Revision of Freedom of Information Act and Privacy Act Regulations and Implementation of Electronic Freedom of Information Act Amendments of 1996

DEPARTMENT OF JUSTICE

28 CFR Parts 16 and 50

[Attorney General Order No. 2156-98]

RIN 1105-AA20

Revision of Freedom of Information Act and Privacy Act

Regulations and Implementation of Electronic Freedom of Information Act

Amendments of 1996

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This document amends the Department's regulations under both

the Freedom of Information Act (FOIA) and the Privacy Act of 1974. The

FOIA and Privacy Act regulations have been streamlined and condensed,

in accordance with the principles of the National Performance Review,

with more ``user-friendly'' language used wherever possible. These

revisions also reflect the principles established by President Clinton

and Attorney General Reno in their FOIA Memoranda of October 4, 1993.

The Department's new statement of discretionary disclosure policy--

which originated in the Attorney General's FOIA Memorandum of October

4, 1993, and is incorporated into Sec. 16.1(a)--supersedes the existing

regulation regarding discretionary access to records of historical

interest. Additionally, the regulations have been updated to reflect

developments in case law and to include updated cost figures used in

calculating and charging fees. These revisions also contain new

provisions implementing the Electronic Freedom of Information Act

Amendments of 1996 (Electronic FOIA Amendments).

EFFECTIVE DATE: July 1, 1998.

FOR FURTHER INFORMATION CONTACT:

Janice Galli McLeod ((202) 514-3642).

SUPPLEMENTARY INFORMATION:

Background Information

On August 26, 1997, the Department of Justice published a proposed

rule that revised its existing regulations under the FOIA and Privacy

Act and added new provisions implementing the Electronic FOIA

Amendments. See 62 FR 45184, Aug. 26, 1997. Interested persons were

afforded an opportunity to participate in the rulemaking through

submission of written comments on the proposed rule. The Department

received three responses to its proposed rule. The Department has

adopted several of the modifications suggested by the commenters and

has made other revisions to its proposed rule for clarity as well.

New provisions implementing the Electronic FOIA Amendments are

found at Sec. 16.2(c) (electronic reading rooms), Sec. 16.5(b)

(multitrack processing), Sec. 16.5(c) (processing under unusual

circumstances), Sec. 16.5(d) (expedited processing), Sec. 16.6(b)

(deletion marking), Sec. 16.6(c) (appeal of format determinations),

Sec. 16.6(c)(3) (volume estimation), Sec. 16.11(b)(3) (format of

disclosure), and Sec. 16.11(b)(8) (electronic searches). Revisions to

the Department's fee schedule are found at Sec. 16.11 (c) and (d).

Comments

The Department received three responses from commenters: the first,

from several organizations that represent newspapers, news editors, and

reporters; the second, from two nonprofit groups that regularly use the

FOIA, both as requesters and as counsel for requesters; and the third,

from a Federal agency. Each of the three responses contained several

comments. Due consideration has been given to each of the comments

received.

In several instances, commenters questioned the absence in the

proposed rule of verbatim restatements of the language of the

Electronic FOIA Amendments, or other statutory provisions of the FOIA.

Such restatements of statutory language, however, are not necessary to

the regulation. The rule revises the Department's existing regulations

only where the amending language of the Electronic FOIA Amendments

specifically requires or permits new regulations, where the current

regulations conflict with the statutory amendments or existing case

law, or where condensing or clarifying the regulations is warranted.

The Department has added to its final rule three new clarifying

statements--in Secs. 16.1 and 16.3, as well as in Sec. 16.40--to remind

requesters and users that the Department's regulations should be read

in conjunction with the FOIA, the Privacy Act, or both statutes.

Requesters and other users of the regulations now are also referred

in Sec. 16.3 to the Department's ``Freedom of Information Act Reference

Guide''--a user-friendly guide created under the Electronic FOIA

Amendments that provides helpful information designed to familiarize

users with available resources and specific procedures for making FOIA

requests to the Department. The Department has complied with new

subsection (g) of the FOIA by making its ``Freedom of Information Act

Reference Guide'' available both in paper form and electronically. See

``FOIA Update,'' Summer 1997, at 2; see also ``Freedom of Information

Act Reference Guide,'' at 3 & Attachment C (Aug. 1997); H.R. Rep. No.

104-795, at 30 (1996). In accordance with one commenter's suggestion,

Sec. 16.3(a) has been revised to specifically refer requesters to the

Department's ``Freedom of Information Act Reference Guide'' for

assistance in locating the records of the Department's various

components in connection with potential FOIA requests.

In some instances, commenters suggested particular amendments to

the proposed rules. Several of the suggested amendments have been

accepted and incorporated into the Department's final rule. For

example, one commenter noted

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that within Sec. 16.6(b), the subsection that partly concerns a

component's obligation to indicate both the amount of and the location

of information deleted on a partially disclosed record, the term

``wherever practicable'' appeared to modify both the term ``amount''

and the term ``location,'' in a manner that was not consistent with the

statutory language. The Department agrees and has modified this

subsection to make it clear that the term in question applies only to

the location of the deletion and not to the amount of information

deleted. The commenter also questioned use of the term ``wherever

practicable'' in lieu of the statutory term ``technically feasible''

within Sec. 16.6(b). The Department agrees with the commenter and has

replaced the term ``wherever practicable'' with the term ``if

technically feasible.''

The Department also agrees with a commenter's suggestion that an

agency's determination not to honor a requester's choice of form or

format should be regarded as an adverse agency action that can be the

subject of an administrative appeal. Accordingly, the Department has

modified Sec. 16.6(c) to include such a determination within its

listing of adverse determinations subject to administrative appeal.

The Department disagrees with the commenter who interpreted the

second sentence of 5 U.S.C.A. 552(a)(3)(B) (West 1996 & Supp. 1997) as

requiring agencies to maintain records ``in as many forms as

possible,'' and it declines to add the commenter's suggested amendatory

language to that effect. There is nothing in the legislative history of

this provision to indicate that this amendment was intended to extend

beyond the confines of the FOIA in the way in which the commenter

suggested. The Department further declines to adopt a commenter's

suggestion that it modify the language of Sec. 16.5(c) concerning

extensions of time to process requests based on unusual circumstances

so as to limit the use of the provision to ``rare instances.'' Rather,

the parameters of this regulatory provision are governed by the clear

statutory language, which specifies the circumstances under which time

limits may be extended. The Department has, however, inserted the

phrase ``as defined by the FOIA'' into this provision to alert

requesters to the statutory basis of the definition of the term

``unusual circumstances.''

The Department also disagrees with the commenter who questioned the

language of Sec. 16.2(c)--specifically, the phrase ``by the

Department''--regarding electronic availability. This language is

entirely consistent with governmentwide guidance provided by the

Department on this point in its ``FOIA Update'' publication. See ``FOIA

Update,'' Winter 1997, at 4-5. As the Department advised all Federal

agencies in ``FOIA Update,'' in enacting the Electronic FOIA Amendments

Congress established a new ``electronic reading room'' obligation for

all categories of reading room records, but it did so only ``(f)or

records created on or after November 1, 1996.'' 5 U.S.C.A. 552(a)(2)

(West 1996 & Supp. 1997). This cut-off date serves as an important

practical limitation on an agency's ``electronic reading room''

obligation: By limiting it to newly created reading room records--

records that presumably would already be maintained by an agency in an

electronic form, with few exceptions--Congress ensured that agencies

would more readily be able to satisfy it. Thus, as agencies create the

new policy statements, staff manuals, and final opinions in the

adjudication of cases that are required to be placed in their reading

rooms under subsections (a)(2)(A)-(C), they now automatically make

those records available electronically as well. By contrast, many

agencies and Department components must deal with records in the new

fourth reading room category that were not generated by them, but

rather were generated elsewhere and merely were obtained by them for

one purpose or another (e.g., documents submitted by regulated

entities). While such records may be determined by a component to fall

within new subsection (a)(2)(D), they are not ``created'' by the

Department and should not be regarded as subject to the electronic

availability requirement. Accord United States Dep't of Justice v. Tax

Analysts, 492 U.S. 136, 144 (1989) (recognizing that agencies ``either

create or obtain'' records that become subject to FOIA). A component

may, of course, choose as a matter of administrative discretion to make

such records available electronically in any case in which it

determines that to do so would be most cost-effective in serving public

access needs under subsection (a)(2)(D). The Department is confident

that its implementation of this provision is fully in accord with

congressional intent. Cf. H.R. Rep. No. 104-795, at 20-21 (1996)

(indicating intent to treat subsection (a)(2) ``in the same manner'' as

subsection (a)(1)); ``FOIA Update,'' Winter 1997, at 3 (compelling

agencies to follow two rules more favorable to FOIA requesters even

though language of statutory amendments did not provide for them

explicitly).

Several comments pertained to requests for expedited processing.

One commenter raised a concern that requesters may not be sufficiently

familiar with Departmental rules to know where to send such requests.

By regulation, the Department has defined four categories of requests

that will be taken out of turn and given expedited treatment. See 28

CFR 16.5(d)(1). One category of such requests--those that concern a

matter of widespread and exceptional media interest that involves

possible questions about government integrity--must be directed to the

Department's Office of Public Affairs. All other categories of requests

for expedited processing are to be sent to the applicable component's

FOIA office. The participation of the Department's Office of Public

Affairs in this aspect of FOIA processing was initiated by the Attorney

General in 1994 in order to have the Department's media specialists

deal directly with matters of exceptional concern to the media. The

address of the Office of Public Affairs now has been placed within the

text of Sec. 16.5(d)(2) in order to better facilitate this process; all

other component FOIA addresses are found in the appendix that follows

the Department's FOIA and Privacy Act regulations. For requesters

familiar with the regulation, submission of expedited-processing

requests directly to the office that will process them will further the

purpose of the underlying statutory provision. The Department already

had in place procedures by which all Department components are required

to forward misdirected expedited-processing requests that involve the

Department's special media-related standard to the Office of Public

Affairs by hand-delivery or fax. At one commenter's suggestion, the

Department has now added a statement embodying this existing

administrative requirement within Sec. 16.5(d)(2).

Another commenter commended the Department for adopting expedited-

processing categories beyond the two categories authorized by Congress;

it then asked the Department to create a fifth category for any records

subject to ``five or more requests for substantially the same

records.'' While Congress did give agencies latitude to expand

expedited processing to other categories, it also admonished agencies

that being ``unduly generous'' in creating other categories for

expedited processing ``would unfairly disadvantage other requesters.''

H.R. Rep. No. 104-795, at 26 (1996). The Department accordingly

declines to create a fifth expedited-processing category for records

subject to multiple requests.

[[Page 29593]]

Other suggested revisions to the proposed rule that have been

incorporated into this final rule include the addition of a specific

reference to the twenty-day period within which a component ordinarily

will be required to make a determination on a request within the

section concerning component responses to requests (Sec. 16.6(b)); a

revision of the introductory paragraph pertaining to fee waivers, for

clarity (Sec. 16.11(k)); and minor revisions of Sec. 16.11(c)(3) and

(k)(4), for clarity.

In some instances, commenters posed questions about the

implementation of the Electronic FOIA Amendments or the proposed

revisions. One commenter, for instance, given the broad language within

Sec. 16.5(d) concerning the submission of requests for expedited

processing, asked: ``Is there a point in time when expedited requests

will not be accepted?'' The answer to the question is simply ``no.''

The language of the proposed rule clearly stated that a request for

expedited processing may be made at the time of the initial request or

``at any later time.'' The Department believes that questions such as

the one raised by this commenter are more appropriately handled in a

forum other than publication as part of a final rule.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605()), has reviewed this regulation and by approving it

certifies that this regulation will not have a significant economic

impact on a substantial number of small entities. Under the Freedom of

Information Act, agencies may recover only the direct costs of

searching for, reviewing, and duplicating the records processed for

requesters. Thus, fees assessed by the Department are nominal. Further,

the ``small entities'' that make FOIA requests, as compared with

indiidual requesters and other requesters, are relatively few in

number.

Executive Order 12866

This regulation has been drafted and reviewed in accordance with

Executive Order 12866, section 1(b), Principles of Regulation. The

Office of Management and Budget has determined that this rule is a

``significant regulatory action'' under Executive Order 12866, section

3(f), Regulatory Planning and Review, and accordingly this rule has

been reviewed by that agency.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and

tribal governments, in the aggregate, or by the private sector, of

$100,000,000 or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Fairness Act of 1996. This rule

will not result in an annual effect on the economy of $100,000,000 or

more; a major increase in costs or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of United States-based companies to

compete with foreign-based companies in domestic and export markets.

List of Subjects

28 CFR Part 16

Administrative practice and procedure, Freedom of information,

Privacy.

28 CFR Part 50

Administrative practice and procedure.

For the reasons stated in the preamble, the Department of Justice

amends 28 CFR Chapter I, parts 16 and 50, as follows:

PART 16--DISCLOSURE OR PRODUCTION OF RECORDS OR INFORMATION

1. The authority citation for part 16 is revised to read as

follows:

Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C.

4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717.

2. Subpart A of part 16 is revised to read as follows:

Subpart A--Procedures for Disclosure of Records Under the Freedom of

Information Act

Sec.

16.1 General provisions.

16.2 Public reading rooms.

16.3 Requirements for making requests.

16.4 Responsibility for responding to requests.

16.5 Timing of responses to requests.

16.6 Responses to requests.

16.7 Classified information.

16.8 Business information.

16.9 Appeals.

16.10 Preservation of records.

16.11 Fees.

16.12 Other rights and services.

Subpart A--Procedures for Disclosure of Records Under the Freedom

of Information Act

Sec. 16.1 General provisions.

(a) This subpart contains the rules that the Department of Justice

follows in processing requests for records under the Freedom of

Information Act (FOIA), 5 U.S.C. 552. These rules should be read

together with the FOIA, which provides additional information about

access to records maintained by the Department. Requests made by

individuals for records about themselves under the Privacy Act of 1974,

5 U.S.C. 552a, which are processed under subpart D of this part, are

processed under this subpart also. Information routinely provided to

the public as part of a regular Department activity (for example, press

releases issued by the Office of Public Affairs) may be provided to the

public without following this subpart. As a matter of policy, the

Department makes discretionary disclosures of records or information

exempt from disclosure under the FOIA whenever disclosure would not

foreseeably harm an interest protected by a FOIA exemption, but this

policy does not create any right enforceable in court.

(b) As used in this subpart, component means each separate bureau,

office, board, division, commission, service, or administration of the

Department of Justice.

Sec. 16.2 Public reading rooms.

(a) The Department maintains public reading rooms that contain the

records that the FOIA requires to be made regularly available for

public inspection and copying. Each Department component is responsible

for determining which of the records it generates are required to be

made available in this way and for making those records available

either in its own reading room or in the Department's central reading

room. Each component shall maintain and make available for public

inspection and copying a current subject-matter index of its reading

room records. Each index shall be updated regularly, at least

quarterly, with respect to newly included records.

(b) The Department maintains public reading rooms or areas at the

locations listed below:

(1) Bureau of Prisons--on the Seventh Floor, 500 First Street, NW.,

Washington, DC;

(2) Civil Rights Division--in Room 930, 320 First Street, NW.,

Washington, DC;

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(3) Community Relations Service--in Suite 2000, 600 E Street, NW.,

Washington, DC;

(4) Drug Enforcement Administration--in Room W-7216, 700 Army Navy

Drive, Arlington, Virginia;

(5) Executive Office for Immigration Review (Board of Immigration

Appeals)--in Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia;

(6) Federal Bureau of Investigation--at the J. Edgar Hoover

Building, 935 Pennsylvania Avenue, NW., Washington, DC;

(7) Foreign Claims Settlement Commission--in Room 6002, 600 E

Street, NW., Washington, DC;

(8) Immigration and Naturalization Service--425 I Street, NW.,

Washington, DC;

(9) Office of Justice Programs--In Room 5430, 810 Seventh Street,

NW., Washington, DC;

(10) Pardon Attorney--on the Fourth Floor, 500 First Street, NW.,

Washington, DC;

(11) United States Attorneys and United States Marshals--at the

principal offices of the United States Attorneys and the United States

Marshals, which are listed in most telephone books; and

(12) All other components of the Department of Justice--in Room

6505 at the Main Justice Building, 950 Pennsylvania Avenue, NW.,

Washington, DC.

(c) Components shall also make reading room records created by the

Department on or after November 1, 1996, available electronically at

the Department's World Wide Web site (which can be found at http://

www.usdoj.gov), through use of the Department's ``Freedom of

Information Act Home Page.'' This includes each component's index of

its reading room records, which will indicate which records are

available electronically.

Sec. 16.3 Requirements for making requests.

(a) How made and addressed. You may make a request for records of

the Department of Justice by writing directly to the Department

component that maintains those records. You may find the Department's

``Freedom of Information Act Reference Guide''--which is available

electronically at the Department's World Wide Web site, and is

available in paper form as well--helpful in making your request. For

additional information about the FOIA, you may refer directly to the

statute. If you are making a request for records about yourself, see

Sec. 16.41(d) for additional requirements. If you are making a request

for records about another individual, either a written authorization

signed by that individual permitting disclosure of those records to you

or proof that that individual is deceased (for example, a copy of a

death certificate or an obituary) will help the processing of your

request. Your request should be sent to the component's FOIA office at

the address listed in appendix I to part 16. In most cases, your FOIA

request should be sent to a component's central FOIA office. For

records held by a field office of the Federal Bureau of Investigation

(FBI) or the Immigration and Naturalization Service (INS), however, you

must write directly to that FBI or INS field office address, which can

be found in most telephone books or by calling the component's central

FOIA office (The functions of each component are summarized in part 0

of this title and in the description of the Department and its

components in the ``United States Government Manual,'' which is issued

annually and is available in most libraries, as well as for sale from

the Government Printing Office's Superintendent of Documents. This

manual also can be accessed electronically at the Government Printing

Office's World Wide Web site (which can be found at http://

www.access.gpo.gov/su__docs).) If you cannot determine where within the

Department to send your request, you may send it to the FOIA/PA Mail

Referral Unit, Justice Management Division, U.S. Department of Justice,

950 Pennsylvania Avenue, NW., Washington, DC 20530-0001. That office

will forward your request to the component(s) it believes most likely

to have the records that you want. Your request will be considered

received as of the date it is received by the proper component's FOIA

office. For the quickest possible handling, you should mark both your

request letter and the envelope ``Freedom of Information Act Request.''

(b) Description of records sought. You must describe the records

that you seek in enough detail to enable Department personnel to locate

them with a reasonable amount of effort. Whenever possible, your

request should include specific information about each record sought,

such as the date, title or name, author, recipient, and subject matter

of the record. In addition, if you want records about a court case, you

should provide the title of the case, the court in which the case was

filed, and the nature of the case. If known, you should include any

file designations or descriptions for the records that you want. As a

general rule, the more specific you are about the records or type of

records that you want, the more likely the Department will be able to

locate those records in response to your request. If a component

determines that your request does not reasonably describe records, it

shall tell you either what additional information is needed or why your

request is otherwise insufficient. The component also shall give you an

opportunity to discuss your request so that you may modify it to meet

the requirements of this section. If your request does not reasonably

describe the records you seek, the agency's response to your request

may be delayed.

(c) Agreement to pay fees. If you make a FOIA request, it shall be

considered an agreement by you to pay all applicable fees charged under

Sec. 16.11, up to $25.00, unless you seek a waiver of fees. The

component responsible for responding to your request ordinarily will

confirm this agreement in an acknowledgement letter. When making a

request, you may specify a willingness to pay a greater or lesser

amount.

Sec. 16.4 Responsibility for responding to requests.

(a) In general. Except as stated in paragraphs (c), (d), and (e) of

this section, the component that first receives a request for a record

and has possession of that record is the component responsible for

responding to the request. In determining which records are responsive

to a request, a component ordinarily will include only records in its

possession as of the date the component begins its search for them. If

any other date is used, the component shall inform the requester of

that date.

(b) Authority to grant or deny requests. The head of a component,

or the component head's designee, is authorized to grant or deny any

request for a record of that component.

(c) Consultations and referrals. When a component receives a

request for a record in its possession, it shall determine whether

another component, or another agency of the Federal Government, is

better able to determine whether the record is exempt from disclosure

under the FOIA and, if so, whether it should be disclosed as a matter

of administrative discretion. If the receiving component determines

that it is best able to process the record in response to the request,

then it shall do so. If the receiving component determines that it is

not best able to process the record, then it shall either:

(1) Respond to the request regarding that record, after consulting

with the component or agency best able to determine whether to disclose

it and with any other component or agency that has a substantial

interest in it; or

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(2) Refer the responsibility for responding to the request

regarding that record to the component best able to determine whether

to disclose it, or to another agency that originated the record (but

only if that agency is subject to the FOIA). Ordinarily, the component

or agency that originated a record will be presumed to be best able to

determine whether to disclose it.

(d) Law enforcement information. Whenever a request is made for a

record containing information that relates to an investigation of a

possible violation of law and was originated by another component or

agency, the receiving component shall either refer the responsibility

for responding to the request regarding that information to that other

component or agency or consult with that other component or agency.

(e) Classified information. Whenever a request is made for a record

containing information that has been classified, or may be appropriate

for classification, by another component or agency under Executive

Order 12958 or any other executive order concerning the classification

of records, the receiving component shall refer the responsibility for

responding to the request regarding that information to the component

or agency that classified the information, should consider the

information for classification, or has the primary interest in it, as

appropriate. Whenever a record contains information that has been

derivatively classified by a component because it contains information

classified by another component or agency, the component shall refer

the responsibility for responding to the request regarding that

information to the component or agency that classified the underlying

information.

(f) Notice of referral. Whenever a component refers all or any part

of the responsibility for responding to a request to another component

or agency, it ordinarily shall notify the requester of the referral and

inform the requester of the name of each component or agency to which

the request has been referred and of the part of the request that has

been referred.

(g) Timing of responses to consultations and referrals. All

consultations and referrals will be handled according to the date the

FOIA request initially was received by the first component or agency,

not any later date.

(h) Agreements regarding consultations and referrals. Components

may make agreements with other components or agencies to eliminate the

need for consultations or referrals for particular types of records.

Sec. 16.5 Timing of responses to requests.

(a) In general. Components ordinarily shall respond to requests

according to their order of receipt.

(b) Multitrack processing. (1) A component may use two or more

processing tracks by distinguishing between simple and more complex

requests based on the amount of work and/or time needed to process the

request, including through limits based on the number of pages

involved. If a component does so, it shall advise requesters in its

slower track(s) of the limits of its faster track(s).

(2) A component using multitrack processing may provide requesters

in its slower track(s) with an opportunity to limit the scope of their

requests in order to qualify for faster processing within the specified

limits of the component's faster track(s). A component doing so will

contact the requester either by telephone or by letter, whichever is

more efficient in each case.

(c) Unusual circumstances. (1) Where the statutory time limits for

processing a request cannot be met because of ``unusual

circumstances,'' as defined in the FOIA, and the component determines

to extend the time limits on that basis, the component shall as soon as

practicable notify the requester in writing of the unusual

circumstances and of the date by which processing of the request can be

expected to be completed. Where the extension is for more than ten

working days, the component shall provide the requester with an

opportunity either to modify the request so that it may be processed

within the time limits or to arrange an alternative time period with

the component for processing the request or a modified request.

(2) Where a component reasonably believes that multiple requests

submitted by a requester, or by a group of requesters acting in

concert, constitute a single request that would otherwise involve

unusual circumstances, and the requests involve clearly related

matters, they may be aggregated. Multiple requests involving unrelated

matters will not be aggregated.

(d) Expedited processing. (1) Requests and appeals will be taken

out of order and given expedited treatment whenever it is determined

that they involve:

(i) Circumstances in which the lack of expedited treatment could

reasonably be expected to pose an imminent threat to the life or

physical safety of an individual;

(ii) An urgency to inform the public about an actual or alleged

federal government activity, if made by a person primarily engaged in

disseminating information;

(iii) The loss of substantial due process rights; or

(iv) A matter of widespread and exceptional media interest in which

there exist possible questions about the government's integrity which

affect public confidence.

(2) A request for expedited processing may be made at the time of

the initial request for records or at any later time. For a prompt

determination, a request for expedited processing must be received by

the proper component. Requests based on the categories in paragraphs

(d)(1)(i), (ii), and (iii) of this section must be submitted to the

component that maintains the records requested. Requests based on the

category in paragraph (d)(1)(iv) of this section must be submitted to

the Director of Public Affairs, whose address is: Office of Public

Affairs, U.S. Department of Justice, Room 1128, 950 Pennsylvania

Avenue, NW., Washington DC 20530-0001. A component that receives a

request that must be handled by the Office of Public Affairs shall

forward it immediately to that office by hand-delivery or fax.

(3) A requester who seeks expedited processing must submit a

statement, certified to be true and correct to the best of that

person's knowledge and belief, explaining in detail the basis for

requesting expedited processing. For example, a requester within the

category in paragraph (d)(1)(ii) of this section, if not a full-time

member of the news media, must establish that he or she is a person

whose main professional activity or occupation is information

dissemination, though it need not be his or her sole occupation. A

requester within the category in paragraph (d)(1)(ii) of this section

also must establish a particular urgency to inform the public about the

government activity involved in the request, beyond the public's right

to know about government activity generally. The formality of

certification may be waived as a matter of administrative discretion.

(4) Within ten calendar days of its receipt of a request for

expedited processing, the proper component shall decide whether to

grant it and shall notify the requester of the decision. If a request

for expedited treatment is granted, the request shall be given priority

and shall be processed as soon as practicable. If a request for

expedited processing is denied, any appeal of that decision shall be

acted on expeditiously.

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Sec. 16.6 Responses to requests.

(a) Acknowledgements of requests. On receipt of a request, a

component ordinarily shall send an acknowledgement letter to the

requester which shall confirm the requester's agreement to pay fees

under Sec. 16.3(c) and provide an assigned request number for further

reference.

(b) Grants of requests. Ordinarily, a component shall have twenty

business days from when a request is received to determine whether to

grant or deny the request. Once a component makes a determination to

grant a request in whole or in part, it shall notify the requester in

writing. The component shall inform the requester in the notice of any

fee charged under Sec. 16.11 and shall disclose records to the

requester promptly on payment of any applicable fee. Records disclosed

in part shall be marked or annotated to show the amount of information

deleted unless doing so would harm an interest protected by an

applicable exemption. The location of the information deleted also

shall be indicated on the record, if technically feasible.

(c) Adverse determinations of requests. A component making an

adverse determination denying a request in any respect shall notify the

requester of that determination in writing. Adverse determinations, or

denials of requests, consist of: a determination to withhold any

requested record in whole or in part; a determination that a requested

record does not exist or cannot be located; a determination that a

record is not readily reproducible in the form or format sought by the

requester; a determination that what has been requested is not a record

subject to the FOIA; a determination on any disputed fee matter,

including a denial of a request for a fee waiver; and a denial of a

request for expedited treatment. The denial letter shall be signed by

the head of the component, or the component head's 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(s) for the denial, including

any FOIA exemption applied by the component in denying the request;

(3) An estimate of the volume of records or information withheld,

in number of pages or in some other reasonable form of estimation. This

estimate does not need to be provided if the volume is otherwise

indicated through deletions on records disclosed in part, or if

providing an estimate would harm an interest protected by an applicable

exemption; and

(4) A statement that the denial may be appealed under Sec. 16.9(a)

and a description of the requirements of Sec. 16.9(a).

Sec. 16.7 Classified information.

In processing a request for information that is classified under

Executive Order 12958 (3 CFR, 1996 Comp., p. 333) or any other

executive order, the originating component shall review the information

to determine whether it should remain classified. Information

determined to no longer require classification shall not be withheld on

the basis of Exemption 1 of the FOIA. On receipt of any appeal

involving classified information, the Office of Information and Privacy

shall take appropriate action to ensure compliance with part 17 of this

title.

Sec. 16.8 Business information.

(a) In general. Business information obtained by the Department

from a submitter will be disclosed under the FOIA only under this

section.

(b) Definitions. For purposes of this section:

(1) Business information means commercial or financial information

obtained by the Department from a submitter that may be protected from

disclosure under Exemption 4 of the FOIA.

(2) Submitter means any person or entity from whom the Department

obtains business information, directly or indirectly. The term includes

corporations; state, local, and tribal governments; and foreign

governments.

(c) Designation of business information. A submitter of business

information will use good-faith efforts to designate, by appropriate

markings, either at the time of submission or at a reasonable time

thereafter, any portion of its submission that it considers to be

protected from disclosure under Exemption 4. These designations will

expire ten years after the date of the submission unless the submitter

requests, and provides justification for, a longer designation period.

(d) Notice to submitters. A component shall provide a submitter

with prompt written notice of a FOIA request or administrative appeal

that seeks its business information wherever required under paragraph

(e) of this section, except as provided in paragraph (h) of this

section, in order to give the submitter an opportunity to object to

disclosure of any specified portion of that information under paragraph

(f) of this section. The notice shall either describe the business

information requested or include copies of the requested records or

record portions containing the information. When notification of a

voluminous number of submitters is required, notification may be made

by posting or publishing the notice in a place reasonably likely to

accomplish it.

(e) Where notice is required. Notice shall be given to a submitter

wherever:

(1) The information has been designated in good faith by the

submitter as information considered protected from disclosure under

Exemption 4; or

(2) The component has reason to believe that the information may be

protected from disclosure under Exemption 4.

(f) Opportunity to object to disclosure. A component will allow a

submitter a reasonable time to respond to the notice described in

paragraph (d) of this section and will specify that time period within

the notice. If a submitter has any objection to disclosure, it is

required to submit a detailed written statement. The statement must

specify all grounds for withholding any portion of the information

under any exemption of the FOIA and, in the case of Exemption 4, it

must show why the information is a trade secret or commercial or

financial information that is privileged or confidential. In the event

that a submitter fails to respond to the notice within the time

specified in it, the submitter will be considered to have no objection

to disclosure of the information. Information provided by the submitter

that is not received by the component until after its disclosure

decision has been made shall not be considered by the component.

Information provided by a submitter under this paragraph may itself be

subject to disclosure under the FOIA.

(g) Notice of intent to disclose. A component shall consider a

submitter's objections and specific grounds for nondisclosure in

deciding whether to disclose business information. Whenever a component

decides to disclose business information over the objection of a

submitter, the component shall give the submitter written notice, which

shall include:

(1) A statement of the reason(s) why each of the submitter's

disclosure objections was not sustained;

(2) A description of the business information to be disclosed; and

(3) A specified disclosure date, which shall be a reasonable time

subsequent to the notice.

(h) Exceptions to notice requirements. The notice requirements of

paragraphs (d) and (g) of this section shall not apply if:

(1) The component determines that the information should not be

disclosed;

[[Page 29597]]

(2) The information lawfully has been published or has been

officially made available to the public;

(3) Disclosure of the information is required by statute (other

than the FOIA) or by a regulation issued in accordance with the

requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or

(4) The designation made by the submitter under paragraph (c) of

this section appears obviously frivolous--except that, in such a case,

the component shall, within a reasonable time prior to a specified

disclosure date, give the submitter written notice of any final

decision to disclose the information.

(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit

seeking to compel the disclosure of business information, the component

shall promptly notify the submitter.

(j) Corresponding notice to requesters. Whenever a component

provides a submitter with notice and an opportunity to object to

disclosure under paragraph (d) of this section, the component shall

also notify the requester(s). Whenever a component notifies a submitter

of its intent to disclose requested information under paragraph (g) of

this section, the component shall also notify the requester(s).

Whenever a submitter files a lawsuit seeking to prevent the disclosure

of business information, the component shall notify the requester(s).

Sec. 16.9 Appeals.

(a) Appeals of adverse determinations. If you are dissatisfied with

a component's response to your request, you may appeal an adverse

determination denying your request, in any respect, to the Office of

Information and Privacy, U.S. Department of Justice, Flag Building,

Suite 570, Washington, DC 20530-0001. You must make your appeal in

writing and it must be received by the Office of Information and

Privacy within 60 days of the date of the letter denying your request.

Your appeal letter may include as much or as little related information

as you wish, as long as it clearly identifies the component

determination (including the assigned request number, if known) that

you are appealing. For the quickest possible handling, you should mark

your appeal letter and the envelope ``Freedom of Information Act

Appeal.'' Unless the Attorney General directs otherwise, a Director of

the Office of Information and Privacy will act on behalf of the

Attorney General on all appeals under this section, except that:

(1) In the case of an adverse determination by the Deputy Attorney

General or the Associate Attorney General, the Attorney General or the

Attorney General's designee will act on the appeal;

(2) An adverse determination by the Attorney General will be the

final action of the Department; and

(3) An appeal ordinarily will not be acted on if the request

becomes a matter of FOIA litigation.

(b) Responses to appeals. The decision on your appeal will be made

in writing. A decision affirming an adverse determination in whole or

in part shall contain a statement of the reason(s) for the affirmance,

including any FOIA exemption(s) applied, and will inform you of the

FOIA provisions for court review of the decision. If the adverse

determination is reversed or modified on appeal, in whole or in part,

you will be notified in a written decision and your request will be

reprocessed in accordance with that appeal decision.

(c) When appeal is required. If you wish to seek review by a court

of any adverse determination, you must first appeal it under this

section.

Sec. 16.10 Preservation of records.

Each component shall preserve all correspondence pertaining to the

requests that it receives under this subpart, as well as copies of all

requested records, until disposition or destruction is authorized by

title 44 of the United States Code or the National Archives and Records

Administration's General Records Schedule 14. Records will not be

disposed of while they are the subject of a pending request, appeal, or

lawsuit under the FOIA.

Sec. 16.11 Fees.

(a) In general. Components shall charge for processing requests

under the FOIA in accordance with paragraph (c) of this section, except

where fees are limited under paragraph (d) of this section or where a

waiver or reduction of fees is granted under paragraph (k) of this

section. A component ordinarily shall collect all applicable fees

before sending copies of requested records to a requester. Requesters

must pay fees by check or money order made payable to the Treasury of

the United States.

(b) Definitions. For purposes of this section:

(1) Commercial use request means a request from or on behalf of a

person who seeks information for a use or purpose that furthers his or

her commercial, trade, or profit interests, which can include

furthering those interests through litigation. Components shall

determine, whenever reasonably possible, the use to which a requester

will put the requested records. When it appears that the requester will

put the records to a commercial use, either because of the nature of

the request itself or because a component has reasonable cause to doubt

a requester's stated use, the component shall provide the requester a

reasonable opportunity to submit further clarification.

(2) Direct costs means those expenses that an agency actually

incurs in searching for and duplicating (and, in the case of commercial

use requests, reviewing) records 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 duplication

machinery. Not included in direct costs are overhead expenses such as

the costs of space and heating or lighting of the facility in which the

records are kept.

(3) Duplication means the making of a copy of a record, or of the

information contained in it, necessary to respond to a FOIA request.

Copies can take the form of paper, microform, audiovisual materials, or

electronic records (for example, magnetic tape or disk), among others.

Components shall honor a requester's specified preference of form or

format of disclosure if the record is readily reproducible with

reasonable efforts in the requested form or format by the office

responding to the request.

(4) Educational institution means a preschool, a public or private

elementary or secondary school, an institution of undergraduate higher

education, an institution of graduate higher education, an institution

of professional education, or an institution of vocational education,

that operates a program of scholarly research. To be in this category,

a requester must show that the request is authorized by and is made

under the auspices of a qualifying institution and that the records are

not sought for a commercial use but are sought to further scholarly

research.

(5) Noncommercial scientific institution means an institution that

is not operated on a ``commercial'' basis, as that term is defined in

paragraph (b)(1) of this section, and that is operated solely for the

purpose of conducting scientific research the results of which are not

intended to promote any particular product or industry. To be in this

category, a requester must show that the request is authorized by and

is made under the auspices of a qualifying institution and that the

records are not sought for a commercial use but are sought to further

scientific research.

(6) Representative of the news media, or news media requester,

means any

[[Page 29598]]

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 entities include

television or radio stations broadcasting to the public at large and

publishers of periodicals (but only in those instances where they can

qualify as disseminators of ``news'') who make their products available

for purchase or subscription by the general public. For ``freelance''

journalists to be regarded as working for a news organization, they

must demonstrate a solid basis for expecting publication through that

organization. A publication contract would be the clearest proof, but

components shall also look to the past publication record of a

requester in making this determination. To be in this category, a

requester must not be seeking the requested records for a commercial

use. However, a request for records supporting the news-dissemination

function of the requester shall not be considered to be for a

commercial use.

(7) Review means the examination of a record located in response to

a request in order to determine whether any portion of it is exempt

from disclosure. It also includes processing any record for

disclosure--for example, doing all that is necessary to redact it and

prepare it for disclosure. Review costs are recoverable even if a

record ultimately is not disclosed. Review time include time spent

resolving general legal or policy issues regarding the application of

exemptions.

(8) Search means the process of looking for and retrieving records

or information responsive to a request. It includes page-by-page or

line-by-line identification of information within records and also

includes reasonable efforts to locate and retrieve information from

records maintained in electronic form or format. Components shall

ensure that searches are done in the most efficient and least expensive

manner reasonably possible. For example, components shall not search

line-by-line where duplicating an entire document would be quicker and

less expensive.

(c) Fees. In responding to FOIA requests, components shall charge

the following fees unless a waiver or reduction of fees has been

granted under paragraph (k) of this section:

(1) Search. (i) Search fees shall be charged for all requests--

other than requests made by educational institutions, noncommercial

scientific institutions, or representatives of the news media--subject

to the limitations of paragraph (d) of this section. Components may

charge for time spent searching even if they do not locate any

responsive record or if they withhold the record(s) located as entirely

exempt from disclosure.

(ii) For each quarter hour spent by clerical personnel in searching

for and retrieving a requested record, the fee will be $4.00. Where a

search and retrieval cannot be performed entirely by clerical

personnel--for example, where the identification of records within the

scope of a request requires the use of professional personnel--the fee

will be $7.00 for each quarter hour of search time spent by

professional personnel. Where the time of managerial personnel is

required, the fee will be $10.25 for each quarter hour of time spent by

those personnel.

(iii) For computer searches of records, requesters will be charged

the direct costs of conducting the search, although certain requesters

(as provided in paragraph (d)(1) of this section) will be charged no

search fee and certain other requesters (as provided in paragraph

(d)(3) of this section) will be entitled to the cost equivalent of two

hours of manual search time without charge. These direct costs will

include the cost of operating a central processing unit for that

portion of operating time that is directly attributable to searching

for responsive records, as well as the costs of operator/programmer

salary apportionable to the search.

(2) Duplication. Duplication fees will be charged to all

requesters, subject to the limitations of paragraph (d) of this

section. For a paper photocopy of a record (no more than one copy of

which need be supplied), the fee will be ten cents per page. For copies

produced by computer, such as tapes or printouts, components will

charge the direct costs, including operator time, of producing the

copy. For other forms of duplication, components will charge the direct

costs of that duplication.

(3) Review. Review fees will be charged to requesters who make a

commercial use request. Review fees will be charged only for the

initial record review--in other words, the review done when a component

determines whether an exemption applies to a particular record or

record portion at the initial request level. No charge will be made for

review at the administrative appeal level for an exemption already

applied. However, records or record portions withheld under an

exemption that is subsequently determined not to apply may be reviewed

again to determine whether any other exemption not previously

considered applies; the costs of that review are chargeable where it is

made necessary by such a change of circumstances. Review fees will be

charged at the same rates as those charged for a search under paragraph

(c)(1)(ii) of this section.

(d) Limitations on charging fees. (1) No search fee will be charged

for requests by educational institutions, noncommercial scientific

institutions, or representatives of the news media.

(2) No search fee or review fee will be charged for a quarter-hour

period unless more than half of that period is required for search or

review.

(3) Except for requesters seeking records for a commercial use,

components will provide without charge:

(i) The first 100 pages of duplication (or the cost equivalent);

and

(ii) The first two hours of search (or the cost equivalent).

(4) Whenever a total fee calculated under paragraph (c) of this

section is $14.00 or less for any request, no fee will be charged.

(5) The provisions of paragraphs (d) (3) and (4) of this section

work together. This means that for requesters other than those seeking

records for a commercial use, no fee will be charged unless the cost of

search in excess of two hours plus the cost of duplication in excess of

100 pages totals more than $14.00.

(e) Notice of anticipated fees in excess of $25.00. When a

component determines or estimates that the fees to be charged under

this section will amount to more than $25.00, the component shall

notify the requester of the actual or estimated amount of the fees,

unless the requester has indicated a willingness to pay fees as high as

those anticipated. If only a portion of the fee can be estimated

readily, the component shall advise the requester that the estimated

fee may be only a portion of the total fee. In cases in which a

requester has been notified that actual or estimated fees amount to

more than $25.00, the request shall not be considered received and

further work shall not be done on it until the requester agrees to pay

the anticipated total fee. Any such agreement should be memorialized in

writing. A notice under this paragraph will offer the requester an

opportunity to discuss the matter with Departmental personnel in order

to reformulate the request to meet the requester's needs at a lower

cost.

(f) Charges for other services. Apart from the other provisions of

this section, when a component chooses as a matter of administrative

discretion to provide a special service--such as certifying that

[[Page 29599]]

records are true copies or sending them by other than ordinary mail--

the direct costs of providing the service ordinarily will be charged.

(g) Charging interest. Components may charge interest on any unpaid

bill staring on the 31st day following the date of billing the

requester. Interest charges will be assessed at the rate provided in 31

U.S.C. 3717 and will accrue from the date of the billing until payment

is received by the component. Components will follow the provisions of

the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as

amended, and its administrative procedures, including the use of

consumer reporting agencies, collection agencies, and offset.

(h) Aggregating requests. Where a component reasonably believes

that a requester or a group of requesters acting together is attempting

to divide a request into a series of requests for the purpose of

avoiding fees, the component may aggregate those requests and charge

accordingly. Components may presume that multiple requests of this type

made within a 30-day period have been made in order to avoid fees.

Where requests are separated by a longer period, components will

aggregate them only where there exists a solid basis for determining

that aggregation is warranted under all the circumstances involved.

Multiple requests involving unrelated matters will not be aggregated.

(i) Advance payments. (1) For requests other than those described

in paragraphs (i)(2) and (3) of this section, a component shall not

require the requester to made an advance payment--in other words, a

payment made before work is begun or continued on a request. Payment

owned for work already completed (i.e., a prepayment before copies are

sent to a requester) is not an advance payment.

(2) Where a component determines or estimates that a total fee to

be charged under this section will be more than $250.00, it may require

the requester to make an advance payment of an amount up to the amount

of the entire anticipated fee before beginning to process the request,

except where it receives a satisfactory assurance of full payment from

a requester that has a history of prompt payment.

(3) Where a requester has previously failed to pay a properly

charged FOIA fee to any component or agency within 30 days of the date

of billing, a component may require the requester to pay to the full

amount due, plus any applicable interest, and to make an advance

payment of the full amount of any anticipated fee, before the component

begins to process a new request or continues to process a pending

request from that requester.

(4) In cases in which a component requires advance payment or

payment due under paragraph (i)(2) or (3) of this section, the request

shall not be considered received and further work will not be done on

it until the required payment is received.

(j) Other statutes specifically providing for fees. The fee

schedule of this section does not apply to fees charged under any

statute that specifically requires an agency to set and collect fees

for particular types of records. Where records responsive to requests

are maintained for distribution by agencies operating such statutorily

based fee schedule programs, components will inform requesters of the

steps for obtaining records from those sources so that they may do so

most economically.

(k) Requirements for waiver or reduction of fees. (1) Records

responsive to a request will be furnished without charge or at a charge

reduced below that established under paragraph (c) of this section

where a component determines, based on all available information, that

the requester has demonstrated that:

(i) 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

(ii) Disclosure of the information is not primarily in the

commercial interest of the requester.

(2) To determine whether the first fee waiver requirement is met,

components will consider the following factors:

(i) The subject of the request: Whether the subject of the

requested records concerns ``the operations or activities of the

government.'' The subject of the requested records must concern

identifiable operations or activities of the federal government, with a

connection that is direct and clear, not remote or attenuated.

(ii) The informative value of the information to be disclosed:

Whether the disclosure is ``likely to contribute'' to an understanding

of government operations or activities. The disclosable portions of the

requested records must be meaningfully informative about government

operations or activities in order to be ``likely to contribute'' to an

increased public understanding of those operations or activities. The

disclosure of information that already is in the public domain, in

either a duplicative or a substantially identical form, would not be as

likely to contribute to such understanding where nothing new would be

added to the public's understanding.

(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 a reasonably broad

audience of persons interested in the subject, as opposed to the

individual understanding of the requester. A requester's expertise in

the subject area and ability and intention to effectively convey

information to the public shall be considered. It shall be presumed

that a representative of the news media will satisfy this

consideration.

(iv) The 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 in question, as compared to the

level of public understanding existing prior to the disclosure, must be

enhanced by the disclosure to a significant extent. Components shall

not make value judgments about whether information that would

contribute significantly to public understanding of the operations or

activities of the government is ``important'' enough to be made public.

(3) To determine whether the second fee waiver requirement is met,

components will consider the following factors:

(i) The existence and magnitude of a commercial interest: Whether

the requester has a commercial interest that would be furthred by the

requested disclosure. Components shall consider any commercial interest

of the requester (with reference to the definition of ``commercial

use'' in paragraph (b)(1) of this section), or of any person on whose

behalf the requester may be acting, that would be furthered by the

requested disclosure. Requesters shall be given an opportunity in the

administrative process to provide explanatory information regarding

this consideration.

(ii) The primary interest in disclosure: Whether any 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 justified where the public interest standard is

satisfied and that public interest is greater in magnitude than that of

any identified commercial interest in disclosure. Components ordinarily

shall presume that where a news media requester has satisfied the

[[Page 29600]]

public interest standard, the public interest will be the interest

primarily served by disclosure to that requester. Disclosure to data

brokers or others who merely compile and market government information

for direct economic return shall not be presumed to primarily serve the

public interest.

(4) Where only some of the records to be released satisfy the

requirements for a waiver of fees, a waiver shall be granted for those

records.

(5) Requests for the waiver or reduction of fees should address the

factors listed in paragraphs (k)(2) and (3) of this section, insofar as

they apply to each request. Components will exercise their discretion

to consider the cost-effectiveness of their investment of

administrative resources in this decisionmaking process, however, in

deciding to grant waivers or reductions of fees.

Sec. 16.12 Other rights and services.

Nothing in this subpart shall be construed to entitle any person,

as of right, to any service or to the disclosure of any record to which

such person is not entitled under the FOIA.

3. Subpart D of part 16 is revised to read as follows:

Subpart D--Protection of Privacy and Access to Individual Records Under

the Privacy Act of 1974

Sec.

16.40 General provisions.

16.41 Requests for access to records.

16.42 Responsibility for responding to requests for access to

records.

16.43 Responses to requests for access to records.

16.44 Classified information.

16.45 Appeals from denials of requests for access to records.

16.46 Requests for amendment or correction of records.

16.47 Requests for an accounting or record disclosures.

16.48 Preservation of records.

16.49 Fees.

16.50 Notice of court-ordered and emergency disclosures.

16.51 Security of systems or records.

16.52 Contracts for the operation of record systems.

16.53 Use and collection of social security numbers.

16.54 Employee standards of conduct.

16.55 Other rights and services.

Subpart D--Protection of Privacy and Access to Individual Records

Under the Privacy Act of 1974

Sec. 16.40 General provisions.

(a) Purpose and scope. This subpart contains the rules that the

Department of Justice follows under the Privacy Act of 1974, 5 U.S.C.

552a. These rules should be read together with the Privacy Act, which

provides additional information about records maintained on

individuals. The rules in this subpart apply to all records in systems

of records maintained by the Department that are retrieved by an

individual's name or personal identifier. They describe the procedures

by which individuals may request access to records themselves, request

amendment or correction of those records, and request an accounting of

disclosures of those by the Department. In addition, the Department

processes all Privacy Act requests for access to records under the

Freedom of Information Act (FOIA), 5 U.S.C. 552, following the rules

contained in subpart A of this part, which gives requests the benefit

of both statutes.

(b) Definitions. As used in this subpart:

(1) Component. means each separate bureau, office, board, division,

commission, service, or administration of the Department of Justice.

(2) Request for access. to a record means a request made under

Privacy Act subsection (d)(1).

(3) Request for amendment or correction of a record means a request

made under Privacy Act subsection (d)(2).

(4) Request for an accounting means a request made under Privacy

Act subsection (c)(3).

(5) Requester means an individual who makes a request for access, a

request for amendment or correction, or a request for an accounting

under the Privacy Act.

(c) Authority to request records for a law enforcement purpose. The

head of a component or a United States Attorney, or either's designee,

is authorized to make written requests under subsection (b)(7) of the

Privacy Act for records maintained by other agencies that are necessary

to carry out an authorized law enforcement activity.

Sec. 16.41 Requests for access to records.

(a) How made and addressed. You may make a request for access to a

Department of Justice record about yourself by appearing in person or

by writing directly to the Department component that maintains the

record. Your request should be sent or delivered to the component's

Privacy Act office at the address listed in appendix I to this part. In

most cases, a component's central Privacy Act office is the place to

send a Privacy Act request. For records held by a field office of the

Federal Bureau of Investigation (FBI) or the Immigration and

Naturalization Service (INS), however, you must write directly to that

FBI or INS field office address, which can be found in most telephone

books or by calling the component's central Privacy Act office. (The

functions of each component are summarized in Part 0 of this title and

in the description of the Department and its components in the ``United

States Government Manual,'' which is issued annually and is available

in most libraries, as well as for sale from the Government Printing

Office's Superintendent of Documents. This manual also can be accessed

electronically at the Government Printing Office's World Wide Web site

(which can be found at http://www.access.gpo.gov/su__docs). If you

cannot determine where within the Department to send your request, you

may send it to the FOIA/PA Mail Referral Unit, Justice Management

Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW.,

Washington, DC 20530-0001, and that office will forward it to the

component(s) it believes most likely to have the records that you seek.

For the quickest possible handling, you should make both your request

letter and the envelope ``Privacy Act Request.''

(b) Description of records sought. You must describe the records

that you want in enough detail to enable Department personnel to locate

the system of records containing them with a reasonable amount of

effort. Whenever possible, your request should describe the records

sought, the time periods in which you believe they were compiled, and

the name or identifying number of each system of records in which you

believe they are kept. The Department publishes notices in the Federal

Register that describe its components' systems of records. A

description of the Department's systems of records also may be found as

part of the ``Privacy Act Compilation'' published by the National

Archives and Records Administration's Office of the Federal Register.

This compilation is available in most large reference and university

libraries. This compilation also can be accessed electronically at the

Government Printing Office's World Wide Web site (which can be found at

http://www.access.gpo.gov/su__docs).

(c) Agreement to pay fees. If you make a Privacy Act request for

access to records, it shall be considered an agreement by you to pay

all applicable fees charged under Sec. 16.49, up to $25.00. The

component responsible for responding to your request ordinarily shall

confirm this agreement in an acknowledgement letter. When making a

request, you may specify a willingness to pay a greater or lesser

amount.

[[Page 29601]]

(d) Verification of identify. When you make a request for access to

records about yourself, you must verify your identity. You must state

your full name, current address, and date and place of birth. You must

sign your request and your signature must either be notarized or

submitted by you under 28 U.S.C. 1746, a law that permits statements to

be made under penalty of perjury as a substitute for notarization.

While no specific form is required, you may obtain forms for this

purpose from the FOIA/PA Mail Referral Unit, Justice Management

Division. U.S. Department of Justice, 950 Pennsylvania Avenue, NW.,

Washington, DC 20530-0001. In order to help the identification and

location of requested records, you may also, at your option, include

your social security number.

(e) Verification of guardianship. When making a request as the

parent or guardian of a minor or as the guardian of someone determined

by a court to be incompetent, for access to records about that

individual, you must establish:

(1) The identity of the individual who is the subject of the

record, by stating the name, current address, date and place of birth,

and, at your option, the social security number of the individual;

(2) Your own identity, as required in paragraph (d) of this

section;

(3) That you are the parent or guardian of that individual, which

you may prove by providing a copy of the individual's birth certificate

showing your parentage or by providing a court order establishing your

guardianship; and

(4) That you are acting on behalf of that individual in making the

request.

Sec. 16.42 Responsibility for responding to requests for access to

records.

(a) In general. Except as stated in paragraphs (c), (d), and (e) of

this section, the component that first receives a request for access to

a record, and has possession of that record, is the component

responsible for responding to the request. In determining which records

are responsive to a request, a component ordinarily shall include only

those records in its possession as of the date the component begins its

search for them. If any other date is used, the component shall inform

the requester of that date.

(b) Authority to grant or deny requests. The head of a component,

or the component head's designee, is authorized to grant or deny and

request for access to a record of that component.

(c) Consultation and referrals. When a component receives a request

for access to a record in its possession, it shall determine whether

another component, or another agency of the Federal Government, is

better able to determine whether the record is exempt from access under

the Privacy Act. If the receiving component determines that it is best

able to process the record in response to the request, then it shall do

so. If the receiving component determines that it is not best able to

process the record, then it shall either:

(1) Respond to the request regarding that record, after consulting

with the component or agency best able to determine whether the record

is exempt from access and with any other component or agency that has a

substantial interest in it; or

(2) Refer the responsibility for responding to the request

regarding that record to the component best able to determine whether

it is exempt from access, or to another agency that originated the

record (but only if that agency is subject to the Privacy Act).

Ordinarily, the component or agency that originated a record will be

presumed to be best able to determine whether it is exempt from access.

(d) Law enforcement information. Whenever a request is made for

access to a record containing information that relates to an

investigation of a possible violation of law and that was originated by

another component or agency, the receiving component shall either refer

the responsibility for responding to the request regarding that

information to that other component or agency or shall consult with

that other component or agency.

(e) Classified information. Whenever a request is made for access

to a record containing information that has been classified by or may

be appropriate for classification by another component or agency under

Executive Order 12958 or any other executive order concerning the

classification of records, the receiving component shall refer the

responsibility for responding to the request regarding that information

to the component or agency that classified the information, should

consider the information for classification, or has the primary

interest in it, as appropriate. Whenever a record contains information

that has been derivatively classified by a component because it

contains information classified by another component or agency, the

component shall refer the responsibility for responding to the request

regrading that information to the component or agency that classified

the underlying information.

(f) Notice of referral. Whenever a component refers all or any part

of the responsibility for responding to a request to another component

or agency, it ordinarily shall notify the requester of the referral and

inform the requester of the name of each component or agency to which

the request has been referred and of the part of the request that has

been referred.

(g) Timing of responses to consultations and referrals. All

consultations and referrals shall be handled according to the date the

Privacy Act access request was initially received by the first

component or agency, not any later date.

(h) Agreements regarding consultations and referrals. Components

may make agreements with other components or agencies to eliminate the

need for consultations or referrals for particular types of records.

Sec. 16.43 Responses to requests for access to records.

(a) Acknowledgements of requests. On receipt of a request, a

component ordinarily shall send an acknowledgement letter to the

requester which shall confirm the requester's agreement to pay fees

under Sec. 16.41(c) and provide an assigned request number for further

reference.

(b) Grants of requests for access. Once a component makes a

determination to grant a request for access in whole or in part, it

shall notify the requester in writing. The component shall inform the

requester in the notice of any fee charged under Sec. 16.49 and shall

disclose records to the requester promptly on payment of any applicable

fee. If a request is made in person, the component may disclose records

to the requester directly, in a manner not unreasonably disruptive of

its operations, on payment of any applicable fee and with a written

record made of the grant of the request. If a requester is accompanied

by another person, the requester shall be required to authorize in

writing any discussion of the records in the presence of the other

person.

(c) Adverse determinations of requests for access. A component

making an adverse determination denying a request for access in any

respect shall notify the requester of that determination in writing.

Adverse determinations, or denials of requests, consist of: A

determination to withhold any requested record in whole or in part; a

determination that a requested record does not exist or cannot be

located; a determination that what has been requested is not a record

subject to the Privacy Act; a determination on any disputed fee matter;

and a denial of a request for expedited treatment. The notification

letter shall be signed by the

[[Page 29602]]

head of the component, or the component head's 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(s) for the denial, including

any Privacy Act exemption(s) applied by the component in denying the

request; and

(3) A statement that the denial may be appealed under Sec. 16.45(a)

and a description of the requirements of Sec. 16.45(a).

Sec. 16.44 Classified information.

In processing a request for access to a record containing

information that is classified under Executive Order 12958 or any other

executive order, the originating component shall review the information

to determine whether it should remain classified. Information

determined to no longer require classification shall not be withheld

from a requester on the basis of Exemption (k)(1) of the Privacy Act.

On receipt of any appeal involving classified information, the Office

of Information and Privacy shall take appropriate action to ensure

compliance with part 17 of this title.

Sec. 16.45 Appeals from denials of requests for access to records.

(a) Appeals. If you are dissatisfied with a component's response to

your request for access to records, you may appeal an adverse

determination denying your request in any respect to the Office of

Information and Privacy, U.S. Department of Justice, Flag Building,

Suite 570, Washington, DC 20530-0001. You must make your appeal in

writing and it must be received by the Office of Information and

Privacy within 60 days of the date of the letter denying your request.

Your appeal letter may include as much or as little related information

as you wish, as long as it clearly identifies the component

determination (including the assigned request number, if known) that

you are appealing. For the quickest possible handling, you should mark

both your appeal letter and the envelope ``Privacy Act Appeal.'' Unless

the Attorney General directs otherwise, a Director of the Office of

Information and Privacy will act on behalf of the Attorney General on

all appeals under this section, except that:

(1) In the case of an adverse determination by the Deputy Attorney

General or the Associate Attorney General, the Attorney General or the

Attorney General's designee will act on the appeal;

(2) An adverse determination by the Attorney General will be the

final action of the Department; and

(3) An appeal ordinarily will not be acted on if the request

becomes a matter of litigation.

(b) Responses to appeals. The decision on your appeal will be made

in writing. A decision affirming an adverse determination in whole or

in part will include a brief statement of the reason(s) for the

affirmance, including any Privacy Act exemption applied, and will

inform you of the Privacy Act provisions for court review of the

decision. If the adverse determination is reversed or modified on

appeal in whole or in part, you will be notified in a written decision

and your request will be reprocessed in accordance with that appeal

decision.

(c) When appeal is required. If you wish to seek review by a court

of any adverse determination or denial of a request, you must first

appeal it under this section.

Sec. 16.46 Requests for amendment or correction of records.

(a) How made and addressed. Unless the record is not subject to

amendment or correction as stated in paragraph (f) of this section, you

may make a request for amendment or correction of a Department of

Justice record about yourself by writing directly to the Department

component that maintains the record, following the procedures in

Sec. 16.41. Your request should identify each particular record in

question, state the amendment or correction that you want, and state

why you believe that the record is not accurate, relevant, timely, or

complete. You may submit any documentation that you think would be

helpful. If you believe that the same record is in more than one system

of records, you should state that and address your request to each

component that maintains a system of records containing the record.

(b) Component responses. Within ten working days of receiving your

request for amendment or correction of records, a component shall send

you a written acknowledgment of its receipt of your request, and it

shall promptly notify you whether your request is granted or denied. If

the component grants your request in whole or in part, it shall

describe the amendment or correction made and shall advise you of your

right to obtain a copy of the corrected or amended record, in

disclosable form. If the component denies your request in whole or in

part, it shall send you a letter signed by the head of the component,

or the component head's designee, that shall state:

(1) The reason(s) for the denial; and

(2) The procedure for appeal of the denial under paragraph (c) of

this section, including the name and business address of the official

who will act on your appeal.

(c) Appeals. You may appeal a denial of a request for amendment or

correction to the Office of Information and Privacy in the same manner

as a denial of a request for access to records (see Sec. 16.45) and the

same procedures shall be followed. If your appeal is denied, you shall

be advised of your right to file a Statement of Disagreement as

described in paragraph (d) of this section and of your right under the

Privacy Act for court review of the decision.

(d) Statements of Disagreement. If your appeal under this section

is denied in whole or in part, you have the right to file a Statement

of Disagreement that states your reason(s) for disagreeing with the

Department's denial of your request for amendment or correction.

Statements of Disagreement must be concise, must clearly identify each

part of any record that is disputed, and should be no longer than one

typed page for each fact disputed. Your Statement of Disagreement must

be sent to the component involved, which shall place it in the system

of records in which the disputed record is maintained and shall mark

the disputed record to indicate that a Statement of Disagreement has

been filed and where in the system of records it may be found.

(e) Notification of amendment/correction or disagreement. Within 30

working days of the amendment or correction of a record, the component

that maintains the record shall notify all persons, organizations, or

agencies to which it previously disclosed the record, if an accounting

of that disclosure was made, that the record has been amended or

corrected. If an individual has filed a Statement of Disagreement, the

component shall append a copy of it to the disputed record whenever the

record is disclosed and may also append a concise statement of its

reason(s) for denying the request to amend or correct the record.

(f) Records not subject to amendment or correction. The following

records are not subject to amendment or correction:

(1) Transcripts of testimony given under oath or written statements

made under oath;

(2) Transcripts of grand jury proceedings, judicial proceedings, or

quasi-judicial proceedings, which are the official record of those

proceedings;

(3) Presentence records that originated with the courts; and

[[Page 29603]]

(4) Records in systems of records that have been exempted from

amendment and correction under Privacy Act, 5 U.S.C. 552a(j) or (k) by

notice published in the Federal Register.

Sec. 16.47 Requests for an accounting of record disclosures.

(a) How made and addressed. Except where accountings of disclosures

are not required to be kept (as stated in paragraph (b) of this

section), you may make a request for an accounting of any disclosure

that has been made by the Department to another person, organization,

or agency of any record about you. This accounting contains the date,

nature, and purpose of each disclosure, as well as the name and address

of the person, organization, or agency to which the disclosure was

made. Your request for an accounting should identify each particular

record in question and should be made by writing directly to the

Department component that maintains the record, following the

procedures in Sec. 16.41.

(b) Where accountings are not required. Components are not required

to provide accountings to you where they relate to:

(1) Disclosures for which accountings are not required to be kept--

in other words, disclosures that are made to employees within the

agency and disclosures that are made under the FOIA;

(2) Disclosures made to law enforcement agencies for authorized law

enforcement activities in response to written requests from those law

enforcement agencies specifying the law enforcement activities for

which the disclosures are sought; or

(3) Disclosures made from law enforcement systems of records that

have been exempted from accounting requirements.

(c) Appeals. You may appeal a denial of a request for an accounting

to the Office of Information and Privacy in the same manner as a denial

of a request for access to records (see Sec. 16.45) and the same

procedures will be followed.

Sec. 16.48 Preservation of records.

Each component will preserve all correspondence pertaining to the

requests that it receives under this subpart, as well as copies of all

requested records, until disposition or destruction is authorized by

title 44 of the United States Code or the National Archives and Records

Administration's General Records Schedule 14. Records will not be

disposed of while they are the subject of a pending request, appeal, or

lawsuit under the Act.

Sec. 16.49 Fees.

Components shall charge fees for duplication of records under the

Privacy Act in the same way in which they charge duplication fees under

Sec. 16.11. No search or review fee may be charged for any record

unless the record has been exempted from access under Exemptions (j)(2)

or (k)(2) of the Privacy Act.

Sec. 16.50 Notice of court-ordered and emergency disclosures.

(a) Court-ordered disclosures. When a record pertaining to an

individual is required to be disclosed by a court order, the component

shall make reasonable efforts to provide notice of this to the

individual. Notice shall be given within a reasonable time after the

component's's receipt of the order--except that in a case in which the

order is not a matter of public record, the notice shall be given only

after the order becomes public. This notice shall be mailed to the

individual's last known address and shall contain a copy of the order

and description of the information disclosed. Notice shall not be given

if disclosure is made from a criminal law enforcement system of records

that has been exempted from the notice requirement.

(b) Emergency disclosures. Upon disclosing a record pertaining to

an individual made under compelling circumstances affecting health or

safety, the component shall notify that individual of the disclosure.

This notice shall be mailed to the individual's last known address and

shall state the nature of the information disclosed; the person,

organization, or agency to which it was disclosed; the date of

disclosure; and the compelling circumstances justifying the disclosure.

Sec. 16.51 Security of systems of records.

(a) Each component shall establish administrative and physical

controls to prevent unauthorized access to its systems of records, to

prevent unauthorized disclosure of records, and to prevent physical

damage to or destruction of records. The stringency of these controls

shall correspond to the sensitivity of the records that the controls

protect. At a minimum, each component's administrative and physical

controls shall ensure that.

(1) Records are protected from public view;

(2) The area in which records are kept is supervised during

business hours to prevent unauthorized persons from having access to

them;

(3) Records are inaccessible to unauthorized persons outside of

business hours; and

(4) Records are not disclosed to unauthorized persons or under

unauthorized circumstances in either oral or written form.

(b) Each component shall have procedures that restrict access to

records to only those individuals within the Department who must have

access to those records in order to perform their duties and that

prevent inadvertent disclosure of records.

Sec. 16.52 Contracts for the operation of record systems.

Any approved contract for the operation of a record system will

contain the standard contract requirements issued by the General

Services Administration to ensure compliance with the requirements of

the Privacy Act for that record system. The contracting component will

be responsible for ensuring that the contractor complies with these

contract requirements.

Sec. 16.53 Use and collection of social security numbers.

Each component shall ensure that employees authorized to collect

information are aware:

(a) That individuals may not be denied any right, benefit, or

privilege as a result of refusing to provide their social security

numbers, unless the collection is authorized either by a statute or by

a regulation issued prior to 1975; and

(b) That individuals requested to provide their social security

numbers must be informed of:

(1) Whether providing social security numbers is mandatory or

voluntary;

(2) Any statutory or regulatory authority that authorizes the

collection of social security numbers; and

(3) The uses that will be made of the numbers.

Sec. 16.54 Employee standards of conduct.

Each component will inform its employees of the provisions of the

Privacy Act, including the Act's civil liability and criminal penalty

provisions. Unless otherwise permitted by law, an employee of the

Department of Justice shall:

(a) Collect from individuals only the information that is relevant

and necessary to discharge the responsibilities of the Department;

(b) Collect information about an individual directly from that

individual whenever practicable;

(c) Inform each individuals from whom information is collected of:

(1) The legal authority to collect the information and whether

providing it is mandatory or voluntary;

[[Page 29604]]

(2) The principal purpose for which the Department intends to use

the information;

(3) The routine uses the Department may make of the information;

and

(4) The effects on the individuals, if any, of not providing the

information;

(d) Ensure that the component maintains no system of records

without public notice and that it notifies appropriate Department

officials of the existence or development of any system of records that

is not the subject of a current or planned public notice;

(e) Maintain all records that are used by the Department in making

any determination about an individual with such accuracy, relevance,

timeliness, and completeness as is reasonably necessary to ensure

fairness to the individual in the determination;

(f) Except as to disclosures made to an agency or made under the

FOIA, make reasonable efforts, prior to disseminating any record about

an individual, to ensure that the record is accurate, relevant, timely,

and complete;

(g) Maintain no record describing how an individual exercises his

or her First Amendment rights, unless it is expressly authorized by

statute or by the individual about whom the record is maintained, or is

pertinent to and within the scope of an authorized law enforcement

activity;

(h) When required by the Act, maintain an accounting in the

specified form of all disclosures of records by the Department to

persons, organizations, or agencies;

(i) Maintain and use records with care to prevent the unauthorized

or inadvertent disclosure of a record to anyone; and

(j) Notify the appropriate Department official of any record that

contains information that the Privacy Act does not permit the

Department to maintain.

Sec. 16.55 Other rights and services.

Nothing in this subpart shall be construed to entitle any person,

as of right, to any service or to the disclosure of any record to which

such person is not entitled under the Privacy Act.

4. Appendix I of part 16 is revised to read as follows:

Appendix I to Part 16--Components of the Department of Justice

Unless a separate address is listed below, the address for each

component is: (component name), U.S. Department of Justice, 950

Pennsylvania Avenue, NW., Washington, DC 20530-0001. For all

components marked by an asterisk, FOIA and Privacy Act requests

should be sent to the Office of Information and Privacy, U.S.

Department of Justice, Flag Bldg., Suite 570, Washington, DC 2053-

0001. The components are:

A

Office of the Attorney General *

Office of the Deputy Attorney General *

Office of the Associate Attorney General *

Office of the Solicitor General

B

Office of Information and Privacy *

Office of the Inspector General

Office of the Intelligence Policy and Review

Office of Intergovernmental Affairs *

Office of Investigative Agency Policies

Office of Legal Counsel

Office of Legislative Affairs *

Office of Policy Development *

Office of Professional Responsibility

Office of Public Affairs *

C

Antitrust Division, U.S. Department of Justice, LPB Bldg., Suite

200, Washington, DC 20530-0001

Civil Division, U.S. Department of Justice, 901E Bldg., Room 808,

Washington, DC 20530-0001

Civil Rights Division, U.S. Department of Justice, NYAV Bldg., Room

8000B, Washington, DC 20530-0001

Criminal Division, U.S. Department of Justice, WCTR Bldg., Suite

1075, Washington, DC 20503-0001

Environment and Natural Resources Division, U.S. Department of

Justice, Post Office Box 4390, Washington, DC 20044-4390

Justice Management Division

Tax Division, U.S. Department of Justice, JCB Bldg., Room 6823,

Washington, DC 20503-0001

Bureau of Prisons, U.S. Department of Justice, HOLC Bldg., Room 738,

320 First Street, NW., Washington, DC 20534-0001

Community Relations Service, U.S. Department of Justice, BICN Bldg.,

Suite 2000, Washington, DC 20530-0001

Drug Enforcement Administration, U.S. Department of Justice,

Washington, DC 20537-0001

Executive Office for Immigration Review, U.S. Department of Justice,

Suite 2400, 5107 Leesburg Pike, Falls Church, VA 22041-0001

Executive Office for United States Attorneys, U.S. Department of

Justice, BICN Bldg., Room 7100, Washington, DC 20530-0001

Executive Office for United States Trustees, U.S. Department of

Justice, 901E Bldg., Room 780, Washington, DC 20530-0001

Federal Bureau of Investigation, U.S. Department of Justice, 935

Pennsylvania Avenue, NW., Washington, DC 20535-0001 (for field

offices, consult your telephone book)

Foreign Claims Settlement Commission, U.S. Department of Justice,

BICN Bldg., Room 6002, 600 E Street, NW., Washington, DC 20579-0001

Immigration and Naturalization Service, U.S. Department of Justice,

CAB Bldg., 425 Eye Street, NW., Washington, DC 20536-0001 (for field

offices, consult your telephone book)

INTERPOL-U.S. National Central Bureau, U.S. Department of Justice,

Washington, DC 20530-0001

National Drug Intelligence Center, U.S. Department of Justice, Fifth

Floor, 319 Washington Street, Johnstown, PA 15901-1622

Office of Community Oriented Policing Services, U.S. Department of

Justice, VT1 Bldg., Twelfth Floor, Washington, DC 20530-0001

Office of Justice Programs, U.S. Department of Justice, Room 5337,

810 Seventh Street, NW., Washington, DC 20531-0001

Pardon Attorney, U.S. Department of Justice, FRST Bldg., Fourth

Floor, Washington, DC 20530-0001

United States Marshals Service, U.S. Department of Justice, Lincoln

Place, Room 1250, CSQ3, 600 Army Navy Drive, Arlington, VA 22202-

4210

PART 50--STATEMENTS OF POLICY

5. The authority citation for part 50 continues to read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; and 42 U.S.C. 1921

et seq., 1973c.

Sec. 50.8 [Removed and Reserved]

6. Section 50.8 of part 50 is removed and reserved.

Dated: May 22, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98-14341 Filed 5-29-98; 8:45 am]

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