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Electronic Code of Federal Regulations

e-CFR Data is current as of August 28, 2014

Title 36Chapter IX → Part 902


Title 36: Parks, Forests, and Public Property


PART 902—FREEDOM OF INFORMATION ACT


Contents

Subpart A—Applicability and Policy

§902.01   Purpose and applicability.
§902.02   Statement of policy.
§902.03   Definitions.

Subpart B—General Administration

§902.10   Delegation of administration of this part.
§902.11   How records may be requested.
§902.12   Maintenance of statistics; annual report to Congress.
§902.13   Indexes of Corporation records.
§902.14   Deletion of nondiscloseable information from requested records.
§902.15   Protection of records.

Subpart C—Publication in the Federal Register

§902.20   Applicability.
§902.21   Publication in the Federal Register shall be constructive notice of information that affects the public.

Subpart D—Availability of Records Not Published in the Federal Register

§902.30   Applicability.
§902.31   Access, inspection and copying.

Subpart E—Availability of Reasonably Described Records

§902.40   Applicability.
§902.41   Public access to reasonably described records.
§902.42   Request for records of concern to more than one government organization.

Subpart F—Exemptions From Public Access to Corporation Records

§902.50   Applicability.
§902.51   Records relating to matters that are required by Executive order to be kept secret.
§902.52   Records related solely to internal personnel rules and practices.
§902.53   Records exempted from disclosure by statute.
§902.54   Trade secrets and commercial or financial information that is privileged or confidential.
§902.55   Intragovernmental exchanges.
§902.56   Protection of personal privacy.
§902.57   Investigatory files compiled for law enforcement purposes.
§902.58   Reports of financial institutions.
§902.59   Geological and geophysical information.

Subpart G—Time Limitations

§902.60   Initial determination.
§902.61   Final determination.
§902.62   Extension of time limits.

Subpart H—Procedures for Administrative Appeal of Decisions Not To Disclose Records

§902.70   General.
§902.71   Forms for appeal.
§902.72   Time limitations on filing an appeal.
§902.73   Where to appeal.
§902.74   Agency decision.

Subpart I—Fees

§902.80   General.
§902.81   Payment of fees.
§902.82   Fee schedule.
§902.83   Waiver or reduction of fees.

Authority: 5 U.S.C. 552; 52 FR 10012-10019 (March 27, 1987); E.O. 12600, 52 FR 23781 (June 23, 1987).

Source: 41 FR 43143, Sept. 30, 1976, unless otherwise noted.

Subpart A—Applicability and Policy

§902.01   Purpose and applicability.

This part contains regulations of the Corporation implementing 5 U.S.C. 552, as amended. It informs the public about where and how the Corporation's records may be obtained. The following provisions are applicable to all records of the Corporation in existence at the time a request for records is made. The regulations establish fee schedules applicable to the search and copying of requested records. This part identifies the officials having authority to act on requests and prescribes the procedures to appeal decisions which initially deny disclosure. Indexes maintained to reflect all records subject to this part are available for public inspection and copying as provided herein.

§902.02   Statement of policy.

In keeping with the spirit of the Freedom of Information Act, 5 U.S.C. 552, the policy of the Corporation is one of full and responsible disclosure of its records to the public. Therefore, all records of the Corporation, unless otherwise exempted under subpart F of this part, are declared to be available for public inspection and copying. Each officer and employee of the Corporation is directed to cooperate to this end and shall make records available to the public with reasonable promptness. A record may not be withheld from the public solely because its release might suggest administrative error or embarrass an officer or employee of the Corporation.

§902.03   Definitions.

As used in this part—

(a) Act means section 552 of title 5 U.S.C., as amended, Pub. L. 90-23, 81 Stat. 54, June 5, 1967; as amended, Pub. L. 93-502, 88 Stat. 1561, November 11, 1974. Pub. L. 90-23 repealed and superseded Pub. L. 89-487, 80 Stat. 250. July 4, 1966, sometimes referred to as the Freedom of Information Act or Public Information Act.

(b) Chairman means the Chairman of the Corporation's Board of Directors and President of the Corporation.

(c) Corporation means the Pennsylvania Avenue Development Corporation, including the Board of Directors, Executive Officers, Corporation staff, and any subordinate organizational units operating under the Pennsylvania Avenue Development Corporation Act of 1972, Pub. L. 92-578, 86 Stat. 1266 (40 U.S.C. 871 et seq.), as amended.

(d) Person means person as defined in 5 U.S.C. 551(2).

(e) Records means any and all writing, drawings, maps, recordings, tapes, films, slides, photographs, or other documentary materials by which information is preserved.

(f) Submitter means any person or entity that provides or has provided information to the Corporation or about which the Corporation possess records subject to Exemption 4 of the Freedom of Information Act.

(g) Workday means a calendar day excluding Saturday, Sunday and Federal holidays, office hours being 9 a.m. to 5 p.m.

[41 FR 43143, Sept. 30, 1976, as amended at 53 FR 10374, Mar. 31, 1988]

Subpart B—General Administration

§902.10   Delegation of administration of this part.

Except as provided in subpart H of this part, authority to administer this part is delegated to the Administrative Officer, who shall act upon all requests for access to records which are received by the Corporation from any person citing the Act.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]

§902.11   How records may be requested.

In accordance with §902.41 of subpart E of this part all requests for records shall be made to the Administrative Officer, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW, Suite 1220 North, Washington, DC 20004.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983; 50 FR 45824, Nov. 4, 1985]

§902.12   Maintenance of statistics; annual report to Congress.

(a) The Administrative Officer shall maintain records of:

(1) The fees collected by the Corporation for making records available under this part;

(2) The number of denials of requests for records made under this part, and the reasons for each denial;

(3) The number of appeals arising from denials, the result of each appeal, and the reasons for the action upon each appeal that results in a denial of information;

(4) The names and titles or positions of each person responsible for each denial of records requested under this part, and the number of instances of participation for each person;

(5) The results of each proceeding conducted pursuant to subsection 552(a)(4)(f) of title 5, U.S.C., including a report of the disciplinary action against the official or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken;

(6) Every rule made by the Corporation affecting or implementing the Act;

(7) The fee schedule listing fees for search and duplication of records pursuant to request under the Act; and

(8) All other information which indicates efforts to administer fully the letter and spirit of the Act.

(b) The Administrative Officer shall annually prepare a report accounting for each item in paragraph (a) of this section for the prior calendar year. On or before March 1st of each year, the report shall be submitted to the Speaker of the House of Representatives and the President of the Senate for referral to the appropriate committees of Congress.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]

§902.13   Indexes of Corporation records.

(a) The Administrative Officer shall be responsible for maintenance, publication, distribution and availability for inspection and copying of the current indexes and supplements which are required by 5 U.S.C. (a)(2). Such indexes shall be published promptly on a quarterly basis unless the Chairman determines by order published in the Federal Register that the pubication would be unnecessary and impractical.

(b) The index of materials under this subpart covers all materials issued, adopted, or promulgated after July 4, 1967 by the Corporation. However, earlier materials may be included in the index to the extent practicable. Each index contains instruction for its use.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]

§902.14   Deletion of nondiscloseable information from requested records.

Whenever a requested record contains information which falls within one of the exempted categories of subpart F of this part, identifying details shall be deleted from the record before it is made available for public inspection and copying. When a requested record contains both discloseable and nondiscloseable information, only that portion which is reasonably segregable after deletion of the nondiscloseable portions, will be released. If the information in the discloseable portion is readily available from another source and that source is made known to the person making the request, the Corporation need not disclose the requested record. In all cases where a deletion is made, an explanation of the deletion shall be attached to the record made available for inspection, distribution, or copying. Appeal of deletions shall be made in accordance with subpart H of this part.

§902.15   Protection of records.

(a) No person may, without permission of the Administrative Officer, remove from the Corporation's offices any record made available to him for inspection or copying. In addition, no person may steal, alter, multilate, obliterate, or destroy, in whole or in part, such a record.

(b) Section 641 of title 18 U.S.C. provides, in pertinent part, as follows:

(1) Whoever *  *  * steals, purloins, knowingly converts to his use or the use of any other or without authority sells, conveys or disposes of any record *  *  * or thing of value shall be fined not more than $10,000 or imprisoned not more than 10 years or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year or both. *  *  *

(c) Section 2071 of title 18 U.S.C. provides, in pertinent part, as follows:

(1) Whoever willfully and unlawfully conceals, removes, multilates, obliterates, or destroys, or attempts to do so, or with intent to do so takes and carries away any record, proceeding, map, book, paper document, or other thing, filed or deposited *  *  * in any public office, or with any *  *  * public officer of the United States, shall be fined not more than $2,000 or imprisoned not more than 3 years, or both.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]

Subpart C—Publication in the Federal Register

§902.20   Applicability.

Subject to the exemptions in subpart F of this part, the Corporation, for the guidance of the public, shall submit to the Director of the Federal Register for publication—

(a) Descriptions of the Corporation's organization and functional responsibilities and the designation of places at which the public may secure information, obtain forms and applications, make submittals or requests, or obtain decisions:

(b) Statements of the general course and method by which the Corporation's functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(c) Rules of procedure, descriptions of forms available, and instructions as to the scope and contents of all papers, reports, or examinations;

(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability; and,

(e) Each amendment, revision, or repeal of the foregoing.

§902.21   Publication in the Federal Register shall be constructive notice of information that affects the public.

(a) All material described in §902.20 shall be published in the Federal Register. For the purpose of this section, material that is reasonably available to the class of persons affected by it is considered to be published in the Federal Register when it is incorporated by reference with the approval of the Director of the Federal Register.

(b) Publication in the Federal Register of all relevant information shall be considered constructive notice of information that affects the public, except that no person shall be required to resort to or be adversely affected by any matter which is required to be published in the Federal Register and is not so published unless such person has actual and timely notice of the terms of the unpublished matter.

Subpart D—Availability of Records Not Published in the Federal Register

§902.30   Applicability.

(a) This subpart implements section 552(a)(2) of title 5 U.S.C., as amended by 88 Stat. 1561 (1974). It prescribes the rules governing the availability for public inspection and copying of the following:

(1) Final opinions or orders (including concurring and dissenting opinions, if any) made in the adjudication of cases;

(2) Statements of policy or interpretations which have been adopted under the authority of the Corporation's enabling act, including statements of policy or interpretation concerning a particular factual situation. If they can reasonably be expected to have precedential value in any case involving a member of the public in a similar situation, and have not been published in the Federal Register.

(3) Administrative staff manuals or instructions to the staff of the Corporation which affects any member of the public. Included within this category are manuals or instructions which prescribe the manner or performance of any activity by any person. Excepted from this category are staff manuals or instructions to staff concerning internal operating rules, practices, guidelines and procedures for Corporation negotiators and inspectors, the release of which would substantially impair the effective performance of their duties.

(4) Documents and materials offered for sale under the auspices of the Corporation.

(5) Any index of materials which is required to be maintained by the Corporation under §902.13.

(b) Records listed in paragraph (a) of this section, which the Corporation does not make available for public inspection and copying, or that are not indexed as required by §902.13, may not be cited, relied upon, or used as a precedent by the Corporation to adversely affect any person, unless the person against whom it is cited, relied upon, or used, has had actual and timely notice of that material.

(c) This subpart shall not apply to information published in the Federal Register or that is a reasonably described record covered by subpart E of this part.

§902.31   Access, inspection and copying.

(a) Records listed in §902.30(a), are available for inspection and copying by any person at the Corporation's office, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. Facilities for inspection and copying shall be open to the public every workday.

(b) Records listed in §902.30(a), that are published and offered for sale, shall be indexed as required under §902.13, and shall be available for public inspection. Records offered for sale will not be copied by the Corporation for the requester without the approval of the Administrative Officer.

(c) Records listed in §902.30(a) are subject to subpart F of this part and access may be restricted by the Corporation in accordance with that subpart. A refusal to disclose may be appealed by the requester under the provisions of subpart H of this part.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983; 50 FR 45824, Nov. 4, 1985]

Subpart E—Availability of Reasonably Described Records

§902.40   Applicability.

This subpart implements section 552(a)(3) of title 5 U.S.C., as amended, and prescribes regulations governing public inspection and copying of reasonably described records in the Corporation's custody. This subpart shall not apply to material which is covered by subparts C and D of this part, and records exempted under subpart F of this part.

§902.41   Public access to reasonably described records.

(a) Any person desiring access to a record covered by this subpart may make request for records and copies either in person on any workday at the Corporation's office, or by written request. In either instance, the requester must comply with the following provisions;

(1) A written request must be made for the record;

(2) The request must indicate that it is being made under the Freedom of Information Act (section 552 of title 5 U.S.C.); and

(3) The request must be addressed to the attention of the Administrative Officer, as provided in §902.11.

(b) Each request for a record should reasonably describe the particular record sought. The request should specify, to the extent possible, the subject matter of the record, the date when it was made, the place where it was made and the person who made it. If the description is insufficient to process the request, the Public Information offices shall promptly notify the person making the request and solicit further information. The Administrative Officer may assist the person in perfecting the request.

(c) Requests made in person at the Corporation's office during regular working hours (9 a.m. to 5 p.m., Monday through Friday, except Federal holidays) shall be processed as provided in subpart G of this part. The Corporation shall provide adequate inspection and copying facilities. Original records may be copied, but may not be released from the custody of the Corporation. Upon payment of the appropriate fee, copies will be provided to the requester by mail or in person.

(d) Every effort will be made to make a record in use by the staff of the Corporation available when requested, and availability may be deferred only to the extent necessary to avoid serious interference with the business of the Corporation.

(e) Notwithstanding paragraphs (a) through (d) of this section, informational materials and services, such as press releases, and similar materials prepared by the Corporation, shall be made available upon written or oral request. These services are considered as part of any informational program of the Government and are readily made available to the public. There is no fee for individual copies of such materials as long as they are in supply. In addition, the Corporation will continue to respond, without charge, to routine oral or written inquiries that do not involve direct access to records of the Corporation.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]

§902.42   Request for records of concern to more than one government organization.

(a) If the release of a record covered by this subpart would be of concern to both the Corporation and another Federal agency, the record will be made available only after consultation with the other agency concerned. Records of another agency in the Corporation's possession will not be disclosed without the approval of the other agency.

(b) If the release of a record covered by this subpart would be of concern to both the Corporation and to a foreign, state or local government, the record will be made available by the Corporation only after consultation with the other interested foreign state or local government. Records of a foreign, state or local government will not be disclosed without the approval of the government concerned.

Subpart F—Exemptions From Public Access to Corporation Records

§902.50   Applicability.

(a) This subpart implements section 552(b) of title 5 U.S.C., which exempts certain records from public inspection under section 552(a). This subpart applies to records requested under subparts D and E of this part. The Corporation may, however, release a record authorized to be withheld under §§902.52 through 902.59 unless it determines that the release of that record would be inconsistent with a purpose of the aforementioned sections. Examples given in §§902.52 through 902.59 of records included within a particular statutory exemption are not necessarily illustrative of all types of records covered by the exemption. Any reasonably segregable portion of a record withheld under this subpart shall be provided to a requester, after deletion of the portions which are exempt under this subpart.

(b) This subpart does not authorize withholding of information or limit the availability of records to the public, except as specifically stated. This subpart is not authority to withhold information from Congress.

§902.51   Records relating to matters that are required by Executive order to be kept secret.

Records relating to matters that are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy, include those within the scope of the following, and any further amendment of any of them, but only to the extent that the records are in fact properly classified pursuant to such Executive order:

(a) Executive Order 11652 of March 8, 1972 (3 CFR 1974 Comp. p. 339);

(b) Executive Order 10865 of February 20, 1960 (3 CFR 1959-1963 Comp. p. 398); and

(c) Executive Order 10104 of February 1, 1950 (3 CFR 1949-1953 Comp., p. 298).

These records may not be made available for public inspection.

§902.52   Records related solely to internal personnel rules and practices.

(a) Records related solely to internal personnel rules and practices that are within the statutory exemption include memoranda pertaining to personnel matters such as staffing policies, and policies and procedures for the hiring, training, promotion, demotion, and discharge of employees, and management plans, records, or proposals related to labor-management relationships.

(b) The purpose of this section is to authorize the protection of any record related to internal personnel rules and practices dealing with the relations between the Corporation and its employees.

§902.53   Records exempted from disclosure by statute.

(a) Records relating to matters that are specifically exempted by statute from disclosure may not be made available for public inspection. For example: section 1905 of title 18 U.S.C., protecting trade secrets, processes, and certain economic and other data obtained by examination or investigation, or from reports.

(b) The purpose of this section is to preserve the effectiveness of statutes of the kind cited as an example, in accordance with their terms.

§902.54   Trade secrets and commercial or financial information that is privileged or confidential.

(a) Trade secrets and commercial or financial information that are privileged and for which confidentiality is requested by the person possessing such privilege are within the statutory exemption. This includes the following:

(1) Commercial or financial information not customarily released to the public, furnished and accepted in confidence or disclosure of which could reasonably be expected to cause substantial competitive harm, or both;

(2) Statements of financial interest furnished by officers and employees of the Corporation;

(3) Commercial, technical, and financial information furnished by any person in connection with an application for a loan or a loan guarantee;

(4) Commercial or financial information customarily subjected to an attorney-client or similar evidentiary privilege; or,

(5) Materials in which the Corporation has a property right such as designs, drawings, and other data and reports acquired in connection with any research project, inside or outside of the Corporation, or any grant or contract.

(b) The purpose of this section is to authorize the protection of trade secrets and commercial or financial records that are customarily privileged or are appropriately given to the Corporation in confidence. It assures the confidentiality of trade secrets and commercial or financial information obtained by the Corporation through questionnaires and required reports to the extent that the information would not customarily be made public by the person from whom it was obtained. In any case in which the Corporation has obligated itself not to disclose trade secrets and commercial or financial information it receives, this section indicates the Corporation's intention to honor that obligation to the extent permitted by law. In addition, this section recognizes that certain materials, such as research data and materials, formulae, designs, and architectural drawings, have significance not as records but as items of property acquired, in many cases at public expense. In any case in which similar proprietary material in private hands would be held in confidence, material covered in this section may be held in confidence.

(c)(1) In general. For commercial or financial information furnished to the Corporation on or after March 30, 1988, the Corporation shall require the submitter to designate, at the time the information is furnished or within a reasonable time thereafter, any information the submitter considers confidential or privileged. Commercial or financial information provided to the Corporation shall not be disclosed pursuant to a Freedom of Information Act request except in accordance with this paragraph.

(2) Notice to submitters. The Corporation shall provide a submitter with prompt written notice of a request encompassing its commercial or financial information whenever required under paragraph (c)(3) of this section, and except as is provided in paragraph (c)(7) of this section. Such written notice shall either describe the exact nature of the information requested or provide copies of the records or portions thereof containing the information. Concurrently with its notice to a submitter, the Corporation shall inform a requestor in writing that the submitter is afforded a reasonable period within which to object to disclosure and that the 10 workday initial determination period provided for in 36 CFR 902.60 may therefore be extended.

(3) When notice is required. (i) For information submitted to the Corporation prior to March 30, 1988, the Corporation shall provide a submitter with notice of a request whenever:

(A) The information is less than ten years old;

(B) The information is subject to prior express commitment of confidentiality given by the Corporation to the submitter; or

(C) The Corporation has reason to believe that disclosure of the information may result in substantial competitive harm to the submitter.

(ii) For information submitted to the Corporation on or after March 30, 1988, the Corporation shall provide a submitter with notice of a request whenever:

(A) The submitter has in good faith designated the information as confidential, or

(B) The Corporation has reason to believe that disclosure of the information may result in substantial competitive harm to the submitter.

Notice of a request for information falling within the former category shall be required for a period of not more than ten years after the date of submission unless the submitter requests, and provides acceptable justification for, a specific notice period of greater duration. The submitter's claim of confidentiality should be supported by a statement or certification by an officer or authorized representative that the information in question is in fact confidential and has not been disclosed to the public.

(4) Opportunity to object to disclosure. Through the notice described in paragraph (c)(2) of this section, the Corporation shall afford a submitter a reasonable period within which to provide the Corporation with a detailed statement of any objection to disclosure. Such statement shall specify all grounds for withholding any of the information under any exemption of the Freedom of Information Act and, in the case of Exemption 4, shall demonstrate why the information is contended to be privileged or confidential. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the Freedom of Information Act.

(5) Notice of intent to disclose. The Corporation shall consider carefully a submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose information. Whenever the Corporation decides to disclose information over the objection of a submitter, the Corporation shall forward to the submitter a written notice which shall include:

(i) A statement of the reasons for which the submitter's disclosure objections were not sustained;

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

(iii) A specified disclosure date.

Such notice of intent to disclose shall be forwarded a reasonable number of days, as circumstances permit, prior to the specified date upon which disclosure is intended. A copy of such disclosure notice shall be forwarded to the requester at the same time.

(6) Notice of lawsuit. Whenever a requester brings suit seeking to compel disclosure of information covered by paragraph (c) of this section, the Corporation shall promptly notify the submitter.

(7) Exceptions to notice requirements. The notice requirements of this section shall not apply if:

(i) The Corporation determines that the information should not be disclosed;

(ii) The information lawfully has been published or otherwise made available to the public;

(iii) Disclosure of the information is required by law (other than 5 U.S.C. 552); or

(iv) The designation made by the submitter in accordance with paragraphs (c)(1) and (c)(3)(ii) of this section appears obviously frivolous; except that, in such case, the Corporation shall provide the submitter with written notice of any final decision to disclose information within a reasonable number of days prior to a specified disclosure date.

[41 FR 43143, Sept. 30, 1976, as amended at 53 FR 10374, Mar. 31, 1988]

§902.55   Intragovernmental exchanges.

(a) Any record prepared by a Government officer or employee (including those prepared by a consultant or advisory body) for internal Government use is within the statutory exemption to the extent that it contains—

(1) Opinions, advice, deliberations, or recommendations made in the course of developing official action by the Government, but not actually made a part of that official action, or

(2) Information concerning any pending proceeding or similar matter including any claim or other dispute to be resolved before a court of law, administrative board, hearing officer, or contracting officer.

(b) This section has two distinct purposes. One is to protect the full and frank exchange of ideas, views, and opinions necessary for the effective functioning of the Government and to afford this protection both before and after any action is taken. This judicially recognized privilege of protection against disclosure in litigation or elsewhere is intended to assure that these resources will be fully and readily available to those officials upon whom the responsibility rests to take official and final Corporation action. However, the action itself, any memoranda made part of that action, and the facts on which it is based are not within this protection. The other purpose is to protect against the premature disclosure of material that is in the development stage if premature disclosure would be detrimental to the authorized and appropriate purposes for which the material is being used, or if, because of its tentative nature, the material is likely to be revised or modified before it is officially presented to the public.

(c) Examples of records covered by this section include minutes to the extent they contain matter described in paragraph (a) of this section; staff papers containing advice, opinions, suggestions, or exchanges of views, preliminary to final agency decision or action; budgetary planning and programming information; advance information on such things as proposed plans to procure, lease, or otherwise hire and dispose of materials, real estate, or facilities, documents exchanged preparatory to anticipated legal proceedings; material intended for public release at a specified future time, if premature disclosure would be detrimental to orderly processes of the Corporation; records of inspection, investigations, and surveys pertaining to internal management of the Department; and matters that would not be routinely disclosed under disclosure procedures in litigation and which are likely to be the subject of litigation. However, if such a record also contains factual information, that information must be made available under subpart E of this part unless the facts are so inextricably intertwined with deliverative or policymaking processes, that they cannot be separated without disclosing those processes.

§902.56   Protection of personal privacy.

(a) Any of the following personnel, medical, or similar records is within the statutory exemption if its disclosure would harm the individual concerned or be a clearly unwarranted invasion of his personal privacy:

(1) Personnel and background records personal to any officer or employee of the Corporation, or other person, including his home address;

(2) Medical histories and medical records concerning individuals, including applicants for licenses; or

(3) Any other detailed record containing personal information identifiable with a particular person.

(b) The purpose of this section is to provide a proper balance between the protection of personal privacy and the preservation of the public's rights to Corporation information by authorizing the protection of information that, if released, might unjustifiably invade an individual's personal privacy.

§902.57   Investigatory files compiled for law enforcement purposes.

(a) Files compiled by the Corporation for law enforcement purposes, including the enforcement of the regulations of the Corporation, are within the statutory exemption to the extent that production of such records would:

(1) Interfere with enforcement proceedings;

(2) Deprive a person of a right to a fair trial or an impartial adjudication;

(3) Constitute an unwarranted invasion of personal privacy;

(4) Disclose the identity of a confidential source and in the case of a record compiled by a criminal law enforcement authority in the courts of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;

(5) Disclose investigative techniques and procedures; or,

(6) Endanger the life or physical safety of law enforcement personnel.

(b) The purpose of this section is to protect from disclosure the law enforcement files of the Corporation including files prepared in connection with related litigation and adjudicative proceedings. It includes the enforcement not only of criminal statutes but all kinds of laws.

§902.58   Reports of financial institutions.

Any material contained in or related to any examination, operating, or condition report prepared by, on behalf of, or for the use of, any agency responsible for the regulation or supervision of financial institutions is within the statutory exemption.

§902.59   Geological and geophysical information.

Any geological or geophysical information and data (including maps) concerning wells is within the statutory exemption.

Subpart G—Time Limitations

§902.60   Initial determination.

(a) An initial determination whether or not to release a record requested under subparts D and E of this part shall be made by the Public Information Offices within 10 workdays after the receipt of a request which complies with §902.21. Failure of the requester to comply with those provisions may toll the running of the 10 day period until the request is identified as one being made under the Act. This time limit may be extended by up to 10 workdays in accordance with §902.62.

(b) Upon making initial determination, the Administrative Officer shall immediately notify the person making the request as to its disposition. If the determination is made to release the requested record, the Administrative Officer shall make the record promptly available. If the determination is to deny the release of the requested record, the Public Information Officer shall immediately notify the requester of the denial and shall provide the following information.

(1) The reason for the determination, including a reference to the appropriate exemption provided in subpart F of this part;

(2) The right of the request or to appeal the determination as provided in subpart H of this part; and

(3) The name and position of each person responsible for the denial of the request.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]

§902.61   Final determination.

A determination with respect to any appeal made pursuant to subpart H of this part will be made within twenty work days after the date of receipt of the appeal. The time limit provided may be extended by up to 10 workdays in accordance with §902.62.

§902.62   Extension of time limits.

(a) In unusual circumstances, the time limits prescribed in §§902.60 and 902.61 may be extended by written notice to the person making the request. The notice shall set forth the reasons for the extension and the date on which a determination is expected to be dispatched. Under no circumstances shall the notice specify a date that would result in an extension for more than 10 workdays.

(b) As used in this section, unusual circumstances means (but only to the extent reasonably necessary to the proper processing of the particular request):

(1) The need to search for, collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request;

(2) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; or

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.

(c) Any person having made a request for records under this part shall have exhausted his administrative remedies with respect to such request, if the Corporation fails to comply with the applicable time limitations set forth in this subject.

Subpart H—Procedures for Administrative Appeal of Decisions Not To Disclose Records

§902.70   General.

Within the time limitations of subpart G of this part, if the Administrative Officer makes a determination not to disclose a record requested under subparts D and E of this part, he shall furnish a written statement of the reasons for that determination to the person making the request. The statement shall indicate the name(s) and title(s) of each person responsible for the denial of the request, and the availability of an appeal with the Corporation. Any person whose request for a record has been denied may submit a written appeal to the Corporation requesting reconsideration of the decision.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]

§902.71   Forms for appeal.

Although no particular written form is prescribed for on appeal, the letter or similar written statement appealing a denial of a record shall contain a description of the record requested, the name and position of the official who denied the request, the reason(s) given for the denial, and other pertinent facts and statements deemed appropriate by the appellant. The Corporation may request additional details if the information submitted is insufficient to support an appeal.

§902.72   Time limitations on filing an appeal.

An appeal must be submitted in writing within thirty days from the date of receipt of the initial written denial and must contain the information requested in §902.71.

§902.73   Where to appeal.

An appeal shall be addressed to the Chairman of the Board of Directors, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004.

[41 FR 43143, Sept. 30, 1976, as amended at 50 FR 45824, Nov. 4, 1985]

§902.74   Agency decision.

(a) The Chairman shall have sole authority to act on an appeal, which seeks to reverse an initial decision denying disclosure of a record. He shall review each appeal and provide the appellant and other interested parties with a written notice of his decision. The decision of the Chairman as to the availability of the record is administratively final.

(b) If the decision of the Chairman sustains the refusal to disclose, the notice of decision shall set forth the reasons for the refusal, including the specific exemptions from disclosure under the Act that are the bases of the decision not to disclose. The notice shall further advise the appellant that judicial review is available on complaint to the appropriate District Court of the United States, as provided in section 552(a)(4)(B) of title 5 U.S.C.

(c) As set out in §902.61, the final decision on appeal shall be made within 20 workdays after the receipt of the appeal. An extension of this limitation is authorized as prescribed under §902.62.

Subpart I—Fees

§902.80   General.

(a) This subpart prescribes fees for services performed by the Corporation under subparts D and E of this part. This subpart shall only apply to the services described herein. The fees for the service listed reflect the actual cost of the work involved in compiling requested record and copying, if necessary.

(b) A fee shall not be charged for time spent in resolving legal or policy issues.

[41 FR 43143, Sept. 30, 1976, as amended at 52 FR 26677, July 16, 1987]

§902.81   Payment of fees.

The fees prescribed in this part may be paid in cash or by check, draft, or postal money order made payable to the Pennsylvania Avenue Development Corporation.

[52 FR 26677, July 16, 1987]

§902.82   Fee schedule.

(a) Definitions. For purposes of this section—

(1) A commercial use request is a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, the Corporation will determine the use to which the requester will put the records sought. Where the Corporation has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the Corporation will seek additional clarification before assigning the request to a specific category.

(2) Direct costs means those expenditures the Corporation actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) records to respond to an FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.

(3) Duplication means the process of making a copy of a record necessary to respond to an FOIA request. Such copies can take the form of paper copy, microform, audio-visual materials, or machine-readable documentation (e.g., magnetic tape or disk), among others. The copy provided must be in a form that is reasonably usable by requesters.

(4) Educational institution means a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research.

(5) Non-commercial scientific institution means an institution that is not operated on a commercial basis, within the meaning of paragraph (a)(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.

(6) Representative of the new media means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that is about current events or that would be of current interest to the public. Examples of new media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of news) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. Freelance journalists may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but the Corporation may also look to the past publication record of a requester in making this determination.

(7) Review means the process of examining records located in response to a request that is for a commercial use (see paragraph (a)(1) of this section) to determine whether any portion of any record located is permitted to be withheld. It also includes processing any records for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.

(8) Search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within records. A line-by-line search will not be conducted when merely duplicating an entire record would be the less expensive and quicker method of complying with the request. Search does not include review of material to determine whether the material is exempt from disclosure (see paragraph (a)(7) of this section). Searches may be done manually or by computer using existing programming.

(b) The following provisions shall apply with respect to services rendered to the public in processing requests for disclosure of the Corporation's records under this part:

(1) Fee for duplication of records: $0.25 per page. When the Corporation estimates that duplication charges are likely to exceed $25.00, it will notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. The Corporation will offer the requester the opportunity to confer with the Corporation's staff in order to reformulate the request to meet the requester's needs at a lower cost.

(2) Search and review fees. (i) Searches for records by clerical personnel: $7.00 per hour, including the time spent searching for and copying any records.

(ii) Search for and review of records by professional and supervisory personnel: $11.50 per hour spent searching for any record or reviewing any record to determine whether it may be disclosed, including time spent in copying any record.

(iii) Except for requests seeking records for a commercial use, the Corporation will provide the first 100 pages of duplication and the first two hours of search time without charge. The word pages means paper copies of a standard size, either 812 by 11 or 14 by 14.

(3) Duplication of architectural drawings, maps, and similar materials: (per copy) $10.00.

(4) Reproduction of 35 mm slides: (per copy) $1.00.

(5) Reproduction of enlarged, black and white photographs: (per copy) $10.00.

(6) Reproduction of enlarged color photographs: (per copy) $17.00.

(7) Certification and validation fee: $1.75 for each certification or validation of a copy of any record.

(8) Categories of FOIA requesters and fees to be charged—(i) Commercial use requesters. When the Corporation receives a request for records for commercial use, it will assess charges to recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Requesters must reasonably describe the records sought.

(ii) Educational and non-commercial scientific institution requesters. The Corporation shall provide copies of records to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research. Requesters must reasonably describe the records sought.

(iii) Requesters who are representatives of the news media. The Corporation shall provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in the definition of representative of the news media in paragraph (a)(6) of this section, and his or her request must not be made for a commercial use. In reference to this class of requester, a request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. Requestors must reasonably describe the records sought.

(iv) All other requesters. The Corporation will charge requesters who do not fit into any of the categories above fees which recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time shall be furnished without charge. Requests from record subjects for records about themselves filed in the Corporation's systems of records will be treated under the fee provisions of the Privacy Act of 1974 which permit fees only for reproduction. Requesters must reasonably describe the records sought.

(9) Interest. In the event a requester fails to remit payment of fees charged for processing a request under this part within 30 days from the date such fees were billed, interest on such fees may be assessed beginning on the 31st day after the billing date at the rate prescribed in section 3717 of title 31 U.S.C., and will accrue from the date of the billing.

(10) Unsuccessful searches. Except as provided in paragraph (b)(8)(iv) of this section, the cost of searching for a requested record shall be charged even if the search fails to locate such record or it is determined that the record is exempt from disclosure.

(11) Aggregating requests. A requester must not file multiple requests at the same time, each seeking portions of a record or records, solely in order to avoid payment of fees. When the Corporation reasonably believes that a requester, or a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the Corporation may aggregate any such requests and charge accordingly.

(12) Advance payments. The Corporation will not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request unless:

(i) The Corporation estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250; or

(ii) If a requester has previously failed to make timely payments (i.e., within 30 days of billing date) of fees charged under this part, the requester may be required to pay the full amount owed plus any applicable interest accrued thereon or demonstrate that he has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the Corporation begins to process a new request or a pending request from this requester.

(iii) With regard to any request coming within paragraphs (b)(12) (i) and (ii) of this section, the administrative time limits set forth in §§902.60, 902.61, and 902.62 of this part will begin to run only after the Corporation has received the requisite fee payments.

(iv) Non-payment. In the event of nonpayment of billed charges for disclosure of records, the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365), including disclosure to consumer credit reporting agencies and referral to collection agencies, where appropriate, may be utilized to obtain payment.

[52 FR 26677, July 16, 1987]

§902.83   Waiver or reduction of fees.

Fees otherwise chargeable in connection with a request for disclosure of a record shall be waived or reduced where:

(a) Disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester; or

(b) The costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee.

[52 FR 26679, July 16, 1987]



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