Public Availability of Agency Records and Information Materials

GENERAL SERVICES ADMINISTRATION

41 CFR Part 105-60

RIN 3090-AG16

Public Availability of Agency Records and Information Materials

AGENCY: Office of Management and Workplace Programs, (GSA).

ACTION: Final rule.

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SUMMARY: The General Services Administration, GSA is revising its

regulations that implement the Freedom of Information Act (FOIA), to

incorporate changes since publication in 1988 of GSA's last final rule

implementing the FOIA. This rule also issues instructions to current

and former GSA employees concerning the response to subpoenas and other

demands in litigation before judicial and administrative tribunals.

DATES: This rule is effective December 8, 1997.

FOR FURTHER INFORMATION CONTACT:

Mary Cunningham, GSA Freedom of Information Act (FOIA) Officer (202-

501-3415); or Helen C. Maus, Office of General Counsel (202-501-1460).

SUPPLEMENTARY INFORMATION: A proposal to revise GSA's regulations that

implement FOIA were published in the Federal Register on March 25,

1997, 62 FR 14081. This rule was not submitted to the Office of

Management and Budget pursuant to Executive Order 12866 of September

30, 1993, Regulatory Planning and Review, because it is not a

significant regulatory action as defined in Executive Order 12866. GSA

has based all administrative decisions underlying this rule on adequate

information concerning the need for and the consequences of this rule,

particularly the subpart that governs responses to subpoenas and other

judicially enforceable demands for material or information.

Specifically, the increase in the number of subpoenas and other demands

to its employees in judicial or administrative proceedings,

particularly in cases in which neither GSA nor the United States is a

party, necessitates detailed and uniform instructions to be followed by

current and former GSA employees.

The Paperwork Reduction Act does not apply because the rule does

not impose information collection requirements that require the

approval of the Office of Management and Budget under 44 U.S.C. 3501,

et seq.

The principles of Executive Order 12988 of February 5, 1996, Civil

Justice Reform, have been incorporated where applicable.

The Administrator certifies that this regulatory amendment will not

have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act, 5

U.S.C. 601-612. Pursuant to 5 U.S.C. 605(b) this rule is therefore

exempt from the initial and final regulatory flexibility analyses

requirements of sections 603 and 604.

Interested persons have been afforded an opportunity to participate

in the making of this rule. Due consideration has been given to the

comments received.

Comprehensive Summary

I. Implementation of the FOIA

These regulations implement the FOIA, which codified Pub. L. 89-487

and amended section 3 of the Administrative Procedure Act, formerly 5

U.S.C. 1002 (1964 ed.). These regulations also implement Pub. L. 93-

502, popularly known as the Freedom of Information Act Amendments of

1974, as amended by Pub. L. 99-570, the Freedom of Information Reform

Act of 1986; and Executive Order 12600, Predisclosure Notification

Procedures for Confidential Commercial Information, of June 23, 1987.

The revisions incorporate predisclosure notification procedures for

confidential commercial information. The revisions also:

(a) Update organizational reference;

(b) Clarify the definition of available records to include

electronic records;

(c) Revise fees for manual searches by clerical staff from $9 to

$13 per hour or fraction of an hour and for manual searches and review

by professional staff from $18 to $29 per hour or fraction of an hour,

to more accurately reflect the full cost of searches and document

review.

(d) Clarify GSA policy with regard to: (1) reconstructing records

and providing incomplete records; (2) explaining compelling reasons for

denial of access to records; and (3) requiring assurance of payment;

(e) Provide instructions on submission of FOIA requests via Telefax

and fee payment by credit card;

(f) Extend the time limit for administrative appeal within GSA from

30 to 120 days; and

(g) Clarify GSA policy with respect to the availability of records

from other sources that have statutory authority to provide information

to the public at set fees.

(h) Incorporate, as appropriate, policies in Executive Order 12988

of February 5, 1996 on Civil Justice Reform.

II. Response to Demands in Judicial or Administrative Proceedings

This rule also amends 41 CFR 105-60.6, which pertains to production

of information pursuant to demands in judicial or administrative

proceedings. 41 CFR 105-60.6 is amended to prescribe instructions and

procedures to be followed by current and former GSA employees with

respect to the production and disclosure of material or information

acquired as a result of performance of the person's official duties or

because of the person's official status in response to judicially

enforceable subpoenas or demands in judicial or administrative

proceedings, except demands from the Congress or in Federal grand jury

proceedings. Included are detailed factors to be considered by the

appropriate authority within the General Services Administration in

determining the Agency's response to a subpoena or other judicially

enforceable demand, including widely acknowledged areas of privilege

that may render disclosure or production inappropriate. Instructions

concerning the appropriate response by employees and former employees

to courts and other authorities are included.

The rules governing responses to subpoenas and demands in judicial

or administrative proceedings provide instructions and procedures for

employees and former employees regarding the internal operations of GSA

and is not intended to be relied upon to create any right or benefit,

substantive or procedural, enforceable at law by a party against the

General Services Administration.

(a) GSA is amending this subpart to set forth uniform prescribed

instructions and procedures to be complied with by current and former

GSA employees concerning disclosure or production of agency materials

or information in judicial or administrative proceedings in response to

a judicially enforceable subpoena or demand. These instructions

establish policy, assign responsibilities and prescribe procedures for

responding to demands for GSA materials or testimony of current and

former GSA employees in judicial and administrative proceedings. The

instructions in 41 CFR subpart 105-60.6 do not apply to requests

unrelated to litigation before judicial or administrative tribunals, to

requests

[[Page 60015]]

made pursuant to the FOIA or Privacy Act, 5 U.S.C. 552 and 552a,

respectively, to demands from the Congress, or to demands in Federal

grand jury proceedings.

(b) These instructions are intended solely to provide an orderly

means by which current and former GSA employees respond to demands for

material and information covered by this rule, and to protect the

interests of the United States, including the safeguarding of

privileged or otherwise sensitive information. This rule is consistent

with the decision in the landmark case of United States ex rel. Touhy

v. Ragen, 340 U.S. 462 (1951) in which the Supreme Court upheld the

ability of an agency head to issue regulations for the preservation of

agency records, determined that an agency employee, acting pursuant to

such instructions, could not be held in contempt of court for declining

to produce records in response to a subpoena duces tecum. Accordingly,

current and former GSA employees shall respond to the party on whose

behalf the demand is issued only in accordance with the instructions

and procedures required by 41 CFR subpart 105-60.6. Furthermore, the

GSA can refuse to disclose materials or make information available

based on the factors set forth in 41 CFR 105-60.605. These instructions

and procedures are not intended to preclude disclosures or productions

in compliance with court orders except where disclosure would be

inappropriate even if required by a court, e.g., where disclosure would

be legally prohibited or would be contrary to a recognized privilege.

Summary of Comments

GSA received two comments in response to its proposed rule. One

comment was from an internal agency component and the other was

external.

I. Comments on FOIA-Related Sections of the Rule

Both commenters indicated that the proposed rule does not address

amendments to the FOIA required by the Electronic Freedom of

Information Act Amendments of 1996, Pub. L. 104-231. The intent of the

proposed rule was to amend GSA's current FOIA regulations to address

changes occasioned by reorganizations within GSA, to incorporate

formally procedures for notifying submitters of commercial or financial

information of a request, entertain reasons for nondisclosure, and to

provide procedures, for responding to subpoenas for GSA materials or

information. This rule is not intended to address the recent amendments

to the FOIA. Changes required by the amendments will be the subject of

a subsequent proposed rule.

The internal GSA comment raised a number of issues--some

nonsubstantive/editorial comments have been adopted. For the reasons

which follow, substantive internal and external comments have or have

not been adopted.

Subsection. 105-60.103-1. It is suggested that the FOIA does not

require that GSA perform ``minor reprogramming'' when doing so is not

costly or burdensome. We have adopted this suggestion and amended this

subsection to read that GSA ``may perform minor reprogramming'' when

doing so is not costly or burdensome.

Subsection. 105-60.103-2. It is recommended that the final rule

modify or eliminate the requirement that a denial of information

requested under the FOIA cite the compelling reason for denying access.

The reason being that the current FOIA statutory exemptions already

describe the basis for nondisclosure.

We have adopted this suggestion by eliminating the ``compelling

reason'' language because other provisions of the rule encompass the

intent. GSA's existing FOIA procedures state that the reasons for

withholding will be clearly described in the letter to the requester,

and GSA will not invoke an exemption if disclosure will cause no

demonstrable harm to any governmental or private interest. 41 CFR 150-

60.501(b), (c). We consider a demonstrable harm to any governmental or

private interest to be a compelling reason for invoking a FOIA

exemption. We have therefore eliminated the ``compelling reason''

language and substituted language stating that the harm to a

Governmental or private interest will be specifically described in the

denial letter to the requester.

Subsection. 105-60.305-1(d). As proposed, this subsection stated

that GSA ``will'' provide a copy of the material in a form usable by

the requester unless administratively burdensome to do so. It is

recommended that this language be changed to read that to the extent

``practicable'' GSA will provide a copy of the material in the form

specified by the requester. We have adopted this suggestion because the

phrase ``to the extent practicable'' is deemed to encompass the concept

of ``administratively burdensome.''

Subsection. 105-60.305-4(b). This subsection, as proposed, includes

a provision that GSA will make copies of voluminous records available

to a requester as quickly as possible and provide a number of

``additional'' copies of requested material when commercial

reproduction services are not available to a requester. It is suggested

that the first sentence of this provision be deleted because it is

inconsistent with a provision in Sec. 105-60.305-4(a) which allows GSA

discretion to provide a requester the opportunity to receive copies or

to review originals for inspection and copying. These subsections were

not intended to be inconsistent or mutually exclusive. We have

therefore made the following adjustments. Subsections 60.105-305-4(a)

and (b) are amended to provide that GSA may offer a requester who seeks

voluminous records not subject to exemption an option to review them at

a mutually agreeable place and time and thereby avoid duplication fees

for records not desired by the requester.

II. Comments on Subpoena-Related Section of the Proposed Rule

One commenter stated that so-called ``Touhy'' regulations of this

kind are not separate authority to withhold information. It is not the

intent of the proposed rule to confer such authority. Authority to

withhold information in a litigative context is typically predicated on

grounds and privileges recognized in statute, judicial interpretation,

rules applicable to a particular forum or the Common Law. We have

therefore added language to clarify that this regulation is not an

independent authority to withhold information.

A commenter indicated that in cases where the agency/U.S.

Government is a party a Touhy regulation cannot interfere with the

application of the Federal Rules of Civil Procedure. It is not the

intent of these regulations to do so. We have therefore added

introductory language that states that where GSA is a party to a

proceeding, nothing in these regulations shall operate or be

interpreted to supersede or circumvent rules of procedures applicable

to the forum in which the matter is pending. We have also made a

conforming adjustment to the language in Sec. 105-60.605(b). We have

not, however, altered the language in Sec. 105-60.105(b) which provides

that the appropriate authority may, at the request of the U.S.

Department of Justice, waive the requirements in this rule where the

United States is a party. Because the U.S. Department of Justice

typically represents the United States and its departments and agencies

in litigation, we believe the extent to which a waiver in such cases is

or is not appropriate in a particular case should be the result of a

collaborative effort between our agencies.

[[Page 60016]]

Subsection 105-60.605(a). Both commenters questioned GSA's

authority and/or ability to control the testimony of former employees.

For reasons which follow, we have not adopted any suggestion that the

regulations should not apply to former employees. A primary purpose

behind the Touhy regulations is the establishment of a systematic means

by which an agency can evaluate requests for production of official

agency information and determine the extent to which there are legally

defensible reasons for objection to production. These legitimate agency

interests exist regardless of whether the requested information is in

the possession for current or former agency employees.

When GSA becomes aware of a subpoena to a former employee for

production of official GSA information through testimony or document

production, it intends to use legally available means to ensure that

agency interests are protected.

Subsection 105-60.605(b). A commenter suggested that an appropriate

basis for waiver of the requirements in this rule are cases in which

the United States has an interest in addition to cases in which the

United States is a party. The situation may arise in so-called ``qui

tam'' suits. We have added language to this section that recognizes

this type of litigation which may, in coordination with the U.S.

Department of Justice, be a situation in which a waiver may be

appropriate.

Subsection 105-60.605(e). A commenter recommended that the list of

factors to be considered by the appropriate authority in responding to

demands contain the language ``include, but are but are not limited

to:.'' The factors in Sec. 105-60.605(e) already contemplate ``[A]ny

additional factors unique to a particular demand for proceeding.''

Because this provision already incorporates the commenter's suggestion

it has not been adopted.

List of Subjects in 41 Part 105-60

Freedom of information.

For the reasons set out in the preamble, 41 CFR part 105-60 is

revised to read as follows:

PART 105-60--PUBLIC AVAILABILITY OF AGENCY RECORDS AND

INFORMATIONAL MATERIALS

Sec.

105-60.000 Scope of part.

Subpart 105.60.1--General Provisions

105-60.101 Purpose.

105-60.102 Application.

105-60.103 Policy.

105-60.103-1 Availability of records.

105-60.103-2 Applying exemptions.

105-60.104 Records of other agencies.

Subpart 105-60.2--Publication of General Agency Information and Rules

in the Federal Register

105-60.201 Published information and rules.

105-60.202 Published materials available for sale to the public.

Subpart 105-60.3--Availability of Opinions, Orders, Policies,

Interpretations, Manuals, and Instructions

105-60.301 General.

105-60.302 Available materials.

105-60.303 Rules for public inspection and copying.

105-60.304 Index.

105-60.305 Fees.

105-60.305-1 Definitions.

105-60.305-2 Scope of this subpart.

105-60.305-3 GSA records available without charge.

105-60.305-4 GSA records available at a fee.

105-60.305-5 Searches.

105-60.305-6 Reviews.

105-60.305-7 Assurance of payment.

105-60.305-8 Prepayment of fees.

105-60.305-9 Form of payment.

105-60.305-10 Fee schedule.

105-60.305-11 Fees for authenticated and attested copies.

105-60.305-12 Administrative actions to improve assessment and

collection of fees.

105-60.305-13 Waiver of fee.

Subaprt 105-60.4--Described Records

105-60.401 General.

105-60.402 Procedures for making records available.

105-60.402-1 Submission of requests.

105-60.402-2 Response to initial requests.

105-60.403 Appeal within GSA.

105-60.404 Extension of time limits.

105-60.405 Processing requests for confidential commercial

information.

Subpart 105-60.5--Exemptions

105-60.501 Categories of records exempt from disclosure under the

FOIA.

Subpart 105-60.6--Production or Disclosure by Present or Former General

Services Administration Employees in Response to Subpoenas or Similar

Demands in Judicial or Administrative Proceedings.

105-60.601 Purpose and scope of subpart.

105-60.602 Definitions.

105-60.603 Acceptance of service of a subpoena duces tecum or other

legal demand on behalf of the General Services Administration.

105-60.604 Production or disclosure prohibited unless approved by

the Appropriate Authority.

105-60.605 Procedure in the event of a demand for production or

disclosure.

105-60.606 Procedure where response to demand is required prior to

receiving instructions.

105-60.607 Procedure in the event of an adverse ruling.

105-60.608 Fees, expenses, and costs.

Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 486(c).

Sec. 105-60.000 Scope of part.

(a) This part sets forth policies and procedures of the General

Services Administration (GSA) regarding public access to records

documenting:

(1) Agency organization, functions, decisionmaking channels, and

rules and regulations of general applicability;

(2) Agency final opinions and orders, including policy statements

and staff manuals;

(3) Operational and other appropriate agency records; and

(4) Agency proceedings.

(b) This part also covers exemptions from disclosure of these

records, procedures for the public to inspect or obtain copies of GSA

records, and instructions to current and former GSA employees on the

response to a subpoena or other legal demand for material or

information received or generated in the performance of official duty

or because of the person's official status.

(c) Any policies and procedures in any GSA internal or external

directive inconsistent with the policies and procedures set forth in

this part are superseded to the extent of that inconsistency.

Subpart 105-60.1--General Provisions

Sec. 105-60.101 Purpose.

This part 105-60 implements the provisions of the Freedom of

Information Act (FOIA), as amended, 5 U.S.C. 552. The regulations in

this part also implement Executive Order 12600, Predisclosure

Notification Procedures for Confidential Commercial Information, of

June 23, 1987 (3 CFR, 1987 Comp., p. 235). This part prescribes

procedures by which the public may inspect and obtain copies of GSA

records under the FOIA, including administrative procedures that must

be exhausted before a requester invokes the jurisdiction of an

appropriate United States District Court for GSA's failure to respond

to a proper request within the statutory time limits, for a denial of

agency records or challenge to the adequacy of a search, or for a

denial of a fee waiver.

Sec. 105-60.102 Application.

This part applies to all records and informational materials

generated, maintained, and controlled by GSA that come within the scope

of 5 U.S.C. 552.

Sec. 105-60.103 Policy.

Sec. 105-60.103-1 Availability of records.

The policies of GSA with regard to the availability of records to

the public are:

[[Page 60017]]

(a) GSA records are available to the greatest extent possible in

keeping with the spirit and intent of the FOIA. GSA will disclose

information in any existing GSA record, with noted exceptions,

regardless of the form or format of the record. For example, records

maintained in an electronic form, as part of a data base, will be

provided on request using existing programming. GSA will provide the

record in the form or format requested if the record is readily

reproducible by the agency in that form or format. GSA will make

reasonable efforts to maintain its records in forms or formats that are

reproducible for purposes of this section.

(b) the person making the request does not need to demonstrate an

interest in the records or justify the request.

(c) The FOIA does not give the public the right to demand that GSA

compile a record that does not already exist. For example, FOIA does

not require GSA to collect and compile information from multiple

sources to create a new record or to develop a new computer program to

extract requested records. GSA may compile records or perform minor

reprogramming when doing so will not significantly interfere with the

operation of the automated system already in existence.

(d) Similarly, FOIA does not require GSA to reconstruct records

that have been destroyed in compliance with disposition schedules

approved by the Archivist of the United States. However, GSA will not

destroy records after a member of the public has requested access to

them and will process the request even if destruction has already been

scheduled.

(e) If the record requested is not complete at the time of the

request, GSA may, at its discretion, inform the requester that the

complete record will be provided when it is available, with no

additional request required, if the record is not exempt from

disclosure.

(f) Requests must be addressed to the office identified in

Sec. 105-60.402-1.

(g) Fee for locating and duplicating records are listed in

Sec. 105-60.305-10.

Sec. 108-60.103-2 Applying exemptions.

GSA may deny a request for a GSA record if it falls within an

exemption under the FOIA outlined in subpart 105-60.5 of this part.

Except when a record is classified or when disclosure would violate any

Federal statute, the authority to withhold a record from disclosure

will likely cause harm to a Governmental or private interest. GSA will

explain the harm to requesters when a record is denied under FOIA.

Sec. 105-60.104 Records of other agencies.

If GSA receives a request for access to records that are known to

be the primary responsibility of another agency, GSA will refer the

request to the agency concerned for appropriate action. For example,

GSA will refer requests to the appropriate agency in cases in which GSA

does not have sufficient knowledge of the action or matter that is the

subject of the requested records to determine whether the records must

be released or may be withheld under one of the exemptions listed in

Sec. 105-60.5. If GSA does not have the requested records, the agency

will attempt to determine whether the requested records exist at

another agency and, if possible, will forward the request to that

agency. GSA will inform the requester that GSA has forwarded the

request to another agency.

Subpart 105-60.2--Publication of General Agency Information and

Rules in the Federal Register

Sec. 105-60.201 Published information and rules.

In accordance with 5 U.S.C. 552(a)(1), GSA publishes in the Federal

Register, for the guidance of the public, the following general

information concerning GSA:

(a) Description of the organization of the Central Office and

regional offices and the established places at which, the employees

from whom, and the methods whereby, the public may obtain information,

make submittals or requests, or obtain decisions;

(b) Statements of the general course and method by which its

functions are channeled and determined, including the nature and

requirements of all formal and informal procedures available;

(c) Rules of procedure, descriptions of forms available or the

places where forms may be obtained, and instructions on the scope and

contents of all papers, reports, or examinations;

(d) Substantive rules of general applicability adopted as

authorized by law, and statements of general policy or interpretations

of general applicability formulated and adopted by GSA; and

(e) Each amendment, revision, or repeal of the materials described

in this section.

Sec. 105-60.202 Published materials available for sale to the public.

(a) Substantive rules of general applicability adopted by GSA as

authorized by law which this agency publishes in the Federal Register

and which are available for sale to the public by the Superintendent of

Documents at pre-established prices are: The General Services

Administration Acquisition Regulation (48 CFR Ch. 5), the Federal

Acquisition Regulation (48 CFR Ch. 1), the Federal Property Management

Regulations (41 CFR Ch. 101), and the Federal Travel Regulation (41 CFR

Ch. 301-304).

(b) GSA also provides technical information, including manuals and

handbooks, to other Federal entities, e.g., the National Technical

Information Service, with separate statutory authority to make

information available to the public at pre-established fees.

(c) Requests for information available through the sources in

paragraphs (a) and (b) of this section will be referred to those

sources.

Subpart 105-60.3--Availability of Opinions, Orders, Policies,

Interpretations, Manuals, and Instructions

Sec. 105-60.301 General.

GSA makes available to the public the materials described under 5

U.S.C. 552(a)(2), which are listed in Sec. 105-60.302, at the locations

listed in Sec. 105-60.303. An Index of those materials as described in

Sec. 105-60.304 is available at GSA's Central Office in Washington, DC.

Reasonable copying services are provided at the fees specified in

Sec. 105-60.305.

Sec. 105-60.302 Available materials.

GSA materials available under this subpart 105-60.3 are as follows:

(a) Final opinions, including concurring and dissenting opinions

and orders, made in the adjudication of cases.

(b) Those statements of policy and interpretations that have been

adopted by GSA and are not published in the Federal Register.

(c) Administrative staff manuals and instructions to staff

affecting a member of the public unless these materials are promptly

published and copies offered for sale.

Sec. 105-60.303 Rules for public inspection and copying.

(a) Locations. Selected areas containing the materials available

for public inspection and copying, described in Sec. 105-60.302, are

located in the following places:

Central Office (GSA Headquarters)

General Services Administration, Washington, DC, Telephone: 202-501-

2262 or 202-501-1659, FAX: 202-501-2727, 1800 F Street, NW. (CAI),

Washington, DC 20405

[[Page 60018]]

Office of the Inspector General

FOIA Officer, Office of Inspector General (J), General Services

Administration, 1800 F Street NW., Room 5324, Washington, DC 20405

New England Region

General Services Administration (1AB) (Comprised of the States of

Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and

Vermont), Thomas P. O'Neill, Jr., Federal Building, 10 Causeway

Street, Boston, MA 02222, Telephone: 617-565-8100, FAX: 617-565-8101

Northeast and Caribbean Region

(Comprised of the States of New Jersey, New York, the Commonwealth

of Puerto Rico, and the Virgin Islands), General Services

Administration (2AR), 26 Federal Plaza, New York, NY 10278,

Telephone: 212-264-1234, FAX: 212-264-2760.

Mid-Atlantic Region

(Comprised of the States of Delaware, Maryland, Pennsylvania,

Virginia, and West Virginia, excluding the Washington, D.C.

metropolitan area), General Services Administration (3ADS), 100 Penn

Square East, Philadelphia, PA 19107, Telephone: 215-656-5530, FAX:

215-656-5590

Southeast Sunbelt Region

(Comprised of the States of Alabama, Florida, Georgia, Kentucky,

Mississippi, North Carolina, South Carolina, and Tennessee), General

Services Administration (4E), 401 West Peachtree Street, Atlanta,

GA, 30365, Telephone: 404-331-5103, FAX: 404-331-1813

Great Lakes Region

(Comprised of the States of Illinois, Indiana, Ohio, Minnesota,

Michigan, and Wisconsin), General Services Administration (5ADB),

230 South Dearborn Street, Chicago, IL 60604, Telephone: 312-353-

5383, FAX: 312-886-9893

Heartland Region

(Comprised of the States of Iowa, Kansas, Missouri, and Nebraska),

General Services Administration (6ADB), 1500 East Bannister Road,

Kansas City, MO 64131, Telephone: 816-926-7203, FAX: 816-823-1167

Greater Southwest Region

(Comprised of the States of Arkansas, Louisiana, New Mexico, Texas,

and Oklahoma), General Services Administration (7CPA), 819 Taylor

Street, Fort Worth, TX 76102, Telephone: 817-978-3902, FAX: 817-978-

4867

Rocky Mountain Region

(Comprised of the States of Colorado, North Dakota, South Dakota,

Montana, Utah, and Wyoming), Business Service Center, General

Services Administration (8PB-B), Building 41, Denver Federal Center,

Denver, CO 80225, Telephone: 303-236-7408, FAX: 303-236-7403

Pacific Rim Region

(Comprised of the States of Hawaii, California, Nevada, Arizona,

Guam, and Trust Territory of the Pacific), Business Service Center,

General Services Administration (9ADB), 525 Market Street, San

Francisco, CA 94105, Telephone: 415-522-2715, FAX: 415-522-2705

Northwest/Arctic Region

(Comprised of the States of Alaska, Idaho, Oregon, and Washington),

General Services Administration (10L), GSA Center, 15th and C

Streets, SW, Auburn, WA 98002, Telephone: 206-931-7007, FAX: 206-

931-7195

National Capital Region

(Comprised of the District of Columbia and the surrounding

metropolitan area), General Services Administration, (WPFA-L), 7th

and D Streets SW., Washington, DC 20407, Telephone: 202-708-5854,

FAX: 202-205-2478

(b) Time. The reading rooms or selected areas will be open to the

public during the business hours of the GSA office where they are

located.

(c) Reading room and selected area rules.--(1) Handling of

materials. The removal or mutilation of materials is forbidden by law

and is punishable by fine or imprisonment or both. When requested by a

reading room or selected area attendant, a person inspecting materials

must present for examination any briefcase, handbag, notebook, package,

envelope, book or other article that could contain GSA informational

materials.

(2) Reproduction services. The GSA Central Office or the Regional

Business Service Centers will furnish reasonable copying and

reproduction services for available materials at the fees specified in

Sec. 105-60.305.

Sec. 105-60.304 Index.

GSA will make available to any member of the public who requests it

a current index identifying information for the public regarding any

matter described in Sec. 105-60.302.

Sec. 105-60.305 Fees.

Sec. 105-60.305-1 Definitions.

For the purpose of this part:

(a) A statute specifically providing for setting the level of fees

for particular types of records (5 U.S.C. 552(a)(4)(A)(vii)) means any

statute that specifically requires a Government agency to set the level

of fees for particular types of records, as opposed to a statute that

generally discusses such fees. Fees are required by statute to:

(1) Make Government information conveniently available to the

public and to private sector organizations;

(2) Ensure that groups and individuals pay the cost of publications

and other services that are for their special use so that these costs

are not borne by the general taxpaying public;

(3) Operate an information dissemination activity on self-

sustaining basis to the maximum extent possible; or

(4) Return revenue to the Treasury for defraying, wholly or in

part, appropriated funds used to pay the cost of disseminating

Government information.

(b) The term direct costs means those expenditures that GSA

actually incurs in searching for and duplicating (and in the case of

commercial requesters, reviewing and redacting) documents to respond to

a FOIA request. Direct costs include, for example, the salary of the

employee performing the work (the basic rate of pay for the employee

plus 16 percent of that rate to cover benefits), and the cost of

operating duplicating machinery. Overhead expenses such as costs of

space, and heating or lighting the facility where the records are

stored are not included in direct costs.

(c) The term search includes all time spent looking for material

that is responsive to a request, including line-by-line identification

of material within documents. Searches will be performed in the most

efficient and least expensive manner so as to minimize costs for both

the agency and the requester. Line-by-line searchers will not be

undertaken when it would be more efficient to duplicate the entire

document. ``Search'' for responsive material is not the same as

``review'' of a record to determine whether it is exempt from

disclosure in whole or in part (see paragraph (e) of this section).

Searches may be done manually or by computer using existing

programming.

(d) The term duplication means the process of making a copy of a

document in response to a FOIA request. Copies can take the form of

paper, microfilm, audiovisual materials, or magnetic tapes or disks. To

the extent practicable, GSA will provide a copy of the material in the

form specified by the requester.

(e) The term review means the process of examining documents

located in response to a request to determine if any portion of that

document is permitted to be withheld and processing any documents for

disclosure. See Sec. 105-60.305-6.

(f) The term commercial-use request means a request 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 person

on whose behalf the request is made. GSA will determine whether a

requester properly belongs in this

[[Page 60019]]

category by determining how the requester will use the documents.

(g) The term educational institution means a preschool, a public or

private elementary or secondary school, an institution of graduate

higher education, an institution of undergraduate higher education, an

institution of professional education, or an institution of vocational

education that operates a program or programs of scholarly research.

(h) The term noncommercial scientific institution means an

institution that is not operated on a ``commercial'' basis as that term

is used in paragraph (f) of this section and which is operated solely

for the purpose of conducting scientific research the results of which

are not intended to promote any particular product or industry.

(i) The term representative of the news media means any person

actively gathering news for an entity that is organized and operated to

publish or broadcast news to the public. The term ``news'' means

information that is about current events or that would be of current

interest to the public. Examples of news media include television or

radio stations broadcasting to the public at large, and publishers of

periodicals (but only in those instances when they can qualify as

disseminators of ``news'') who make their products available for

purchase or subscription by the general public. ``Freelance''

journalists will be regarded as working for a news organization if they

can demonstrate a solid basis for expecting publication through that

organization even though they are not actually employed by it.

Sec. 105-60.305-2 Scope of this subpart.

This subpart sets forth policies and procedures to be followed in

the assessment and collection of fees from a requester for the search,

review, and reproduction of GSA records.

Sec. 105-60.305-3 GSA records available without charge.

GSA records available to the public are displayed in the Business

Service Center for each GSA region. The address and phone number of the

Business Service Centers are listed in Sec. 105-60.303. Certain

material related to bids (excluding construction plans and

specifications) and any material displayed are available without charge

upon request.

Sec. 105-60.305-4 GSA records available at a fee.

(a) GSA will make a record not subject to exemption available at a

time and place mutually agreed upon by GSA and the requester at fees

shown in Sec. 105-60.305-10. Waivers of these fees are available under

the conditions described in Sec. 105-60.305-13. GSA will agree to:

(1) Show the originals to the requester; or

(2) Make one copy available at a fee; or

(3) A combination of these alternatives.

(b) GSA will make copies of voluminous records as quickly as

possible. GSA may, in its discretion, make a reasonable number of

additional copies for a fee when commercial reproduction services are

not available to the requester.

Sec. 105-60.305-5 Searches.

(a) GSA may charge for the time spent in the following activities

in determining ``search time'' subject to applicable fees as provided

in Sec. 105-60.305-10:

(1) Time spent in trying to locate GSA records that come within the

scope of the request;

(2) Time spent in either transporting a necessary agency searcher

to a place of record storage, or in transporting records to the

locations of a necessary agency searcher; and

(3) Direct costs of the use of computer time to locate and extract

requested records.

(b) GSA will not charge for the time spent in monitoring a

requester's inspection of disclosed agency records.

(c) GSA may assess fees for search time even if the search proves

unsuccessful or if the records located are exempt from disclosure.

Sec. 105-60.305-6 Reviews.

(a) GSA will charge only commercial-use requesters for review time.

(b) GSA will charge for the time spent in the following activities

in determining ``review time'' subject to applicable fees as provided

in Sec. 105-60.305-10:

(1) Time spent in examining a requested record to determine whether

any or all of the record is exempt from disclosure, including time

spent consulting with submitters of requested information; and

(2) Time spent in deleting exempt matter being withheld from

records otherwise made available.

(c) GSA will not charge for:

(1) Time spent in resolving issues of law or policy regarding the

application of exemptions; or

(2) Review at the administrative appeal level of an exemption

already applied. However, records or portions of records withheld in

full under an exemption that is subsequently determined not to apply

may be reviewed again to determine the applicability of other

exemptions not previously considered. GSA will charge for such

subsequent review.

Sec. 105-60.305-7 Assurance of payment.

If fees for search, review, and reproduction will exceed $25 but

will be less than $250, the requester must provide written assurance of

payment before GSA will process the request. If this assurance is not

included in the initial request, GSA will notify the requester that

assurance of payment is required before the request is processed. GSA

will offer requesters an opportunity to modify the request to reduce

the fee.

Sec. 105-60.305-8 Prepayment of fees.

(a) Fees over $250. GSA will require prepayment of fees for search,

review, and reproduction that are likely to exceed $250. When the

anticipated total fee exceeds $250, the requester will receive notice

to prepay and at the time will be given an opportunity to modify his or

her request to reduce the fee. When it is anticipated that fees will

exceed $250, GSA will notify the requester that it will not start

processing a request until payment is received.

(b) Delinquent payments. As noted in Sec. 105-60.305-12(d),

requesters who are delinquent in paying for previous requests will be

required to repay the old debt and to prepay for any subsequent

request. GSA will inform the requester that it will process no

additional requests until all fees are paid.

Sec. 105-60.305-9 Form of payment.

Requesters should pay fees by check or money order made out to the

General Services Administration and addressed to the official named by

GSA in its correspondence. Payment may also be made by means of

Mastercard or Visa. For information concerning payment by credit cards,

call 816-926-7551.

Sec. 105-60.305-10 Fee schedule.

(a) When GSA is aware that documents responsive to a request are

maintained for distribution by an agency operating a statutory fee

based program, GSA will inform the requester of the procedures for

obtaining records from those sources.

(b) GSA will consider only the following costs in fees charged to

requesters of GSA records:

(1) Review and search fees.

Manual searches by clerical staff: $13 per hour or fraction of

an hour.

Manual searches and reviews by professional staff in cases in

which clerical

[[Page 60020]]

staff would be unable to locate the requested records: $29 per hour

or fraction of an hour.

Computer searches: Direct cost to GSA.

Transporation or special handling of records: Direct cost to

GSA.

(2) Reproduction fees.

Pages no larger than 8\1/2\ by 14 inches, when reproduced by

routine electrostatic copying: $0.10 per page.

Pages over 8\1/2\ by 14 inches: Direct cost of reproduction to

GSA.

Pages requiring reduction, enlargement, or other special

services: Direct cost of reproduction to GSA.

Reproduction by other than routine electrostatic copying:

Direct cost of reproduction to GSA.

(c) Any fees not provided for under paragraph (b) of this section,

shall be calculated as direct costs, in accordance with Sec. 105-

60.305-1(b).

(d) GSA will assess fees based on the category of the requester as

defined in Sec. 105-60.305-1(f)-(i); i.e., commercial-use, educational

and noncommercial scientific institutions, news media, and all other.

The fees listed in paragraph (b) of this section apply with the

following exceptions:

(1) GSA will not charge the requested if the fee is $25 or less as

the cost of collection would be greater than the fee.

(2) Educational and noncommercial scientific institutions and the

news media will be charged for the cost of reproduction alone. These

requesters are entitled to the first 100 pages (paper copies) of

duplication at no cost. The following are examples of how these fees

are calculated:

(i) A request that results in 150 pages of material. No fee would

be assessed for duplication of 150 pages. The reason is that these

requesters are entitled to the first 100 pages at no charge. The charge

for the remaining 50 pages would be $7.50. This amount would not be

billed under the preceding section.

(ii) A request that results in 450 pages of material. The requester

in this case would be charged $35. The reason is that the requester is

entitled to the first 100 pages at no charge. The charge for the

remaining 350 pages would be $35.

(3) Noncommercial requesters who are not included under paragraph

(d)(2) of this section will be entitled to the first 100 pages (paper

copies) of duplication at no cost and two hours of search without

charge. The term ``search time'' generally refers to manual search. To

apply this term to searchers made by computer, GSA will determine the

hourly cost of operating the central processing unit and the operator's

hourly salary plus 16 percent. When the cost of search (including the

operator time and the cost of operating the computer to process a

request) equals the equivalent dollar amount of two hours of the salary

of the person performing a manual search, GSA will begin assessing

charges for computer search.

(4) GSA will charge commercial-use requesters fees which recover

the full direct costs of searching for, reviewing for release, and

duplicating the records sought. Commercial-use requester are not

entitled to two hours of free search time.

(e) Determining the category of a requester. GSA may ask any

requester to provide additional information at any time to determine

his or her fee category.

Sec. 105-60.305-11 Fees for authenticated and attested copies.

The fees set forth in Sec. 105-60.305-10 apply to requests for

authenticated and attested copies of GSA records.

Sec. 105-60.305-12 Administrative actions to improve assessment and

collection of fees.

(a) Charging interest. GSA may charge requesters who fail to pay

fees interest on the amount billed starting on the 31st day following

the month on which the billing was sent. Interest will be at the rate

prescribed in 31 U.S.C. 3717.

(b) Effect of the Debt Collection Act of 1982. GSA will take any

action authorized by the Debt Collection Act of 1982 (Pub. L. 97-365,

96 Stat. 1749), including disclosure to consumer reporting agencies,

use of collection agencies, and assessment of penalties and

administrative costs, where appropriate, to encourage payment.

(c) Aggregating requests. When the GSA reasonably believes that a

requester, or group of requesters acting in concert, is attempting to

break down a request into a series of requests related to the same

subject for the purpose of evading the assessment of fees, GSA will

combine any such requests and charges accordingly, including fees for

previous requests where charges were not assessed. GSA will presume

that multiple requests of this type within a 30-day period are made to

avoid fees.

(d) Advance payments. Whenever a requester is delinquent in paying

the fee for a previous request (i.e., within 30 days of the date of the

billing), GSA will require the requester to pay the full amount owed

plus any applicable interest penalties and administrative costs as

provided in paragraph (a) of this section or to demonstrate that he or

she has, in fact, paid the fee. In such cases, GSA will also require

advance payment of the full amount of the estimated fee before the

agency begins to process a new request or a pending request from that

requester. When advance payment is required under this section, the

administrative time limits in subsection (a)(6) of the FOIA (i.e., 10

working days from receipt of appeals from initial denial plus

permissible time extensions) will begin only after GSA has received the

fee payments described in Sec. 105-60.305-8.

Sec. 105-60.305-13 Waiver of fee.

(a) Any request for waiver or reduction of a fee should be included

in the initial letter requesting access to GSA records under Sec. 105-

60.402-1. The waiver request should explain how disclosure of the

information would contribute significantly to public understanding of

the operations or activities of the Government and would not be

primarily in the commercial interest of the requester. In responding to

a request, GSA will consider the following factors:

(1) Whether the subject of the requested records concerns ``the

operations or activities of the Government.'' The subject matter of the

requested records must specifically concern identifiable operations or

activities of the Federal Government. The connection between the

records and the operations or activities must be direct and clear, not

remote or attenuated.

(2) Whether the disclosure is ``likely to contribute'' to an

understanding of Government operations or activities. In this

connection, GSA will consider whether the requested information is

already in the public domain. If it is, then disclosure of the

information would not be likely to contribute to an understanding of

Government operations or activities, as nothing new would be added to

the public record.

(3) Whether disclosure of the requested information will contribute

to ``public understanding.'' The focus here must be on the contribution

to public understanding rather than personal benefit to be derived by

the requester. For purposes of this analysis, the identity and

qualifications of the requester should be considered, to determine

whether the requester is in a position to contribute to public

understanding through the requested disclosure.

(4) Whether the requester has a commercial interest that would be

furthered by the requested disclosure; and if so: 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.''

[[Page 60021]]

(b) GSA will ask the requester to furnish additional information if

the initial request is insufficient to evaluate the merits of the

request. GSA will not start processing a request until the fee waiver

issue has been resolved unless the requester has provided written

assurance of payment in full if the fee waiver is denied by the agency.

Subpart 105-60.4--Described Records

Sec. 105-60.401 General.

(a) Except for records made available in accordance with subparts

105-60.2 and 105-60.3 of this part, GSA will make records available to

a requester promptly when the request reasonably describes the records

unless GSA invokes an exemption in accordance with Subpart 105-60.5 of

this part. Although the burden of reasonable description of the records

rests with the requester, whenever practical GSA will assist requesters

to describe records more specifically.

(b) Whenever a request does not reasonably describe the records

requested, GSA may contact the requester to seek a more specific

description. The 10-workday time limit set forth in Sec. 105-60.402-2

will not start until the official identified in Sec. 105-60.402-1 or

other responding official receives a request reasonably describing the

records.

Sec. 105-60.402 Procedures for making records available.

This subpart sets forth initial procedures for making records

available when they are requested, including administrative procedures

to be exhausted prior to seeking judicial review by an appropriate

United States District Court.

Sec. 105-60.402-1 Submission of requests.

For records located in the GSA Central Office, the requester must

submit a request in writing to the GSA FOIA Officer, General Services

Administration (CAIR), Washington, DC 20405. Requesters may FAX

requests to (202) 501-2727, or submit a request by e-mail to

[email protected]. For records located in the Office of Inspector

General, the requester must submit a request to the FOIA Officer,

Office of Inspector General, General Services Administration, 1800 F

Street NW., Room 5324, Washington, DC 20405. For records located in the

GSA regional offices, the requester must submit a request to the FOIA

Officer for the relevant region, at the address listed in Sec. 105-

60.303(a). Requests should include the words ``Freedom of Information

Act Request'' prominently marked on both the face of the request letter

and the envelop. The 10-workday time limit for agency decisions set

forth in Sec. 105-60.402-2 begins with receipt of a request in the

office of the official identified in this section, unless the

provisions under Secs. 105-60.305-8 and 105-60.305-12(d) apply. Failure

to include the words ``Freedom of Information Act Request'' or to

submit a request to the official identified in this section will result

in processing delays. A requester with questions concerning a FOIA

request should contact the GSA FOIA Office, General Services

Administration (CAI), 1800 F Street, NW, Washington, DC 20405, (202)

501-2262 or (202) 501-1659.

Sec. 105-60.402-2 Response to initial requests.

GSA will respond to an initial FOIA request which reasonably

describes requested records, including a fee waiver request, within 10

workdays (that is, excluding Saturdays, Sundays, and legal holidays)

after receipt of a request by the office of the appropriate official

specified in Sec. 105-60.402-1. This letter will provide the agency's

decision with respect to disclosure or nondisclosure of the requested

records, or, if appropriate, a decision on a request for a fee waiver.

If the records to be disclosed are not provided with the initial

letter, the records will be sent as soon as possible thereafter. In

unusual circumstances, as described in Sec. 105-60.404, GSA will inform

the requester of the agency's need to take an extension of time, not to

exceed and additional 10 workdays.

Sec. 105-60.403 Appeal within GSA.

(a) A requester who receives a denial of a request, in whole or in

part, or a denial of a fee waiver request, may appeal that decision

within GSA. A requester may also appeal the adequacy of the search if

GSA determines that it has searched for but has no requested records.

The requester must send the appeal to the GSA FOIA Officer, General

Services Administration (CAI), 1800 F Street NW, Washington, DC 20405,

regardless of whether the denial being appealed was made in the Central

Office or in a regional office. For denials that originate in the

Office of Inspector General, the requester must send the appeal to the

Inspector General, General Services Administration, 1800 F Street NW.,

Washington, DC 20405.

(b) The GSA FOIA Officer must receive an appeal no later than 120

calendar days after receipt by the requester of the initial denial of

access or fee waiver.

(c) An appeal must be in writing, include a brief statement of the

reasons the requester thinks GSA should release the records, and

enclose copies of the initial request and denial.

The appeal letter must include the words ``Freedom of Information

Act Appeal'' on both the face of the appeal letter and on the envelope.

Failure to follow these procedures will delay processing of the appeal.

GSA has 20 workdays after receipt of a proper appeal to issue a

determination of the appeal. The 20-workday time limit shall not begin

until the GSA FOIA Officer receives the appeal. As noted in Sec. 105-

60.404, the GSA FOIA Officer may extend this time limit in unusual

circumstances.

(d) A requester who receives a denial of an appeal, or who has not

received a response to an appeal or initial request within the

statutory timeframe may seek judicial review in the United States

District Court in the district in which the requester resides or has a

principal place of business, or where the records are situated, or in

the United States District Court for the District of Columbia.

Sec. 105-60.404 Extension of time limits.

(a) In unusual circumstances, the GSA Central Office FOIA Officer

or the regional FOIA Officer may extend the time limits prescribed in

Secs. 105-60.402 and 105-60.403. For purposes of this section, the term

unusual circumstances means:

(1) The need to search for and collect the requested records from

field facilities or other establishments that are separate from the

office processing the request;

(2) The need to search for, collect, and appropriately examine a

voluminous amount of separate and distinct records that are described

in a single request;

(3) The need for consultation, which shall be conducted with all

practicable speed, with another agency having a substantial interest in

the determination of the request or among two or more components of GSA

having substantial subject-matter interest therein; or

(4) The need to consult with the submitter of the requested

information.

(b) If necessary, GSA may take more than one extension of time.

However, the total extension of time to respond to any single request

shall not exceed 10 workdays. The extension may be divided between the

initial and appeal stages or within a single stage. GSA will provide

written notice to the requester of any extension of time limits.

Sec. 105-60.405 Processing requests for confidential commercial

information.

(a) General. The following additional procedures apply when

processing

[[Page 60022]]

requests for confidential commercial information.

(b) Definitions. For the purposes of this section, the following

definitions apply:

(1) Confidential commercial information means records provided to

the government by a submitter that contain material arguably exempt

from release under 5 U.S.C. 552(b)(4), because disclosure could

reasonably be expected to cause substantial competitive harm.

(2) Submitter means a person or entity that provides to the

Government information that may constitute confidential commercial

information. The term ``submitter'' includes, but is not limited to,

individuals, partnerships, corporations, State governments, and foreign

governments.

(c) Designating confidential commercial information. Since January

1, 1988, submitters must designate confidential commercial information

as such when it is submitted to GSA or at a reasonable time thereafter.

For information submitted in connection with negotiated procurements,

the requirements of Federal Acquisition Regulation 48 CFR 15.407(c)(8)

and 52.215-12 also apply.

(d) Procedural requirements--consultation with the submitter. (1)

If GSA receives a FOIA request for potentially confidential commercial

information, it will notify the submitter immediately by telephone and

invite an opinion whether disclosure will or will not cause substantial

competitive harm.

(2) GSA will follow up the telephonic notice promptly in writing

before releasing any records unless paragraph (f) of this section

applies.

(3) If the submitter indicates an objection to disclosure, GSA will

give the submitter seven workdays from receipt of the letter to provide

GSA with a detailed written explanation of how disclosure of any

specified portion of the records would be competitively harmful.

(4) If the submitter verbally states that there is no objection to

disclosure, GSA will confirm this fact in writing before disclosing any

records.

(5) At the same time GSA notifies the submitter, it will also

advise the requester that there will be a delay in responding to the

request due to the need to consult with the submitter.

(6) GSA will review the reasons for nondisclosure before

independently deciding whether the information must be released or

should be withheld. If GSA decides to release the requested

information, it will provide the submitter with a written statement

explaining why his or her objections are not sustained. The letter to

the submitter will contain a copy of the material to be disclosed or

will offer the submitter an opportunity to review the material in one

of GSA's offices. If GSA decides not to release the material, it will

notify the submitter orally or in writing.

(7) If GSA determines to disclose information over a submitter's

objections, it will inform the submitter that GSA will delay disclosure

for five workdays from the estimated date the submitter receives GSA's

decision before it releases the information. The decision letter to the

requester shall state that GSA delay disclosure of material it has

determined to disclose to allow for the notification of the submitter.

(e) When notice is required. (1) For confidential commercial

information submitted prior to January 1, 1988, GSA will notify a

submitter whenever it receives a FOIA request for such information:

(i) If the records are less than 10 years old and the information

has been designated by the submitter as confidential commercial

information; or

(ii) If GSA has reason to believe that disclosure of the

information could reasonably be expected to cause substantial

competitive harm.

(2) For confidential commercial information submitted on or after

January 1, 1988, GSA will notify a submitter whenever it determines

that the agency may be required to disclose records:

(i) That the submitter has previously designated as privileged or

confidential; or

(ii) That GSA believes could reasonably be expected to cause

substantial competitive harm if disclosed.

(3) GSA will provide notice to a submitter for a period of up to 10

years after the date of submission.

(f) When notice is not required. The notice requirements of this

section will not apply if:

(1) GSA determines that the information should not be disclosed;

(2) The information has been published or has been officially made

available to the public;

(3) Disclosure of the information is required by a law other than

the FIOA;

(4) Disclosure is required by an agency rule that--

(i) Was adopted pursuant to notice and public comment;

(ii) Specifies narrow classes of records submitted to the agency

that are to be released under FIOA; and

(iii) Provides in exceptional circumstances for notice when the

submitter provides written justification, at the time the information

is submitted or a reasonable time thereafter, that disclosure of the

information could reasonably be expected to cause substantial

competitive harm;

(5) The information is not designated by the submitter as exempt

from disclosure under paragraph (c) of this section, unless GSA has

substantial reason to believe that the disclosure of the information

would be competitively harmful; or

(6) The designation made by the submitter in accordance with

paragraph (c) of this section appears obviously frivolous; except that,

in such cases, the agency must provide the submitter with written

notice of any final administrative decision five workdays prior to

disclosing the information.

(g) Lawsuits. If a FIOA requester sues the agency to compel

disclosure of confidential commercial information, GSA will notify the

submitter as soon as possible. If the submitter sues GSA to enjoin

disclosure of the records, GSA will notify the requester.

Subpart 105-60.5--Exemptions

Sec. 105-60.501 Categories of records exempt from disclosure under the

FIOA.

(a) 5 U.S.C. 552(b) provides that the requirements of the FIOA do

not apply to matters that are:

(1) Specifically authorized under the criteria established by an

Executive Order to be kept secret in the interest of national defense

or foreign policy and are in fact properly classified pursuant to such

Executive order;

(2) Related solely to the internal personnel rules and practices of

an agency;

(3) Specifically exempted from disclosure by statute (other than

section 552b of this title), provided that such statute:

(i) Requires that the matters be withheld from the public in such a

manner as to leave no discretion on the issue; or

(ii) Establishes particular criteria for withholding or refers to

particular types of matters to be withheld;

(4) Trade secrets and commercial or financial information obtained

from a person and privileged or confidential;

(5) Interagency or intra-agency memorandums or letters that would

not be available by law to a party other than an agency in litigation

with the agency;

(6) Personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal

privacy;

(7) Records or information compiled for law enforcement purposes,

but only

[[Page 60023]]

to the extent that the production of such law enforcement records or

information:

(i) Could reasonably be expected to interfere with enforcement

proceedings;

(ii) Would deprive a person of a right to a fair trial or an

impartial adjudication;

(iii) Could reasonably be expected to constitute an unwarranted

invasion of personal privacy;

(iv) Could reasonably be expected to disclose the identity of a

confidential source, including a State, local, or foreign agency or

authority or any private institution that furnished information on a

confidential basis, and, in the case of a record or information

compiled by a criminal law enforcement authority in the course of a

criminal investigation or by an agency conducting a lawful natural

security intelligence investigation, information furnished by a

confidential source;

(v) Would disclose techniques and procedures for law enforcement

investigations or prosecutions; or would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure could

reasonably be expected to risk circumvention of the law; or

(vi) Could reasonably be expected to endanger the life or physical

safety of any individual;

(8) Contained in or related to examination, operating, or condition

reports prepared by, on behalf of, or for the use of an agency

responsible for the regulation or supervision of financial

institutions; or

(9) Geological and geophysical information and data, including

maps, concerning wells.

(b) GSA will provide any reasonably segregable portion of a record

to a requester after deletion of the portions that are exempt under

this section. If GSA must delete information from a record before

disclosing it, this information, and the reasons for withholding it,

will be clearly described in the cover letter to the requester or in an

attachment.

(c) GSA will invoke no exemption under this section to deny access

to records that would be available pursuant to a request made under the

Privacy Act of 1974 (5 U.S.C. 522a) and implementing regulations, 41

CFR part 105-64, or if disclosure would cause no demonstrable harm to

any governmental or private interest.

(d) Whenever a request is made that involves access to records

described in Sec. 105-60.501(a)(7)(i) and the investigation or

proceeding involves a possible violation of criminal law, and there is

reason to believe that the subject of the investigation or proceeding

is not aware of it, and disclosure of the existence of the records

could reasonably be expected to interfere with enforcement proceedings,

the agency may, during only such time as that circumstance continues,

treat the records as not subject to the requirements of this section.

(e) Whenever informant records maintained by a criminal law

enforcement agency under an informant's name or personal identifier are

requested by a third party according to the informant's name or

personal identifier, the agency may treat the records as not subject to

the requirements of this section unless the informant's status as an

informant has been officially confirmed.

(f) Whenever a request is made that involves access to records

maintained by the Federal Bureau of Investigation pertaining to foreign

intelligence or counterintelligence, or international terrorism, and

the existence of the records is classified information as provided in

paragraph (a)(1) of this section, the Bureau may, as long as the

existence of the records remains classified information, treat the

records as not subject to the requirements of this section.

Subpart 105-60.6--Production or Disclosure by Present or Former

General Services Administration Employees in Response to Subpoenas

or Similar Demands in Judicial or Administrative Proceedings

Sec. 105-60.601 Purpose and scope of subpart.

(a) By virtue of the authority vested in the Administrator of

General Services by 5 U.S.C. 301 and 40 U.S.C. 486(c) this subpart

establishes instructions and procedures to be followed by current and

former employees of the General Services Administration in response to

subpoenas or similar demands issued in judicial or administrative

proceedings for production or disclosure of material or information

obtained as part of the performance of a person's official duties or

because of the person's official status. Nothing in these instructions

applies to responses to subpoenas or demands issued by the Congress or

in Federal grand jury proceedings.

(b) This subpart provides instructions regarding the internal

operations of GSA and the conduct of its employees, and is not intended

and does not, and may not, be relied upon to create any right or

benefit, substantive or procedural, enforceable at law by a party

against GSA.

(c) These regulations provide for procedures and a systematic means

by which GSA can evaluate whether it should comply with a demand for

official GSA information or whether applicable privileges or statutes

provide a legitimate basis for withholding the demanded information.

These regulations do not provide independent authority to withhold

information. In proceedings to which GSA is a party, these regulations

shall not be interpreted or applied to supersede or frustrate

established rules of procedure applicable to the forum in which the

matter is pending.

Sec. 105-60.602 Definitions.

For purposes of this subpart, the following definitions apply:

(a) Material means any document, record, file or data, regardless

of the physical form or the media by or through that it is maintained

or recorded, that was generated or acquired by a current or former GSA

employee by reason of the performance of that person's official duties

or because of the person's official status, or any other tangible item,

e.g., personal property possessed or controlled by GSA.

(b) Information means any knowledge or facts contained in material,

and any knowledge or facts acquired by current or former GSA employee

as part of the performance of that person's official duties or because

of that person's official status.

(c) Demand means any subpoena, order, or similar demand for the

production or disclosure of material, information or testimony

regarding such material or information, issued by a court or other

authority in a judicial or administrative proceeding, excluding

congressional subpoenas or demands in Federal Grand Jury proceedings,

and served upon a present or former GSA employee.

(d) Appropriate Authority means the following officials who are

delegated authority to approve or deny responses to demands for

material, information or testimony:

(1) The Counsel to the Inspector General for material and

information that is the responsibility of the GSA Office of Inspector

General or testimony of current or former employees of the Office of

the Inspector General;

(2) The Counsel to the GSA Board of Contract Appeals for material

and information that is the responsibility of the Board of Contract

Appeals or testimony of current or former Board of Contract Appeals

employees;

(3) The GSA General Counsel, Associate General Counsel(s) or

Regional Counsel(s) for all material, information, or testimony not

covered by paragraphs (d)(1) and (2) of this section.

[[Page 60024]]

Sec. 105-60.603 Acceptance of service of a subpoena duces tecum or

other legal demand on behalf of the General Services Administration.

(a) The Administrator of General Services Administration and the

following officials are the only GSA personnel authorized to accept

service of a subpoena or other legal demand on behalf of GSA: The GSA

General Counsel and Associate General Counsel(s) and, with respect to

material or information that is the responsibility of a regional

office, the Regional Administrator and the Regional Counsel. The

Inspector General and Counsel to the Inspector General, as well as the

Chairman and Vice Chairman of the Board of Contract Appeals, are

authorized to accept service for material or information which is the

responsibility of their respective organizations.

(b) A present or former GSA employee not authorized to accept

service of a subpoena or other demand for material, information or

testimony obtained in an official capacity shall respectfully inform

the process serve that he or she is not authorized to accept service on

behalf of GSA and refer the process server to an appropriate official

listed in paragraph (a) of this section.

(c) A Regional Administrator or Regional Counsel shall notify the

General Counsel of a demand that may raise policy concerns or affect

multiple regions.

Sec. 105-60.604 Production or disclosure prohibited unless approved by

the Appropriate Authority.

No current or former GSA employee shall, in response to a demand,

produce any material or disclose, through testimony or other means, any

information covered by this subpart, without prior approval of the

Appropriate Authority.

Sec. 105-60.605 Procedure in the event of a demand for production or

disclosure.

(a) Whenever service of demand is attempted in person or via mail

upon a current or former GSA employee for the production of material or

the disclosure of information covered by this subpart, the employee or

former employee shall immediately notify the Appropriate Authority

through his or her supervisor or his or her former service, staff, or

regional office. The supervisor shall notify the Appropriate Authority.

For current or former employees of the Office of Inspector General

located in regional offices, Counsel to the Inspector General shall be

notified through the immediate supervisor or former employing field

office.

(b) The Appropriate Authority shall require that the party seeking

material or testimony provide the Appropriate Authority with an

affidavit, declaration, statement, and/or a plan as described in

paragraphs (c)(1), (2) and (3) of this section if not included with or

described in the demand. The Appropriate Authority may in his or her

discretion waive this requirement for a demand arising out of

proceedings to which GSA or the United States is a party and in

proceedings in which the United States or GSA is not a party but has an

interest such as so-called Qui Tam proceedings, or where the

Appropriate Authority has independent knowledge of facts relevant to

the matter upon which an informed determination can be made. Any waiver

will be coordinated with the United States Department of Justice (DOJ)

in proceedings in which GSA, its current or former employees, or the

United States are represented by DOJ.

(c)(1) Oral testimony. If oral testimony is sought by a demand, the

Appropriate Authority shall require the party seeking the testimony or

the party's attorney to provide, by affidavit or other statement, a

detailed summary of the testimony sought and its relevance to the

proceedings. Any authorization for the testimony of a current or former

GSA employee shall be limited to the scope of the demand as summarized

in such statement or affidavit.

(2) Production of material. When information other than oral

testimony is sought by a demand, the Appropriate Authority shall

require the party seeking production or the party's attorney to provide

a detailed summary, by affidavit or other statement, of the information

sought and its relevance to the proceeding.

(3) The Appropriate Authority may require a plan or other

information from the party seeking testimony or production of material

of all demands reasonably foreseeable, including, but not limited to,

names of all current and former GSA and employees from whom testimony

or production is or will likely be sought, areas of inquiry, for

current employees the length of time away from duty anticipated, and

identification of documents to be used in each deposition or other

testimony, where appropriate.

(d) The Appropriate Authority will notify the current or former

employee, the appropriate supervisor, and such other persons as

circumstances may warrant, whether disclosure or production is

authorized, and of any conditions or limitations to disclosure or

production.

(e) Factors to be considered by the Appropriate Authority in

responding to demands:

(1) Whether disclosure or production is appropriate under rules of

procedure governing the proceeding out of which the demand arose;

(2) The relevance of the testimony or documents to the proceedings;

(3) The impact of the relevant substantive law concerning

applicable privileges recognized by statute, common law; judicial

interpretation or similar authority;

(4) The information provided by the issuer of the demand in

response to requests by the Appropriate Authority pursuant to

paragraphs (b) and (c) of this section;

(5) The steps taken by the issuer of the demand to minimize the

burden of disclosure or production on GSA, including but not limited to

willingness to accept authenticated copies of material in lieu of

personal appearance by GSA employees;

(6) The impact on pending or potential litigation involving GSA or

the United States as a party;

(7) In consultation with the head of the GSA organizational

component affected, the burden to GSA that disclosure or production

would entail; and

(8) Any additional factors unique to a particular demand or

proceeding.

(f) Examples of situations in which authority for production will

likely be denied by the Appropriate Authority are those in which

production would:

(1) Violate a statute or a specific regulation;

(2) Reveal classified information, unless appropriately

declassified by the originating agency;

(3) Reveal a confidential source or informant, unless the

investigative agency and the source or informant consent;

(4) Reveal records or information compiled for law enforcement

purposes that would interfere with enforcement proceedings or disclose

investigative techniques and procedures the effectiveness of which

would be impaired;

(5) Reveal trade secrets or commercial or financial information

that is privileged or confidential without prior consultation with the

person from whom it was obtained; or

(6) Be contrary to a recognized privilege.

(g) The Appropriate Authority's determination, including any

reasons for denial or limitations on disclosure or production, shall be

made as expeditiously as possible and shall be communicated in writing

to the issuer

[[Page 60025]]

of the demand and appropriate current or former GSA employee(s). In

proceedings in which GSA, its current or former employees, or the

United States are represented by DOJ the determination shall be

coordinated with DOJ, which may respond to the issuer of the subpoenas

or demand in lieu of the Appropriate Authority.

Sec. 105-60.606 Procedure where response to demand is required prior

to receiving instructions.

(a) If a response to a demand is required before the Appropriate

Authority's decision is issued, a GSA attorney designated by the

Appropriate Authority for the purpose shall appear with the employee or

former employee upon whom the demand has been made, and shall furnish

the judicial or other authority with a copy of the instructions

contained in this subpart. The attorney shall inform the court or other

authority that the demand has been or is being referred for the prompt

consideration by the Appropriate Authority. The attonery shall

respectfully request the judicial or administrative authority to stay

the demand pending receipt of the requested instructions.

(b) The designated GSA attorney shall coordinate GSA's response

with DOJ's Civil Division or the relevant Office of the United States

Attorney and may request that a DOJ or Assistant United States Attorney

appear with the employee in addition to or in lieu of a designated GSA

attorney.

(c) If an immediate demand for production or disclosure is made in

circumstances which preclude the appearance of a GSA or DOJ attorney on

the behalf of the employee or the former employee, the employee or

former employee shall respectfully make a request to the demanding

authority for sufficient time to obtain advice of counsel.

Sec. 105-60.607 Procedure in the event of an adverse ruling.

If the court or other authority declines to stay the effect of the

demand in response to a request made in accordance with Sec. 105-60.606

pending receipt of instructions, or if the court or other authority

rules that the demand must be complied with irrespective of

instructions by the Appropriate Authority not to produce the material

or disclosure the information sought, the employee or former employee

upon whom the demand has been made shall respectfully decline to

comply, citing these instructions and the decision of the United States

Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462

(1951).

Sec. 105-60.608 Fees, expenses, and costs.

(a) In consultation with the Appropriate Authority, a current

employee who appears as a witness pursuant to a demand shall ensure

that he or she receives all fees and expenses, including travel

expenses, to which witnesses are entitled pursuant to rules applicable

to the judicial or administrative proceedings out of which the demand

arose.

(b) Witness fees and reimbursement for expenses received by a GSA

employee shall be disposed of in accordance with rules applicable to

Federal employees in effect at the time.

(c) Reimbursement to the GSA for costs associated with producing

material pursuant to a demand shall be determined in accordance with

rules applicable to the proceedings out of which the demand arose.

Dated: October 28, 1997.

David J. Barram,

Administrator.

[FR Doc. 97-29061 Filed 11-5-97; 8:45 am]

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