[Federal Register Volume 59, Number 190 (Monday, October 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24229]
[[Page Unknown]]
[Federal Register: October 3, 1994]
VOL. 59, NO. 190
Monday, October 3, 1994
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2604
RIN 3209-AA17
Freedom of Information Act Rules and Schedule of Fees for the
Production of Public Financial Disclosure Reports
AGENCY: Office of Government Ethics (OGE).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Government Ethics is issuing a proposed rule to
establish procedures for the implementation of the Freedom of
Information Act (FOIA). The rule also proposes to establish a schedule
of fees which will be charged for the reproduction and mailing of
public financial disclosure reports (SF 278s).
DATES: Public comments on this proposed rule are invited and must be
received by December 2, 1994.
ADDRESSES: Submit comments to the Office of Government Ethics, Suite
500, 1201 New York Avenue, NW., Washington, DC 20005-3917, Attention:
Ms. Roell.
FOR FURTHER INFORMATION CONTACT:Janet K. Roell, Office of Government
Ethics, telephone (202) 523-5757, FAX (202) 523-6325.
SUPPLEMENTARY INFORMATION: The Freedom of Information Act, 5 U.S.C.
552, requires every agency to promulgate regulations implementing
certain of its provisions. On October 1, 1989, the Office of Government
Ethics, formerly part of the Office of Personnel Management, was
established as a separate executive branch agency and is therefore
proposing to adopt this rule incorporating many of its existing
practices for the implementation of the Freedom of Information Act, as
amended by the Freedom of Information Reform Act of 1986 (Pub. L. 99-
570). This rule would also implement the Guidelines for a uniform
Freedom of Information Act fee schedule published by the Office of
Management and Budget on March 27, 1987 (52 FR 10012) and the Attorney
General's Memorandum on the 1986 Amendments to the Freedom of
Information Act dated December, 1987. Subpart G of the rule proposes to
establish a separate schedule of fees for the reproduction and mailing
of public financial disclosure reports requested pursuant to section
105 of the Ethics in Government Act of 1978, as amended.
I. General Provisions
Subpart A of the proposed rule contains general provisions
describing the purpose of the Freedom of Information Act and its
coverage. Section 2604.102 describes the types of records to which the
Freedom of Information Act applies, and the relationship between the
FOIA and the Privacy Act of 1974, 5 U.S.C. 552a. The proposed rule also
provides that if another statute, such as the Ethics Act, sets forth
procedures for the disclosure of specific types of records, the Office
will process a request for those records in accordance with the
procedures that apply to those specific records. However, in cases
where the record is not required to be released under the specific
procedures set forth in another statute, the Office will consider the
request under FOIA.
Section 2604.102 as proposed also explains that records which are
available through an established distribution system (for example, the
National Technical Information Service) should preferably be obtained
through that system, rather than pursuant to the provisions of the
FOIA. The terms frequently used in the rule are defined in proposed
Sec. 2604.104.
II. Public Reading Room
Subpart B of the proposed rule describes the location of OGE's
public reading room and the materials available there. The subpart
would also set forth the indexing requirements as to any records OGE
maintains which are required to be indexed under 5 U.S.C. 552(a)(2).
Proposed Sec. 2604.202 contains the Director's determination that,
because of OGE's size and the relatively small number of requests for
records required to be indexed, such indexes do not need to be
published quarterly.
III. Production and Disclosure of Records Under FOIA
Subpart C as proposed contains detailed rules of procedure for
requesting records under FOIA. It also describes the format to which
OGE will adhere in responding to these requests.
Requests for OGE records have generally been directed to the Office
of the General Counsel. Since this approach is administratively
practical, this system is being proposed for codification. Proposed
Sec. 2604.301 states that requests for records should be addressed to
the General Counsel of OGE. Requesters will generally be required to
submit FOIA requests in writing. Each request should contain sufficient
detail to allow the Office to locate the record with a reasonable
amount of effort. If a request is too broad or too vague to allow the
Office to locate the record with a reasonable amount of effort, the
Office would assist the requester in revising the request as
appropriate.
The filing of a request would be deemed to constitute an agreement
to pay any applicable fees up to $25.00, unless a waiver were sought.
The request could also specify a limit on fees the requester is willing
to pay.
The General Counsel of OGE, or his designee, has been delegated
responsibility in proposed Sec. 2604.302 to grant or deny requests and
to determine appropriate fees.
Consistent with the terms of proposed Sec. 2604.302(b), OGE will
ordinarily refer FOIA requests for records that originated in another
Government agency to the other agency for response. In such cases, the
requester will be notified of the referral. Section 2604.302(c) as
proposed specifies that, in cases where a requester asks for a record
in a format which does not currently exist, OGE will provide whatever
records reasonably respond to the request, but will not create a new
record in order to respond. Under Sec. 2604.302(d) of the proposed
rule, if a record cannot be located from the information supplied, the
General Counsel will so inform the requester.
Proposed Sec. 2604.303 requires the General Counsel to notify a
requester in writing of the determination to grant a request in whole
or in part. The response must describe the manner in which the record
will be disclosed and inform the requester of any fees which will be
charged. Similarly, the General Counsel's determination to deny a
request in whole or in part must be made in writing and signed by the
General Counsel (or his designee). Consistent with Sec. 2604.303(b) as
proposed, any denial is to contain a brief statement describing the
basis for the denial, including the FOIA exemptions which were relied
upon. Moreover, the denial must state that requesters have a right to
appeal and must explain OGE's appeal procedures.
The Office's appeal procedures are set forth in Sec. 2604.304 of
the proposed rule. Denials may be appealed to OGE's Deputy Director
within 30 days after receipt of a denial letter. Appeals must be in
writing and must contain reasons or arguments in support of disclosure.
The Office will respond to appeals in writing, and will specify the
reason for affirming any original denial. When a denial is reversed in
whole or in part, the request for disclosure will be processed
promptly. The decision on appeal is the Office's final action on a
request. Requesters have a right to seek judicial review of the action
under 5 U.S.C. 552(a)(4).
Section 2604.305 of the proposed rule describes the time limits to
which the Office will adhere in responding to requests. The time limits
may be extended up to a total of 10 working days in unusual
circumstances, i.e., when the records are in a location other than the
Office, the request is for a large number of records, or the Office
must consult with another agency or consult with various OGE
components.
IV. Exemptions Under FOIA
The Freedom of Information Act contains nine exemptions from its
mandatory disclosure provisions. These exemptions permit an agency to
withhold a requested record in certain circumstances. Section 2604.401
in subpart D of the proposed rule generally references the nine classes
of records that may be exempted from disclosure under FOIA. Proposed
Sec. 2604.401(a) states that OGE will not withhold a requested record
unless it falls within a FOIA exemption and that in deciding whether to
withhold material, OGE will consider whether another statute, Executive
order or regulation prohibits release or, if not, whether there is a
need in the public interest to withhold it. Further, under proposed
Sec. 2604.401(b), the Office with withhold information which falls
within an exemption if the information was furnished on a pledge of
confidentiality authorized by statute, Executive order or regulation.
Section 2604.401(c) also provides that certain information compiled
for law enforcement purposes may not be subject to the requirement of
FOIA. Additionally, proposed Sec. 2604.401(d) provides for partial
application of the exemptions to a record.
Proposed Sec. 2604.402 contains OGE's procedures for disclosure of
business information provided to the Office. Generally, Sec. 2604.402
would require submitters of business information to designate those
portions of their submissions they believe may be exempt from
disclosure under any exemption of the FOIA. If records so designated
are subsequently requested under FOIA, in most cases the submitter will
have an opportunity to provide a written objection to disclosure.
V. Fees
Subpart E of the proposed rule contains provisions relating to the
fees which will be assessed for services rendered in responding to and
processing requests for records under FOIA. Fees are to be based on the
type of service provided (e.g., search, review, duplication) as well as
the category of person making the request (e.g., commercial user,
educational institution, news media). Generally, commercial requesters
will pay the full amount of permissible fees; educational and
noncommercial scientific institutions and news media will pay only
duplication costs. As a matter of policy, OGE will not change fees for
any individual request if the total charge would be $10.00 or less.
Additionally, under the proposal OGE may furnish records without charge
or at a reduced charge where 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 is not primarily in the commercial interest of the
requester. In making this determination, OGE will apply the factors
suggested by the Department of Justice in the Attorney General's
Memorandum on the 1986 Amendments to the Freedom of Information Act
dated December, 1987. These factors have been incorporated in proposed
Sec. 2604.503.
Section 2604.504 as proposed contains a number of miscellaneous
provisions concerning fees, including a requirement that requesters pay
in advance fees likely to exceed $250.00. However, advance payment may
not be required in the case of a requester who has a history of prompt
payment.
VI. Annual Report to Congress
On or before March 15 of each year, the Office sends a report of
OGE's FOIA activities for the prior calendar year to the Speaker of the
House of Representatives and the President of the Senate. Section
2604.602 of the proposed rule lists the information included in this
annual report.
VII. Fees for the Production and Mailing of Public Financial Disclosure
Reports
Section 105(a) of the Ethics in Government Act of 1978, as amended,
requires an agency, with certain limited exceptions, to make available
to the public any public financial disclosure report (SF 278) filed
with the agency. Section 105(b)(1) permits an agency to charge a fee
adequate to recover the cost of reproduction and mailing of a public
financial disclosure report (SF 278) requested by any person in
accordance with the requirements of section 105. However, the fee may
not include any charge attributable to the salary of any employee
involved in the reproduction or mailing of these reports. To implement
this provision for such reports filed with it, OGE is proposing to
create a fee structure separate from the FOIA fee structure set forth
in subpart E of this proposed rule. Proposed subpart G contains
provisions to implement this authority.
Section 2604.702 as proposed provides that public financial
disclosure reports will be furnished upon payment of $.03 per page and
the actual direct cost of mailing. The $.03 per page charge includes
the actual cost of the paper used and the cost of operating duplicating
machinery. It does not include any overhead charges (such as lighting
and heat), nor does it include the salary of any employee involved in
operating a duplicating machine. No change will be made for individual
requests if the total charge would be $10.00 or less. Proposed
Sec. 2604.702(d) specifically provides that the miscellaneous fee
provisions in Sec. 2604.504 of subpart E will apply to requests for
public financial disclosure reports (SF 278s). However, no other
provisions in subpart E concerning fees, fee waivers, and fee
reductions apply to requests for public financial disclosure reports.
Executive Order 12866
In promulgating this proposed rule, the Office of Government Ethics
has adhered to the regulatory philosophy and the applicable principles
of regulations set forth in section 1 of Executive Order 12866,
Regulatory Planning and Review. This proposed regulation has been
reviewed by the Office of Management and Budget under that Executive
order.
Regulatory Flexibility Act
As Director of the Office of Government Ethics, I certify under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this proposed
regulation will not have a significant economic impact on a substantial
number of small entities.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
to this proposed regulation because it does not contain information
collection requirements that require the approval of the Office of
Management and Budget.
List of Subjects in 5 CFR Part 2604
Administrative practice and procedure, Archives and records,
Confidential business information, Conflict of interests, Freedom of
Information, Government employees.
Approved: September 27, 1994.
Stephen D. Potts,
Director, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the Office
of Government Ethics proposes to amend subchapter A of chapter XVI of
title 5 of the Code of Federal Regulations by adding the text of and an
authority citation for part 2604, previously reserved, and by revising
the title thereof to read as follows:
PART 2604--FREEDOM OF INFORMATION ACT RULES AND SCHEDULE OF FEES
FOR THE PRODUCTION OF PUBLIC FINANCIAL DISCLOSURE REPORTS
Subpart A--General Provisions
Sec.
2604.101 Purpose.
2604.102 Applicability.
2604.103 Definitions.
Subpart B--Public Reading Room and Index Identifying Information for
the Public
2604.201 Public reading room.
2604.202 Index identifying information for the public.
Subpart C--Production and Disclosure of Records Under FOIA
2604.301 Requests for records.
2604.302 Response to requests.
2604.303 Form and content of responses.
2604.304 Appeal of denials.
2604.305 Time limits.
Subpart D--Exemptions Under FOIA
2604.401 Policy.
2604.402 Business information.
Subpart E--Schedule of Fees
2604.501 Fees to be charged--general.
2604.502 Fees to be charged--categories of requesters.
2604.503 Limitations on charging fees.
2604.504 Miscellaneous fee provisions.
Subpart F--Annual Report to Congress
2604.601 Submission of report.
2604.602 Contents of the report.
Subpart G--Fees for the Reproduction and Mailing of Public Financial
Disclosure Reports
2604.701 Policy.
2604.702 Charges.
Authority: 5 U.S.C. 552; 5 U.S.C. App. (Ethics in Government Act
of 1978); E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
Subpart A--General Provisions
Sec. 2604.101 Purpose.
This part contains the regulations of the Office of Government
Ethics (OGE) implementing the Freedom of Information Act (FOIA) and
Executive order 12600. It describes how any person may obtain records
from OGE under the FOIA. It also implements section105(b)(1) of the
Ethics in Government Act of 1978, as amended, which authorizes an
agency to charge reasonable fees to cover the cost of reproduction and
mailing of public financial disclosure reports requested by any person.
Sec. 2604.102 Applicability.
(a) General. The FOIA and this rule apply to all OGE records.
However, if another law sets forth procedures for the disclosure of
specific types of records, such as section 105 of the Ethics in
Government Act of 1978, 5 U.S.C. appendix, OGE will process a request
for those records in accordance with the procedures that apply to those
specific records. See 5 CFR 2634.603 and subpart G of this part. If
there is any record which is not required to be released under those
provisions, OGE will consider the request under the FOIA and this rule,
provided that the special Ethics Act access procedures cited must be
complied with as to any record within the scope thereof.
(b) The relationship between the FOIA and the Privacy Act of 1974.
The Privacy Act of 1974, 5 U.S.C. 552a, applies to records that are
about individuals, but only if the records are in a system of records
as defined in the Privacy Act. Requests from individuals for records
about themselves which are contained in an OGE system of records will
be processed under the provision of the Privacy Act as well as the
FOIA. OGE will not deny access by a first party to a record under the
FOIA or the Privacy Act unless the record is not available to that
individual under both the Privacy Act and the FOIA.
(c) Records available through routine distribution procedures. When
the record requested includes material published and offered for sale
(e.g., by the Superintendent of Documents, Government Printing Office)
or which is available to the public through an established distribution
system (such as that of the National Technical Information Service of
the Department of Commerce), OGE will instead explain how the record
may be obtained through those channels.
Sec. 2604.103 Definitions.
As used in this part,
(a) Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C.
552(f).
(b) Business information means trade secrets or other commercial or
financial information, provided to the Office by a submitter, which
arguably is protected from disclosure under Exemption 4 of the Freedom
of Information Act.
(c) Business submitter means any person who provides business
information, directly or indirectly, to the Office and who has a
proprietary interest in the information.
(d) Commercial use means, when referring to a request, that the
request is from, or on behalf of one who seeks information for a use or
purpose that furthers the commercial, trade, or profit interests of the
requester or of a person on whose behalf the request is made. Whether a
request is for a commercial use depends on the purpose of the request
and the use to which the records will be put. When a request is from a
representative of the news media, a purpose or use supporting the
requester's news dissemination function is not a commercial use.
(e) Direct costs means those expenditures actually incurred in
searching for and duplicating (and, in the case of commercial use
requesters, reviewing) records to respond to a FOIA request. Direct
costs include the salary of the employee performing the work and the
cost of operating duplicating machinery. Not included in direct costs
are overhead expenses such as costs of space and heating or lighting of
the facility in which the records are stored.
(f) Duplication means the process of making a copy of a record.
Such copies include paper copy, microform, audio-visual materials, and
magnetic tapes, cards, and discs.
(g) Educational institution means a preschool, elementary or
secondary school, institution of undergraduate or graduate higher
education, or institute of professional or vocational education, which
operates a program of scholarly research.
(h) Freedom of Information Act or FOIA means section 552 of Title
5, United States Code, as amended.
(i) General Counsel means the General Counsel of the Office of
Government Ethics. The General Counsel may delegate any of his
responsibilities in handling FOIA requests in this part to a designee
on OGE's staff.
(j) He, his and him include she, hers and her.
(k) Noncommercial scientific institution means an institution that
is not operated solely for purposes of furthering its own or someone
else's business, trade, or profit interests, and that is operated for
purposes of conducting scientific research the results of which are not
intended to promote any particular product or industry.
(l) Office or OGE means the United States Office of Government
Ethics.
(m) Person has the meaning given in 5 U.S.C. 551(2).
(n) Records means any handwritten, typed, or printed documents
(such as memoranda, books, brochures, studies, writings, drafts,
letters, transcripts, and minutes) and documentary material in other
forms (such as punchcards, magnetic tapes, cards or discs, paper tapes,
audio or video recordings, maps, photographs, slides, microfilm and
motion pictures) that are either created or obtained by the Office and
are under Office control. It does not include objects or articles such
as exhibits, models, equipment, and duplication machines or audiovisual
processing materials.
(o) Representative of the news media means a person actively
gathering information for an entity organized and operated to publish
or broadcast news to the public. News media entities include television
and radio broadcasters, publishers of periodicals who distribute their
products to the general public or who make their products available for
purchase or subscription by the general public, and entities that may
disseminate news through other media, such as electronic dissemination
of text. Freelance journalists will be considered as representatives of
a news media entity if they can show a solid basis for expecting
publication through such an entity. A publication contract is such a
basis, and the requester's past publication record may show such a
basis.
(p) Request means any request for records made pursuant to 5 U.S.C.
552(a)(3).
(q) Requester means any person who makes a request for records to
OGE.
(r) Review means the process of initially, or upon appeal (see
Sec. 2604.501(b)(3)), examining documents located in a response to a
request to determine whether any portion of any document is permitted
to be withheld. It also includes processing documents for disclosure,
such as redacting portions which may be withheld. Review does not
include time spent resolving general legal and policy issues regarding
the application of exemptions.
(s) Search means the time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents.
(t) Working days means calendar days, excepting Saturdays, Sundays,
and legal public holidays.
Subpart B--Public Reading Room and Index Identifying Information
for the Public
Sec. 2604.201 Public reading room.
(a) Location of public reading room. The Office of Government
Ethics maintains a public reading room at its offices located at 1201
New York Avenue, NW., Suite 500, Washington, DC 20005-3917. Persons
desiring to utilize the reading room should contact the Office, in
writing or by telephone at (202) 523-5757 or FAX (202) 523-6325, to
arrange a time to inspect the materials available there.
(b) Records available. The Office of Government Ethics public
reading room contains OGE records which are required by 5 U.S.C.
552(a)(2) to be made available for public inspection and copying,
including:
(1) Any final opinions, as well as orders, made in the adjudication
of cases;
(2) Any statements of policy and interpretation which have been
adopted by the agency and are not published in the Federal Register;
(3) Any administrative staff manuals and instructions to staff that
affect a member of the public, and which are not exempt from disclosure
under section (b) of the FOIA; and
(4) Current indexes providing identifying information for the
public as to any matter which was issued, adopted or promulgated after
July 4, 1967, and is required by 5 U.S.C. 552(a)(2) to be made
available or published.
(c) Copying. The cost of copying information available in OGE's
public reading room shall be imposed on a requester in accordance with
the provisions of subpart E of this part.
Sec. 2604.202 Index identifying information for the public.
(a) The Office of Government Ethics will maintain and make
available for public inspection and copying a current index of the
materials available at its public reading room which are required to be
indexed under 5 U.S.C. 552(a)(2).
(b) The Director of the Office of Government Ethics has determined
that it is unnecessary and impracticable to publish quarterly or more
frequently and distribute (by sale or otherwise) copies of each index
and supplements thereto, as provided in 5 U.S.C. 552(a)(2). The Office
will provide copies of such indexes upon request, at a cost not to
exceed the direct cost of duplication and mailing, if sending records
by other than ordinary mail.
Subpart C--Production and Disclosure of Records Under FOIA
Sec. 2604.301 Requests for records.
(a) Addressing requests. Requests for copies of records may be made
in person or by telephone, (202) 523-5757, during normal business hours
at the Office of Government Ethics, 1201 New York Avenue NW., Suite
500, Washington, DC 20005-3917 or by mail addressed to the General
Counsel of OGE. Although oral requests may be honored, a requester
generally will be asked to submit his request under the FOIA in
writing. In the case of a written request, the envelope containing the
request and the letter itself should both clearly indicate that the
subject is a Freedom of Information Act request.
(b) Description of records. Each request must reasonably describe
the desired records in sufficient detail to enable Office personnel to
locate the records with a reasonable amount of effort. A request for a
specific category of records will be regarded as fulfilling this
requirement if it enables responsive records to be identified by a
technique or process that is not unreasonably burdensome or disruptive
of Office operations.
(1) Wherever possible, a request should include specific
information about each record sought, such as the date, title or name,
author, recipient, and subject matter of the record.
(2) If the General Counsel determines that a request does not
reasonably describe the records sought, he will either advise the
requester what additional information is needed to locate the record,
or otherwise state why the request is insufficient. The General Counsel
will also extend to the requester an opportunity to confer with Office
personnel with the objective of reformulating the request in a manner
which will meet the requirements of this section.
(c) Agreement to pay fees. The filing of a request under this
subpart will be deemed to constitute an agreement by the requester to
pay all applicable fees charged under subpart E of this part, up to
$25.00, unless a waiver of fees is sought. The request may also specify
a limit on the amount the requester is willing to spend, or may
indicate a willingness to pay an amount greater than $25.00, if
applicable. In cases where a requester has been notified that actual or
estimated fees may amount to more that $25.00, the request will be
deemed not to have been received until the requester has agreed to pay
the anticipated total fee.
(d) Requests for records relating to corrective actions. No record
developed pursuant to the authority of 5 U.S.C. app. 402(f)(2)
concerning the investigation of an employee for a possible violation of
any provision relating to a conflict of interest shall be made
available pursuant to this part unless the request for such information
identifies the employee to whom the records relate and the subject
matter of any alleged violation to which the records relate. Nothing in
this subsection shall affect the application of subpart D of this part
to any record so identified.
Sec. 2604.302 Response to requests.
(a) Response to initial request. The General Counsel is authorized
to grant or deny any request for a record and to determine appropriate
fees.
(b) Referral to another agency. When a requester seeks records that
originated in another Government agency, OGE will normally refer the
request to the other agency for response. If OGE refers the request to
another agency, it will notify the requester of the referral. If
release of certain records may adversely affect United States relations
with foreign governments, the Office will usually consult with the
Department of State. A request for any records classified by some other
agency will be referred to that agency for response.
(c) Creating records. If a person seeks information from OGE in a
format that does not currently exist, OGE will not ordinarily reformat
the information for the purpose of responding to the request. OGE will
advise the requester that it does not have the record in the format
sought, but will provide whatever records in existing formats that
would reasonably respond to the request. Additionally, OGE will not
generally develop a new record of information to satisfy a request.
(d) Record cannot be located. If a requested record cannot be
located from the information supplied, the General Counsel will so
notify the requester in writing.
Sec. 2604.303 Form and content of responses.
(a) Form of notice granting a request. After the General Counsel
has made a determination to grant a request in whole or in part, the
requester will be notified in writing. The notice shall describe the
manner in which the record will be disclosed, whether by providing a
copy of the record with the response or at a later date, or by making a
copy of the record available to the requester for inspection at a
reasonable time and place. The procedure for such an inspection may not
unreasonably disrupt the operations of the Office. The response letter
will also inform the requester with the provisions of subpart E of this
part.
(b) Form of notice denying a request. When the General Counsel
denies a request in whole or in part, he will so notify the requester
in writing. The response will be signed by the General Counsel and will
include:
(1) The name and title or position of the person making the denial;
(2) A brief statement of the reason or reasons for the denial,
including the FOIA exemption or exemptions which the General Counsel
has relied upon in denying the request; and
(3) A statement that the denial may be appealed under Sec. 2604.304
of this subpart, and a description of the requirements of that section.
Sec. 2604.304 Appeal of denials.
(a) Right of appeal. If a request has been denied in whole or in
part, the requester may appeal the denial to the Deputy Director of the
Office of Government Ethics, 1201 New York Avenue, NW., Suite 500,
Washington, DC 20005-3917.
(b) Letter of appeal. The appeal must be in writing and must be
sent within 30 days of receipt of the denial letter. An appeal should
include a copy of the initial request, a copy of the letter denying the
request in whole or in part, and a statement of the circumstances,
reasons or arguments advanced in support of disclosure of the request
for the record. Both the envelope and the letter of appeal must be
clearly marked ``Freedom of Information Act Appeal.''
(c) Action on appeal. The disposition of an appeal will be in
writing and will constitute the final action of the Office on a
request. A decision affirming in whole or in part the denial of a
request will include a brief statement of the reason or reasons for
affirmance, including each FOIA exemption relied on. If the denial of a
request is reversed in whole or in part on appeal, the request will be
processed promptly in accordance with the decision on appeal.
(d) Judicial review. If the denial of the request for records is
upheld in whole or in part, the Office will notify the person making
the request of his right to seek judicial review under 5 U.S.C.
552(a)(4).
Sec. 2604.305 Time limits.
(a) Initial request. Following receipt of a request for records,
the General Counsel will determine whether to comply with the request
and will notify the requester in writing of his determination within 10
working days.
(b) Appeal. A written determination on a appeal submitted in
accordance with Sec. 2604.304 of this subpart will be issued within 20
working days after receipt of the appeal.
(c) Extension of time limits. The time limits specified in either
paragraph (a) or (b) of this section may be extended in unusual
circumstances up to a total of 10 working days, after written notice to
the requester setting forth the reasons for the extension and the date
on which a determination is expected to be made. As used in this
paragraph, unusual circumstances means that there is a need to:
(1) Search for and collect records from archives;
(2) Search for, collect, and appropriately examine a voluminous
amount of separate and distinct records which are demanded in a single
request; or
(3) Consult with another agency having a substantial interest in
the determination of the request, or consult with various OGE
components that have substantial subject matter interest in the records
requested.
Subpart D--Exemptions under FOIA
Sec. 2604.401 Policy.
(a) Policy on application of exemptions. Section 552(b) of the
Freedom of Information Act contains nine exemptions to the mandatory
disclosure of records. A requested record will not be withheld from
inspection or copying unless it comes within one of the classes of
records exempted by 5 U.S.C. 552. In making its determination on
withholding, OGE will consider whether another statute, Executive order
or regulation prohibits release or, if not, whether there is a need in
the public interest to withhold material which is otherwise exempt
under FOIA.
(b) Pledge of confidentiality. Information obtained from any
individual or organization, furnished in reliance on a provision for
confidentiality authorized by applicable statute, Executive order or
regulation, will not be disclosed to the extent it can be withheld
under one of the exemptions. However, this paragraph does not itself
authorized the giving of any pledge of confidentiality by any officer
or employee of the Office of Government Ethics.
(c) Exception for law enforcement information. The Office may treat
records compiled for law enforcement purposes as not subject to the
requirements of the Freedom of Information Act when:
(1) The investigation or proceeding involves a possible violation
of criminal law;
(2) There is reason to believe that the subject of the
investigation or proceeding is unaware of its pendency; and
(3) The disclosure of the existence of the records could reasonably
by expected to interfere with the enforcement proceedings.
(d) Partial application of exemptions. Any reasonably segregable
portion of a record will be provided to any person requesting the
record after deletion of the portions which are exempt under this
subpart.
Sec. 2604.402 Business information.
(a) In general. Business information provided to the Office of
Government Ethics by a submitter will not be disclosed pursuant to a
Freedom of Information Act request except in accordance with this
section.
(b) Designation of business information. Submitters of business
information should use good-faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, those portions of their submissions which they deem to be
protected under Exemption 4 of the FOIA. Any such designation will
expire 10 years after the records were submitted to the Government,
unless the submitter requests, and provides reasonable justification
for, a designation period of longer duration.
(c) Predisclosure notification. The General Counsel will provide a
submitter with prompt written notice of a FOIA request regarding its
business information if:
(1) The information has been designated by the submitter as
information deemed protected from disclosure under Exemption 4 of the
FOIA; or
(2) The General Counsel has reason to believe that the information
may be protected from disclosure under Exemption 4 of the FOIA.
Such written notice shall either describe the exact nature of the
business information requested or provide copies of the records
containing the business information. The requester also shall be
notified that notice and an opportunity to object are being provided to
a submitter.
(d) Opportunity to object to disclosure. A submitter has five
working days from receipt of the predisclosure notification to provide
a written statement of any objection to disclosure. Such statement
shall specify all the grounds for withholding any of the information
under any exemption of the FOIA and, in the case of Exemption 4, shall
demonstrate why the information is deemed to be a trade secret or
commercial or financial information that is privileged or confidential.
Information provided by a submitter pursuant to this paragraph may
itself be subject to disclosure under the FOIA.
(e) Notice of intent to disclose. The General Counsel will consider
all objections raised by a submitter and specific grounds for
nondisclosure prior to determining whether to disclose business
information. Whenever the General Counsel decides to disclose business
information over the objection of a submitter, he will send the
submitter a written notice at least 10 working days before the date of
disclosure containing:
(1) A statement of the reasons why the submitter's objections were
not sustained;
(2) A copy of the records which will be disclosed or a written
description of the records; and
(3) A specified disclosure date. The requester shall also be
notified of the General Counsel's determination to disclose records
over a submitter's objections.
(f) Notice of FOIA lawsuit. Whenever a requester brings suit
seeking to compel disclosure of business information, the General
counsel shall promptly notify the submitter.
(g) Exceptions to predisclosure notification. The notice
requirements in paragraph (c) of this section do not apply if:
(1) The General Counsel determines that the information should not
be disclosed;
(2) The information has been published previously or has been
officially made available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The designation made by the submitter in accordance with
paragraph (b) of this section appears obviously frivolous; except that,
in such a case, the General Counsel will provide the submitter with
written notice of any final decision to disclose business information
within a reasonable number of days prior to a specified disclosure
date.
Subpart E--Schedule of Fees
Sec. 2604.501 Fees to be charged--general.
(a) Policy. Fees shall be assessed according to the schedule
contained in paragraph (b) of this section and the category of
requesters described in Sec. 2604.502 for services rendered in
responding to and processing requests for records under subpart C of
this part. All fees shall be charged to the requester, except where the
charging of fees is limited under Sec. 2604.503 (a) and (b) or where a
waiver or reduction of fees is granted under Sec. 2604.503(c).
Requesters shall pay fees by check or money order made payable to the
Treasury of the United States.
(b) Types of charges. The types of charges that may be assessed in
connection with the production of records in response to a FOIA request
are as follows:
(1) Searches--
(i) Manual searches for records. Whenever feasible, the office will
charge at the salary rate (i.e., basic pay plus 16%) of the employee
making the search. However, where a homogeneous class of personnel is
used exclusively in a search (e.g., all clerical time or all
professional time) the Office will charge $10.00 per hour for clerical
time and $20.00 per hour for professional time. Charges for search time
will be billed by fifteen minute segments.
(ii) Computer searches for records. Requesters will be charged the
actual direct cost of conducting a search using existing programming.
These direct costs shall include the cost of operating a central
processing unit for that portion of operating time that is directly
attributable to searching for records responsive to a request, as well
as the cost of operator/programmer salary apportionable to the search.
The Office will not alter or develop programming to conduct a search.
(iii) Unproductive searches. The Office will charge search fees
even if no records are found which are responsive to the request, of if
the records found are exempt from disclosure.
(2) Duplication. The standard copying charge for documents in paper
copy is $.15 per page. When responsive information is provided in a
format other than paper copy, such as in the form of computer tapes and
discs, the requester may be charged the direct costs of the tape, disc,
or whatever medium is used to produce the information, as well as any
related reproduction costs.
(3) Review. Costs associated with the review of documents, as
defined in Sec. 2604.104(q), will be charged at the salary rate (i.e.,
basic pay plus 16%) of the employee conducting the review. Except as
noted below, charges may be assessed only for review at the initial
level, i.e., the review undertaken the first time the documents are
analyzed to determine the applicability of specific exemptions to a
particular record or portion of the records. A requester will not be
charged for review at the administrative appeal level concerning the
applicability of an exemption already applied at the initial level.
However, when a record has been withheld pursuant to an exemption which
is subsequently determined not to apply and the record is reviewed
again at the appeal level to determine the potential applicability of
other exemptions, the costs of such additional review may be assessed.
(4) Other services and materials. Where the Office elects, as a
matter of administrative discretion, to comply with a request for a
special service or materials, such as certifying that records are true
copies or sending records by special methods, the actual direct costs
of providing the service or materials will be charged.
Sec. 2604.502 Fees to be charged--categories of requesters.
(a) Fees for various requester categories. The paragraphs below
state, for each category of requester, the type of fees generally
charged by the Office. However, for each of these categories, the fees
may be limited, waived or reduced in accordance with the provisions set
forth in Sec. 2604.503. In determining whether a requester belongs in
any of the following categories, the Office will determine the use to
which the requester will put the documents requested. If the Office has
reasonable cause to doubt the use to which the requester will put the
records sought, or where the use is not clear from the request itself,
the Office will seek clarification before assigning the request to a
specific category.
(b) Commercial use requester. The Office will charge the full costs
of search, review, and duplication. Commercial use requesters are not
entitled to two hours of free search time or 100 free pages of
reproduction as described in Sec. 2604.503(a); however, the de minimis
fees provision of Sec. 2604.503(b) does apply to such requesters.
(c) Educational and noncommercial scientific institutions and news
media. If the request is from an educational institution or a
noncommercial scientific institution, operated for scholarly or
scientific research, or a representative of the news media, and the
request is not for a commercial use, the Office will charge only for
duplication of documents, excluding charges for the first 100 pages.
(d) All other requesters. If the request is not one described in
paragraph (b) or (c) of this section, the Office will charge the full
and direct costs of searching for and reproducing records that are
responsive to the request, excluding the first 100 pages of duplication
and the first two hours of search time.
Sec. 2604.503 Limitations on charging fees.
(a) In general. Except for requesters seeking records for a
commercial use as described in Sec. 2604.502(b), the Office will
provide, without charge, the first 100 pages of duplication and the
first two hours of search time, or their cost equivalent.
(b) De minimis fees. The Office will not assess fees for individual
requests if the total charge would be $10.00 or less.
(c) Waiver or reduction of fees. Records responsive to a request
under 5 U.S.C. 552 will be furnished without charge or at a reduced
charge where the Office determines, based upon information provided by
a requester in support of a fee waiver request, that 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 is not primarily in the commercial
interest of the requester. Requests for a waiver or reduction of fees
will be considered on a case-by-case basis.
(1) In determining whether disclosure is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the Government, the
Office 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 matter of the requested records, in the context
of the request, must specifically and directly concern identifiable
operations or activities of the Federal Government. Furthermore, the
records must be sought for their information value with respect to
those Government operations or activities;
(ii) The informative value of the information to be disclosed:
Whether the information is likely to contribute to an understanding of
Government operations or activies. The disclosable portions of the
requested records must be meaningfully information on specific
Government operations or activities in order to hold potential for
contributing to increased public understanding of those operations and
activities. The disclosure of information which is already in the
public domain, in either a duplicative or substantially identical form,
would not be likely to contribute to such understanding, as nothing new
would be added to the public record;
(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 the public at large,
as opposed to the individual understanding of the requester or a narrow
segment of interested persons. A requester's identity and
qualifications e.g., expertise in the subject area and ability and
intention to convey information to the general public--will be
considered; and
(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 matter in question, as compared to the
level of public understanding existing prior to the disclosure, must be
likely to be significantly enhanced by the disclosure.
(2) In determining whether disclosure of the requested information
is not primarily in the commercial interest of the requester, the
Office will consider the following factors:
(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 Office will consider all commercial interests
of the requester, or any person on whose behalf the requester may be
acting, which would be furthered by the requested disclosure. In
assessing the magnitude of identified commercial interests,
consideration will be given to the effect that the information
disclosed would have on those commercial interests; and
(ii) The primary interest in disclosure: Whether the magnitude of
the 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 warranted only where the public interest can
fairly be regarded as greater in magnitude than the requester's
commercial interest in disclosure. The Office will ordinarily presume
that, where a news media requester has satisfied the public interest
standard, the public interest will be served primarily by disclosure to
that requester. Disclosure to data brokers and others who compile and
market Government information for direct economic return will not be
presumed to primarily serve the public interest.
(3) Where only a portion of the requested record satisfies the
requirements for a waiver or reduction of fees under this paragraph, a
waiver or reduction shall be granted only as to that portion.
(4) A request for a waiver or reduction of fees must accompany the
request for disclosure of records, and should include:
(i) A clear statement of the requester's interest in the documents;
(ii) The proposed use of the documents and whether the requester
will derive income or other benefit from such use;
(iii) A statement of how the public will benefit from release of
the requested documents; and
(iv) If specialized use of the documents is contemplated, a
statement of the requester's qualifications that are relevant to the
specialized use.
(5) A requester may appeal the denial of a request for a waiver or
reduction of fees in accordance with the provisions of Sec. 2604.304.
Sec. 2604.504 Miscellaneous fee provisions.
(a) Notice of anticipated fees in excess of $25.00. Where the
Office determines or estimates that the fees to be assessed under this
section may amount to more than $25.00, the Office shall notify the
requester as soon as practicable of the actual or estimated amount of
fees, unless the requester has indicated in advance his willingness to
pay fees as high as those anticipated. Where a requester has been
notified that the actual or estimated fees may exceed $25.00, the
request will be deemed not to have been received until the requester
has agreed to pay the anticipated total fee. A notice to the requester
pursuant to this paragraph will include the opportunity to confer with
Office personnel in order to reformulate the request to meet the
requester's needs at a lower cost.
(b) Aggragating requests. A requester may not file multiple
requests, each seeking portions of a document or documents in order to
avoid the payment of fees. Where there is reason to believe that a
requester or group of requesters acting in concert, is attempting to
divide a request into a series of requests for the purpose of evading
the assessment of fees, the Office may aggregate the requests and
charge accordingly. The Office will presume that multiple requests of
this type made within a 30-day period have been made in order to evade
fees. Multiple requests regarding unrelated matters will not be
aggregated.
(c) Advance payments. An advance payment before work is commenced
or continued will not be required unless:
(1) The Office estimates or determines that the total fee to be
assessed under this section is likely to exceed $250.00. When a
determination is made that the allowable charges are likely to exceed
$250.00, the requester will be notified of the likely cost and will be
required to provide satisfactory assurance of full payment where the
requester has a history of prompt payment of FOIA fees, or will be
required to submit 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 a fee charged in a
timely fashion (i.e., within 30 days of the date of the billing). In
such cases the requester may be required to pay the full amount owed
plus any applicable interest as provided by paragraph (e) of this
section, and to make an advance payment of the full amount of the
estimated fee before the Office begins to process a new request.
(3) When the Office requests an advance payment of fees, the
administrative time limits described in subsection (a)(6) of the FOIA
will begin to run only after the Office has received the advance
payment.
(d) Billing and payment. Normally the Office will require a
requester to pay all fees before furnishing the requested records.
However, the Office may send a bill along with, or following the
furnishing of records, in cases where the requester has a history of
prompt payment.
(e) Interest charges. Interest charges on an unpaid bill may be
assessed starting on the 31st day following the day on which the
billing was sent. Interest shall be at the rate prescribed in 31 U.S.C.
3717 and shall accrue from the date of billing. To collect unpaid
bills, the Office will follow the provisions of the Debt Collection Act
of 1982 (P.L. 97-365) including the use of consumer reporting agencies,
collection agencies, and offset.
Subpart F--Annual Report to Congress
Sec. 2604.601 Submission of report.
On or before March 15 of each calendar year, a report of OGE's
activities over the preceding year relating to the Freedom of
Information Act will be submitted to the Speaker of the House of
Representatives and the President of the Senate.
Sec. 2604.602 Contents of the report.
Th annual report to Congress will include for the relevant
reporting period:
(a) The number of FOIA requests made to OGE, determinations made by
OGE not to comply with requests for records made to it under the FOIA
and the reasons for each such determination;
(b) The number of appeals made by persons under the FOIA, the
results of such appeals, and the reasons for the action by OGE upon
each appeal that results in a denial of information;
(c) The names and titles or positions of each person responsible
for the denial of records requested under the FOIA;
(d) The results of each proceeding conducted pursuant to subsection
(a)(4)(F) of the FOIA, including a report of the disciplinary action
taken against the officer or employee who was primarily responsible for
improperly withholding records or an explanation of why disciplinary
action was not taken;
(e) A copy of every rule made by OGE regarding the FOIA;
(f) A copy of the fee schedule and the total amount of fees
collected by OGE for making records available under the FOIA; and
(g) Such other information as indicates efforts by OGE to
administer fully the FOIA.
Subpart G--Fees for the Reproduction and Mailing of Public
Financial Disclosure Reports
Sec. 2604.701 Policy.
Fees for the reproduction and mailing of public financial
disclosure reports (SF 278s) requested pursuant to section 105 of the
Ethics in government Act of 1978, as amended, and Sec. 2634.603 of this
title shall be assessed according to the schedule contained in
Sec. 2604.702. Requesters shall pay fees by check or money order made
payable to the Treasury of the United States. Except as provided in
Sec. 2604.702(d), nothing concerning fees in subpart E of this part
supersedes the charges set forth in this subpart for records covered in
this subpart.
2604.702 Charges.
(a) Duplication. Except as provided in paragraph (c) of this
section, copies of public financial disclosure reports (SF 278s)
requested pursuant to section 105 of the Ethics in Government Act of
1978, as amended, and Sec. 2634.603 of this chapter will be provided
upon payment of $.03 per page furnished.
(b) Mailing. Except as provided in paragraph (c) of this section,
the actual direct cost of mailing public financial disclosure reports
will be charged for all forms requested. Where the Office elects to
comply, as a matter of administrative discretion, with a request for
special mailing services, the actual direct cost of such service will
be charged.
(c) De minimis fees. The Office will not assess fees for individual
requests if the total charge would be $10.00 or less.
(d) Miscellaneous fee provision. The miscellaneous fee provisions
set forth in Sec. 2604.504 apply to requests for public financial
disclosure reports pursuant to Sec. 2634.603 of this chapter.
[FR Doc. 94-24229 Filed 9-30-94; 8:45 am]
BILLING CODE 6345-01-P-M