§ 2004.5 - Who is responsible for responding to your FOIA request?

§ 2004.5 Who is responsible for responding to your FOIA request?

(a) In general. The FOIA Office is authorized to grant or to deny any requests for agency records that USTR maintains. In determining which records are responsive to a request, we ordinarily will include only the agency records in our possession as of the date that we begin our search. We will notify you if we use any other date.

(b) Consultation, referral and coordination. If we believe that another Federal agency is better able to determine whether a record we locate in response to your request is exempt from disclosure under the FOIA, then we will proceed in one of the following ways:

(1) Consultation. When records originated with USTR but contain within them information of significance to another Federal agency or office, we typically consult with that other entity prior to making a release determination.

(2) Referral. If we believe that a different Federal agency is best able to determine whether to disclose the record, we typically refer responsibility for responding to the request regarding that record to that agency. Ordinarily, the agency that originated the record is presumed to be the best agency to make the disclosure determination. Whenever we refer any part of the responsibility for responding to a request to another agency, we will notify you of the referral, including the name of the agency and that agency's FOIA contact information.

(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the Federal agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement agency responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if an agency locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, we will coordinate with the originating agency to seek its views on disclosure of the record. We then will notify you of the release determination for the record that is the subject of the coordination.

(c) Classified information. On receipt of any request involving classified information, we will determine whether the information is currently and properly classified. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another Federal agency, we will refer responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever an agency's record contains information that has been derivatively classified (for example, when it contains information classified by another agency), we will refer responsibility for responding to that portion of the request to the agency that classified the underlying information.

(d) Timing of responses to consultations and referrals. We will handle all consultations and referrals we receive according to the date that the first agency received the perfected FOIA request.

(e) Agreements regarding consultations and referrals. We may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.