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supplied, or is known or believed to have been destroyed or otherwise disposed of, the Office shall so notify the requester in writing.
agreements between the Office and another agency to eliminate the need for consultations or referrals of requests or classes of requests.
(8) Separate referrals of portions of a request. Portions of a request may be referred separately to one other agencies whenever necessary to process the request in accordance with the provisions of this section.
(h) Date for determining responsive records. In determining records responsive to a request, the Office ordinarily will include only those records within the Office's possession and control as of the date of its receipt of the request.
$701.14 Classified information.
In processing a request for information that is classified or classifiable under Executive Order 12356 or any other Executive Order concerning the classification of records, the Office shall review the information to determine whether it warrants classification. Information that does not warrant classification shall not be withheld from a requester on the basis of 5 U.S.C. 552(b)(1). The Office shall, upon receipt of any appeal involving classified or classifiable information, take appropriate action to ensure compliance with Executive Order 12356 or any other Executive Order concerning the classification of records.
$701.13 Form and content of Office re
sponses. (a) Form of notice granting a request. After the Office has made a determination to grant a request in whole or in part, the Office shall so notify the requester in writing. The notice shall describe the manner in which the record will be disclosed, whether by providing a copy of the record to the requester 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 shall not unreasonably disrupt the operations of the Office. The Office shall inform the requester in the notice of any fees to be charged in accordance with the provisions of $701.18 of this part.
(b) Form of notice denying a request. The Office, when denying a request in whole or in part, shall so notify the requester in writing. The notice must be signed by the FOIA/PA Officer, or her designee, and shall include:
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reason or reasons for the denial, including the FOIA exemption or exemptions that the Office has relied upon in denying the request and a brief explanation of the manner in which the exemption or exemptions apply to each record withheld; and
(3) A statement that the denial may be appealed under $ 701.16(a) and a description of the requirements of that subsection.
(c) Record cannot be located or has been destroyed. If a requested record cannot be located from the information
$ 701.15 Business information.
(a) In general. Business information provided to the Office by a business submitter shall not be disclosed pursuant to a FOIA request except in accordance with this section.
(b) Notice to business submitters. The Office shall provide a business submitter with prompt written notice of a request encompassing its business information whenever required under paragraph (c) of this section, except as is provided in paragraph (g) of this section, and only to the extent permitted by law. Such written notice shall either describe the exact nature of the business information requested or provide copies of the records or portions thereof containing the business information.
(c) When notice is required. For business information submitted to the Office it shall provide a business submitter with notice of a request whenever the business submitter has in good faith designated the information as commercially or financially sensitive. or the Office has reason to believe that disclosure of the information may result in commercial or financial injury to the business submitter. Notice of a request for business information falling within the former category shall be required for a period of not more than ten years after the date of submission
unless the business submitter requests, the Office shall promptly notify the and provides acceptable justification business submitter. for, a specific notice period of greater (g) Erceptions to notice requirements. duration. Whenever possible, the sub- The notice requirements of this section mitter's claim
of confidentiality shall not apply if: should be supported by a statement or (1) The Office determines that the incertification by an officer or author- formation should not be disclosed; ized representative of the company
(2) The information lawfully has been that the information in question is in published or otherwise made available fact confidential commercial or finan- to the public; cial information and has not been dis
(3) Disclosure of the information is closed to the public.
required by law (other than 5 U.S.C. (d) Opportunity to object to disclosure.
552); or Through the notice described in para
(4) The Office is a criminal law-engraph (b) of this section, the Office
forcement agency that acquired inforshall afford a business submitter a rea
mation in the course of a lawful invessonable period within which to provide
tigation of a possible violation of the Office with a detailed statement of
criminal law. any objection to disclosure. Such state
$ 701.16 Appeals. ment shall specify all grounds for withholding any of the information under
(a) Appeals to Independent Counsel. any exemption of the FOIA and, in the
When a request for access to records or case of Exemption 4, shall demonstrate
for a waiver of fees has been denied in why the information is contended to be
whole or in part, or when the Office a trade secret or commecial or finan
fails to respond to a request within the cial information that is privileged or
time limits set forth in the FOIA, the confidential. Information provided by a
requester may appeal the denial of the business submitter pursuant to this
request to Independent Counsel within paragraph may itself be subject to dis
30 days of his receipt of a notice denyclosure under the FOIA.
ing his request. An appeal to Inde(e) Notice of intent to disclose. (1) The
pendent Counsel shall be made in writOffice shall consider carefully a busi
ing and addressed to the Office of Indeness submitter's objections and specific
pendent Counsel, Suite 701 West, 555
Thirteenth Street NW., Washington, grounds for nondisclosure prior to determining whether to disclose business
DC 20004. Both the envelope and the information. Whenever the Office de
letter of appeal itself must be clearly
marked: “Freedom of Information Act cides to disclose business information
Appeal.” over the objection of a business sub
(b) Action on appeals by the Office of mitter, the Office shall forward to the
Independent Counsel. Unless Indebusiness submitter a written notice which shall include:
pendent Counsel otherwise directs, his
designee shall act on behalf of the Inde(i) A statement of the reasons for
pendent Counsel on all appeals under which the business submitter's disclo
this section, except that a denial of a sure objections were not sustained;
request by Independent Counsel shall (ii) A description of the business in
constitute the final action of the Office formation to be disclosed; and
on that request. (iii) A specified disclosure date.
(c) Form of action on appeal. The dis(2) Such notice of intent to disclose position of an appeal shall be in writshall be forwarded a reasonable number ing. A decision affirming in whole or in of days, as circumstances permit, prior part the denial of a request shall into the specified date upon which disclo- clude a brief statement of the reason or sure is intended. A copy of such disclo- reasons for the affirmance, including sure notice shall be forwarded to the each FOIA exemption relied upon and requester at the same time.
its relation to each record withheld, (f) Notice of FOIA lawsuit. Whenever a and a statement that judicial review of requester brings suit seeking to compel the denial is available in the United disclosure of business information cov- States District Court for the judicial ered by paragraph (c) of this section, district in which the requester resides
or has his principal place of business, the judicial district in which the requested records are located, or the District of Columbia. If the denial of a request is reversed on appeal, the requester shall be so notified and the request shall be processed promptly in accordance with the decision on appeal. $701.17 Preservation of records.
The Office shall preserve all correspondence relating to the requests it receives under this part, and all records processed pursuant to such requests, until such time as the destruction of such correspondence and records is authorized pursuant to title 44 of the United States Code. Under no circumstances shall records be destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
(a) In general. Fees pursuant to the FOIA shall be assessed according to the schedule contained in paragraph (b) of this section for services rendered by the Office in responding to and processing requests for records under this part. All fees so assessed shall be charged to the requester, except when the charging of fees is limited under paragraph (c) of this section or when a waiver or reduction of fees is granted under paragraph (d) of this section. The Office shall collect all applicable fees before making copies of requested records available to a requester. Requesters shall pay fees by check or money order made payable to the Treasury of the United States.
(b) Charges. In responding to requests under this part, the following fees shall be assessed, unless a waiver or reduction of fees has been granted pursuant to paragraph (d) of this section:
(1) Search. (i) No search fee shall be assessed with respect to requests by educational institutions, noncommercial scientific institutions, and representatives of the news media (as defined in paragraphs (j)(6), (j)(7), and (j)(8) of this section, respectively). Search fees shall be assessed with respect to all other requests, subject to the limitations of paragraph (c) of this section. The Office may assess fees for time spent searching even if it fails to
locate any respective record or when records located are subsequently determined to be entirely exempt from disclosure.
(ii) For each quarter hour spent by clerical personnel in searching for and retrieving a requested record, the fee shall be $2.25. When the search and retrieval cannot be performed entirely by clerical personnel-for example, when the identification of records within the scope of the request requires the use of professional personnel-the fee shall be $4.50 for each quarter hour of search time spent by such professional personnel. When the time of managerial personnel is required, the fee shall be $7.50 for each quarter hour of time spent by such managerial personnel. (iii) For
computer searches of records, which may be undertaken through the use of existing programming, requesters shall be charged the actual direct costs of conducting the search, although certain requesters (as defined in paragraph (c)(2) of this section) shall be entitled to the cost equivalent of two hours of manual search time without charge. 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 costs of operator/programmer salary apportionable to the search at no more than $4.50 per quarter hour of time so spent). The Office is not required to alter or develop programming to conduct a search.
(2) Duplication. Duplication fees shall be assessed with respect to all requesters, subject to the limitations of paragraph (c) of this section. For a paper photocopy of a record (no more than one copy of which need be supplied), the fee shall be $0.10 per page. For other methods of duplication, the Office shall charge the actual direct costs of duplicating a record.
(3) Review. Review fees shall be assessed with respect to only those requesters who seek records for a commercial use, as defined in paragraph (j)(5) of this section. For each quarter hour spent by agency personnel in reviewing a requested record for possible disclosure, the fee shall be $4.50, except
that when the time of professional personnel is required, the fee shall be $7.50 for each quarter hour of time spent by such managerial personnel. Review fees shall be assessed only for the initial record review, i.e., all of the review undertaken when the Office analyzes the applicability of a particular exemption to a particular record or record portion at the initial request level. No charge shall be assessed for review at the administrative appeal level of an exemption already applied. However, records or record portions withheld pursuant to an exemption that is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. The costs of such a subsequent review are properly assessable, particularly when that review is made necessary by a change of circumstances.
(c) Limitations on charging fees. (1) No search or review fee shall be charged for a quarter-hour period unless more than half of that period is required for search or review.
(2) Except for requesters seeking records for a commercial use (as defined in paragraph (j)(5) of this section), the Office shall provide without charge
(i) The first 100 pages of duplication (or its cost equivalent), and
(ii) The first two hours of search (or its cost equivalent).
(3) Whenever a total fee calculated under this section is $8.00 or less, no fee shall be charged.
(4) The provisions of paragraphs (c) (2) and (3) of this section work together. For requesters other than those seeking records for a commercial use, no fee shall be charged unless the cost of search in excess of two hours plus the cost of duplication in excess of 100 pages exceeds $8.00.
(d) Waiver or reduction of fees. (1) Records responsive to a request under the FOIA shall be furnished without charge or at a charge reduced below that established under paragraph (b) of this section when the Officer determines, based upon information provided by a requester in support of a fee waiver request otherwise made known to the Office, 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 shall be considered on a case-by-case basis.
(2) In order to determine whether the first fee waiver requirement is meti.e., 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 government-the Office shall consider the following four factors in sequence:
(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 concern the identifiable operations of the federal government with a connection that is direct and clear, not remote or attenuated. Furthermore, the records must be sought for their informative value with respect to those government operations or activities; a request for access to records for their intrinsic informational content alone would not satisfy this threshold consideration.
(ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding or government operations or activities. The disclosable portions of requested records must be meaningfully informative or specific governmental operations or activities in order to hold potential for contributing to increased public understanding of those operations and activities. The disclosure of information that already is in the public domain, in either a duplicative or a 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 identified persons. A requester's identity and qualifications, e.g., expertise in the subject area and ability and intention to convey effectively information to the general public-should be considered. It reasonably may be presumed that a representative of the news media (as defined in paragraph (j)(8) of this section) who has access to the means of public dissemination readily will be able to satisfy this consideration. Requests from libraries or other record repositories (or requesters who intend merely to disseminate information to such institutions) shall be analyzed, like those of other requesters, to identify a particular person who represents that he actually will use the requested information in scholarly or other analytic work and then disseminate it to the general public.
(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 enhanced by the disclosure to a significant extent. The Office shall not make separate value judgments as to whether information, even though it in fact would contribute significantly to public understanding of the operations or activities of the government, is “important” enough to be made public.
(3) In order to determine whether the second fee waiver requirement is meti.e., that disclosure of the requested information is not primarily in the commercial interest of the requester-the Office shall consider the following two factors in sequence:
(i) The existence and magnitude of a commercial interest: Whether the quester has a commercial interest that would be furthered by the requested disclosure. The Office shall consider all commercial interests of the requester (with reference to the definition of "commercial use” in paragraph (j)(5) of this section), or any person on whose behalf the requester may be acting, but shall consider only those interests that would be furthered by the requested disclosure. In assessing the magnitude
of identified commercial interests, consideration shall be given the role that such FOIA-disclosed information plays with respect to those commercial interests, as well as to the extent to which FOIA disclosures serve those interests overall. Requesters shall be given a reasonable opportunity in the administrative process to provide information bearing upon this consideration.
(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 when, once the “public interest” standard set out in paragraph (d)(2) of this section is satisfied, that public interest can fairly be regarded as greater in magnitude than that of the requester's commercial interest in disclosure. The Office shall ordinarily presume that, where a news media requester has satisfied the “public interest” standard, that will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who compile and market governmental information for direct economic return shall not be presumed to serve primarily the “public interest."
(4) When only a portion of the requested records satisfies both of the requirements for a waiver or reduction of fees under this paragraph, a waiver or reduction shall be granted only as to that portion.
(5) Requests for the waiver or reduction of fees shall address each of the factors listed in paragraphs (d) (2) and (3) of this section, as they apply to each record request.
(e) Notice of anticipated fees in excess of $25.00. When 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 the fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. (If only a portion of the fee can be estimated readily, the Office shall advise the requester that the estimated fee may be