(f) Opportunity to object to disclosure. The Department will allow
a submitter a reasonable time to respond to the notice described in
paragraph (c) of this section and will specify that time period in the
notice. If a submitter has any objections to disclosure, it should
provide the component a detailed written statement that specifies all
grounds for withholding the particular information under any exemption
of the FOIA. In order to rely on Exemption 4 as basis for
nondisclosure, the submitter must explain why the information
constitutes a trade secret or commercial or financial information that
is privileged or confidential. In the event that a submitter fails to
respond to the notice within the time specified in it, the submitter
will be considered to have no objection to disclosure of the
information. Information provided by a submitter under this paragraph
may itself be subject to disclosure under the FOIA.
(g) Notice of intent to disclose. The Department shall consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose business information. Whenever the
Department decides to disclose business information over the objection
of a submitter, it shall give the submitter written notice, which shall
include:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections was not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(h) Notice of lawsuit. Whenever a requester files a lawsuit seeking
to compel the disclosure of business information, the Department shall
promptly notify the submitter.
(i) Notice to requester. Whenever the Department provides a
submitter with notice and an opportunity to object to disclosure under
paragraph (f) of this section, the Department shall also notify the
requester. Whenever the Department notifies a submitter of its intent
to disclose requested business information under paragraph (g) of this
section, the
[[Page 44904]]
Department shall also notify the requester. Whenever a submitter files
a lawsuit seeking to prevent the disclosure of business information,
the Department shall notify the requester.
Sec. 171.13 Appeal of denial of request for records.
(a) Any denial, in whole or in part, of a request for Department
records under the FOIA may be administratively appealed to the Appeals
Review Panel of the Department. This appeal right includes the right to
appeal the determination that no records responsive to the request
exist in Department files. Appeals must be postmarked within 60
calendar days of the date of the Department's denial letter and sent
to: Appeals Officer, Appeals Review Panel, Office of Information
Programs and Services, at the address set forth in section 171.4 of
this part, or faxed to (202) 261-8571. The time limit for a response to
an appeal is 20 working days, which may be extended in unusual
circumstances, as defined in 171.11(b). The time limit begins to run on
the day the appeal is received by IPS.
(b) Requesters may decide to litigate a request that is in the
appeal stage. Once a summons and complaint is received by the
Department in connection with a particular request, the Department will
administratively close any open appeal regarding such request.
(c) Requesters should submit an administrative appeal, to IPS at
the above address, of any denial, in whole or in part, of a request for
access to FSGB records under the FOIA. IPS will assign a tracking
number to the appeal and forward it to the FSGB, which is an
independent body, for adjudication.
(d) Decisions on appeals. A decision on an appeal must be made in
writing. A decision that upholds the Department's determination will
contain a statement that identifies the reasons for the affirmance,
including any FOIA and Privacy Act exemptions applied. The decision
will provide the requester with notification of the statutory right to
file a lawsuit and will inform the requester of the mediation services
offered by the Office of Government Information Services of the
National Archives and Records Administration as a non-exclusive
alternative to litigation. If the Department's decision is remanded or
modified on appeal, the requester will be notified of that
determination in writing. The Department will thereafter further
process the request in accordance with that appeal determination and
respond directly to the requester.
Sec. 171.14 Fees to be charged.
(a) In general. The Department shall charge fees that recoup the
full allowable direct costs it incurs in processing a FOIA request in
accordance with the provisions of this part and with the OMB
Guidelines. It shall use the most efficient and least costly methods to
comply with requests for records made under the FOIA. The Department
will not charge fees to any requester, including commercial use
requesters, if the cost of collecting a fee would be equal to or
greater than the fee itself.
(b) Definitions. The following definitions apply for purposes of
this section:
(1) Direct costs are those costs the Department incurs in searching
for, duplicating, and, in the case of commercial use requests,
reviewing records in response to a FOIA request. The term does not
include overhead expenses.
(2) Search costs are those costs the Department incurs in looking
for, identifying, and retrieving material, in paper or electronic form,
that is potentially responsive to a request. The Department shall
attempt to ensure that searching for material is done in the most
efficient and least expensive manner so as to minimize costs for both
the Department and the requester. The Department may charge for time
spent searching even if it does not locate any responsive record, or if
it withholds the record(s) located as entirely exempt from disclosure.
Further information on current search fees is available by visiting the
FOIA home page at www.foia.state.gov and reviewing the Information
Access Guide.
(3) Duplication costs are those costs the Department incurs in
reproducing a requested record in a form appropriate for release in
response to a FOIA request.
(4) Review costs are those costs the Department incurs in examining
a record to determine whether and to what extent the record is
responsive to a FOIA request and the extent to which it may be
disclosed to the requester, including the page-by-page or line-by-line
review of material within records. It does not include the costs of
resolving general legal or policy issues that may be raised by a
request.
(5) Categories of requesters. ''Requester fee category'' means one
of the categories in which a requester will be placed for the purpose
of determining whether the requester will be charged fees for search,
review, and duplication. ``Fee waiver'' (see section 171.16 of this
subpart) means the waiver or reduction of processing fees that may be
granted if the requester can demonstrate that certain statutory
standards are satisfied. There are three categories of requesters:
Commercial use requesters, distinct subcategories of non-commercial
requesters (educational and non-commercial scientific institutions,
representatives of the news media), and all other requesters.
(i) A commercial use requester is a person or entity who seeks
information for a use or purpose that furthers the commercial, trade,
or profit interest of the requester or the person on whose behalf the
request is made. In determining whether a requester belongs within this
category, the Department will look at the way in which the requester
intends to use the information requested. Commercial use requesters
will be charged for search time, review time, and duplication in
connection with processing their requests.
(ii) Distinct subcategories of non-commercial requesters.
(A) An educational institution requester is a person or entity who
submits a request under the authority of a school that operates a
program of scholarly research. A requester in this category must show
that the records are not sought for a commercial use and are not
intended to promote any particular product or industry, but rather are
sought to further scholarly research of the institution. A signed
letter from the chairperson on an institution's letterhead is presumed
to be from an educational institution. A student seeking inclusion in
this subcategory who makes a request in furtherance of the completion
of a course of instruction is carrying out an individual research goal
and does not qualify as an educational institution requester. See OMB
Fee Guidelines, 52 FR at 10014. Educational institution requesters will
not be charged for search and review time, and the first 100 pages of
duplication will be provided free of charge.
(1) Example 1. A request from a professor of geology at a
university for records relating to soil erosion, written on letterhead
of the Department of Geology, would be presumed to be from an
educational institution.
(2) Example 2. A request from the same professor of geology seeking
drug information from the Food and Drug Administration in furtherance
of a murder mystery he is writing would not be presumed to be an
institutional request, regardless of whether it was written on
institutional stationery.
(B) A non-commercial scientific institution requester is a person
or entity that submits a request on behalf of an
[[Page 44905]]
institution that is not operated on a ``commercial'' basis 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. Non-commercial scientific institution requesters will not be
charged for search and review time, and the first 100 pages of
duplication will be provided free of charge.
(C) A representative of the news media is 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. News media include television or radio stations
broadcasting to the public at large and publishers of periodicals (but
only in those instances when they can qualify as disseminators of
``news'') who make their products available to the general public.
``Freelance'' journalists shall be regarded as working for a news media
entity if they can demonstrate a solid basis for expecting publication
through that entity, such as by a contract or past publication record.
These examples are not all-inclusive. A representative of the news
media will not be charged for search and review time, and the first 100
pages of duplication will be provided free of charge.
(iii) All other requesters are persons or entities that do not fall
into the requester categories defined above. All other requesters will
be provided the first two hours of search time and the first 100 pages
of duplication free of charge, and will not be charged for review time.
(c) Searches for responsive records. The Department charges the
estimated direct cost of each search based on the average current
salary rates of the categories of personnel doing the searches. Updated
search and review fees are available at www.foia.state.gov
(d) Manual (paper) and computer searches. For both manual and
computer searches, the Department shall charge the estimated direct
cost of each search based on the average current salary rates of the
categories of personnel doing the searches.
(e) Review of records. Only requesters who are seeking records for
commercial use may be charged for time spent reviewing records to
determine whether they are responsive, and if so, releasable. Charges
may be assessed for the initial review only, i.e., the review
undertaken the first time the Department analyzes the applicability of
a specific exemption to a particular record or portion of a record
(f) Duplication of records. Paper copies of records shall be
duplicated at a rate of $0.15 per page. Other charges may apply
depending on the type of production required. Where paper documents
must be scanned in order to comply with a requester's preference to
receive the records in an electronic format, the requester shall pay
the direct costs associated with scanning those materials. For other
forms of duplication, the Department shall charge the direct costs.
(g) Other charges. The Department shall recover the full costs of
providing services such as those below:
(1) Sending records by special methods such as express mail,
overnight courier, etc.
(2) Providing records to a requester in a special format.
(3) Providing duplicate copies of records already produced to the
same requester in response to the same request.
(h) Payment. Fees shall be paid by either personal check or bank
draft drawn on a bank in the United States, or a postal money order.
Remittances shall be made payable to the order of the Treasury of the
United States and mailed to the Office of Information Programs and
Services, U.S. Department of State, State Annex 2 (SA-2), 515 22nd
Street NW., Washington, DC, 20522-8100. A receipt for fees paid will be
given upon request.
(i) When certain fees are not charged. The Department shall not
charge search fees (or in the case of educational and non-commercial
scientific institutions or representatives of the news media,
duplication fees) when the Department fails to comply with any time
limit under 5 U.S.C. 552(a)(6), unless unusual circumstances (see
section 171.11(b) of this subpart) or exceptional circumstances exist.
Exceptional circumstances cannot include a delay that results from a
predictable agency workload of requests unless the agency demonstrates
reasonable progress in reducing its backlog of pending requests. See 5
U.S.C. 552(a)(6)(C). Apart from the stated provisions regarding waiver
or reduction of fees, see 22 CFR 171.16, the Department retains the
administrative discretion to not assess fees if it is in the best
interests of the government to do so.
Sec. 171.15 Miscellaneous fee provisions.
(a) Charging interest. The Department shall begin assessing
interest charges on an unpaid bill starting on the 31st day following
the day on which the bill was sent. The fact that a fee has been
received by the Department within the thirty-day grace period, even if
not processed, shall stay the accrual of interest. Interest will be at
the rate prescribed in 31 U.S.C. 3717 and shall accrue from the date of
the billing.
(b) Charges for unsuccessful search or if records are withheld. The
Department may assess charges for time spent searching, even if it
fails to locate the records or if the records located are determined to
be exempt from disclosure.
(c) Advance payment. The Department may not require a requester to
make an advance payment, i.e., payment before work is commenced or
continued on a request, unless:
(1) It estimates or determines that allowable charges that a
requester may be required to pay are likely to exceed $250. In such a
case, the Department shall notify the requester of the likely cost and
obtain satisfactory assurance of full payment where the requester has a
history of prompt payment of FOIA fees, or shall, in its discretion,
require an advance payment of an amount up to the full estimated
charges in the case of requesters with no history of payment; or
(2) A requester has previously failed to pay an assessed fee within
30 days of the date of its billing. In such a case, the Department
shall require the requester to pay the full amount previously owed plus
any applicable interest and to make an advance payment of the full
amount of the estimated fee before the Department begins to process a
new or pending request from that requester.
(3) If a requester has failed to pay a fee properly charged by
another U.S. government agency in a FOIA case, the Department may
require proof that such fee has been paid before processing a new or
pending request from that requester.
(4) When the Department acts under paragraph (c)(1) or (2) of this
section, the administrative time limits prescribed in the FOIA, 5
U.S.C. 552(a)(6) (i.e., 20 working days from receipt of initial
requests and 20 working days from receipt of appeals, plus permissible
extensions of these time limits), will begin only after the Department
has received fee payments described in paragraphs (c)(1) and (c)(2) of
this section.
(d) Aggregating requests. When the Department reasonably believes
that a requester, or a group of requesters acting in concert, has
submitted multiple requests involving related matters solely to avoid
payment of fees, the Department may aggregate those requests for
purposes of assessing processing fees.
[[Page 44906]]
(e) Effect of the Debt Collection Act of 1982, as amended. The
Department shall comply with provisions of the Debt Collection Act,
including disclosure to consumer reporting agencies and use of
collection agencies, where appropriate, to effect repayment.
(f) Itemization of charges. The Department shall, where possible,
provide the requester with a breakdown of fees charged indicating how
much of the total charge is for search, review, and/or duplication for
each specific request.
Sec. 171.16 Waiver or reduction of fees.
(a) Fees otherwise chargeable in connection with a request for
disclosure of a record shall be waived or reduced where the requester
seeks a waiver or reduction of fees and the Department determines, in
its discretion, that disclosure is in the public interest because it is
likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the
commercial interest of the requester.
(1) In deciding whether disclosure of the requested information is
in the public interest because it is likely to contribute significantly
to public understanding of operations or activities of the government,
the Department shall consider all four of 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 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 the same or a substantially identical
form, would not contribute to such understanding where nothing new
would be added to the public's understanding.
(iii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's 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 public's understanding of the subject in question must be
enhanced by the disclosure to a significant extent.
(2) In order to determine whether disclosure of the information is
not primarily in the commercial interest of the requester, the
Department will consider the following factors:
(i) The existence and magnitude of a commercial interest, i.e.,
whether the requester has a commercial interest that would be furthered
by the requested disclosure; and, if so,
(ii) The primary interest in disclosure, i.e., whether disclosure
is primarily in the commercial interest of the requester.
(iii) Requests for purposes of writing a book, an article, or other
publication will not be considered a commercial purpose.
(b) The Department may refuse to consider waiver or reduction of
fees for requesters from whom unpaid fees remain owed to the Department
for another FOIA request.
(c) Where only some of the records to be released satisfy the
requirements for a waiver or reduction of fees, a waiver or reduction
shall be granted for only those records.
(d) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the Department and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time so long as the underlying record request is pending or
on administrative appeal. When a requester who has committed to pay
fees subsequently asks for a waiver of those fees and that waiver is
denied, the requester shall be required to pay any costs incurred up to
the date the fee waiver request was received.
(e) A decision to refuse to waive or reduce fees may be appealed to
the Director of IPS, within 30 calendar days of the date of the
Department's refusal letter. See section 171.4 of this subpart for
address information. A decision in writing on the appeal shall be
issued within 30 working days of the receipt of the appeal.
Sec. 171.17 Resolving disputes.
The Office of Government Information Services (OGIS) in the
National Archives and Records Administration is charged with offering
mediation services to resolve disputes between persons making FOIA
requests and Federal agencies as a non-exclusive alternative to
litigation. Additionally, the FOIA directs the Department's FOIA Public
Liaison to assist in the resolution of disputes. The Department will
inform requesters in its agency appeal response letter of services
offered by OGIS and the FOIA Public Liaison. Requesters may reach the
Department's FOIA Public Liaison at Office of Information Programs and
Services, A/GIS/IPS/PP/LA, U.S. Department of State, Washington, DC
20522-8100, or at (202) 261-8484. Requesters may contact OGIS at Office
of Government Information Services (OGIS), National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001;
at [email protected]; and at (202) 741-5770, or toll-free at (877) 684-
6448.
Sec. 171.18 Preservation of records
The Department shall preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized
pursuant to title 44 of the United States Code or the General Records
Schedule 14 of the National Archives and Records Administration.
Records shall not be disposed of or destroyed while they are the
subject of a pending request, appeal, or lawsuit under the FOIA.
Subpart C--Privacy Act Provisions
Sec. 171.20 Purpose and scope.
This subpart contains the rules that the Department follows under
the Privacy Act of 1974 (PA), 5 U.S.C. 552a, as amended. These rules
should be read together with the text of the statute, which provides
additional information about records maintained on individuals. The
rules in this subpart apply to all records in systems of records
maintained by the Department that are retrieved by an individual's name
or personal identifier. They describe the procedures by which
individuals may request access to records about themselves, request
amendment or correction of those records, and request an accounting of
disclosures of those records by the Department. If any records
retrieved pursuant to an access request under the PA are found to be
exempt from access under that Act, they will be processed for possible
disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552,
as amended. No fees shall be charged for access to or amendment of PA
records.
Sec. 171.21 Definitions.
As used in this subpart, the following definitions shall apply:
(a) Individual means a citizen or a legal permanent resident alien
(LPR) of the United States.
(b) Maintain includes maintain, collect, use, or disseminate.
(c) Record means any item, collection, or grouping of information
about an individual that is maintained by the Department and that
contains the individual's name or the identifying
[[Page 44907]]
number, symbol, or other identifying particular assigned to the
individual, such as a finger or voice print or photograph.
(d) System of records means a group of any records under the
control of the Department from which information is retrieved by the
name of an individual or by some identifying number, symbol, or other
identifying particular assigned to an individual.
Sec. 171.22 Request for access to records.
(a) In general. Requests for access to records under the PA must be
made in writing and mailed to the Office of Information Programs and
Service, the Office of Passport Services, or the Office of Inspector
General at the addresses given in section 171.4 of this Part. The
Director of the Office of Information Programs and Services (IPS) is
responsible for acting on all PA requests for Department records except
for requests received directly by the Office of Inspector General,
which processes its own requests for information, and the Office of
Passport Services within the Bureau of Consular Affairs which receives
directly and processes its own PA requests for information as described
in PA System of Record Notice 26. Once received by IPS, all processing
of PA requests coming under the jurisdiction of the Bureau of Consular
Affairs/Visa Services Office and Overseas Citizens Services, the Bureau
of Diplomatic Security, the Bureau of Human Resources, the Office of
Medical Services, and the Foreign Service Grievance Board (FSGB) are
handled by those bureaus or offices instead of IPS.
(b) Description of records sought. Requests for access should
describe the requested record(s) in sufficient detail to permit
identification of the record(s). At a minimum, requests should include
the individual's full name (including maiden name, if appropriate) and
any other names used, current complete mailing address, and date and
place of birth (city, state and country). Helpful data includes the
approximate time period of the record and the circumstances that give
the individual reason to believe that the Department maintains a record
under the individual's name or personal identifier, and, if known, the
system of records in which the record is maintained. In certain
instances, it may be necessary for the Department to request additional
information from the requester, either to ensure a full search, or to
ensure that a record retrieved does in fact pertain to the individual.
(c) Verification of personal identity. The Department will require
reasonable identification of individuals requesting records about
themselves under the PA's access provisions to ensure that records are
only accessed by the proper persons. Requesters must state their full
name, current address, citizenship or legal permanent resident alien
status, and date and place of birth (city, state, and country). The
request must be signed, and the requester's signature must be either
notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746.
If the requester seeks records under another name the requester has
used, a statement, under penalty of perjury, that the requester has
also used the other name must be included. Requesters seeking access to
copies of the Passport Office's passport records must meet the
requirements in 171.22(d).
(d) Special requirements for passport records. Given the sensitive
nature of passport records and their use, requesters seeking access to
copies of the Passport Office's passport records under the PA must
submit a letter that is either notarized or made under penalty of
perjury pursuant to 28 U.S.C. 1746, which includes the full name at
birth and any subsequent name changes of the individual whose records
are being requested (if submitting the request on behalf of a minor,
provide the representative's full name as well); the date and place of
birth of the individual whose records are being requested; the
requester's current mailing address; and, if available, daytime
telephone number and email address; the date or estimated date the
passport(s) was issued; the passport number of the person whose records
are being sought, if known; and any other information that will help to
locate the records. The requester must also include a clear copy of
both sides of the requester's valid Government-issued photo
identification, e.g., a driver's license.
(e) Authorized third party access. The Department shall process all
properly authorized third party requests, as described in this section,
under the PA. In the absence of proper authorization from the
individual to whom the records pertain, the Department will process
third party requests under the FOIA. The Department's form, DS-4240,
may be used to certify identity and provide third party authorization.
(1) Parents and guardians of minor children. Upon presentation of
acceptable documentation of the parental or guardian relationship, a
parent or guardian of a U.S. citizen or LPR minor (an unmarried person
under the age of 18) may, on behalf of the minor, request records under
the PA pertaining to the minor. In any case, U.S. citizen or LPR minors
may request such records on their own behalf.
(2) Guardians. A guardian of an individual who has been declared by
a court to be incompetent may act for and on behalf of the incompetent
individual upon presentation of appropriate documentation of the
guardian relationship.
(3) Authorized representatives or designees. When an individual
wishes to authorize another person or persons access to his or her
records, the individual may submit, in addition to the identity
verification information described in paragraph (c) or paragraph (d) of
this section if the request is for passport records, a signed statement
from the individual to whom the records pertain, either notarized or
made under penalty of perjury pursuant to 28 U.S.C. 1746, giving the
Department authorization to release records about the individual to the
third party. The designated third party must submit identity
verification information described in paragraph c. Third party
requesters seeking access to copies of the Passport Office's records
must submit a clear copy of both sides of a valid Government-issued
photo identification (e.g., a driver's license) in addition to the
other information described above.
(f) Referrals and consultations. If the Department determines that
records retrieved as responsive to the request were created by another
agency, it ordinarily will refer the records to the originating agency
for direct response to the requester. If the Department determines that
Department records retrieved as responsive to the request are of
interest to another agency, it may consult with the other agency before
responding to the request. The Department may make agreements with
other agencies to eliminate the need for consultations or referrals for
particular types of records.
(g) Records relating to civil actions. Nothing in this subpart
entitles an individual to access to any information compiled in
reasonable anticipation of a civil action or proceeding.
(h) Time limits. The Department will acknowledge the request
promptly and furnish the requested information as soon as possible
thereafter.
Sec. 171.23 Request to amend or correct records.
(a) An individual has the right to request that the Department
amend a record pertaining to the individual that the individual
believes is not accurate, relevant, timely, or complete.
(b) Requests to amend records must be in writing and mailed or
delivered to
[[Page 44908]]
the Office of Information Programs and Services at the address given in
section 171.4, with ATTENTION: PRIVACY ACT AMENDMENT REQUEST written on
the envelope. IPS will coordinate the review of the request with the
appropriate offices of the Department. The Department will require
verification of personal identity as provided in section 171.22(c)
before it will initiate action to amend a record. Amendment requests
should contain, at a minimum, identifying information needed to locate
the record in question, a description of the specific correction
requested, and an explanation of why the existing record is not
accurate, relevant, timely, or complete. The request must be signed,
and the requester's signature must be either notarized or made under
penalty of perjury pursuant to 28 U.S.C. 1746. The requester should
submit as much pertinent documentation, other information, and
explanation as possible to support the request for amendment.
(c) All requests for amendments to records shall be acknowledged
within 10 working days.
(d) In reviewing a record in response to a request to amend, the
Department shall review the record to determine if it is accurate,
relevant, timely, and complete.
(e) If the Department agrees with an individual's request to amend
a record, it shall:
(1) Advise the individual in writing of its decision;
(2) Amend the record accordingly; and
(3) If an accounting of disclosure has been made, advise all
previous recipients of the record of the amendment and its substance.
(f) If the Department denies an individual's request to amend a
record, it shall advise the individual in writing of its decision and
the reason for the refusal, and the procedures for the individual to
request further review. See Sec. 171.25.
Sec. 171.24 Request for an accounting of record disclosures.
(a) How made. Except where accountings of disclosures are not
required to be kept, as set forth in paragraph (b) of this section, an
individual has a right to request an accounting of any disclosure that
the Department has made to another person, organization, or agency of
any record about an individual. This accounting shall contain the date,
nature, and purpose of each disclosure as well as the name and address
of the recipient of the disclosure. Any request for accounting should
identify each particular record in question and may be made by writing
directly to the Office of Information Programs and Services at the
address given in Sec. 171.4.
(b) Where accountings not required. The Department is not required
to keep an accounting of disclosures in the case of:
(1) Disclosures made to employees within the Department who have a
need for the record in the performance of their duties;
(2) Disclosures required under the FOIA.
Sec. 171.25 Appeals of denials of PA requests and PA amendment
requests.
(a) If the Department denies a request for access to PA records,
for amendment of such records, or for an accounting of disclosure of
such records, the requester shall be informed of the reason for the
denial and of the right to appeal the denial to the Appeals Review
Panel. Any such appeal must be postmarked within 60 working days of the
date of the Department's denial letter and sent to: Appeals Officer,
Appeals Review Panel, Office of Information Programs and Services, at
the address set forth in section 171.4.
(b) Appellants should submit an administrative appeal of any
denial, in whole or in part, of a request for access to FSGB records
under the PA to IPS at the above address. IPS will assign a tracking
number to the appeal and forward it to the FSGB, which is an
independent body, for adjudication.
(c) The Panel will decide appeals from denials of PA amendment
requests within 30 business days, unless the Panel extends that period
for good cause shown, from the date when it is received by the Panel.
(d) Decisions on appeals will be made in writing, and appellants
will receive notification of the decision. A reversal will result in
reprocessing of the request in accordance with that decision. An
affirmance will include a brief statement of the reason for the
affirmance and will inform the appellant that the decision of the Panel
represents the final decision of the Department and of the right to
seek judicial review of the Panel's decision, when applicable.
(e) If the Panel's decision is that a record shall be amended in
accordance with the appellant's request, the Chairman shall direct the
office responsible for the record to amend the record, advise all
previous recipients of the record of the amendment and its substance
(if an accounting of previous disclosures has been made), and so advise
the individual in writing.
(f) If the Panel's decision is that the amendment request is denied
on appeal, in addition to the notification required by paragraph (d) of
this section, the Chairman shall advise the appellant:
(1) Of the right to file a concise Statement of Disagreement
stating the reasons for disagreement with the decision of the
Department;
(2) Of the procedures for filing the Statement of Disagreement;
(3) That any Statement of Disagreement that is filed will be made
available to anyone to whom the record is subsequently disclosed,
together with, at the discretion of the Department, a brief statement
by the Department summarizing its reasons for refusing to amend the
record;
(4) That prior recipients of the disputed record will be provided a
copy of any statement of disagreement, to the extent that an accounting
of disclosures was maintained.
(g) If the appellant files a Statement of Disagreement under
paragraph (f) of this section, the Department will clearly annotate the
record so that the fact that the record is disputed is apparent to
anyone who may subsequently access the record. When the disputed record
is subsequently disclosed, the Department will note the dispute and
provide a copy of the Statement of Disagreement. The Department may
also include a brief summary of the reasons for not amending the
record. Copies of the Department's statement shall be treated as part
of the individual's record for granting access; however, it will not be
subject to amendment by an individual under these regulations.
Sec. 171.26 Exemptions.
Systems of records maintained by the Department are authorized to
be exempt from certain provisions of the PA under both general and
specific exemptions set forth in the Act. In utilizing these
exemptions, the Department is exempting only those portions of systems
that are necessary for the proper functioning of the Department and
that are consistent with the PA. Where compliance would not interfere
with or adversely affect the law enforcement process, and/or where it
may be appropriate to permit individuals to contest the accuracy of the
information collected, the applicable exemption may be waived, either
partially or totally, by the Department or the OIG, in the sole
discretion of the Department or the OIG, as appropriate. Records exempt
under 5 U.S.C. 552a(j) or (k) by the originator of the record remain
exempt if subsequently incorporated into any Department system of
records, provided the reason for the exemption remains valid and
necessary.
[[Page 44909]]
(a) General exemptions. If exempt records are the subject of an
access request, the Department will advise the requester of their
existence and of the name and address of the source agency, unless that
information is itself exempt from disclosure.
(1) Individuals may not have access to records maintained by the
Department that are maintained or originated by the Central
Intelligence Agency under 5 U.S.C. 552a(j)(1).
(2) In accordance with 5 U.S.C. 552a(j)(2), individuals may not
have access to records maintained or originated by an agency or
component thereof that performs as its principal function any activity
pertaining to the enforcement of criminal laws, including police
efforts to prevent, control, or reduce crime or to apprehend criminals,
and the activities of prosecutors, courts, correctional, probation,
pardon, or parole authorities, and which consists of:
(i) Information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, the nature and disposition
of criminal charges, sentencing, confinement, release, and parole and
probation status;
(ii) Information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, and
associated with an identifiable individual; or
(iii) Reports identifiable to an individual compiled at any stage
of the process of enforcement of the criminal laws from arrest or
indictment through release from supervision. The reason for invoking
these exemptions is to ensure effective criminal law enforcement
processes.
(iii) Records maintained by the Department in the following systems
of records are exempt from all of the provisions of the PA except
paragraphs (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (e)(7),
(e)(9), (e)(10), and (e)(11), and (i) of 5 U.S.C. 552a to the extent to
which they meet the criteria of section (j)(2). The names of the
systems correspond to those published in the Federal Register by the
Department.
Office of Inspector General Investigation Management System. STATE-
53.
Information Access Program Records. STATE-35.
Risk Analysis and Management. STATE-78.
Security Records. STATE-36.
(b) Specific exemptions. Portions of the following systems of
records are exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), and (4), (G),
(H), and (I), and (f). The names of the systems correspond to those
published in the Federal Register by the Department.
(1) Exempt under 5 U.S.C. 552a(k)(1). Records contained within the
following systems of records are exempt under this section to the
extent that they are subject to the provisions of 5 U.S.C. 552(b)(1).
Board of Appellate Review Records. STATE-02.
Congressional Correspondence. STATE-43.
Congressional Travel Records. STATE-44.
Coordinator for the Combating of Terrorism Records. STATE-06.
External Research Records. STATE-10.
Extradition Records. STATE-11.
Family Advocacy Case Records. STATE-75.
Foreign Assistance Inspection Records. STATE-48.
Human Resources Records. STATE-31.
Information Access Programs Records. STATE-35.
Intelligence and Research Records. STATE-15.
International Organizations Records. STATE-17.
Law of the Sea Records. STATE-19.
Legal Case Management Records. STATE-21.
Munitions Control Records. STATE-42.
Overseas Citizens Services Records. STATE-05.
Passport Records. STATE-26.
Personality Cross Reference Index to the Secretariat Automated Data
Index. STATE-28.
Personality Index to the Central Foreign Policy Records. STATE-29.
Personnel Payroll Records. STATE-30.
Office of Inspector General Investigation Management System. STATE-
53.
Records of the Office of the Assistant Legal Adviser for
International Claims and Investment Disputes. STATE-54.
Risk Analysis and Management Records. STATE-78.
Rover Records. STATE-41.
Records of Domestic Accounts Receivable. STATE-23.
Records of the Office of White House Liaison. STATE-34.
Refugee Records. STATE-59.
Security Records. STATE-36.
Visa Records. STATE-39.
(2) Exempt under 5 U.S.C. 552a(k)(2). Records contained within the
following systems of records are exempt under this section to the
extent that they consist of investigatory material compiled for law
enforcement purposes, subject to the limitations set forth in (k)(2).
Board of Appellate Review Records. STATE-02.
Coordinator for the Combating of Terrorism Records. STATE-06.
Extradition Records. STATE-11.
Family Advocacy Case Records. STATE-75
Foreign Assistance Inspection Records. STATE-48.
Garnishment of Wages Records. STATE-61.
Information Access Program Records. STATE-35.
Intelligence and Research Records. STATE-15.
Munitions Control Records. STATE-42.
Overseas Citizens Services Records. STATE-05.
Passport Records. STATE-26.
Personality Cross Reference Index to the Secretariat Automated Data
Index. STATE-28.
Personality Index to the Central Foreign Policy Records. STATE-29.
Office of Inspector General Investigation Management System. STATE-
53.
Risk Analysis and Management Records. STATE-78.
Security Records. STATE-36.
Visa Records. STATE-39.
(3) Exempt under 5 U.S.C. 552a(k)(3). Records contained within the
following systems of records are exempt under this section to the
extent that they are maintained in connection with providing protective
services pursuant to 18 U.S.C. 3056.
Extradition Records. STATE-11.
Information Access Programs Records. STATE-35.
Intelligence and Research Records. STATE-15.
Overseas Citizens Services Records. STATE-05.
Passport Records. STATE-26.
Personality Cross-Reference Index to the Secretariat Automated Data
Index. STATE-28.
Personality Index to the Central Foreign Policy Records. STATE-29.
Security Records. STATE-36.
Visa Records. STATE-39.
(4) Exempt under 5 U.S.C. 552a(k)(4). Records contained within the
following systems of records are exempt under this section to the
extent that they are required by statute to be maintained and are used
solely as statistical records.
Foreign Service Institute Records. STATE-14.
Human Resources Records. STATE-31.
Information Access Programs Records. STATE-35.
Overseas Citizens Services Records, STATE-05
[[Page 44910]]
Personnel Payroll Records. STATE-30.
Security Records. STATE-36.
(5) Exempt under 5 U.S.C. 552a(k)(5). Records contained within the
following systems of records are exempt under this section to the
extent that they consist of investigatory material compiled solely for
the purpose of determining suitability, eligibility, or qualifications
for Federal civilian employment, military service, Federal contracts,
or access to classified information, but only to the extent that
disclosure of such material would reveal the identity of a confidential
informant.
Records Maintained by the Office of Civil Rights. STATE-09.
Foreign Assistance Inspection Records. STATE-48.
Foreign Service Grievance Board Records. STATE-13.
Human Resources Records. STATE-31.
Information Access Programs Records. STATE-35.
Legal Adviser Attorney Employment Application Records. STATE-20.
Overseas Citizens Services Records. STATE-25.
Personality Cross-Reference Index to the Secretariat Automated Data
Index. STATE-28.
Office of Inspector General Investigation Management System. STATE-
53.
Records of the Office of White House Liaison. STATE-34.
Risk Analysis and Management Records. STATE-78.
Rover Records. STATE-41.
Security Records. STATE-36.
Senior Personnel Appointments Records. STATE-47.
(6) Exempt under 5 U.S.C. 552a(k)(6). Records contained within the
following systems of records are exempt under this section to the
extent that they consist of testing or examination material used solely
to determine individual qualifications for appointment or promotion in
the Federal service the disclosure of which would compromise the
objectivity or fairness of the testing or examination process.
Foreign Service Institute Records. STATE-14.
Human Resources Records. STATE-31.
Information Access Programs Records. STATE-35.
Records Maintained by the Office of Civil Rights. STATE-09
Security Records. STATE-36.
(7) Exempt under 5 U.S.C. 552a(k)(7). Records contained within the
following systems of records are exempt under this section to the
extent that they consist of evaluation material used to determine
potential for promotion in the armed services, but only to the extent
that such disclosure would reveal the identity of a confidential
informant.
Overseas Citizens Services Records. STATE-25.
Human Resources Records. STATE-31.
Information Access Programs Records. STATE-35.
Personality Cross-Reference Index to the Secretariat Automated Data
Index. STATE-28.
Personality Index to the Central Foreign Policy Records. STATE-29.
Subpart D--Process to Request Public Financial Disclosure Reports
Sec. 171.30 Purpose and scope.
This subpart sets forth the process by which persons may request
access to public financial disclosure reports filed with the Department
in accordance with Sec. 101 and Sec. 103(l) of the Ethics in
Government Act of 1978, 5 U.S.C. app. 101 and 103(l), as amended by
Public Law 112-173, 126 Stat. 1310, Public Law 112-178, 126 Stat. 1408,
and Public Law 113-7, 127 Stat. 438, and 5 CFR 2634.202. The retention,
public availability, and improper use of these reports are governed by
5 U.S.C. app. 105 and 5 CFR 2634.603.
Sec. 171.31 Requests.
Requests for access to public financial disclosure reports filed
with the Department should be made by submitting a completed Office of
Government Ethics request form, OGE Form 201, to
[email protected] or the Office of the Assistant Legal Adviser
for Ethics and Financial Disclosure, U.S. Department of State, 2201 C
Street NW., Washington, DC 20520. The OGE Form 201 may be obtained by
visiting http://www.oge.gov or writing to the address above.
Dated: July 13, 2015.
Joyce A. Barr,
Assistant Secretary for Administration, Department of State.
[FR Doc. 2015-17856 Filed 7-27-15; 8:45 am]
BILLING CODE 4710-24-P