§ 7.81 - General.

(a) Each officer or employee of the Department who, upon a request by a member of the public for a record under this part, makes a determination that the record is not to be disclosed, shall give a written statement of the reasons for that determination to the person making the request; and indicate the names and titles or positions of each person responsible for the initial determination not to comply with such request, and the availability of an appeal within the Department.

(b) When a request for waiver of fees, pursuant to § 7.97(c) of this part, has been denied in whole or in part, the requester may appeal the denial.

(c) Any person to whom a record has not been made available within the time limits established by subpart C and any person who has been given a determination pursuant to paragraph (a) of this section that a record he or she requested will not be disclosed may appeal to the head of the operating element concerned or, in the case of the Office of the Secretary, to the General Counsel of the Department. Any person who has not received an initial determination on his or her request within the time limits established by subpart C can seek immediate judicial review. Judicial review may be sought without the need to submit first an administrative appeal. Judicial review may be sought in the United States District Court for the judicial district in which the requester resides or has his or her principal place of business, the judicial district in which the records are located, or in the District of Columbia. A determination that a record will not be disclosed and/or that a request for a fee waiver or reduction will not be granted does not constitute final agency action for the purpose of judicial review unless:

(1) It was made by the head of the operating element concerned (or his or her designee), or the General Counsel, as the case may be; or

(2) The applicable time limit has passed without a determination on the initial request or the appeal, as the case may be, having been made.

(d) Each appeal must be made in writing within thirty days from the date of receipt of the original denial and should include all information and arguments relied upon by the person making the request. Such letter should indicate that it is an appeal from a denial of a request made under the Freedom of Information Act. The envelope in which the appeal is sent should be prominently marked: “FOIA Appeal.” If these requirements are not met, the twenty-day limit described in § 7.23 will not begin to run until the appeal has been identified, or would have been identified with the exercise of due diligence, by an employee of the Department as an appeal under the Freedom of Information Act and has been received, or should have been received, by the appropriate office.

(e) Whenever the head of the operating element concerned, or the General Counsel, as the case may be, determines it to be necessary, he or she may require the person making the request to furnish additional information, or proof of factual allegations, and may order other proceedings appropriate in the circumstances. The decision of the head of the operating element concerned, or the General Counsel, as the case may be, as to the availability of the record or the appropriateness of a fee waiver or reduction constitutes final agency action for the purpose of judicial review.

(f) The decision of the head of the operating element concerned, or the General Counsel, as the case may be, not to disclose a record under this part or not to grant a request for a fee waiver or reduction is considered to be a denial by the Secretary for the purpose of section 552(a)(4)(B) of title 5, United States Code.

(g) Any final determination by the head of an operating element or his or her delegee identified in appendices B through J of this part, not to disclose a record under this part, or not to grant a request for a fee waiver or reduction, is subject to concurrence by the General Counsel or his or her designee.

(h) Upon a determination that an appeal will be denied, the requester shall be informed in writing of the reasons for the denial of the request, and the names and titles or positions of each person responsible for the determination, and that judicial review of the determination is available in the United States District Court for the judicial district in which the requester resides or has his or her principal place of business, the judicial district in which the requested records are located, or the District of Columbia.