[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Rules and Regulations]
[Pages 26488-26495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12650]
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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Parts 1215 and 2507
RIN 3045-AA16
Freedom of Information Act Regulation and Implementation of
Electronic Freedom of Information Act Amendments of 1996
AGENCY: Corporation for National and Community Service.
ACTION: Final rule.
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SUMMARY: The Corporation for National and Community Service
(hereinafter the ``Corporation'') has revised its regulations under the
Freedom of Information Act (FOIA). The Corporation redesignated the
existing regulations under former ACTION's CFR chapter as updated
regulations under the Corporation's CFR chapter. These procedures
facilitate the public's access to Corporation records, and implement
the Electronic Freedom of Information Act Amendments of 1996.
DATES: This final rule is effective June 12, 1998.
FOR FURTHER INFORMATION CONTACT: Bill Hudson, Corporation FOIA/Privacy
Act Officer, at (202) 606-5000, ext. 265.
SUPPLEMENTARY INFORMATION: The Corporation published a notice of
proposed rulemaking on March 12, 1998 (63 FR 12068) announcing its
intention to redesignate the existing regulations under former ACTION's
CFR chapter as updated regulations under the Corporation's CFR chapter.
The functions of the ACTION agency, including the VISTA and senior
volunteer programs, were transferred to the Corporation on April 4,
1994. The Corporation operates under two statutes, the National and
Community Service Act of 1990, as amended, 42 U.S.C. 12501 et seq., and
the Domestic Volunteer Service Act of 1973, as amended, 42 U.S.C. 4950
et seq.
The Corporation received only two comments on this proposed rule.
One comment requested that the Corporation publish a more detailed
index list of documents available on its internet web site. The
Corporation's FOIA Officer will publish a more detailed index list on
its internet web site as additional types of documents become available
on that site. The other comment was a request to grant the
Corporation's Office of Inspector General (OIG) authority to make the
final determination on all FOIA appeals where the OIG denied the
initial request for any document in its possession. The Corporation has
determined that its Chief Operating
[[Page 26489]]
Officer (COO) will continue to make the final determination on all
appeals filed as a result of the OIG's initial determination to deny
the release of documents to a FOIA requester.
This final rule redesignates ACTION's policy at 45 CFR Chapter XII,
Part 1215, to be revised as 45 CFR Chapter XXV, Part 2507, and governs
the Corporation as a whole.
Distribution Table
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Old 45 CFR part 1215 New 45 CFR part 2507
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1215.1.................................... 2507.1
1215.2.................................... 2507.2
1215.3.................................... 2507.3
1214.4.................................... 2507.4
1215.5.................................... 2507.5
1215.6.................................... 2507.6
1215.7.................................... 2507.7
1215.8.................................... 2507.8
1215.9.................................... 2507.9
1215.10................................... 2507.10
Appendix 1(A)............................. Appendix A
Appendix 1(B)............................. Appendix B
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Regulatory Flexibility Act
The General Counsel, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 606(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities. Under the Freedom of
Information Act, agencies may recover only the direct costs for
searching for, reviewing, and duplicating the records processed for
requesters. Thus, fees accessed by the Corporation are nominal.
Further, the ``small entities'' that make FOIA requests, as compared
with individual requesters and other requesters, are relatively few in
number.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866. The Office of Management and Budget has reviewed
this rule and has determined that this rule is not a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review.
Unfunded Mandates Reform 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
$100,000,000 or more in any one 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 Sec. 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This rule will
not result in an annual effect on the economy of $100,000,000 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 export markets.
List of Subjects in 45 CFR Parts 1215 and 2507
Confidential business information, Freedom of information.
Accordingly, and under the authority of 42 U.S.C. 12501 et. seq.,
the Corporation amends 45 CFR chapters XII and XXV as follows:
PART 1215--[REDESIGNATED AS PART 2507]
1. Part 1215 in 45 CFR chapter XII is redesignated as part 2507 in
45 CFR chapter XXV and is revised to read as follows:
PART 2507--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM
OF INFORMATION ACT
Sec.
2507.1 Definitions.
2507.2 What is the purpose of this part?
2507.3 What types of records are available for disclosure to the
public?
2507.4 How are requests for records made?
2507.5 How does the Corporation process requests for records?
2507.6 Under what circumstances may the Corporation extend the time
limits for an initial response?
2507.7 How does one appeal the Corporation's denial of access to
records?
2507.8 How are fees determined?
2507.9 What records will be denied disclosure under this part?
2507.10 What records are specifically exempt from disclosure?
2507.11 What are the procedures for the release of commercial
business information?
2507.12 Authority.
Appendix A to Part 2507--Freedom of Information Act Request Letter
(Sample)
Appendix B to Part 2507--Freedom of Information Act Appeal for
Release of Information (Sample)
Authority: 42 U.S.C. 12501 et seq.
Sec. 2507.1 Definitions.
As used in this part, the following definitions shall apply:
(a) Act means section 552 of Title 5, United States Code, sometimes
referred to as the ``Freedom of Information Act'', and Pub. L. 104-231,
110 Stat. 3048, sometimes referred to as the ``Electronic Freedom of
Information Act Amendments of 1996.''
(b) Agency means any executive department, military department,
government corporation, or other establishment in the executive branch
of the Federal Government, or any independent regulatory agency. Thus,
the Corporation is a Federal agency.
(c) Commercial use request means a request from, or on behalf of, a
person who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is made. The use to which the requester
will put the records sought will be considered in determining whether
the request is a commercial use request.
(d) Corporation means the Corporation for National and Community
Service.
(e) Educational institution means a pre-school, elementary or
secondary school, institution of undergraduate or graduate higher
education, or institution of professional or vocational education,
which operates a program of scholarly research.
(f) Electronic data means records and information (including e-
mail) which are created, stored, and retrievable by electronic means.
(g) Freedom of Information Act Officer (FOIA Officer) means the
Corporation official who has been delegated the authority to make the
initial determination on whether to release or withhold records, and to
assess, waive, or reduce fees in response to FOIA requests.
(h) Non-commercial scientific institution means an institution that
is not operated substantially 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 whose results
are not intended to promote any particular product or industry.
(i) Public interest means the interest in obtaining official
information that sheds light on an agency's performance of its
statutory duties because the information falls within the statutory
purpose of the FOIA to inform citizens about what their government is
doing.
(j) Record includes books, brochures, electronic mail messages,
punch cards, magnetic tapes, cards, discs, paper tapes, audio or video
recordings, maps, pamphlets, photographs, slides, microfilm, and motion
pictures, or other documentary materials, regardless of physical form
or characteristics, made or received by the Corporation pursuant
[[Page 26490]]
to Federal law or in connection with the transaction of public business
and preserved by the Corporation as evidence of the organization,
functions, policies, decisions, procedures, operations, programs, or
other activities. Record does not include objects or articles such as
tangible exhibits, models, equipment, or processing materials; or
formulas, designs, drawings, or other items of valuable property.
Record does not include books, magazines, pamphlets or other materials
acquired solely for reference purposes. Record does not include
personal records of an individual not subject to agency creation or
retention requirements, created and maintained primarily for the
convenience of an agency employee, and not distributed to other agency
employees for their official use. Record does not include information
stored within a computer for which there is no existing computer
program for retrieval of the requested information. A record must exist
and be in the possession and control of the Corporation at the time of
the request to be considered subject to this part and the FOIA. There
is no obligation to create, compile, or obtain a record to satisfy a
FOIA request. See Sec. 2507.5(d) with respect to creating a record in
the electronic environment.
(k) Representative of the news media means a person who is actively
gathering information for an entity organized to publish, broadcast or
otherwise disseminate 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 (e.g.,
electronic dissemination of text). Freelance journalists will be
treated as representatives of a new media entity if they can show a
likelihood of publication through such an entity. A publication
contract would be the clearest proof, but the Corporation may also look
to the past publication record of a requester in making this
determination.
(l) FOIA request means a written request for Corporation records,
made by any person, including a member of the public (U.S. or foreign
citizen), an organization, or a business, but not including a Federal
agency, an order from a court, or a fugitive from the law, that either
explicitly or implicitly involves the FOIA, or this part. Written
requests may be received by postal service or by facsimile.
(m) Review means the process of examining records located in
response to a request to determine whether any record or portion of a
record is permitted to be withheld. It also includes processing records
for disclosure (i.e., excising portions not subject to disclosure under
the Act and otherwise preparing them for release). Review does not
include time spent resolving legal or policy issues regarding the
application of exemptions under the Act.
(n) Search means looking for records or portions of records
responsive to a request. It includes reading and interpreting a
request, and also page-by-page and line-by-line examination to identify
responsive portions of a document. However, it does not include line-
by-line examination where merely duplicating the entire page would be a
less expensive and quicker way to comply with the request.
Sec. 2507.2 What is the purpose of this part?
The purpose of this part is to prescribe rules for the inspection
and release of records of the Corporation for National and Community
Service pursuant to the Freedom of Information Act (``FOIA''), 5 U.S.C.
552, as amended. Information customarily furnished to the public in the
regular course of the Corporation's official business, whether hard
copy or electronic records which are available to the public through an
established distribution system, or through the Federal Register, the
National Technical Information Service, or the Internet, may continue
to be furnished without processing under the provisions of the FOIA or
complying with this part.
Sec. 2507.3 What types of records are available for disclosure to the
public?
(a) (1) The Corporation will make available to any member of the
public who requests them, the following Corporation records:
(i) All publications and other documents provided by the
Corporation to the public in the normal course of agency business will
continue to be made available upon request to the Corporation;
(ii) Final opinions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of administrative cases;
(iii) Statements of policy and interpretation adopted by the agency
and not published in the Federal Register;
(iv) Administrative staff manuals and instructions to the staff
that affect a member of the public; and
(v) Copies of all records, regardless of form or format, which,
because of the nature of their subject matter, the agency determines
have become or are likely to become the subject of subsequent requests
for substantially the same records.
(2) Copies of a current index of the materials in paragraphs
(a)(1)(i) through (v) of this section that are maintained by the
Corporation, or any portion thereof, will be furnished or made
available for inspection upon request.
(b) To the extent necessary to prevent a clearly unwarranted
invasion of personal privacy, the Corporation may delete identifying
details from materials furnished under this part.
(c) Brochures, leaflets, and other similar published materials
shall be furnished to the public on request to the extent they are
available. Copies of any such materials which are out of print shall be
furnished to the public at the cost of duplication, provided, however,
that, in the event no copy exists, the Corporation shall not be
responsible for reprinting the document.
(d) All records of the Corporation which are requested by a member
of the public in accordance with the procedures established in this
part shall be duplicated for the requester, except to the extent that
the Corporation determines that such records are exempt from disclosure
under the Act.
(e) The Corporation will not be required to create new records,
compile lists of selected items from its files, or provide a requester
with statistical or other data (unless such data has been compiled
previously and is available in the form of a record.)
(f) These records will be made available for public inspection and
copying in the Corporation's reading room located at the Corporation
for National and Community Service, 1201 New York Avenue, NW., Room
8200, Washington, D.C. 20525, during the hours of 9:30 a.m. to 4:00
p.m., Monday through Friday, except on official holidays.
(g) Corporation records will be made available to the public unless
it is determined that such records should be withheld from disclosure
under subsection 552(b) of the Act and or in accordance with this part.
Sec. 2507.4 How are requests for records made?
(a) How made and addressed. (1) Requests for Corporation records
under the Act must be made in writing, and can be mailed, hand-
delivered, or received by facsimile, to the FOIA Officer, Corporation
for National and Community Service, Office of the
[[Page 26491]]
General Counsel, 1201 New York Avenue, N.W., Room 8200, Washington,
D.C. 20525. (See Appendix A for an example of a FOIA request.) All such
requests, and the envelopes in which they are sent, must be plainly
marked ``FOIA Request''. Hand-delivered requests will be received
between 9 a.m. and 4 p.m., Monday through Friday, except on official
holidays. Although the Corporation maintains offices throughout the
continental United States, all FOIA requests must be submitted to the
Corporation's Headquarters office in Washington, DC.
(2) Corporation records that are available in the Corporation's
reading room will also be made available for public access through the
Corporation's ``electronic reading room'' internet site under
``Resource Links''. The following address is the Corporation's Internet
Web site: http://www.nationalservice.org.
(b) Request must adequately describe the records sought. A request
must describe the records sought in sufficient detail to enable
Corporation personnel to locate the records with reasonable effort, and
without unreasonable burden to or disruption of Corporation operations.
Among the kinds of identifying information which a requester may
provide are the following:
(1) The name of the specific program within the Corporation which
may have produced or may have custody of the record (e.g.,
AmeriCorps*State/National Direct, AmeriCorps*NCCC (National Civilian
Community Corps), AmeriCorps*VISTA (Volunteers In Service To America),
Learn and Serve America, National Senior Service Corps (NSSC), Retired
and Senior Volunteer Program (RSVP), Foster Grandparent Program (FGP),
Senior Companion Program (SCP), and HUD Hope VI);
(2) The specific event or action, if any, to which the record
pertains;
(3) The date of the record, or an approximate time period to which
it refers or relates;
(4) The type of record (e.g. contract, grant or report);
(5) The name(s) of Corporation personnel who may have prepared or
been referenced in the record; and
(6) Citation to newspapers or other publications which refer to the
record.
(c) Agreement to pay fees. The filing of a request under this
section shall be deemed to constitute an agreement by the requester to
pay all applicable fees, up to $25.00, unless a waiver of fees is
sought in the request letter. When filing a request, a requester may
agree to pay a greater amount, if applicable. (See Sec. 2507.8 for
further information on fees.)
Sec. 2507.5 How does the Corporation process requests for records?
(a) Initial processing. Upon receipt of a request for agency
records, the FOIA Officer will make an initial determination as to
whether the requester has reasonably described the records being sought
with sufficient specificity to determine which Corporation office may
have possession of the requested records. The office head or his or her
designees shall determine whether the description of the record(s)
requested is sufficient to permit a determination as to existence,
identification, and location. It is the responsibility of the FOIA
Officer to provide guidance and assistance to the Corporation staff
regarding all FOIA policies and procedures. All requests for records
under the control and jurisdiction of the Office of the Inspector
General will be forwarded to the Inspector General, through the FOIA
Officer, for the Corporation's initial determination and reply to the
requester.
(b) Insufficiently identified records. On making a determination
that the description contained in the request does not reasonably
describe the records being sought, the FOIA Officer shall promptly
advise the requester in writing or by telephone if possible. The FOIA
Officer shall provide the requester with appropriate assistance to help
the requester provide any additional information which would better
identify the record. The requester may submit an amended request
providing the necessary additional identifying information. Receipt of
an amended request shall start a new 20 day period in which the
Corporation will respond to the request.
(c) Furnishing records. The Corporation is required to furnish only
copies of what it has or can retrieve. It is not compelled to create
new records or do statistical computations. For example, the
Corporation is not required to write a new program so that a computer
will print information in a special format. However, if the requested
information is maintained in computerized form, and it is possible,
without inconvenience or unreasonable burden, to produce the
information on paper, the Corporation will do this if this is the only
feasible way to respond to a request. The Corporation is not required
to perform any research for the requester. The Corporation reserves the
right to make a decision to conserve government resources and at the
same time supply the records requested by consolidating information
from various records rather than duplicating all of them. For example,
if it requires less time and expense to provide a computer record as a
paper printout rather than in an electronic medium, the Corporation
will provide the printout. The Corporation is only required to furnish
one copy of a record.
(d) Format of the disclosure of a record. The requester, not the
Corporation, will be entitled to choose the form of disclosure when
multiple forms of a record already exist. Any further request for a
record to be disclosed in a new form or format will have to be
considered by the Corporation, on a case-by-case basis, to determine
whether the records are ``readily reproducible'' in that form or format
with ``reasonable efforts'' on the part of the Corporation. The
Corporation shall make reasonable efforts to maintain its records in
forms or formats that are reproducible for purposes of replying to a
FOIA request.
(e) Release of record. Upon receipt of a request specifically
identifying existing Corporation records, the Corporation shall, within
20 days (excepting Saturdays, Sundays, and legal public holidays),
either grant or deny the request in whole or in part, as provided in
this section. Any notice of denial in whole or in part shall require
the FOIA Officer to inform the requester of his/her right to appeal the
denial, in accordance with the procedures set forth in Sec. 2507.7. If
the FOIA Officer determines that a request describes a requested record
sufficiently to permit its identification, he/she shall make it
available unless he/she determines, as appropriate, to withhold the
record as being exempt from mandatory disclosure under the Act.
(f) Form and content of notice granting a request. The Corporation
shall provide written notice of a determination to grant access within
20 days (excepting Saturdays, Sundays, and legal public holidays) of
receipt of the request. This will be done either by providing a copy of
the record to the requester or by making the record available for
inspection at a reasonable time and place. If the record cannot be
provided at the time of the initial response, the Corporation shall
make such records available promptly. Records disclosed in part shall
be marked or annotated to show both the amount and the location of the
information deleted wherever practicable.
(g) Form and content of notice denying request. The Corporation
shall notify the requester in writing of the denial of access within 20
days (excepting Saturdays, Sundays, and legal public holidays) of
receipt of the request. Such notice shall include:
[[Page 26492]]
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reason(s) for denial, including the
specific exemption(s) under the Act on which the Corporation has relied
in denying each document that was requested;
(3) A statement that the denial may be appealed under Sec. 2507.7,
and a description of the requirements of that Sec. 2507.7;
(4) An estimate of the volume of records or information withheld,
in number of pages or in some other reasonable form of estimation. This
estimate does not need to be provided if the volume is otherwise
indicated through deletions on records disclosed in part, or if
providing an estimate would harm an interest protected by an applicable
exemption.
Sec. 2507.6 Under what circumstances may the Corporation extend the
time limits for an initial response?
The time limits specified for the Corporation's initial response in
Sec. 2507.5, and for its determination on an appeal in Sec. 2507.7, may
be extended by the Corporation upon written notice to the requester
which sets forth the reasons for such extension and the date upon which
the Corporation will respond to the request. Such extension may be
applied at either the initial response stage or the appeal stage, or
both, provided the aggregate of such extensions shall not exceed ten
working days. Circumstances justifying an extension under this section
may include the following:
(a) Time necessary to search for and collect requested records from
field offices of the Corporation;
(b) Time necessary to locate, collect and review voluminous
records; or
(c) Time necessary for consultation with another agency having an
interest in the request; or among two or more offices of the
Corporation which have an interest in the request; or with a submitter
of business information having an interest in the request.
Sec. 2507.7 How does one appeal the Corporation's denial of access to
records?
(a) Right of appeal. A requester has the right to appeal a partial
or full denial of an FOIA request. The appeal must be put in writing
and sent to the reviewing official identified in the denial letter. The
requester must send the appeal within 60 days of the letter denying the
appeal.
(b) Contents of appeal. The written appeal may include as much or
as little information as the requester wishes for the basis of the
appeal.
(c) Review process. The Chief Operating Officer (COO) is the
designated official to act on all FOIA appeals. The COO's determination
of an appeal constitutes the Corporation's final action. If the appeal
is granted, in whole or in part, the records will be made available for
inspection or sent to the requester, promptly, unless a reasonable
delay is justified. If the appeal is denied, in whole or in part, the
COO will state the reasons for the decision in writing, providing
notice of the right to judicial review. A decision will be made on the
appeal within 20 days (excepting Saturdays, Sundays, and legal public
holidays), from the date the appeal was received by the COO.
(d) When appeal is required. If a requester wishes to seek review
by a court of an unfavorable determination, an appeal must first be
submitted under this section.
Sec. 2507.8 How are fees determined?
(a) Policy. It is the policy of the Corporation to provide the
widest possible access to releasable Corporation records at the least
possible cost. The purpose of the request is relevant to the fees
charged.
(b) Types of request. Fees will be determined by category of
requests as follows:
(1) Commercial use requests. When a request for records is made for
commercial use, charges will be assessed to cover the costs of
searching for, reviewing for release, and reproducing the records
sought.
(2) Requests for educational and non-commercial scientific
institutions. When a request for records is made by an educational or
non-commercial scientific institution in furtherance of scholarly or
scientific research, respectively, charges may be assessed to cover the
cost of reproduction alone, excluding charges for reproduction of the
first 100 pages. Whenever the total fee calculated is $18.00 or less,
no fee shall be charged.
(3) Requests from representatives of the news media. When a request
for records is made by a representative of the news media for the
purpose of news dissemination, charges may be assessed to cover the
cost of reproduction alone, excluding the charges for reproduction of
the first 100 pages. Whenever the total fee calculated is $18.00 or
less, no fee shall be charged.
(4) Other requests. When other requests for records are made which
do not fit the three preceding categories, charges will be assessed to
cover the costs of searching for and reproducing the records sought,
excluding charges for the first two hours of search time and for
reproduction of the first 100 pages. (However, requests from
individuals for records about themselves contained in the Agency's
systems of records will be treated under the fee provisions of the
Privacy Act of 1974 (5 U.S.C. 552a) which permit the assessment of fees
for reproduction costs only, regardless of the requester's
characterization of the request.) Whenever the total fee calculated is
$18.00 or less, no fee shall be charged to the requester.
(c) Direct costs. Fees assessed shall provide only for recovery of
the Corporation's direct costs of search, review, and reproduction.
Review costs shall include only the direct costs incurred during the
initial examination of a record for the purposes of determining whether
a record must be disclosed under this part and whether any portion of a
record is exempt from disclosure under this part. Review costs shall
not include any costs incurred in resolving legal or policy issues
raised in the course of processing a request or an appeal under this
part.
(d) Charging of fees. The following charges may be assessed for
copies of records provided to a requester:
(1) Copies made by photostat shall be charged at the rate of $0.10
per page.
(2) Searches for requested records performed by clerical/
administrative personnel shall be charged at the rate of $4.00 per
quarter hour.
(3) Where a search for requested records cannot be performed by
clerical administrative personnel (for example, where the tasks of
identifying and compiling records responsive to a request must be
performed by a skilled technician or professional), such search shall
be charged at the rate of $7.00 per quarter hour.
(4) Where the time of managerial personnel is required, the fee
shall be $10.25 for each quarter hour of time spent by such managerial
personnel.
(5) Computer searches for requested records shall be charged at a
rate commensurate with the combined cost of computer operation and
operator's salary attributable to the search.
(6) Charges for non-release. Charges may be assessed for search and
review time, even if the Corporation fails to locate records responsive
to a request or if records located are determined to be exempt from
disclosure.
(e) Consent to pay fees. In the event that a request for records
does not state that the requester will pay all reasonable costs, or
costs up to a specified dollar amount, and the FOIA Officer determines
that the anticipated assessable costs for search, review and
reproduction of requested records will exceed $25.00, or will exceed
the limit specified in the request, the requester
[[Page 26493]]
shall be promptly notified in writing. Such notification shall state
the anticipated assessable costs of search, review and reproduction of
records requested. The requester shall be afforded an opportunity to
amend the request to narrow the scope of the request, or,
alternatively, may agree to be responsible for paying the anticipated
costs. Such a request shall be deemed to have been received by the
Corporation upon the date of receipt of the amended request.
(f) Advance payment. (1) Advance payment of assessable fees are not
required from a requester unless:
(i) The Corporation estimates or determines that assessable charges
are likely to exceed $250.00, and the requester has no history of
payment of FOIA fees. (Where the requester has a history of prompt
payment of fees, the Corporation shall notify the requester of the
likely cost and obtain written assurance of full payment.)
(ii) A requester has previously failed to pay a FOIA fee charged in
a timely fashion (i.e., within 30 days of the date of the billing).
(2) When the Corporation acts under paragraphs (f)(1)(i) or (ii) of
this section, the administrative time limits prescribed in
Sec. 2507.5(a) and (b) will begin to run only after the Corporation has
received fee payments or assurances.
(g) Interest on non-payment. Interest charges on an unpaid bill may
be assessed starting on the 31st day following the day on which the
billing was sent. Interest will be assessed at the rate prescribed in
31 U.S.C. 3717 and will accrue from the date of the billing. The
Corporation may use the authorization of the Debt Collection Act of
1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its
administrative procedures, including disclosure to consumer reporting
agencies and the use of collection agencies, to encourage payment of
delinquent fees.
(h) Aggregating requests. Where the Corporation reasonably believes
that a requester or a group of requesters acting together is attempting
to divide a request into a series of requests for the purpose of
avoiding fees, the Corporation may aggregate those requests and charge
accordingly. The Corporation may presume that multiple requests of this
type made within a 30-day period have been made in order to avoid fees.
Where requests are separated by a longer period, the Corporation will
aggregate them only where there exists a solid basis for determining
that aggregation is warranted under the circumstances involved.
Multiple requests involving unrelated matters will not be aggregated.
(i) Making payment. Payment of fees shall be forwarded to the FOIA
Officer by check or money order payable to ``Corporation for National
and Community Service''. A receipt for any fees paid will be provided
upon written request.
(j) Fee processing. No fee shall be charged if the administrative
costs of collection and processing of such fees are equal to or do not
exceed the amount of the fee.
(k) Waiver or reduction of fees. A requester may, in the original
request, or subsequently, apply for a waiver or reduction of document
search, review and reproduction fees. Such application shall be in
writing, and shall set forth in detail the reason(s) a fee waiver or
reduction should be granted. The amount of any reduction requested
shall be specified in the request. Upon receipt of such a request, the
FOIA Officer will determine whether a fee waiver or reduction should be
granted.
(1) A waiver or reduction of fees shall be granted only if release
of the requested information to the requester is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the Corporation, and
it is not primarily in the commercial interest of the requester. The
Corporation shall consider the following factors in determining whether
a waiver or reduction of fees will be granted:
(i) Does the requested information concern the operations or
activities of the Corporation?
(ii) If so, will disclosure of the information be likely to
contribute to public understanding of the Corporation's operations and
activities?
(iii) If so, would such a contribution be significant?
(iv) Does the requester have a commercial interest that would be
furthered by disclosure of the information?
(v) If so, is the magnitude of the identified commercial interest
of the requester sufficiently large, in comparison with the public
interest in disclosure, that disclosure is primarily in the commercial
interest of the requester?
(2) In applying the criteria in paragraph (k)(1) of this section,
the Corporation will weigh the requester's commercial interest against
any public interest in disclosure. Where there is a public interest in
disclosure, and that interest can fairly be regarded as being of
greater magnitude than the requester's commercial interest, a fee
waiver or reduction may be granted.
(3) When a fee waiver application has been included in a request
for records, the request shall not be considered officially received
until a determination is made regarding the fee waiver application.
Such determination shall be made within five working days from the date
any such request is received in writing by the Corporation.
Sec. 2507.9 What records will be denied disclosure under this part?
Since the policy of the Corporation is to make the maximum amount
of information available to the public consistent with its other
responsibilities, written requests for a Corporation record made under
the provisions of the FOIA may be denied when:
(a) The record is subject to one or more of the exemptions of the
FOIA.
(b) The record has not been described clearly enough to enable the
Corporation staff to locate it within a reasonable amount of effort by
an employee familiar with the files.
(c) The requestor has failed to comply with the procedural
requirements, including the agreement to pay any required fee.
(d) For other reasons as required by law, rule, regulation or
policy.
Sec. 2507.10 What records are specifically exempt from disclosure?
Any reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of portions which are
exempt under this section. The following categories are examples of
records maintained by the Corporation which, under the provision of 5
U.S.C. 552(b), are exempted from disclosure:
(a) Records required to be withheld under criteria established by
an Executive Order in the interest of national defense and policy and
which are in fact properly classified pursuant to any such Executive
Order. Included in this category are records required by Executive
Order No. 12958 (3 CFR, 1995 Comp., p. 333), as amended, to be
classified in the interest of national defense or foreign policy.
(b) Records related solely to internal personnel rules and
practices. Included in this category are internal rules and regulations
relating to personnel management operations which cannot be disclosed
to the public without substantial prejudice to the effective
performance of significant functions of the Corporation.
(c) Records specifically exempted from disclosure by statute.
(d) Information of a commercial or financial nature including trade
secrets
[[Page 26494]]
given in confidence. Included in this category are records containing
commercial or financial information obtained from any person and
customarily regarded as privileged and confidential by the person from
whom they were obtained.
(e) Interagency or intra-agency memoranda or letters which would
not be available by law to a party other than a party in litigation
with the Corporation. Included in this category are memoranda, letters,
inter-agency and intra-agency communications and internal drafts,
opinions and interpretations prepared by staff or consultants and
records meant to be used as part of deliberations by staff, or
ordinarily used in arriving at policy determinations and decisions.
(f) Personnel, medical and similar files. Included in this category
are personnel and medical information files of staff, individual
national service applicants and participants, lists of names and home
addresses, and other files or material containing private or personal
information, the public disclosure of which would amount to a clearly
unwarranted invasion of the privacy of any person to whom the
information pertains.
(g) Investigatory files. Included in this category are files
compiled for the enforcement of all laws, or prepared in connection
with government litigation and adjudicative proceedings, provided
however, that such records shall be made available to the extent that
their production will not:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to a fair trial or an impartial
adjudication;
(3) Constitute an unwarranted invasion of personal privacy;
(4) Disclose the identity of a confidential source, and in the case
of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
security intelligence investigation, confidential information furnished
by confidential source;
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or physical safety of law enforcement
personnel.
Sec. 2507.11 What are the procedures for the release of commercial
business information?
(a) Notification of business submitter. The Corporation shall
promptly notify a business submitter of any request for Corporation
records containing business information. The notice shall either
specifically describe the nature of the business information requested
or provide copies of the records, or portions thereof containing the
business information.
(b) Business submitter reply. The Corporation shall afford a
business submitter 10 working days to object to disclosure, and to
provide the Corporation with a written statement specifying the grounds
and arguments why the information should be withheld under Exemption
(b)(4) of the Act.
(c) Considering and balancing respective interests. (1) The
Corporation shall carefully consider and balance the business
submitter's objections and specific grounds for nondisclosure against
such factors as:
(i) The general custom or usage in the occupation or business to
which the information relates that it be held confidential; and
(ii) The number and situation of the individuals who have access to
such information; and
(iii) The type and degree of risk of financial injury to be
expected if disclosure occurs; and
(iv) The length of time such information should be regarded as
retaining the characteristics noted in paragraphs (c)(1) (i) through
(iii) of this section in determining whether to release the requested
business information.
(2)(i) Whenever the Corporation decides to disclose business
information over the objection of a business submitter, the Corporation
shall forward to the business submitter a written notice of such
decision, which shall include:
(A) The name, and title or position, of the person responsible for
denying the submitter's objection;
(B) A statement of the reasons why the business submitter's
objection was not sustained;
(C) A description of the business information to be disclosed; and
(D) A specific disclosure date.
(ii) The notice of intent to disclose business information shall be
mailed by the Corporation not less than six working days prior to the
date upon which disclosure will occur, with a copy of such notice to
the requester.
(d) When notice to business submitter is not required. The notice
to business submitter shall not apply if:
(1) The Corporation determines that the information shall not be
disclosed;
(2) The information has previously been published or otherwise
lawfully been made available to the public; or
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552).
(e) Notice of suit for release. Whenever a requester brings suit to
compel disclosure of business information, the Corporation shall
promptly notify the business submitter.
Sec. 2507.12 Authority.
The Corporation receives authority to change its governing
regulations from the National and Community Service Act of 1990, as
amended (42 U.S.C. 12501 et seq.).
Appendix A to Part 2507--Freedom of Information Act Request Letter
(Sample)
Freedom of Information Act Officer-------------------------------------
Name of Agency---------------------------------------------------------
Address of Agency------------------------------------------------------
City, State, Zip Code--------------------------------------------------
Re: Freedom of Information Act Request.
Dear________: This is a request under the Freedom of Information
Act.
I request that a copy of the following documents [or documents
containing the following information] be provided to me: [identify
the documents or information as specifically as possible].
[Sample requester descriptions]
--A representative of the news media affiliated with the
________ newspaper (magazine, television station, etc.) and this
request is made as part of news gathering and not for commercial
use.
--Affiliated with an educational or non-commercial scientific
institution, and this request is not for commercial use.
--An individual seeking information for personal use and not for
commercial use.
--Affiliated with a private corporation and am seeking
information for use in the company's business.
[Optional] I am willing to pay fees for this request up to a
maximum of $________. If you estimate that the fees will exceed this
limit, please inform me first.
[Optional] I request a waiver of all fees for this request.
Disclosure of the requested information to me is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of government and is
not primarily in my commercial interest. [Include a specific
explanation.]
In order to help you determine my status to assess fees, you
should know that I am (insert a suitable description of the
requester and the purpose of the request).
Thank you for your consideration of this request.
Sincerely,
Name-------------------------------------------------------------------
Address----------------------------------------------------------------
City, State, Zip Code--------------------------------------------------
Telephone Number [Optional]--------------------------------------------
Appendix B to Part 2507--Freedom of Information Act Appeal for
Release of Information (Sample)
Appeal Officer---------------------------------------------------------
Name of Agency---------------------------------------------------------
Address of Agency------------------------------------------------------
City, State, Zip Code--------------------------------------------------
Re: Freedom of Information Act Appeal.
[[Page 26495]]
Dear________: This is an appeal under the Freedom of Information
Act.
On (date), I requested documents under the Freedom of
Information Act. My request was assigned the following
identification number ________. On (date), I received a response to
my request in a letter signed by (name of official). I appeal the
denial of my request.
[Optional] The documents that were withheld must be disclosed
under the FOIA because * * *.
[Optional] Respond for waiver of fees. I appeal the decision to
deny my request for a waiver of fees. I believe that I am entitled
to a waiver of fees. Disclosure of the documents I requested is in
the public interest because the information is likely to contribute
significantly to public understanding of the operation or activities
of government and is not primarily in my commercial interest.
(Provide details)
[Optional] I appeal the decision to require me to pay review
costs for this request. I am not seeking the documents for a
commercial use. (Provide details)
(Optional] I appeal the decision to require me to pay search
charges for this request. I am a reporter seeking information as
part of news gathering and not for commercial use.
Thank you for your consideration of this appeal.
Sincerely,
Name-------------------------------------------------------------------
Address----------------------------------------------------------------
City, State, Zip Code--------------------------------------------------
Telephone Number [Optional]--------------------------------------------
Dated: May 8, 1998.
Kenneth L. Klothen,
General Counsel.
[FR Doc. 98-12650 Filed 5-12-98; 8:45 am]
BILLING CODE 6050-28-P