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Electronic Code of Federal Regulations

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

Title 39: Postal Service


PART 3004—PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT


Contents
§3004.1   Purpose.
§3004.2   Presumption of openness.
§3004.10   Public records.
§3004.11   Use of exemptions.
§3004.12   Reading room.
§3004.13   Notice and publication of public information.
§3004.20   Commission procedure when served a subpoena.
§3004.30   Relationship among the Freedom of Information Act, the Privacy Act, and the Commission's procedures for according appropriate confidentiality.
§3004.40   Hard copy requests for records and for expedited processing.
§3004.41   Electronic requests for records and for expedited processing.
§3004.42   Tracking of requests.
§3004.43   Response to requests.
§3004.44   Appeals.
§3004.45   Extension of response time limit.
§3004.50   Fees—definitions as used in this part.
§3004.51   Fees—request category.
§3004.52   Fees—general provisions.
§3004.53   Fee schedule.
§3004.54   Procedure for assessing and collecting fees.
§3004.60   Chief Freedom of Information Act Officer.
§3004.61   Freedom of Information Act Public Liaison.
§3004.70   Third-party submission of non-public materials.

Authority: 5 U.S.C. 552; 39 U.S.C. 503.

Source: 74 FR 57256, Nov. 5, 2009, unless otherwise noted.

§3004.1   Purpose.

(a) This part implements the Freedom of Information Act (FOIA), 5 U.S.C. 552, and describes the procedures by which a person may request copies of Commission records pursuant to FOIA. It contains the rules that the Commission follows in handling requests, such as the amount of time it has to make a determination regarding release of records and what fees to charge. It also describes how a submitter of trade secrets or confidential business information can identify information that the submitter believes to be exempt from disclosure under 5 U.S.C. 552(b).

(b) Information required to be published or made available pursuant to 5 U.S.C. 552(a)(1) and (a)(2) may be found in 39 CFR part 3002, and on the Commission's Web site at http://www.prc.gov. The Commission's guide to FOIA, all required FOIA indexes, and recent annual FOIA reports are also available on the Web site.

(c) Section 3004.10 identifies records that the Commission has determined to be public.

§3004.2   Presumption of openness.

(a) The Commission shall be proactive, and systematically, in a timely manner, post public records online in advance of any public request.

(b) It is the stated policy of the Commission that FOIA requests shall be administered with a clear presumption of openness.

§3004.10   Public records.

(a) Except as provided in §3004.11 and in §3007.10 of this chapter, the public records of the Commission include all submissions and filings as follows:

(1) Requests of the Postal Service for decisions or advisory opinions, notices, public reports, complaints (both formal and informal), and other papers seeking Commission action;

(2) Financial, statistical and other reports to the Commission, and other filings and submittals to the Commission in compliance with the requirements of any statute, executive order, or Commission rule, regulation or order;

(3) All answers, replies, responses, objections, protests, motions, stipulations, exceptions, other pleadings, notices, depositions, certificates, proofs of service, transcripts and briefs in any matter or proceeding;

(4) Exhibits, attachments and appendices to, amendments and corrections of, supplements to, or transmittals or withdrawals of any of the foregoing; and

(5) Commission correspondence related to the foregoing.

(b) All other parts of the formal record in any matter or proceeding before the Commission and correspondence related thereto, including:

(1) Notices or Commission orders initiating the matter or proceeding;

(2) Designation of the presiding officer;

(3) Transcript of hearings;

(4) Offers of proof, motions and stipulations made during a hearing;

(5) Exhibits received in evidence during a hearing;

(6) Certifications to the Commission; and

(7) Anything else upon which action of a presiding officer or the Commission may be based.

(c) Proposed testimony or exhibits filed with the Commission but not yet offered or received in evidence.

(d) Presiding officer actions and all presiding officer correspondence and memoranda to or from anyone other than staff assigned to provide assistance to the presiding officer.

(e) Commission decisions, reports, opinions, orders, notices, findings, determinations and other actions in any matter or proceeding and all Commission minutes which have been approved.

(f) Commission correspondence relating to any data or information request directed to the Postal Service.

(g) Commission correspondence with respect to the furnishing of data, information, comments, or recommendations to or by another branch, department, or agency of the Government where furnished to satisfy a specific requirement of a statute or where made public by that branch, department, or agency.

(h) Commission correspondence and reports on legislative matters under consideration by the Office of Management and Budget or Congress, but only if and after authorized for release or publication by that office, the Commission, or the Member of Congress involved.

(i) Commission correspondence on the interpretation or applicability of any statute, rule, regulation, decision, advisory opinion, or public report issued by the Commission and letters of opinion on that subject signed by the General Counsel and sent to persons other than the Commission, a Commissioner, or any of the staff.

(j) Copies of all filings by the Commission, and all orders, judgments, decrees, and mandates directed to the Commission in court proceedings involving Commission action and all correspondence with the courts, or clerks of court.

(k) The Commission's administrative and operating manuals as issued.

§3004.11   Use of exemptions.

(a) Under FOIA, there are nine exemptions which may be used to protect information from disclosure. The Commission has paraphrased the exemptions in paragraphs (b) through (j) of this section. These paraphrases are not intended to be interpretations of the exemptions.

(b) National security information concerning national defense or foreign policy, provided that such information has been properly classified, in accordance with an Executive Order.

(c) Information related solely to the internal personnel rules and practices of an agency.

(d) Information specifically exempted from disclosure by statute, for example, 39 U.S.C. 410(c):

(1) The name or address, past or present, of any postal patron;

(2) Information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed;

(3) Information prepared for use in connection with the negotiation of collective bargaining agreements under 39 U.S.C. chapter 12, or minutes of, or notes kept during negotiating sessions conducted under such chapter;

(4) Information prepared for use in connection with proceedings under 39 U.S.C. chapter 36; and

(5) The reports and memoranda of consultants or independent contractors except to the extent that they would be required to be disclosed if prepared within the agency.

(e) Trade secrets and commercial or financial information which is obtained from a person and is privileged or confidential.

(f) Inter-agency or intra-agency memoranda or letters, which would not be available by law to a party other than an agency in litigation with the agency.

(g) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

(h) Records or information compiled for law enforcement purposes, the release of which:

(1) Could reasonably be expected to interfere with enforcement proceedings;

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

(3) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(4) Could reasonably be expected to disclose the identity of a confidential source and investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or

(5) Could reasonably be expected to endanger the life or physical safety of any individual.

(i) Information contained in or related to examination, operating, or condition reports, prepared by, or on behalf of, or for the use of an agency responsible for regulating or supervising financial institutions.

(j) Geological and geophysical information and data, including maps, concerning wells.

(k) It is Commission policy to make records publicly available upon request, unless the record qualifies for exemption under one or more of the nine exemptions. It is Commission policy to make discretionary releases; however, a discretionary release is not normally appropriate for records exempt under exemptions identified in paragraphs (b), (d), (e), (g), (h)(3) and (h)(5) of this section. The remainder of the exemptions are discretionary.

(l) The following are examples of information that is not part of the public records of the Commission:

(1) Written communications between or among the Commission, members of the Commission, the Secretary, and expressly designated staff members while particularly assigned, in accordance with all applicable legal requirements, to aid the Commission in the drafting of any decision, notice, order, advisory opinion, or public report and findings, with or without opinion, or report in any matter or proceeding;

(2) Reports and records compiled or created by the Inspector General of the Commission designated as confidential; and

(3) Unaccepted offers of settlement in any matter or proceeding unless or until made public by act of the offeror.

§3004.12   Reading room.

(a) The Commission maintains a public reading room at its offices (901 New York Avenue, NW., Suite 200, Washington, DC 20268-0001) and an electronic reading room at http://www.prc.gov. The public reading room at its offices is open during business hours.

(b) The records available for public inspection and printing include, for example, decisions; reports; opinions; orders; notices; findings; determinations; statements of policy; copies of selected records released under FOIA; indexes required to be maintained under FOIA; and records described in §3004.10 relating to any matter or proceeding before the Commission.

(c) The Commission shall make available, in the electronic and physical reading rooms, records previously released under FOIA and which the Commission determines are or are likely to become of significant public interest.

§3004.13   Notice and publication of public information.

(a) Decisions, advisory opinions, orders, and public reports will be made available to the public by posting on the Commission's Web site at http://www.prc.gov.

(b) Descriptions of the Commission's organization, its methods of operation, statements of policy and interpretations, and procedural and substantive rules, are published in the Federal Register publication system, and are available on the Commission's Web site, http://www.prc.gov.

§3004.20   Commission procedure when served a subpoena.

If an officer or employee of the Commission is served with a subpoena duces tecum, material that is not part of the public files and records of the Commission shall be produced only as authorized by the Commission. Service of such a subpoena shall immediately be reported to the Commission with a statement of all relevant facts. The Commission will thereupon enter such order or give such instructions as it deems advisable.

§3004.30   Relationship among the Freedom of Information Act, the Privacy Act, and the Commission's procedures for according appropriate confidentiality.

(a) Coverage. FOIA applies to all Commission records and provides the public with access to government records.

(b) Requesting records subject to the Privacy Act. A request by an individual for his or her own records contained in a system of records is governed by the Privacy Act. Release will first be considered under the Privacy Act pursuant to part 3003 of this chapter. However, if there is any record that the Commission need not release under the Privacy Act, the Commission will also consider the request under FOIA, and will release the record if FOIA requires it.

(c) Requesting another individual's record. Request for records of individuals which may not be granted under the Privacy Act shall be considered under FOIA.

(1) If the Commission makes a disclosure in response to a request and the disclosure is permitted by the Privacy Act's disclosure provision, 5 U.S.C. 552a(b), the Commission will rely on the Privacy Act to govern the disclosure.

(2) In some circumstances, the Privacy Act may prohibit the Commission's ability to release records which may be released under FOIA.

(d) Requesting a Postal Service record. The Commission maintains custody of records that are both Commission and Postal Service records.

(1) A request made pursuant to FOIA for records designated as non-public by the Postal Service shall be referred to the Postal Service; and

(2) A request made pursuant to part 3007 of this chapter for records designated as non-public by the Postal Service shall be considered under the applicable standards set forth in that part.

(e) Requesting a third-party record submitted under seal. The Commission maintains records of a confidential nature submitted by third parties as non-public materials.

(1) A request made pursuant to FOIA for records designated as non-public by a third party shall be considered in light of all applicable exemptions; and

(2) A request made pursuant to part 3007 of this chapter for records designated as non-public by a third party shall be considered under the applicable standards set forth in that part.

§3004.40   Hard copy requests for records and for expedited processing.

(a) A hard copy request for records must:

(1) Be in writing;

(2) Include the name and address of the requester;

(3) Reasonably describe the records sought;

(4) Include a daytime telephone number;

(5) Be clearly identified as “Freedom of Information Act Request” both in the text of the request and on the envelope;

(6) Identify the request category under §3004.51; and

(7) Be submitted to the Secretary of the Commission at the offices of the Commission (901 New York Avenue, NW., Suite 200, Washington, DC 20268-0001).

(b) Expedited processing. A person demonstrating a compelling need as defined in 5 U.S.C. 552(a)(6)(E)(v) may request expedited processing at the time of an initial request (or appeal) or at a later time. In addition to the requirements in paragraph (a) of this section, an expedited request for records must:

(1) Demonstrate a compelling need as defined in 5 U.S.C. 552(a)(6)(E)(v);

(2) Be clearly identified as “Expedited Freedom of Information Act Request” both in the text of the request and on the envelope; and

(3) Certify the statement of compelling need to be true and correct to the best of the requester's knowledge and belief. At its discretion, the Commission may waive the requirement for certification.

§3004.41   Electronic requests for records and for expedited processing.

(a) An electronic request for records must:

(1) Be submitted using the Commission's online FOIA request form at http://www.prc.gov;

(2) Reasonably describe the records sought;

(3) Include a daytime telephone number and valid e-mail address; and

(4) Identify the request category under §3004.51.

(b) Expedited processing. A person satisfying the requirements of paragraph (a) of this section may request expedited processing at the time of the initial request or at a later time by:

(1) Demonstrating a compelling need as defined in 5 U.S.C. 552(a)(6)(E)(v);

(2) Clearly identifying the request as an “Expedited Freedom of Information Act Request” in the body of the submission; and

(3) Certifying the statement of compelling need to be true and correct to the best of the requester's knowledge and belief. At its discretion, the Commission may waive the requirement for certification.

§3004.42   Tracking of requests.

(a) Upon receipt of a request, the Commission shall assign a unique tracking number to the request and within 3 days (excluding Saturdays, Sundays and legal holidays) provide that number to the person making the request.

(b) Any person with a tracking number may call or e-mail the Commission's Office of Public Affairs and Government Relations (PAGR) to check the status of a request. PAGR may be e-mailed at PRC-PAGR@prc.gov or called at 202-789-6800.

§3004.43   Response to requests.

(a) Within 20 days (excluding Saturdays, Sundays and legal holidays) after receipt of a request for a Commission record, the Secretary or Assistant Secretary will notify the requester of its determination to grant or deny the request.

(b) Granting request. If granting the request, the Secretary, or Assistant Secretary will notify the requester of any fees that must be paid.

(c) Partial granting of request. If the Commission is unable to grant the request in its entirety, any reasonably segregable portion of the request shall be provided, with deleted portions treated as specified in paragraph (d) of this section, and the Secretary or Assistant Secretary will notify the requester of any fees that must be paid.

(d) Denying request. If denying the request, in whole or in part, the Secretary or Assistant Secretary will inform the requester in writing of:

(1) The reason for the denial, including each exemption used as a basis for withholding of the records sought and, if applicable, the harm to an interest protected by a statutory exemption;

(2) An estimate of the volume of requested matter that was denied:

(i) If disclosure of a record has been partially denied, the amount of information deleted will be indicated on the released portion if technically feasible; and

(ii) If revealing the amount or location of a denied record will harm an interest protected by an exemption, then the description of the amount or location of deleted information shall be withheld.

(3) The right to appeal the denial to the Commission within 1 year.

(e) Expedited processing. Within 10 days (excluding Saturdays, Sundays and legal holidays) after receipt of a request for expedited processing, the Secretary or Assistant Secretary will:

(1) Grant the request for expedited processing and process the request for records as soon as practicable; or

(2) Deny the request for expedited processing by informing the individual of:

(i) The denial in writing;

(ii) The right to appeal the denial to the Commission in writing; and

(iii) The procedures for appealing the denial.

(3) Any request for records that has been denied expedited processing will be processed in the same manner as a request that did not seek expedited processing.

(f) Where a compelling need is not shown in an expedited request as specified in §3004.41(b)(1), the Commission may grant requests for expedited processing at its discretion.

§3004.44   Appeals.

(a) The Commission may review any decision of the Secretary or Assistant Secretary on its own initiative.

(b) A requester who seeks to appeal any denial must file an appeal with the Commission.

(c)(1) The Commission will grant or deny the appeal in writing within 20 days (excluding Saturdays, Sundays and legal holidays) of the date the appeal is received. If on appeal the denial of the request for records is upheld, the Commission will notify the requester of the provisions for judicial review of that determination pursuant to 5 U.S.C. 552(c).

(2) The Commission will expeditiously consider an appeal of a denial of expedited processing.

§3004.45   Extension of response time limit.

(a) The Commission may extend the time limit for a response at the request stage and at the appeal stage up to 10 working days due to unusual circumstances as specified in 5 U.S.C. 552(a)(6)(B)(iii).

(b) The Commission will:

(1) Notify the requester of any extension and the reason for the extension in writing; and

(2) Provide the requester with an opportunity to limit the scope of the request or to arrange an alternative timeframe for processing the request or a modified request. The applicable time limits are not tolled while the Commission waits for a response from the requester under this subsection.

§3004.50   Fees—definitions as used in this part.

Commercial use means a request from or on behalf of a person seeking information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or person on whose behalf the request is made. In determining the applicability of this term, the use to which a requester will put the document is considered first; where reasonable doubt exists as to the use, the Commission may seek clarification before assigning the request to a category.

Direct costs means the expenditures the Commission incurs in searching for, duplicating, and, where applicable, reviewing documents to respond to a request. They include (without limitation) the salary of the employee(s) performing work (the basic pay rate of such employee(s) plus 16 percent to cover benefits).

Duplication means copying the documents necessary to respond to a request. Such copies may be paper, microform, audiovisual, or machine-readable.

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

Noncommercial scientific institution means an institution, not operated on a commercial basis (as referenced above), which is operated solely for the purpose of conducting scientific research whose results are not intended to promote any particular product or industry.

Representative of the news media means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase or by subscription or by free distribution to the general public. These examples are not all inclusive and may include alternate media to disseminate news. A freelance journalist shall be regarded as working for a news media entity if the journalist can demonstrate a solid basis for expecting publication through that entity (e.g., by a publication contract or prior publication record), whether or not the journalist is actually employed by the entity.

Review means examining documents located in response to a request to determine whether any portion is exempt from disclosure, and processing or preparing documents for release, but not determination of general legal or policy issues regarding application of exemptions.

Search includes all time spent looking for material responsive to a request, including identification of pages or lines within documents. The term covers both manual and computerized searching.

§3004.51   Fees—request category.

(a) The level of fee charged depends on the request category.

(1) Commercial use. A request appearing to be for commercial use will be charged the full direct costs of searching for, reviewing, and duplicating the records sought.

(2) Educational and noncommercial scientific institutions. A request from an educational or noncommercial scientific institution will be charged for the cost of duplication only (excluding charges for the first 100 pages). To be eligible for this category, a requester must show that the request is made under the auspices of a qualifying institution and that the records are not sought for commercial use but are in furtherance of scholarly (in the case of educational institutions) or scientific (in the case of noncommercial scientific institutions) research.

(3) News media. A request from a representative of the news media will be charged the cost of duplication only (excluding charges for the first 100 pages).

(4) Other requesters. A request from any other person will be charged the full direct cost of searching for, reviewing, and duplicating records responsive to the request, except that the first 100 pages of duplication and the first 2 hours of search/review will be furnished without charge.

(b) Privacy Act. A request by an individual for his or her own records in a system of records will be charged fees as provided under the Commission's Privacy Act regulations in part 3003 of this chapter.

§3004.52   Fees—general provisions.

(a) The Commission may charge search fees even if no records are found or if the records found are exempt from disclosure.

(b) Except in the case of commercial use requesters, the first 100 pages of duplication and the first 2 hours of search time are provided without charge.

(1) A page for these purposes is a letter- or legal-size sheet, or the equivalent amount of information in a medium other than paper copy.

(2) Search time for these purposes refers to manual searching; if the search is performed by computer, the 2 hours provided without charge will be equal to 2 hours' salary of the person performing the search.

(c) No requester will be charged a fee when the Commission determines that the cost of collecting the fee would equal or exceed the fee itself. In determining whether cost of collection would equal or exceed the fee, the allowance for 2 hours' search or 100 pages of duplication will be made before comparing the remaining fee and the cost of collection.

(d) Records will be provided without charge or at a reduced charge if 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.

(e) No requester will be charged a fee after any search or response which occurs after the applicable time limits as described in §§3004.43 and 3004.44, so long as there are no unusual or exceptional circumstances, such as those used to justify an extension of the time limit as described in §3004.45. The Commission may, however, charge fees for a partial grant of a request while it reviews records that may be exempt and may be responsive to the request, if it is made within the applicable time limits.

§3004.53   Fee schedule.

(a) Fees will be calculated as follows:

(1) Manual search. At the salary rate (basic pay plus 16 percent) of the employee(s) making the search. Search time may be charged for even if the Commission fails to locate records or if records located are exempt from disclosure.

(2) Computer search. At the direct cost of providing the search, including computer search time directly attributable to searching for records responsive to the request runs and employee salary apportionable to the search.

(3) Review (commercial use). At the salary rate (basic pay plus 16 percent) of the employee(s) conducting the review. Charges are imposed only for the review necessary at the initial administrative level to determine the applicability of any exemption, and not for review at the administrative appeal level of an exemption already applied.

(4) Duplication. At 10 cents per page for paper copy, which the Commission has found to be the reasonable direct cost thereof. For copies of records prepared by computer the direct cost of production, including employee time, will be charged.

(5) Additional services. Postage, insurance, and other additional services that may be arranged for by the requester will be charged at actually incurred cost.

(b) In addition to the fee waiver provisions of §3004.52(d), fees may be waived at the discretion of the Commission.

§3004.54   Procedure for assessing and collecting fees.

(a) Advance payment may be required if the requester failed to pay previous bills in a timely fashion or when the fees are likely to exceed $250.

(1) Where the requester has previously failed to pay within 30 days of the billing date, the Commission may require the requester to pay an advance payment of the estimated fee together with either the past due fees (plus applicable interest) or proof that the past fees were paid.

(2) When advance payment is required, the administrative time limits prescribed in 5 U.S.C. 552(a)(6) (§3004.43) begin only after such payment has been received.

(b) Interest at the rate published by the Secretary of the Treasury as prescribed in 31 U.S.C. 3717 will be charged on unpaid fee bills starting on the 31st day after the bill was sent. Receipt of a fee by the Commission, whether processed or not, will stay the accrual of interest.

§3004.60   Chief Freedom of Information Act Officer.

The Commission designates the Secretary of the Commission as the Chief FOIA Officer. The Chief FOIA Officer shall be responsible for the administration of and reporting on the Commission's Freedom of Information Act program.

§3004.61   Freedom of Information Act Public Liaison.

The Commission designates the Director of the Office of Public Affairs and Government Relations or his or her designee as the FOIA Public Liaison who shall assist in the resolution of any dispute between a requester and the Commission. The FOIA Public Liaison may be contacted via e-mail at PRC-PAGR@prc.gov or telephone at 202-789-6800.

§3004.70   Third-party submission of non-public materials.

(a) Overlap with treatment of non-public materials. Any person who submits materials to the Commission (submitter) that the submitter reasonably believes to be exempt from public disclosure may submit materials under seal and lodge an application for nonpublic treatment as described in §3007.10 of this chapter.

(b) Notice of request. Except as provided in §3004.30(d), if a FOIA request seeks materials designated as nonpublic materials, the Commission will provide the submitter with notice of the request. The Commission may also provide notice when it has reason to believe that third-party materials possibly exempt from disclosure may fall within the scope of any FOIA request.

(c) Objections to disclosure. A submitter may file written objections to the request specifying all grounds for withholding the information under FOIA within 7 days of the date of the notice. If the submitter fails to respond to the notice, the submitter will be considered to have no objection, beyond those objections articulated in its application for nonpublic treatment pursuant to §3007.10 of this chapter, to the disclosure of the information.

(d) Notice of decision. If, after considering the submitter's objections to disclosure the Commission decides to disclose the information, it will give the submitter written notice of the decision and a brief explanation of the reasons for not sustaining the submitter's objections. The actual disclosure will not be made before 3 days after publication of the Commission's decision.



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