[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Rules and Regulations]
[Pages 8866-8874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4550]
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BROADCASTING BOARD OF GOVERNORS
22 CFR Part 503
Freedom of Information Act Regulations
AGENCY: The Broadcasting Board of Governors.
ACTION: Final rule.
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SUMMARY: This regulation establishes rules for implementing the Freedom
of Information Act (FOIA) for the newly created Broadcasting Board of
Governors (BBG or Agency).
[[Page 8867]]
EFFECTIVE DATE: February 19, 2002.
FOR FURTHER INFORMATION CONTACT: Sandra J. Dunham, FOIA/Privacy Act
Officer at (202) 260-4404.
SUPPLEMENTARY INFORMATION: Public Law 103-236, the United States
International Broadcasting Act of 1994, created the Broadcasting Board
of Governors (BBG) within the United States Information Agency (USIA).
By law, the bipartisan Board consisted of nine members--eight members
who were appointed by the President, by and with the advice and consent
of the Senate, and the USIA Director.
On October 21, 1998, President Clinton signed Public Law 105-277,
the Omnibus Consolidated and Emergency Supplemental Appropriations Act
for Fiscal Year 1999. Contained as Division G of this legislation was
the Foreign Affairs Reform and Restructuring Act of 1998, which
reorganized the foreign affairs agencies of the U.S. Government. Under
this reorganization, the Broadcasting Board of Governors became an
independent Federal entity on October 1, 1999. Under the reorganization
of the foreign affairs agencies, the responsibilities of the Board
remained intact, and the membership of the Board remained the same,
except that the USIA Director was replaced by the Secretary of State.
The BBG has responsibility for oversight of all United States
sponsored, non-military broadcasting to foreign countries. The BBG
oversees the operations of the International Broadcasting Bureau (IBB),
which includes the worldwide broadcasting services of the Voice of
America (VOA) and WORLDNET, the Office of Cuba Broadcasting (OCB),
Engineering and Technical Operations, and of the two grantee
organizations, Radio Free Europe/Radio Liberty (RFE/RL) and Radio Free
Asia (RFA). The Board members also serve as members of the Board of
Directors for both RFE/RL and RFA.
The Board's authorities include:
To review and evaluate the mission and operation of, and
assess the quality, effectiveness, and professional integrity of, all
such activities within the broad foreign policy objectives of the
United States;
To make and supervise grants for broadcasting and related
activities for RFE/RL and RFA;
To review, evaluate, and determine, at least annually, the
addition or deletion of language services; and
To allocate funds appropriated for international
broadcasting activities among the various elements of the IBB and
grantees, subject to reprogramming notification.
In total, the BBG broadcasting entities transmit over 2,000 hours
of weekly programming in 61 languages to over 100 million weekly
listeners worldwide.
This regulation revises 22 CFR part 503, which contains the Freedom
of Information Act regulations of the former United States Information
Agency and establishes regulations of the BBG for implementing the
Freedom of Information Act.
In accordance with 5 U.S.C. 605(b), the BBG certifies that this
rule does not have a significant adverse economic impact on a
substantial number of small entities. This rule is not considered being
a significant regulatory action within the meaning of section 3(f) of
Executive Order 12866, nor does this rule have Federalism implications
warranting the preparation of a Federalism Assessment in accordance
with Executive Order 12612.
Dated: February 19, 2002.
Brian T. Conniff,
Executive Director, Broadcasting Board of Governors.
List of Subjects in 22 CFR Part 503
Freedom of Information.
Accordingly, 22 CFR part 503 is revised to read as follows:
PART 503--FREEDOM OF INFORMATION ACT REGULATION
Sec.
503.1 Introduction and definitions.
503.2 Making a request.
503.3 Availability of agency records.
503.4 Time limits.
503.5 Records available for public inspection.
503.6 Restrictions on some agency records.
503.7 Fees.
503.8 Exemptions.
503.9 Electronic records.
Authority: 5 U.S.C. 552 Reform Act of 1986 as amended by Pub. L.
99-570; sec. 1801-1804; U.S.C. 2658; 5 U.S.C. 301; 13 U.S.C. 8, E.O.
10477, as amended; 47 FR 9320, Apr. 2, 1982, E.O. 12356. 5 U.S.C.
552 (1988 & Supp. III 1991) as amended by Freedom of Information
Reform Act of 1986, Pub. L. 99-570, Title I, sections 1801-1804, 100
Stat. 3207, 3207-48-50 (1986)(codified at 5 U.S.C. 552 (1988)); 22
U.S.C. 2658 (1988); 5 U.S.C. 301 (1988); 13 U.S.C. 8 (2988); E.O.
10477, 3 CFR 958 (1949-1953) as amended by E.O. 10822, 3 CFR 355
(1959-1963), E.O. 12292, 3 FR 134 (1982), E.O. 12356, 3 CFR 166
(1983), E.O. 12958 (1995).
Sec. 503.1 Introduction and definitions.
(a) Introduction. The Freedom of Information Act (FOIA) and this
part apply to all records of The Broadcasting Board of Governors (BBG).
As a general policy BBG follows a balanced approach in administering
the FOIA. We recognize the right of public access to information in the
Agency's possession, but we also seek to protect the integrity of the
Agency's internal processes. This policy calls for the fullest possible
disclosure of records consistent with those requirements of
administrative necessity and confidentiality which are recognized by
the FOIA.
(b) Definitions:
Access Appeal Committee or Committee means the Committee delegated
by the Agency Head for making final agency determinations regarding
appeals from the initial denial of records under the FOIA.
Agency or BBG means the Broadcasting Board of Governors. It
includes all parts of the BBG in the U.S. and its worldwide operations.
Commercial use, when referring to a request, means that the request
is from, or on behalf of, one who seeks information for a use or
purpose that furthers the commercial, trade, or profit interests of the
requester or of a person on whose behalf the request is made. Whether a
request is for a commercial use depends on the purpose of the request
and how the records will be used. The identity of the requester
(individual, non-profit corporation, for-profit corporation), or the
nature of the records, while in some cases indicative of that purpose
or use, is not necessarily determinative. When a request is made by a
representative of the news media, the request shall be deemed to be for
a non-commercial use.
Department means any executive department, military department,
government corporation, government controlled corporation, any
independent regulatory agency, or other establishment in the executive
branch of the Federal Government. A private organization is not a
department even if it is performing work under contract with the
Government or is receiving Federal financial assistance. Grantee and
contractor records are not subject to the FOIA unless they are in the
possession and control of the BBG.
Duplication means the process of making a copy of a record and
sending it to the requester, to the extent necessary to respond to the
request. Such copies include paper copy, microform, audiovisual
materials, and magnetic tapes, cards and discs.
Educational institution means a preschool, elementary or secondary
school, institution of undergraduate or graduate higher education, or
institution of professional or vocational education.
FOIA means the Freedom of Information Act, section 552 of title 5,
United States Code, as amended.
Freedom of Information Officer means the BBG official who has been
delegated
[[Page 8868]]
the authority to release or withhold records and assess, waive, or
reduce fees in response to FOIA requests.
Non-commercial scientific institution means an institution that is
not operated substantially for the purposes of furthering its own or
someone else's business, trade, or profit interests, and that is
operated for purposes of conducting scientific research whose results
are not intended to promote any particular product or industry.
Records (and any other term used in this section in reference to
information) include any information that would be an agency record
subject to the requirements of this section when maintained by the
Agency in any format, including an electronic format. Records also
include any handwritten, typed or printed documents (such as memoranda,
books, brochures, studies, writings, drafts, letters, transcripts, and
minutes) and documentary material in other forms (such as punchcards,
magnetic tapes, cards, or discs; paper tapes; audio or video
recordings, maps, photographs, slides, microfilm, and motion pictures).
It does not include objects or articles such as exhibits, models,
equipment, and duplication machines or audiovisual processing
materials. Reports does not include books, magazines, pamphlets, or
other reference material in formally organized and officially
designated BBG libraries, where such materials are available under the
rules of the particular library.
Representative of the news media means a person actively gathering
news for an entity organized and operated to publish or broadcast news
to the public. News means information that is about current events or
that would be of current interest to the public. News media entities
include television and radio broadcasters, publishers of periodicals
(to the extent they publish ``news'') who make their products available
for purchase or subscription by the general public, and entities that
may disseminate news through other media (e.g., electronic
dissemination of text). Freelance journalists shall be considered
representatives of a news media entity if they can show a solid basis
for expecting publication through such an entity. A publication
contract or a requester's past publication record may show such a
basis.
Request means asking in writing for records whether or not the
request refers specifically to the FOIA.
Review means examining the records to determine which portions, if
any, may be released, and any other processing that is necessary to
prepare the records for release. It includes only the first examination
and processing of the requested documents for purposes of determining
whether a specific exemption applies to a particular record or portion
of a record.
Search means looking for records or portions of records responsive
to a request. It includes reading and interpreting a request, and also
page-by-page and line-by-line examination to identify responsive
portions of a document. However, it does not include line-by-line
examination where merely duplicating the entire page would be a less
expensive and quicker way to comply with the request.
Sec. 503.2 Making a request.
(a) How to request records. All requests for documents shall be
made in writing. Requests should be addressed to The Broadcasting Board
of Governors (BBG), FOIA/Privacy Act Officer, Office of the General
Counsel, 330 Independence Avenue, SW, Suite 3349, Washington, DC 20237;
telephone (202) 260-4404; or fax (202) 260-4394. Write the words
``Freedom of Information Act Request'' on the envelope and letter.
(b) Details in your letter. Your request for documents should
provide as many details as possible that will help us find the records
you are requesting. If there is insufficient information, we will ask
you to provide greater details. Include your telephone number(s) to
help us reach you if we have questions. If you are not sure how to
write your request or what details to include, you may call the FOIA
Office to request a copy of the Agency's booklet ``Guide and Index of
Records,'' or access the same information via the Internet on BBG's
World Wide Web site (http://www.ibb.gov). The more specific the request
for documents, the sooner the Agency will be able to respond to your
request(s).
(c) Requests not handled under FOIA. We will not provide documents
requested under the FOIA and this part if the records are currently
available in the National Archives, subject to release through the
Archives, or commonly sold to the public by it or another agency in
accordance with statutory authority (for example, records currently
available from the Government Printing Office or the National Technical
Information Service). Agency records that are normally freely available
to the general public, such as BBG press releases, are not covered by
the FOIA. Requests for documents from Federal departments, Chairmen of
Congressional committees or subcommittees and court orders are not FOIA
requests.
(d) Referral of requests outside the agency. If you request records
that were created by or provided to us by another Federal department,
we may refer your request to or consult with that department. We may
also refer requests for classified records to the department that
classified them. In cases of referral, the other department is
responsible for processing and responding to your request under that
department's regulation. When possible, we will notify you when we
refer your request to another department.
(e) Responding to your request.--(1) Retrieving records. The Agency
is required to furnish copies of records only when they are in our
possession and control. If we have stored the records you want in a
record retention center, we will retrieve and review them for possible
disclosure. However, the Federal Government destroys many old records,
so sometimes it is impossible to fill requests. The Agency's record
retention policies are set forth in the General Records Schedules of
the National Archives and Records Administration and in BBG's Records
Disposition Schedule, which establish time periods for keeping records
before they may be destroyed.
(2) Furnishing records. (i) The Agency is only required to furnish
copies of records that we have or can retrieve. We are not compelled to
create new records. The Agency will aid requesters by providing records
and information in the form requested, including electronic format, if
we can readily reproduce them in that form or format.
(ii) We may decide to conserve government resources and at the same
time supply the records you need by consolidating information from
various records, in paper form or electronically, rather than copying
them all. If the effort to produce records in electronic format would
significantly interfere with the operations of the Agency, we will
consider the effort to be an unreasonable search.
(iii) The Agency is required to furnish only one copy of a record.
If we are unable to make a legible copy of a record to be released, we
will not attempt to reconstruct it. Rather we will furnish the best
copy possible and note its poor quality in our reply or on the copy.
(iv) If we cannot accommodate your request for form or format, we
will provide responsive, nonexempt information in a reasonably
accessible form.
Sec. 503.3 Availability of agency records.
(a) Release of records. If we have released a record or part of a
record to others in the past, we will ordinarily release it to you
also. This principle does not apply if the previous release
[[Page 8869]]
was an unauthorized disclosure. However, we will not release it to you
if a statute forbids this disclosure and we will not necessarily
release it to you if an exemption applies in your situation and did not
apply or applied differently in the previous situation.
(b) Denial of requests. All denials are in writing and describe in
general terms the material withheld and state the reasons for the
denial, including a reference to the specific exemption of the FOIA
authorizing the withholding or deletion. The denial also explains your
right to appeal the decision and it will identify the official to whom
you should send the appeal. Denial letters are signed by the person who
made the decision to deny all or part of the request, unless otherwise
noted.
(c) Unproductive searches. We will make a diligent search for
records to satisfy your request. Nevertheless, we may not be able
always to find the records you want using the information you provided,
or they may not exist. If we advise you that we have been unable to
find the records despite a diligent search, you will nevertheless be
provided the opportunity to appeal the adequacy of the Agency's search.
However, if your request is for records that are obviously not
connected with this Agency or your request has been provided to us in
error, a ``no records'' response will not be considered an adverse
action and you will not be provided an opportunity to appeal.
(d) Appeal of denials. You have the right to appeal a partial or
full denial of your FOIA request. To do so, you must put your appeal in
writing and address it to the official identified in the denial letter.
Your appeal letter must be dated and postmarked within 30 calendar days
from the date of the Agency's denial letter. Because we have some
discretionary authority in deciding whether to release or withhold
records, you may strengthen your appeal by explaining your reasons for
wanting the records. However, you are not required to give any
explanation. Your appeal will be reviewed by the Agency's Access Appeal
Committee that consists of senior Agency officials. When the Committee
responds to your appeal, that constitutes the Agency's final action on
the request. If the Access Appeal Committee grants your appeal in part
or in full, we will send the records to you promptly or set up an
appointment for you to inspect them. If the decision is to deny your
appeal in part or in full, the final letter will state the reasons for
the decision, name the officials responsible for the decision, and
inform you of the FOIA provisions for judicial review.
Sec. 503.4 Time limits.
(a) General. The FOIA sets certain time limits for us to decide
whether to disclose the records you requested, and to decide appeals.
If we fail to meet the deadlines, you may proceed as if we had denied
your request or your appeal. Since requests may be misaddressed or
misrouted, you should call or write to confirm that we have the request
and to learn its status if you have not heard from us in a reasonable
time.
(b) Time Allowed. (1) We will decide whether to release records
within 20 working days after your request reaches the appropriate area
office that maintains the records you are requesting. When we decide to
release records, we will actually provide the records at that time, or
as soon as possible after that decision, or let you inspect them as
soon as possible thereafter.
(2) We will decide an appeal within 20 working days after the
appeal reaches the appropriate reviewing official.
(3) (i) The FOIA Officer or appeal official may extend the time
limits in unusual circumstances for initial requests or appeals, up to
10 working days. We will notify you in writing of any extensions.
``Unusual circumstances'' include situations where we: Search for and
collect records from field facilities, records centers or locations
other than the office processing the records; search for, collect, or
examine a great many records in response to a single request; consult
with another office or department that has substantial interest in the
determination of the request; and/or conduct negotiations with
submitters and requesters of information to determine the nature and
extent of non-disclosable proprietary materials.
(ii) If an extra ten days still does not provide sufficient time
for the Agency to deal with your request, we will inform you that the
request cannot be processed within the statutory time limit and provide
you with the opportunity to limit the scope of your request and/or
arrange with us a negotiated deadline for processing your request.
(iii) If you refuse to reasonably limit the scope of your request
or refuse to agree upon a time frame, the Agency will process your
case, as it would have, had no modification been sought. We will make a
diligent, good faith effort to complete our review within the statutory
time frame.
Sec. 503.5 Records available for public inspection.
(a) To the extent that they exist, we will make the following
records of general interest available for you in paper form or
electronically for inspection or copying:
(1) Orders and final opinions, including concurring and dissenting
opinions in adjudications. (See Sec. 503.8(e) of this part for
availability of internal memoranda, including attorney opinions and
advice.)
(2) Statements of policy and interpretations that we have adopted
but which have not been published in the Federal Register.
(3) Administrative staff manuals and instructions to staff that
affect the public. (We will not make available, however, manuals or
instructions that reveal investigative or audit procedures as described
in Sec. 503.8(b) and (g) of this part.)
(4) In addition to such records as those described in this
paragraph (a), we will make available to any person a copy of all other
Agency records, in the format requested, if available, unless we
determine that such records should be withheld from disclosure under
subsection (b) of the Act and Secs. 503.8 and 503.9 of this part.
(b) Before releasing these records, however, we may delete the
names of people, or information that would identify them, if release
would invade their personal privacy to a clearly unwarranted degree
(See Sec. 503.8(f)).
(c) The Agency's FOIA Guide and Index is available electronically
via the Internet, or you may request a copy of it by mail.
Sec. 503.6 Restrictions on some Agency records.
Under the U.S. Information and Educational Exchange Act of 1948 (22
U.S.C. 1461, as amended), the BBG is prohibited from disseminating
within the United States information about the U.S., its people, and
its policies when such materials have been prepared by the Agency for
audiences abroad. This includes films, radio scripts and tapes,
videotapes, books, and similar materials produced by the Agency.
However, this law does provide that upon request, such information
shall be made available at BBG, for examination only, by
representatives of the press, magazines, radio systems and stations,
research students or scholars and available, for examination only, to
Members of Congress.
Sec. 503.7 Fees.
(a) Fees to be charged--categories of requests. Paragraphs (a)(1)
though (3) and (b) through (e) of this section explain each category of
request and the type of fees that we will generally charge. However,
for each of these categories, the fees may be limited,
[[Page 8870]]
waived, or reduced for the reasons given in paragraph (e) of this
section. ``Request'' means asking for records, whether or not you refer
specifically to the Freedom of Information Act (FOIA). Requests from
Federal agencies and court orders for documents are not included within
this definition. ``Review'' means, when used in connection with
processing records for a commercial use request, examining the records
to determine what portions, if any, may be withheld, and any other
processing that is necessary to prepare the records for release. It
includes only the examining and processing that are done the first time
we analyze whether a specific exemption applies to a particular record
or portion of a record. It does not include the process of researching
or resolving general legal, or policy issues regarding exemptions.
``Search'' means looking for records or portions of records responsive
to a request. It includes reading and interpreting a request, and also
and line-by-line examination to identify responsive portions of a
document.
(1) Commercial use request. If your request is for a commercial
use, BBG will charge you the costs of search, review and duplication.
``Commercial use'' means that the request is from or on behalf of one
whom seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or of a person
on whose behalf the request is made. Whether a request is for a
commercial use depends on the purpose of the request and how the
records will be used; the identity of the requester (individual, non-
profit corporation, for-profit corporation), or the nature of the
records, while in some cases may indicate the purpose or use is not
necessarily determinative. When a request is made by a representative
of the news media, a purpose of use which supports the requester's news
dissemination function is deemed to be a non-commercial use.
(2) Educational and scientific institutions and news media. If you
are an educational institution or a non-commercial scientific
institution, operated primarily for scholarly or scientific research,
or a representative of the news media, and your request is not for a
commercial use, BBG will charge you only for the duplication of
documents. Also BBG will not charge you the copying costs for the first
100 pages of duplication. ``Educational institution'' means a
preschool, elementary or secondary school, institution of undergraduate
or graduate higher education, or institution of professional or
vocational education. ``Non-commercial scientific institution'' means
an institution that is not operated substantially for purposes of
furthering its own or someone else's business, trade, or profit
interests, and that is operated for purposes of conducting scientific
research whose results are not intended to promote any particular
product or industry. ``Representative of the news media'' means a
person actively gathering news for an entity organized and operated to
publish or broadcast news to the public. ``News'' means information
that is about current events or that would be of current interest to
the public. News media entities include television and radio
broadcasters, publishers of periodicals (to the extent they publish
``news'') who make their products available for purchase or
subscription by the general public, and entities that may disseminate
news through other media (e.g., electronic dissemination of text). We
will treat freelance journalists as representatives of a news media
entity if they can show a solid basis for expecting publication through
such an entity. A publication contract is such a basis and the
requester's past publication record may show such a basis.
(3) Other requesters. If your request is not the kind described by
paragraph (a)(1) or (a)(2) of this section, then the BBG will charge
you only for search and duplication. Also, we will not charge you for
the first two hours of search time or for the copying costs of the
first 100 pages of duplication.
(b) Fees to be charged--general provisions. (1) We may charge
search fees even if the records we find are exempt from disclosure, or
even if we do not find any records at all.
(2) We will not charge you any fee at all if the costs of routine
collection and processing of the fee are likely to equal or exceed the
amount of the fee. We have estimated that cost to be $5.00.
(3) If we determine that you are acting alone or with others to
break down a single request into a series of requests in order to avoid
or reduce the fees charged, we may aggregate all these requests for
purposes of calculating the fees charged.
(4) We will charge interest on unpaid bills beginning on the 31st
day following the day the bill was sent. The accrual of interest will
stop upon receipt of the fee, rather than upon its processing by BBG.
Interest will be at the rate prescribed in section 3717 of Title 32
U.S.C.
(c) Fee Schedule--BBG will charge the following fees: (1) Manual
searching for or reviewing of records:
(i) When performed by employees at salary grade GS-1 through GS-8
or FS-9 through FS-5--an hourly rate of $10.00 will be charged;
(ii) When performed by employees at salary grade GS-9 through GS-13
or FS-5 through FS-2--an hourly rate of $20.00 will be charged;
(iii) When performed by employees at salary grade GS-14 or above or
FS-2 or above--an hourly rate of $36.00 will be charged.
(iv) When a search involves employees at more than one of these
levels, we will charge the appropriate rate for each.
(2) Computer searching and printing. Except in unusual cases, the
cost of computer time will not be a factor in calculating the two free
hours of search time. In those unusual cases, where the cost of
conducting a computerized search significantly detracts from the
Agency's ordinary operations, no more than the dollar cost of two hours
of manual search time shall be allowed. For searches conducted beyond
the first two hours, the Agency shall only charge the direct costs of
conducting such searches.
(3) Photocopying standard size pages--$0.15 per page.
(4) Photocopying odd-size documents (such as punchcards or
blueprints) or reproducing other records (such as tapes)--the actual
cost of operating the machine, plus the actual cost of the materials
used, plus charges for the time spent by the operator, at the rates
given in paragraph (c)(1) of this section.
(5) Certifying that records are true copies--this service is not
required by the FOIA. If we agree to provide it, we will charge $10.00
per certification.
(6) Sending records by express mail, certified mail, or other
special methods. This service is not required by the FOIA. If we agree
to provide it, we will charge our actual cost.
(7) Performing any other special service that you request and to
which we agree--actual cost of operating any machinery, plus actual
cost of any materials used, plus charges for the time of our employees,
at the rates given in paragraph (c)(1) of this section.
(d) Procedures for assessing and collecting fees.--(1) Agreement to
pay. We generally assume that when you request records you are willing
to pay the fees we charge for services associated with your request.
You may specify a limit on the amount you are willing to spend. We will
notify you if it appears that the fees will exceed the limit and ask
whether you nevertheless want us to proceed with the search.
(2) Advance payment. If you have failed to pay previous bills in a
timely
[[Page 8871]]
manner, or if our initial review of your request indicates that we will
charge you fees exceeding $250.00, we will require you to pay your past
due fees and/or the estimated fees, or a deposit, before we start
searching for the records you want, or before we send them to you. In
such cases, the administrative time limits as described in Sec.
503.4(b), will begin only after we come to an agreement with you over
payment of fees, or decide that a fee waiver or reduction is
appropriate.
(e) Waiver or reduction of fees. We will waive or reduce the fees
we would otherwise charge if disclosure of the information meets both
of the following tests (paragraphs (e)(1) and (e)(2) of this section):
(1) It is in the public interest because it is likely to contribute
significantly to public understanding of government operations or
activities, regardless of any other public interest it may further. In
making this determination, we may consider:
(i) Whether the requester is in a position to contribute to public
understanding;
(ii) Whether the requester has such knowledge or expertise as may
be necessary to understand the information; and
(iii) Whether the requester's intended use of the information would
be likely to disseminate the information among the public.
(2) It is not primarily in the commercial interest of the
requester. Commercial interests include interests relating to business,
trade, and profit. Not only profit-making corporations have commercial
interests; so do nonprofit corporations, individuals, unions, and other
associations.
(3) You must make your request for a waiver or reduction at the
same time you make your request for records. Only the FOIA Officer may
make the decision whether to waive or reduce the fees. If we do not
completely grant your request for a waiver or reduction, the denial
letter will designate the appeal official.
Sec. 503.8 Exemptions.
Section 552(b) of the Freedom of Information Act contains nine
exemptions to the mandatory disclosure of records. These exemptions and
their application by the Agency are described below. In some cases,
more than one exemption may apply to the same document. This section
does not itself authorize the giving of any pledge of confidentiality
by any officer or employee of the Agency.
(a) Exemption one--National defense and foreign policy. We are not
required to release records that are specifically authorized under
criteria established by an Executive Order to be kept secret in the
interest of national defense or foreign policy and are in fact properly
classified according to such Executive Order. Executive Order No. 12958
(1995) provides for such classification. When the release of certain
records may adversely affect U.S. relations with foreign countries, we
usually consult with officials with knowledge of those countries and/or
with officials of the Department of State. We may also have in our
possession records classified by another agency. If we do, we may
consult with that agency or may refer your request to that agency for
their direct response to you. If possible, we will notify you that we
have made such a referral.
(b) Exemption two--Internal personnel rules and practices. We are
not required to release records that are related solely to the internal
personnel rules and practices of an agency. We may withhold routine
internal agency procedures such as guard schedules and luncheon
periods. We may also withhold internal records the release of which
would help some persons circumvent the law or Agency regulations.
(c) Exemption three--Records exempted by other statutes. We are not
required to release records if another statute specifically allows us
to withhold them. Another statute may be used only if it absolutely
prohibits disclosure or if it sets forth criteria identifying
particular types of material to be withheld (for example, the statute
discussed in Sec. 503.6).
(d) Exemption four--Trade secrets and confidential commercial or
financial information. We will withhold trade secrets and commercial or
financial information that is obtained from a person and is privileged
or confidential.
(1) Trade secrets: A trade secret is a secret, commercially
valuable plan, formula, process, or device that is used for the making,
preparing, compounding, or processing of trade commodities and that can
be said to be the end product of either innovation or substantial
effort. A direct relationship is necessary between the trade secret and
the productive process.
(2) Commercial or financial information, obtained from a person,
and is privileged or confidential.
(i) Information is ``commercial or financial'' if it relates to
businesses, commerce, trade, employment, profits, or finances
(including personal finances).
(ii) Information is obtained from someone outside the Federal
Government or from someone within the Government who has a commercial
or financial interest in the information. ``Person'' includes an
individual, partnership, corporation, association, state or foreign
government, or other organization. Information is not ``obtained from a
person'' if it is generated by BBG or another Federal agency.
(iii) Information is ``privileged'' if it would ordinarily be
protected from disclosure in civil discovery by a recognized
evidentiary privilege, such as the attorney-client privilege, or the
work-product privilege. Information may be privileged for this purpose
under a privilege belonging to a person outside the Government, unless
the providing of the information to the Government rendered the
information no longer protectible in civil discovery.
(iv) Information is ``confidential'' if it meets one of the
following tests:
(A) Disclosure may impair the Government's ability to obtain
necessary information in the future;
(B) Disclosure would substantially harm the competitive position of
the person who submitted the information;
(C) Disclosure would impair other Government interests, such as
program effectiveness and compliance; or
(D) Disclosure would impair other private interests, such as an
interest in controlling availability of intrinsically valuable records,
which are sold in the market by their owner.
(3) Designation of certain confidential information. A person who
submits records to the Government may designate part or all of the
information in such records as exempt from disclosure under Exemption
four. The person may make this designation either at the time the
records are submitted to the Government or within a reasonable time
thereafter. The designation must be in writing. The legend prescribed
by a request for proposal or request for quotations according to any
agency regulation establishing a substitute for the language is
sufficient but not necessary for this purpose. Any such designation
will expire ten years after the records were submitted to the
Government.
(4) Predisclosure notification. The procedures in this paragraph
apply to records that were submitted to the Government and where we
have substantial reason to believe that information in the records
could reasonably be considered exempt under Exemption four. Certain
exceptions to these procedures are stated in paragraph (d)(5) of this
section.
(i) When we receive a request for such records and we determine
that we may
[[Page 8872]]
be required to disclose them, we will make reasonable efforts to notify
the submitter about these facts. The notice will inform the submitter
about the procedures and time limits for submission and consideration
of objections to disclosure. If we must notify a large number of
submitters, we may do this by posting or publishing a notice in a place
where the submitters are reasonably likely to become aware of it.
(ii) The submitter has ten (10) working days from receipt of the
notice to object to disclosure of any part of the records and to state
all bases for its objections.
(iii) We will give consideration to all bases that have been timely
stated by the submitter. If we decide to disclose the records and the
submitter still does not agree, we will send a written notice to the
submitter stating briefly why we did not sustain its objections and we
will provide a copy of the records as we intend to release them. The
notice will state that we will disclose the records five (5) working
days after the submitter receives the notice unless we are ordered by a
United States District Court not to release them.
(iv) When a requester files suit under the FOIA to obtain records
covered by this paragraph, we will promptly notify the submitter.
(v) Whenever we send a notice to a submitter under paragraph
(d)(4)(i) of this section, we will notify you that we are giving the
submitter a notice and an opportunity to object.
(5) Exceptions to predisclosure notification. The notice
requirements in paragraph (d)(4) of this section do not apply in the
following situations:
(i) We decide not to disclose the records;
(ii) The information has previously been published or made
generally available;
(iii) We have already notified the submitter of previous requests
for the same records and have come to an understanding with that
submitter about the records;
(iv) Disclosure is required by a statute other than the FOIA;
(v) Disclosure is required by a regulation, issued after notice and
opportunity for public comment that specifies narrow categories of
records that are to be disclosed under the FOIA. In this case a
submitter may still designate records as described in paragraph (d)(3)
of this section and in exceptional cases, at our discretion, may follow
the notice procedures in paragraph (d)(4) of this section;
(vi) The designation appears to be obviously frivolous, but in this
case we will still give the submitter the written notice required by
paragraph (d)(4)(iii) of this section (although this notice need not
explain our decision or include a copy of the records); and
(vii) We withhold the information because another statute requires
its withholding.
(e) Exemption five--Internal memoranda. This exemption covers
internal Government communications and notes that fall within a
generally recognized evidentiary privilege. Internal Government
communications include an agency's communications with an outside
consultant or other outside person, with a court, or with Congress,
when those communications are for a purpose similar to the purpose of
privileged intra-agency communications. Some of the most common
applicable privileges are:
(1) The deliberative process privilege. This privilege protects
predecisional deliberative communications. A communication is protected
under this privilege if it was made before a final decision was reached
on some question of policy and if it expressed recommendations or
opinions on that question. The purpose of this privilege is to prevent
injury to the quality of the agency decision making process by
encouraging open and frank internal policy discussions, by avoiding
premature disclosure of policies not yet adopted, and by avoiding the
public confusion that might result from disclosing reasons that were
not in fact the ultimate grounds for an agency's decision. This
privilege continues to protect pre-decisional documents even after a
decision is made. We will release purely factual material in a
deliberative document unless that material is otherwise exempt.
However, purely factual material in a deliberative document is within
this privilege if:
(i) It is inextricably intertwined with the deliberative portions
so that it cannot reasonably be segregated; or
(ii) It would reveal the nature of the deliberative portions, or
(iii) Its disclosure would in some other way make possible an
intrusion into the decision making process.
(2) Attorney-client privilege. This privilege protects confidential
communications between a lawyer and an employee or agent of the
Government where an attorney-client relationship exists (for example,
where the lawyer is acting as attorney for the agency and the employee
is communicating on behalf of the agency) and where the employee has
communicated information to the attorney in confidence in order to
obtain legal advice or assistance, and/or when the attorney has given
advice to the client.
(3) Attorney work product privilege. This privilege protects
documents prepared by or for an agency, or by or for its representative
(usually BBG attorneys) in anticipation of litigation or for trial. It
includes documents prepared for purposes of administrative
adjudications as well as court litigation. It includes factual material
in such documents as well as material revealing opinions and tactics.
The privilege continues to protect the documents even after the
litigation is closed.
(f) Exemption six--Clearly unwarranted invasion of personal
privacy. We may withhold personnel, medical, and similar files, and
personal information about individuals if disclosure would constitute a
clearly unwarranted invasion of personal privacy.
(1) Balancing test. In deciding whether to release records that
contain personal or private information about someone else to a
requester, we weigh the foreseeable harm of invading that individual's
privacy against the public benefit that would result from the release
of the information. In our evaluation of requests for records, we
attempt to guard against the release of information that might involve
a violation of personal privacy by a requester being able to ``piece
together items'' or ``read between the lines'' information that would
normally be exempt from mandatory disclosure.
(2) Information frequently withheld. We frequently withhold such
information as home addresses, home telephone numbers, ages, minority
group status, social security numbers, individual's benefits, earning
records, leave records, etc.
(g) Exemption seven--Law enforcement. We are not required to
release information or records that the Government has compiled for law
enforcement purposes. The records may apply to actual or potential
violations of either criminal or civil laws or regulations. We can
withhold these records only to the extent that releasing them would
cause harm in at least one of the following situations:
(1) Enforcement proceedings. We may withhold information when
release could reasonably be expected to interfere with prospective or
ongoing law enforcement proceedings, investigations of fraud and
mismanagement, employee misconduct, and civil rights violations may
fall into this category. In certain cases, we may refuse to confirm or
deny the existence of records that relate to violations in order not to
disclose that an
[[Page 8873]]
investigation is in progress or may be conducted.
(2) Fair trial or impartial adjudication. We may withhold records
when release would deprive a person of a fair trial or an impartial
adjudication because of prejudicial publicity.
(3) Personal privacy. We are careful not to disclose information
that could reasonably be expected to constitute an unwarranted invasion
of personal privacy. When a name surfaces in an investigation, that
person is likely to be vulnerable to innuendo, rumor, harassment, or
retaliation.
(4) Confidential sources and information. We may withhold records
whose release could reasonably be expected to disclose the identity of
a confidential source of information. A confidential source may be an
individual; a state, local or foreign Government agency; or any private
organization. The exemption applies whether the source provides
information under an express promise of confidentiality or under
circumstances from which such an assurance could be reasonably
inferred. Also, where the record or information in it has been compiled
by a criminal law enforcement authority conducting a criminal
investigation or by an agency conducting a lawful national security
investigation, the exemption also protects all information supplied by
a confidential source. Also protected from mandatory disclosure is any
information which, if disclosed, could reasonably be expected to
jeopardize the system of confidentiality that assures a flow of
information from sources to investigatory agencies.
(5) Techniques and procedures. We may withhold records reflecting
special techniques or procedures of investigation or prosecution not
otherwise generally known to the public. In some cases, it is not
possible to describe even in general terms those techniques without
disclosing the very material to be withheld. We may also withhold
records whose release would disclose guidelines for law enforcement
investigations or prosecutions if this disclosure could reasonably be
expected to create a risk that someone could circumvent requirements of
law or of regulation.
(6) Life and physical safety. We may withhold records whose
disclosure could reasonably be expected to endanger the life or
physical safety of any individual. This protection extends to threats
and harassment as well as to physical violence.
(h) Exemptions eight and nine--records on financial institutions
and records on wells.
(1) Exemption eight permits us to withhold records about regulation
or supervision of financial institutions.
(2) Exemption nine permits the withholding of geological and
geophysical information and data, including maps concerning wells.
Sec. 503.9 Electronic records.
(a) Introduction. This section applies to all records of the BBG,
including all of its worldwide operations. Congress enacted the FOIA to
require Federal agencies to make records available to the public
through public inspections and at the request of any person for any
public or private use. The increase in the Government's use of
computers enhances the public's access to Government information. This
section addresses and explains how records will be reviewed and
released when the records are maintained in electronic format.
Documentation not previously subject to the FOIA when maintained in a
non-electronic format is not made subject to FOIA by this law.
(b) Definitions.--(1) Compelling need. Obtaining records on an
expedited basis because of an imminent threat to the life or physical
safety of an individual, or urgently needed by an individual primarily
engaged in disseminating information to the public concerning actual or
alleged Federal Government activities.
(2) Discretionary disclosure. Records or information normally
exempt from disclosure will be released whenever it is possible to do
so without reasonably foreseeable harm to any interest protected by an
FOIA exemption.
(3) Electronic reading room. The room provided which makes
electronic records available.
(c) Electronic format of records. (1) Materials such as agency
opinions and policy statements (available for public inspection and
copying) will be available electronically by accessing the BBG's Home
Page via the Internet at http://www.ibb.gov. To set up an appointment
to view such records in hard copy or to access the Internet via the
BBG's computer, please contact the FOIA/Privacy Act Officer at (202)
260-4404.
(2) We will make available for public inspection and copying, both
electronically via the Internet and in hard copy, those records that
have been previously released in response to FOIA requests, when we
determine the records have been or are likely to be the subject of
future requests.
(3) We will provide both electronically through our Internet
address and in hard copy a ``Guide'' on how to make an FOIA request,
and an Index of all Agency information systems and records that may be
requested under the FOIA.
(4) We may delete identifying details when we publish or make
available the index and copies of previously-released records to
prevent a clearly unwarranted invasion of personal privacy.
(i) We will indicate the extent of any deletions made from the
place the deletion was made, if possible.
(ii) We will not reveal information about deletions if such
disclosure would harm an interest protected by an exemption.
(d) Honoring form or format requests. We will aid requesters by
providing records and information in the form requested, including
electronic format, if we can readily reproduce them in that form or
format. However, if we cannot accommodate you, we will provide
responsive, nonexempt information in a reasonably accessible form.
(1) We will make a reasonable effort to search for records kept in
an electronic format. However, if the effort would significantly
interfere with the operations of the agency or the agency's use of its
computers, we will consider the effort to be unreasonable.
(2) We need not create documents that do not exist, but computer
records found in a database rather than in a file cabinet may require
the application of codes or some form of programming to retrieve the
information. This application of codes or programming of records will
not amount to the creation of records.
(3) Except in unusual cases, the cost of computer time will not be
a factor in calculating the two free hours of search time available
under Sec. 503.7. In those unusual cases, where the cost of conducting
a computerized search significantly detracts from the agency's ordinary
operations, no more than the dollar cost of two hours of manual search
time shall be allowed. For searches conducted beyond the first two
hours, the agency shall only charge the direct costs of conducting such
searches.
(e) Technical feasibility of redacting non-releasable material. We
will make every effort to indicate the place on the record where a
redaction of non-releasable material is made, and an FOIA citation
noting the applicable exemption for the deletion will also be placed at
the site. If unable to do so, we will notify you of that fact.
(f) Ensuring timely response to request. We will make every attempt
to respond to FOIA requests within the prescribed 20 working-day time
limit. However, processing some requests may require additional time in
order to
[[Page 8874]]
properly screen material against the inadvertent disclosure of material
covered by the exemptions.
(1) Multitrack first-in first-out processing. (i) Because the
agency expects to be able to process its requests without a backlog of
cases, BBG will not institute a multitract system. Those cases that may
be handled easily, because they require only a few documents or a
simple answer, will be handled immediately by an FOIA specialist.
(ii) If you wish to qualify for faster processing, you may limit
the scope of your request so that we may respond more quickly.
(2) Unusual circumstances. (i) The agency may extend for a maximum
of ten working days the statutory time limit for responding to an FOIA
request by giving notice in writing as to the reason for such an
extension. The reasons for such an extension may include: the need to
search for and collect requested records from multiple offices; the
volume of records requested; and, the need for consultation with other
components within the agency.
(ii) If an extra ten days still does not provide sufficient time
for the Agency to deal with your request, we will inform you that the
request cannot be processed within the statutory time limit and provide
you with the opportunity to limit the scope of your request and/or
arrange with us a negotiated deadline for processing your request.
(iii) If you refuse to reasonably limit the scope of your request
or refuse to agree upon a time frame, the agency will process your
case, as it would have, had no modification been sought. We will make a
diligent, good-faith effort to complete our review within the statutory
time frame.
(3) Grouping of requests. We will group together requests that
clearly involve related material that should be considered as a single
request.
(i) If you make multiple or related requests for similar material
for the purpose of avoiding costs, we will notify you that we are
grouping together your requests, and the reasons why.
(ii) Multiple or related requests may also be grouped, such as
those involving requests and schedules but you will be notified in
advance if we intend to do so.
(g) Time periods for agency consideration of requests.--(1)
Expedited access. We will authorize expedited access to requesters who
show a compelling need for access, but the burden is on the requester
to prove that expedition is appropriate. We will determine within ten
days whether or not to grant a request for expedited access and we will
notify the requester of our decision.
(2) Compelling need for expedited access. Failure to obtain the
records within an expedited deadline must pose an imminent threat to an
individual's life or physical safety; or the request must be made by
someone primarily engaged in disseminating information, and who has an
urgency to inform the public about actual or alleged Federal Government
activity.
(3) How to request expedited access. We will be required to make
factual and subjective judgments about the circumstances cited by
requesters to qualify them for expedited processing. To request
expedited access, your request must be in writing and it must explain
in detail your basis for seeking expedited access. The categories for
compelling need are intended to be narrowly applied:
(i) A threat to an individual's life or physical safety. A threat
to an individual's life or physical safety should be imminent to
qualify for expedited access to the records. You must include the
reason why a delay in obtaining the information could reasonably be
foreseen to cause significant adverse consequences to a recognized
interest.
(ii) Urgency to inform. The information requested should pertain to
a matter of a current exigency to the American public, where delay in
response would compromise a significant recognized interest. The person
requesting expedited access under an ``urgency to inform,'' must be
primarily engaged in the dissemination of information. This does not
include individuals who are engaged only incidentally in the
dissemination of information. ``Primarily engaged'' requires that
information dissemination be the main activity of the requester. A
requester only incidentally engaged in information dissemination,
besides other activities, would not satisfy this requirement. The
public's right to know, although a significant and important value,
would not by itself be sufficient to satisfy this standard.
(4) Estimation of matter denied. The agency will try to estimate
the volume of any denied material and provide the estimate to the
requester, unless doing so would harm an interest protected by an
exemption.
(h) Computer redaction. The agency will identify the location of
deletions in the released portion of the records, and where
technologically possible, will show the deletion at the place on the
record where the deletion was made, unless including that indication
would harm an interest protected by an exemption.
(i) Annual report on FOIA activities. Reports on FOIA activities
are submitted each fiscal year to the Department of Justice, and are
due by February 1 of every year. The BBG's report will be available
both in hard copy and through the Internet. The Department of Justice
will also report all Federal agency FOIA activity through electronic
means.
(j) Reference materials and guides. The agency has available in
hard copy, and electronically through the Internet, a guide for
requesting records under the FOIA, and an index and description of all
major information systems of the agency. The guide is a simple
explanation of what the FOIA is intended to do, and how you can use it
to access BBG records. The Index explains the types of records that may
be requested from the Agency through FOIA requests and why some records
cannot, by law, be made available by the BBG.
[FR Doc. 02-4550 Filed 2-26-02; 8:45 am]
BILLING CODE 8610-02-P