[Federal Register Volume 62, Number 215 (Thursday, November 6, 1997)]
[Rules and Regulations]
[Pages 60014-60025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29061]
[[Page 60014]]
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GENERAL SERVICES ADMINISTRATION
41 CFR Part 105-60
RIN 3090-AG16
Public Availability of Agency Records and Information Materials
AGENCY: Office of Management and Workplace Programs, (GSA).
ACTION: Final rule.
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SUMMARY: The General Services Administration, GSA is revising its
regulations that implement the Freedom of Information Act (FOIA), to
incorporate changes since publication in 1988 of GSA's last final rule
implementing the FOIA. This rule also issues instructions to current
and former GSA employees concerning the response to subpoenas and other
demands in litigation before judicial and administrative tribunals.
DATES: This rule is effective December 8, 1997.
FOR FURTHER INFORMATION CONTACT:
Mary Cunningham, GSA Freedom of Information Act (FOIA) Officer (202-
501-3415); or Helen C. Maus, Office of General Counsel (202-501-1460).
SUPPLEMENTARY INFORMATION: A proposal to revise GSA's regulations that
implement FOIA were published in the Federal Register on March 25,
1997, 62 FR 14081. This rule was not submitted to the Office of
Management and Budget pursuant to Executive Order 12866 of September
30, 1993, Regulatory Planning and Review, because it is not a
significant regulatory action as defined in Executive Order 12866. GSA
has based all administrative decisions underlying this rule on adequate
information concerning the need for and the consequences of this rule,
particularly the subpart that governs responses to subpoenas and other
judicially enforceable demands for material or information.
Specifically, the increase in the number of subpoenas and other demands
to its employees in judicial or administrative proceedings,
particularly in cases in which neither GSA nor the United States is a
party, necessitates detailed and uniform instructions to be followed by
current and former GSA employees.
The Paperwork Reduction Act does not apply because the rule does
not impose information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
The principles of Executive Order 12988 of February 5, 1996, Civil
Justice Reform, have been incorporated where applicable.
The Administrator certifies that this regulatory amendment will not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. Pursuant to 5 U.S.C. 605(b) this rule is therefore
exempt from the initial and final regulatory flexibility analyses
requirements of sections 603 and 604.
Interested persons have been afforded an opportunity to participate
in the making of this rule. Due consideration has been given to the
comments received.
Comprehensive Summary
I. Implementation of the FOIA
These regulations implement the FOIA, which codified Pub. L. 89-487
and amended section 3 of the Administrative Procedure Act, formerly 5
U.S.C. 1002 (1964 ed.). These regulations also implement Pub. L. 93-
502, popularly known as the Freedom of Information Act Amendments of
1974, as amended by Pub. L. 99-570, the Freedom of Information Reform
Act of 1986; and Executive Order 12600, Predisclosure Notification
Procedures for Confidential Commercial Information, of June 23, 1987.
The revisions incorporate predisclosure notification procedures for
confidential commercial information. The revisions also:
(a) Update organizational reference;
(b) Clarify the definition of available records to include
electronic records;
(c) Revise fees for manual searches by clerical staff from $9 to
$13 per hour or fraction of an hour and for manual searches and review
by professional staff from $18 to $29 per hour or fraction of an hour,
to more accurately reflect the full cost of searches and document
review.
(d) Clarify GSA policy with regard to: (1) reconstructing records
and providing incomplete records; (2) explaining compelling reasons for
denial of access to records; and (3) requiring assurance of payment;
(e) Provide instructions on submission of FOIA requests via Telefax
and fee payment by credit card;
(f) Extend the time limit for administrative appeal within GSA from
30 to 120 days; and
(g) Clarify GSA policy with respect to the availability of records
from other sources that have statutory authority to provide information
to the public at set fees.
(h) Incorporate, as appropriate, policies in Executive Order 12988
of February 5, 1996 on Civil Justice Reform.
II. Response to Demands in Judicial or Administrative Proceedings
This rule also amends 41 CFR 105-60.6, which pertains to production
of information pursuant to demands in judicial or administrative
proceedings. 41 CFR 105-60.6 is amended to prescribe instructions and
procedures to be followed by current and former GSA employees with
respect to the production and disclosure of material or information
acquired as a result of performance of the person's official duties or
because of the person's official status in response to judicially
enforceable subpoenas or demands in judicial or administrative
proceedings, except demands from the Congress or in Federal grand jury
proceedings. Included are detailed factors to be considered by the
appropriate authority within the General Services Administration in
determining the Agency's response to a subpoena or other judicially
enforceable demand, including widely acknowledged areas of privilege
that may render disclosure or production inappropriate. Instructions
concerning the appropriate response by employees and former employees
to courts and other authorities are included.
The rules governing responses to subpoenas and demands in judicial
or administrative proceedings provide instructions and procedures for
employees and former employees regarding the internal operations of GSA
and is not intended to be relied upon to create any right or benefit,
substantive or procedural, enforceable at law by a party against the
General Services Administration.
(a) GSA is amending this subpart to set forth uniform prescribed
instructions and procedures to be complied with by current and former
GSA employees concerning disclosure or production of agency materials
or information in judicial or administrative proceedings in response to
a judicially enforceable subpoena or demand. These instructions
establish policy, assign responsibilities and prescribe procedures for
responding to demands for GSA materials or testimony of current and
former GSA employees in judicial and administrative proceedings. The
instructions in 41 CFR subpart 105-60.6 do not apply to requests
unrelated to litigation before judicial or administrative tribunals, to
requests
[[Page 60015]]
made pursuant to the FOIA or Privacy Act, 5 U.S.C. 552 and 552a,
respectively, to demands from the Congress, or to demands in Federal
grand jury proceedings.
(b) These instructions are intended solely to provide an orderly
means by which current and former GSA employees respond to demands for
material and information covered by this rule, and to protect the
interests of the United States, including the safeguarding of
privileged or otherwise sensitive information. This rule is consistent
with the decision in the landmark case of United States ex rel. Touhy
v. Ragen, 340 U.S. 462 (1951) in which the Supreme Court upheld the
ability of an agency head to issue regulations for the preservation of
agency records, determined that an agency employee, acting pursuant to
such instructions, could not be held in contempt of court for declining
to produce records in response to a subpoena duces tecum. Accordingly,
current and former GSA employees shall respond to the party on whose
behalf the demand is issued only in accordance with the instructions
and procedures required by 41 CFR subpart 105-60.6. Furthermore, the
GSA can refuse to disclose materials or make information available
based on the factors set forth in 41 CFR 105-60.605. These instructions
and procedures are not intended to preclude disclosures or productions
in compliance with court orders except where disclosure would be
inappropriate even if required by a court, e.g., where disclosure would
be legally prohibited or would be contrary to a recognized privilege.
Summary of Comments
GSA received two comments in response to its proposed rule. One
comment was from an internal agency component and the other was
external.
I. Comments on FOIA-Related Sections of the Rule
Both commenters indicated that the proposed rule does not address
amendments to the FOIA required by the Electronic Freedom of
Information Act Amendments of 1996, Pub. L. 104-231. The intent of the
proposed rule was to amend GSA's current FOIA regulations to address
changes occasioned by reorganizations within GSA, to incorporate
formally procedures for notifying submitters of commercial or financial
information of a request, entertain reasons for nondisclosure, and to
provide procedures, for responding to subpoenas for GSA materials or
information. This rule is not intended to address the recent amendments
to the FOIA. Changes required by the amendments will be the subject of
a subsequent proposed rule.
The internal GSA comment raised a number of issues--some
nonsubstantive/editorial comments have been adopted. For the reasons
which follow, substantive internal and external comments have or have
not been adopted.
Subsection. 105-60.103-1. It is suggested that the FOIA does not
require that GSA perform ``minor reprogramming'' when doing so is not
costly or burdensome. We have adopted this suggestion and amended this
subsection to read that GSA ``may perform minor reprogramming'' when
doing so is not costly or burdensome.
Subsection. 105-60.103-2. It is recommended that the final rule
modify or eliminate the requirement that a denial of information
requested under the FOIA cite the compelling reason for denying access.
The reason being that the current FOIA statutory exemptions already
describe the basis for nondisclosure.
We have adopted this suggestion by eliminating the ``compelling
reason'' language because other provisions of the rule encompass the
intent. GSA's existing FOIA procedures state that the reasons for
withholding will be clearly described in the letter to the requester,
and GSA will not invoke an exemption if disclosure will cause no
demonstrable harm to any governmental or private interest. 41 CFR 150-
60.501(b), (c). We consider a demonstrable harm to any governmental or
private interest to be a compelling reason for invoking a FOIA
exemption. We have therefore eliminated the ``compelling reason''
language and substituted language stating that the harm to a
Governmental or private interest will be specifically described in the
denial letter to the requester.
Subsection. 105-60.305-1(d). As proposed, this subsection stated
that GSA ``will'' provide a copy of the material in a form usable by
the requester unless administratively burdensome to do so. It is
recommended that this language be changed to read that to the extent
``practicable'' GSA will provide a copy of the material in the form
specified by the requester. We have adopted this suggestion because the
phrase ``to the extent practicable'' is deemed to encompass the concept
of ``administratively burdensome.''
Subsection. 105-60.305-4(b). This subsection, as proposed, includes
a provision that GSA will make copies of voluminous records available
to a requester as quickly as possible and provide a number of
``additional'' copies of requested material when commercial
reproduction services are not available to a requester. It is suggested
that the first sentence of this provision be deleted because it is
inconsistent with a provision in Sec. 105-60.305-4(a) which allows GSA
discretion to provide a requester the opportunity to receive copies or
to review originals for inspection and copying. These subsections were
not intended to be inconsistent or mutually exclusive. We have
therefore made the following adjustments. Subsections 60.105-305-4(a)
and (b) are amended to provide that GSA may offer a requester who seeks
voluminous records not subject to exemption an option to review them at
a mutually agreeable place and time and thereby avoid duplication fees
for records not desired by the requester.
II. Comments on Subpoena-Related Section of the Proposed Rule
One commenter stated that so-called ``Touhy'' regulations of this
kind are not separate authority to withhold information. It is not the
intent of the proposed rule to confer such authority. Authority to
withhold information in a litigative context is typically predicated on
grounds and privileges recognized in statute, judicial interpretation,
rules applicable to a particular forum or the Common Law. We have
therefore added language to clarify that this regulation is not an
independent authority to withhold information.
A commenter indicated that in cases where the agency/U.S.
Government is a party a Touhy regulation cannot interfere with the
application of the Federal Rules of Civil Procedure. It is not the
intent of these regulations to do so. We have therefore added
introductory language that states that where GSA is a party to a
proceeding, nothing in these regulations shall operate or be
interpreted to supersede or circumvent rules of procedures applicable
to the forum in which the matter is pending. We have also made a
conforming adjustment to the language in Sec. 105-60.605(b). We have
not, however, altered the language in Sec. 105-60.105(b) which provides
that the appropriate authority may, at the request of the U.S.
Department of Justice, waive the requirements in this rule where the
United States is a party. Because the U.S. Department of Justice
typically represents the United States and its departments and agencies
in litigation, we believe the extent to which a waiver in such cases is
or is not appropriate in a particular case should be the result of a
collaborative effort between our agencies.
[[Page 60016]]
Subsection 105-60.605(a). Both commenters questioned GSA's
authority and/or ability to control the testimony of former employees.
For reasons which follow, we have not adopted any suggestion that the
regulations should not apply to former employees. A primary purpose
behind the Touhy regulations is the establishment of a systematic means
by which an agency can evaluate requests for production of official
agency information and determine the extent to which there are legally
defensible reasons for objection to production. These legitimate agency
interests exist regardless of whether the requested information is in
the possession for current or former agency employees.
When GSA becomes aware of a subpoena to a former employee for
production of official GSA information through testimony or document
production, it intends to use legally available means to ensure that
agency interests are protected.
Subsection 105-60.605(b). A commenter suggested that an appropriate
basis for waiver of the requirements in this rule are cases in which
the United States has an interest in addition to cases in which the
United States is a party. The situation may arise in so-called ``qui
tam'' suits. We have added language to this section that recognizes
this type of litigation which may, in coordination with the U.S.
Department of Justice, be a situation in which a waiver may be
appropriate.
Subsection 105-60.605(e). A commenter recommended that the list of
factors to be considered by the appropriate authority in responding to
demands contain the language ``include, but are but are not limited
to:.'' The factors in Sec. 105-60.605(e) already contemplate ``[A]ny
additional factors unique to a particular demand for proceeding.''
Because this provision already incorporates the commenter's suggestion
it has not been adopted.
List of Subjects in 41 Part 105-60
Freedom of information.
For the reasons set out in the preamble, 41 CFR part 105-60 is
revised to read as follows:
PART 105-60--PUBLIC AVAILABILITY OF AGENCY RECORDS AND
INFORMATIONAL MATERIALS
Sec.
105-60.000 Scope of part.
Subpart 105.60.1--General Provisions
105-60.101 Purpose.
105-60.102 Application.
105-60.103 Policy.
105-60.103-1 Availability of records.
105-60.103-2 Applying exemptions.
105-60.104 Records of other agencies.
Subpart 105-60.2--Publication of General Agency Information and Rules
in the Federal Register
105-60.201 Published information and rules.
105-60.202 Published materials available for sale to the public.
Subpart 105-60.3--Availability of Opinions, Orders, Policies,
Interpretations, Manuals, and Instructions
105-60.301 General.
105-60.302 Available materials.
105-60.303 Rules for public inspection and copying.
105-60.304 Index.
105-60.305 Fees.
105-60.305-1 Definitions.
105-60.305-2 Scope of this subpart.
105-60.305-3 GSA records available without charge.
105-60.305-4 GSA records available at a fee.
105-60.305-5 Searches.
105-60.305-6 Reviews.
105-60.305-7 Assurance of payment.
105-60.305-8 Prepayment of fees.
105-60.305-9 Form of payment.
105-60.305-10 Fee schedule.
105-60.305-11 Fees for authenticated and attested copies.
105-60.305-12 Administrative actions to improve assessment and
collection of fees.
105-60.305-13 Waiver of fee.
Subaprt 105-60.4--Described Records
105-60.401 General.
105-60.402 Procedures for making records available.
105-60.402-1 Submission of requests.
105-60.402-2 Response to initial requests.
105-60.403 Appeal within GSA.
105-60.404 Extension of time limits.
105-60.405 Processing requests for confidential commercial
information.
Subpart 105-60.5--Exemptions
105-60.501 Categories of records exempt from disclosure under the
FOIA.
Subpart 105-60.6--Production or Disclosure by Present or Former General
Services Administration Employees in Response to Subpoenas or Similar
Demands in Judicial or Administrative Proceedings.
105-60.601 Purpose and scope of subpart.
105-60.602 Definitions.
105-60.603 Acceptance of service of a subpoena duces tecum or other
legal demand on behalf of the General Services Administration.
105-60.604 Production or disclosure prohibited unless approved by
the Appropriate Authority.
105-60.605 Procedure in the event of a demand for production or
disclosure.
105-60.606 Procedure where response to demand is required prior to
receiving instructions.
105-60.607 Procedure in the event of an adverse ruling.
105-60.608 Fees, expenses, and costs.
Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 486(c).
Sec. 105-60.000 Scope of part.
(a) This part sets forth policies and procedures of the General
Services Administration (GSA) regarding public access to records
documenting:
(1) Agency organization, functions, decisionmaking channels, and
rules and regulations of general applicability;
(2) Agency final opinions and orders, including policy statements
and staff manuals;
(3) Operational and other appropriate agency records; and
(4) Agency proceedings.
(b) This part also covers exemptions from disclosure of these
records, procedures for the public to inspect or obtain copies of GSA
records, and instructions to current and former GSA employees on the
response to a subpoena or other legal demand for material or
information received or generated in the performance of official duty
or because of the person's official status.
(c) Any policies and procedures in any GSA internal or external
directive inconsistent with the policies and procedures set forth in
this part are superseded to the extent of that inconsistency.
Subpart 105-60.1--General Provisions
Sec. 105-60.101 Purpose.
This part 105-60 implements the provisions of the Freedom of
Information Act (FOIA), as amended, 5 U.S.C. 552. The regulations in
this part also implement Executive Order 12600, Predisclosure
Notification Procedures for Confidential Commercial Information, of
June 23, 1987 (3 CFR, 1987 Comp., p. 235). This part prescribes
procedures by which the public may inspect and obtain copies of GSA
records under the FOIA, including administrative procedures that must
be exhausted before a requester invokes the jurisdiction of an
appropriate United States District Court for GSA's failure to respond
to a proper request within the statutory time limits, for a denial of
agency records or challenge to the adequacy of a search, or for a
denial of a fee waiver.
Sec. 105-60.102 Application.
This part applies to all records and informational materials
generated, maintained, and controlled by GSA that come within the scope
of 5 U.S.C. 552.
Sec. 105-60.103 Policy.
Sec. 105-60.103-1 Availability of records.
The policies of GSA with regard to the availability of records to
the public are:
[[Page 60017]]
(a) GSA records are available to the greatest extent possible in
keeping with the spirit and intent of the FOIA. GSA will disclose
information in any existing GSA record, with noted exceptions,
regardless of the form or format of the record. For example, records
maintained in an electronic form, as part of a data base, will be
provided on request using existing programming. GSA will provide the
record in the form or format requested if the record is readily
reproducible by the agency in that form or format. GSA will make
reasonable efforts to maintain its records in forms or formats that are
reproducible for purposes of this section.
(b) the person making the request does not need to demonstrate an
interest in the records or justify the request.
(c) The FOIA does not give the public the right to demand that GSA
compile a record that does not already exist. For example, FOIA does
not require GSA to collect and compile information from multiple
sources to create a new record or to develop a new computer program to
extract requested records. GSA may compile records or perform minor
reprogramming when doing so will not significantly interfere with the
operation of the automated system already in existence.
(d) Similarly, FOIA does not require GSA to reconstruct records
that have been destroyed in compliance with disposition schedules
approved by the Archivist of the United States. However, GSA will not
destroy records after a member of the public has requested access to
them and will process the request even if destruction has already been
scheduled.
(e) If the record requested is not complete at the time of the
request, GSA may, at its discretion, inform the requester that the
complete record will be provided when it is available, with no
additional request required, if the record is not exempt from
disclosure.
(f) Requests must be addressed to the office identified in
Sec. 105-60.402-1.
(g) Fee for locating and duplicating records are listed in
Sec. 105-60.305-10.
Sec. 108-60.103-2 Applying exemptions.
GSA may deny a request for a GSA record if it falls within an
exemption under the FOIA outlined in subpart 105-60.5 of this part.
Except when a record is classified or when disclosure would violate any
Federal statute, the authority to withhold a record from disclosure
will likely cause harm to a Governmental or private interest. GSA will
explain the harm to requesters when a record is denied under FOIA.
Sec. 105-60.104 Records of other agencies.
If GSA receives a request for access to records that are known to
be the primary responsibility of another agency, GSA will refer the
request to the agency concerned for appropriate action. For example,
GSA will refer requests to the appropriate agency in cases in which GSA
does not have sufficient knowledge of the action or matter that is the
subject of the requested records to determine whether the records must
be released or may be withheld under one of the exemptions listed in
Sec. 105-60.5. If GSA does not have the requested records, the agency
will attempt to determine whether the requested records exist at
another agency and, if possible, will forward the request to that
agency. GSA will inform the requester that GSA has forwarded the
request to another agency.
Subpart 105-60.2--Publication of General Agency Information and
Rules in the Federal Register
Sec. 105-60.201 Published information and rules.
In accordance with 5 U.S.C. 552(a)(1), GSA publishes in the Federal
Register, for the guidance of the public, the following general
information concerning GSA:
(a) Description of the organization of the Central Office and
regional offices and the established places at which, the employees
from whom, and the methods whereby, the public may obtain information,
make submittals or requests, or obtain decisions;
(b) Statements of the general course and method by which its
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 or the
places where forms may be obtained, and instructions on 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 formulated and adopted by GSA; and
(e) Each amendment, revision, or repeal of the materials described
in this section.
Sec. 105-60.202 Published materials available for sale to the public.
(a) Substantive rules of general applicability adopted by GSA as
authorized by law which this agency publishes in the Federal Register
and which are available for sale to the public by the Superintendent of
Documents at pre-established prices are: The General Services
Administration Acquisition Regulation (48 CFR Ch. 5), the Federal
Acquisition Regulation (48 CFR Ch. 1), the Federal Property Management
Regulations (41 CFR Ch. 101), and the Federal Travel Regulation (41 CFR
Ch. 301-304).
(b) GSA also provides technical information, including manuals and
handbooks, to other Federal entities, e.g., the National Technical
Information Service, with separate statutory authority to make
information available to the public at pre-established fees.
(c) Requests for information available through the sources in
paragraphs (a) and (b) of this section will be referred to those
sources.
Subpart 105-60.3--Availability of Opinions, Orders, Policies,
Interpretations, Manuals, and Instructions
Sec. 105-60.301 General.
GSA makes available to the public the materials described under 5
U.S.C. 552(a)(2), which are listed in Sec. 105-60.302, at the locations
listed in Sec. 105-60.303. An Index of those materials as described in
Sec. 105-60.304 is available at GSA's Central Office in Washington, DC.
Reasonable copying services are provided at the fees specified in
Sec. 105-60.305.
Sec. 105-60.302 Available materials.
GSA materials available under this subpart 105-60.3 are as follows:
(a) Final opinions, including concurring and dissenting opinions
and orders, made in the adjudication of cases.
(b) Those statements of policy and interpretations that have been
adopted by GSA and are not published in the Federal Register.
(c) Administrative staff manuals and instructions to staff
affecting a member of the public unless these materials are promptly
published and copies offered for sale.
Sec. 105-60.303 Rules for public inspection and copying.
(a) Locations. Selected areas containing the materials available
for public inspection and copying, described in Sec. 105-60.302, are
located in the following places:
Central Office (GSA Headquarters)
General Services Administration, Washington, DC, Telephone: 202-501-
2262 or 202-501-1659, FAX: 202-501-2727, 1800 F Street, NW. (CAI),
Washington, DC 20405
[[Page 60018]]
Office of the Inspector General
FOIA Officer, Office of Inspector General (J), General Services
Administration, 1800 F Street NW., Room 5324, Washington, DC 20405
New England Region
General Services Administration (1AB) (Comprised of the States of
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and
Vermont), Thomas P. O'Neill, Jr., Federal Building, 10 Causeway
Street, Boston, MA 02222, Telephone: 617-565-8100, FAX: 617-565-8101
Northeast and Caribbean Region
(Comprised of the States of New Jersey, New York, the Commonwealth
of Puerto Rico, and the Virgin Islands), General Services
Administration (2AR), 26 Federal Plaza, New York, NY 10278,
Telephone: 212-264-1234, FAX: 212-264-2760.
Mid-Atlantic Region
(Comprised of the States of Delaware, Maryland, Pennsylvania,
Virginia, and West Virginia, excluding the Washington, D.C.
metropolitan area), General Services Administration (3ADS), 100 Penn
Square East, Philadelphia, PA 19107, Telephone: 215-656-5530, FAX:
215-656-5590
Southeast Sunbelt Region
(Comprised of the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee), General
Services Administration (4E), 401 West Peachtree Street, Atlanta,
GA, 30365, Telephone: 404-331-5103, FAX: 404-331-1813
Great Lakes Region
(Comprised of the States of Illinois, Indiana, Ohio, Minnesota,
Michigan, and Wisconsin), General Services Administration (5ADB),
230 South Dearborn Street, Chicago, IL 60604, Telephone: 312-353-
5383, FAX: 312-886-9893
Heartland Region
(Comprised of the States of Iowa, Kansas, Missouri, and Nebraska),
General Services Administration (6ADB), 1500 East Bannister Road,
Kansas City, MO 64131, Telephone: 816-926-7203, FAX: 816-823-1167
Greater Southwest Region
(Comprised of the States of Arkansas, Louisiana, New Mexico, Texas,
and Oklahoma), General Services Administration (7CPA), 819 Taylor
Street, Fort Worth, TX 76102, Telephone: 817-978-3902, FAX: 817-978-
4867
Rocky Mountain Region
(Comprised of the States of Colorado, North Dakota, South Dakota,
Montana, Utah, and Wyoming), Business Service Center, General
Services Administration (8PB-B), Building 41, Denver Federal Center,
Denver, CO 80225, Telephone: 303-236-7408, FAX: 303-236-7403
Pacific Rim Region
(Comprised of the States of Hawaii, California, Nevada, Arizona,
Guam, and Trust Territory of the Pacific), Business Service Center,
General Services Administration (9ADB), 525 Market Street, San
Francisco, CA 94105, Telephone: 415-522-2715, FAX: 415-522-2705
Northwest/Arctic Region
(Comprised of the States of Alaska, Idaho, Oregon, and Washington),
General Services Administration (10L), GSA Center, 15th and C
Streets, SW, Auburn, WA 98002, Telephone: 206-931-7007, FAX: 206-
931-7195
National Capital Region
(Comprised of the District of Columbia and the surrounding
metropolitan area), General Services Administration, (WPFA-L), 7th
and D Streets SW., Washington, DC 20407, Telephone: 202-708-5854,
FAX: 202-205-2478
(b) Time. The reading rooms or selected areas will be open to the
public during the business hours of the GSA office where they are
located.
(c) Reading room and selected area rules.--(1) Handling of
materials. The removal or mutilation of materials is forbidden by law
and is punishable by fine or imprisonment or both. When requested by a
reading room or selected area attendant, a person inspecting materials
must present for examination any briefcase, handbag, notebook, package,
envelope, book or other article that could contain GSA informational
materials.
(2) Reproduction services. The GSA Central Office or the Regional
Business Service Centers will furnish reasonable copying and
reproduction services for available materials at the fees specified in
Sec. 105-60.305.
Sec. 105-60.304 Index.
GSA will make available to any member of the public who requests it
a current index identifying information for the public regarding any
matter described in Sec. 105-60.302.
Sec. 105-60.305 Fees.
Sec. 105-60.305-1 Definitions.
For the purpose of this part:
(a) A statute specifically providing for setting the level of fees
for particular types of records (5 U.S.C. 552(a)(4)(A)(vii)) means any
statute that specifically requires a Government agency to set the level
of fees for particular types of records, as opposed to a statute that
generally discusses such fees. Fees are required by statute to:
(1) Make Government information conveniently available to the
public and to private sector organizations;
(2) Ensure that groups and individuals pay the cost of publications
and other services that are for their special use so that these costs
are not borne by the general taxpaying public;
(3) Operate an information dissemination activity on self-
sustaining basis to the maximum extent possible; or
(4) Return revenue to the Treasury for defraying, wholly or in
part, appropriated funds used to pay the cost of disseminating
Government information.
(b) The term direct costs means those expenditures that GSA
actually incurs in searching for and duplicating (and in the case of
commercial requesters, reviewing and redacting) documents to respond to
a FOIA request. Direct costs include, for example, the salary of the
employee performing the 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. Overhead expenses such as costs of
space, and heating or lighting the facility where the records are
stored are not included in direct costs.
(c) The term search includes all time spent looking for material
that is responsive to a request, including line-by-line identification
of material within documents. Searches will be performed in the most
efficient and least expensive manner so as to minimize costs for both
the agency and the requester. Line-by-line searchers will not be
undertaken when it would be more efficient to duplicate the entire
document. ``Search'' for responsive material is not the same as
``review'' of a record to determine whether it is exempt from
disclosure in whole or in part (see paragraph (e) of this section).
Searches may be done manually or by computer using existing
programming.
(d) The term duplication means the process of making a copy of a
document in response to a FOIA request. Copies can take the form of
paper, microfilm, audiovisual materials, or magnetic tapes or disks. To
the extent practicable, GSA will provide a copy of the material in the
form specified by the requester.
(e) The term review means the process of examining documents
located in response to a request to determine if any portion of that
document is permitted to be withheld and processing any documents for
disclosure. See Sec. 105-60.305-6.
(f) The term commercial-use request means 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 person
on whose behalf the request is made. GSA will determine whether a
requester properly belongs in this
[[Page 60019]]
category by determining how the requester will use the documents.
(g) The term 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, or an institution of vocational
education that operates a program or programs of scholarly research.
(h) The term noncommercial scientific institution means an
institution that is not operated on a ``commercial'' basis as that term
is used in paragraph (f) of this section and which is operated solely
for the purpose of conducting scientific research the results of which
are not intended to promote any particular product or industry.
(i) The term representative of the news 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 news media 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. ``Freelance''
journalists will be regarded as working for a news organization if they
can demonstrate a solid basis for expecting publication through that
organization even though they are not actually employed by it.
Sec. 105-60.305-2 Scope of this subpart.
This subpart sets forth policies and procedures to be followed in
the assessment and collection of fees from a requester for the search,
review, and reproduction of GSA records.
Sec. 105-60.305-3 GSA records available without charge.
GSA records available to the public are displayed in the Business
Service Center for each GSA region. The address and phone number of the
Business Service Centers are listed in Sec. 105-60.303. Certain
material related to bids (excluding construction plans and
specifications) and any material displayed are available without charge
upon request.
Sec. 105-60.305-4 GSA records available at a fee.
(a) GSA will make a record not subject to exemption available at a
time and place mutually agreed upon by GSA and the requester at fees
shown in Sec. 105-60.305-10. Waivers of these fees are available under
the conditions described in Sec. 105-60.305-13. GSA will agree to:
(1) Show the originals to the requester; or
(2) Make one copy available at a fee; or
(3) A combination of these alternatives.
(b) GSA will make copies of voluminous records as quickly as
possible. GSA may, in its discretion, make a reasonable number of
additional copies for a fee when commercial reproduction services are
not available to the requester.
Sec. 105-60.305-5 Searches.
(a) GSA may charge for the time spent in the following activities
in determining ``search time'' subject to applicable fees as provided
in Sec. 105-60.305-10:
(1) Time spent in trying to locate GSA records that come within the
scope of the request;
(2) Time spent in either transporting a necessary agency searcher
to a place of record storage, or in transporting records to the
locations of a necessary agency searcher; and
(3) Direct costs of the use of computer time to locate and extract
requested records.
(b) GSA will not charge for the time spent in monitoring a
requester's inspection of disclosed agency records.
(c) GSA may assess fees for search time even if the search proves
unsuccessful or if the records located are exempt from disclosure.
Sec. 105-60.305-6 Reviews.
(a) GSA will charge only commercial-use requesters for review time.
(b) GSA will charge for the time spent in the following activities
in determining ``review time'' subject to applicable fees as provided
in Sec. 105-60.305-10:
(1) Time spent in examining a requested record to determine whether
any or all of the record is exempt from disclosure, including time
spent consulting with submitters of requested information; and
(2) Time spent in deleting exempt matter being withheld from
records otherwise made available.
(c) GSA will not charge for:
(1) Time spent in resolving issues of law or policy regarding the
application of exemptions; or
(2) Review at the administrative appeal level of an exemption
already applied. However, records or portions of records withheld in
full under an exemption that is subsequently determined not to apply
may be reviewed again to determine the applicability of other
exemptions not previously considered. GSA will charge for such
subsequent review.
Sec. 105-60.305-7 Assurance of payment.
If fees for search, review, and reproduction will exceed $25 but
will be less than $250, the requester must provide written assurance of
payment before GSA will process the request. If this assurance is not
included in the initial request, GSA will notify the requester that
assurance of payment is required before the request is processed. GSA
will offer requesters an opportunity to modify the request to reduce
the fee.
Sec. 105-60.305-8 Prepayment of fees.
(a) Fees over $250. GSA will require prepayment of fees for search,
review, and reproduction that are likely to exceed $250. When the
anticipated total fee exceeds $250, the requester will receive notice
to prepay and at the time will be given an opportunity to modify his or
her request to reduce the fee. When it is anticipated that fees will
exceed $250, GSA will notify the requester that it will not start
processing a request until payment is received.
(b) Delinquent payments. As noted in Sec. 105-60.305-12(d),
requesters who are delinquent in paying for previous requests will be
required to repay the old debt and to prepay for any subsequent
request. GSA will inform the requester that it will process no
additional requests until all fees are paid.
Sec. 105-60.305-9 Form of payment.
Requesters should pay fees by check or money order made out to the
General Services Administration and addressed to the official named by
GSA in its correspondence. Payment may also be made by means of
Mastercard or Visa. For information concerning payment by credit cards,
call 816-926-7551.
Sec. 105-60.305-10 Fee schedule.
(a) When GSA is aware that documents responsive to a request are
maintained for distribution by an agency operating a statutory fee
based program, GSA will inform the requester of the procedures for
obtaining records from those sources.
(b) GSA will consider only the following costs in fees charged to
requesters of GSA records:
(1) Review and search fees.
Manual searches by clerical staff: $13 per hour or fraction of
an hour.
Manual searches and reviews by professional staff in cases in
which clerical
[[Page 60020]]
staff would be unable to locate the requested records: $29 per hour
or fraction of an hour.
Computer searches: Direct cost to GSA.
Transporation or special handling of records: Direct cost to
GSA.
(2) Reproduction fees.
Pages no larger than 8\1/2\ by 14 inches, when reproduced by
routine electrostatic copying: $0.10 per page.
Pages over 8\1/2\ by 14 inches: Direct cost of reproduction to
GSA.
Pages requiring reduction, enlargement, or other special
services: Direct cost of reproduction to GSA.
Reproduction by other than routine electrostatic copying:
Direct cost of reproduction to GSA.
(c) Any fees not provided for under paragraph (b) of this section,
shall be calculated as direct costs, in accordance with Sec. 105-
60.305-1(b).
(d) GSA will assess fees based on the category of the requester as
defined in Sec. 105-60.305-1(f)-(i); i.e., commercial-use, educational
and noncommercial scientific institutions, news media, and all other.
The fees listed in paragraph (b) of this section apply with the
following exceptions:
(1) GSA will not charge the requested if the fee is $25 or less as
the cost of collection would be greater than the fee.
(2) Educational and noncommercial scientific institutions and the
news media will be charged for the cost of reproduction alone. These
requesters are entitled to the first 100 pages (paper copies) of
duplication at no cost. The following are examples of how these fees
are calculated:
(i) A request that results in 150 pages of material. No fee would
be assessed for duplication of 150 pages. The reason is that these
requesters are entitled to the first 100 pages at no charge. The charge
for the remaining 50 pages would be $7.50. This amount would not be
billed under the preceding section.
(ii) A request that results in 450 pages of material. The requester
in this case would be charged $35. The reason is that the requester is
entitled to the first 100 pages at no charge. The charge for the
remaining 350 pages would be $35.
(3) Noncommercial requesters who are not included under paragraph
(d)(2) of this section will be entitled to the first 100 pages (paper
copies) of duplication at no cost and two hours of search without
charge. The term ``search time'' generally refers to manual search. To
apply this term to searchers made by computer, GSA will determine the
hourly cost of operating the central processing unit and the operator's
hourly salary plus 16 percent. When the cost of search (including the
operator time and the cost of operating the computer to process a
request) equals the equivalent dollar amount of two hours of the salary
of the person performing a manual search, GSA will begin assessing
charges for computer search.
(4) GSA will charge commercial-use requesters fees which recover
the full direct costs of searching for, reviewing for release, and
duplicating the records sought. Commercial-use requester are not
entitled to two hours of free search time.
(e) Determining the category of a requester. GSA may ask any
requester to provide additional information at any time to determine
his or her fee category.
Sec. 105-60.305-11 Fees for authenticated and attested copies.
The fees set forth in Sec. 105-60.305-10 apply to requests for
authenticated and attested copies of GSA records.
Sec. 105-60.305-12 Administrative actions to improve assessment and
collection of fees.
(a) Charging interest. GSA may charge requesters who fail to pay
fees interest on the amount billed starting on the 31st day following
the month on which the billing was sent. Interest will be at the rate
prescribed in 31 U.S.C. 3717.
(b) Effect of the Debt Collection Act of 1982. GSA will take any
action authorized by the Debt Collection Act of 1982 (Pub. L. 97-365,
96 Stat. 1749), including disclosure to consumer reporting agencies,
use of collection agencies, and assessment of penalties and
administrative costs, where appropriate, to encourage payment.
(c) Aggregating requests. When the GSA reasonably believes that a
requester, or group of requesters acting in concert, is attempting to
break down a request into a series of requests related to the same
subject for the purpose of evading the assessment of fees, GSA will
combine any such requests and charges accordingly, including fees for
previous requests where charges were not assessed. GSA will presume
that multiple requests of this type within a 30-day period are made to
avoid fees.
(d) Advance payments. Whenever a requester is delinquent in paying
the fee for a previous request (i.e., within 30 days of the date of the
billing), GSA will require the requester to pay the full amount owed
plus any applicable interest penalties and administrative costs as
provided in paragraph (a) of this section or to demonstrate that he or
she has, in fact, paid the fee. In such cases, GSA will also require
advance payment of the full amount of the estimated fee before the
agency begins to process a new request or a pending request from that
requester. When advance payment is required under this section, the
administrative time limits in subsection (a)(6) of the FOIA (i.e., 10
working days from receipt of appeals from initial denial plus
permissible time extensions) will begin only after GSA has received the
fee payments described in Sec. 105-60.305-8.
Sec. 105-60.305-13 Waiver of fee.
(a) Any request for waiver or reduction of a fee should be included
in the initial letter requesting access to GSA records under Sec. 105-
60.402-1. The waiver request should explain how disclosure of the
information would contribute significantly to public understanding of
the operations or activities of the Government and would not be
primarily in the commercial interest of the requester. In responding to
a request, GSA will consider the following factors:
(1) Whether the subject of the requested records concerns ``the
operations or activities of the Government.'' The subject matter of the
requested records must specifically concern identifiable operations or
activities of the Federal Government. The connection between the
records and the operations or activities must be direct and clear, not
remote or attenuated.
(2) Whether the disclosure is ``likely to contribute'' to an
understanding of Government operations or activities. In this
connection, GSA will consider whether the requested information is
already in the public domain. If it is, then disclosure of the
information would not be likely to contribute to an understanding of
Government operations or activities, as nothing new would be added to
the public record.
(3) Whether disclosure of the requested information will contribute
to ``public understanding.'' The focus here must be on the contribution
to public understanding rather than personal benefit to be derived by
the requester. For purposes of this analysis, the identity and
qualifications of the requester should be considered, to determine
whether the requester is in a position to contribute to public
understanding through the requested disclosure.
(4) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and if so: whether the magnitude
of the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the
requester.''
[[Page 60021]]
(b) GSA will ask the requester to furnish additional information if
the initial request is insufficient to evaluate the merits of the
request. GSA will not start processing a request until the fee waiver
issue has been resolved unless the requester has provided written
assurance of payment in full if the fee waiver is denied by the agency.
Subpart 105-60.4--Described Records
Sec. 105-60.401 General.
(a) Except for records made available in accordance with subparts
105-60.2 and 105-60.3 of this part, GSA will make records available to
a requester promptly when the request reasonably describes the records
unless GSA invokes an exemption in accordance with Subpart 105-60.5 of
this part. Although the burden of reasonable description of the records
rests with the requester, whenever practical GSA will assist requesters
to describe records more specifically.
(b) Whenever a request does not reasonably describe the records
requested, GSA may contact the requester to seek a more specific
description. The 10-workday time limit set forth in Sec. 105-60.402-2
will not start until the official identified in Sec. 105-60.402-1 or
other responding official receives a request reasonably describing the
records.
Sec. 105-60.402 Procedures for making records available.
This subpart sets forth initial procedures for making records
available when they are requested, including administrative procedures
to be exhausted prior to seeking judicial review by an appropriate
United States District Court.
Sec. 105-60.402-1 Submission of requests.
For records located in the GSA Central Office, the requester must
submit a request in writing to the GSA FOIA Officer, General Services
Administration (CAIR), Washington, DC 20405. Requesters may FAX
requests to (202) 501-2727, or submit a request by e-mail to
gsa.foi@gsa.gov. For records located in the Office of Inspector
General, the requester must submit a request to the FOIA Officer,
Office of Inspector General, General Services Administration, 1800 F
Street NW., Room 5324, Washington, DC 20405. For records located in the
GSA regional offices, the requester must submit a request to the FOIA
Officer for the relevant region, at the address listed in Sec. 105-
60.303(a). Requests should include the words ``Freedom of Information
Act Request'' prominently marked on both the face of the request letter
and the envelop. The 10-workday time limit for agency decisions set
forth in Sec. 105-60.402-2 begins with receipt of a request in the
office of the official identified in this section, unless the
provisions under Secs. 105-60.305-8 and 105-60.305-12(d) apply. Failure
to include the words ``Freedom of Information Act Request'' or to
submit a request to the official identified in this section will result
in processing delays. A requester with questions concerning a FOIA
request should contact the GSA FOIA Office, General Services
Administration (CAI), 1800 F Street, NW, Washington, DC 20405, (202)
501-2262 or (202) 501-1659.
Sec. 105-60.402-2 Response to initial requests.
GSA will respond to an initial FOIA request which reasonably
describes requested records, including a fee waiver request, within 10
workdays (that is, excluding Saturdays, Sundays, and legal holidays)
after receipt of a request by the office of the appropriate official
specified in Sec. 105-60.402-1. This letter will provide the agency's
decision with respect to disclosure or nondisclosure of the requested
records, or, if appropriate, a decision on a request for a fee waiver.
If the records to be disclosed are not provided with the initial
letter, the records will be sent as soon as possible thereafter. In
unusual circumstances, as described in Sec. 105-60.404, GSA will inform
the requester of the agency's need to take an extension of time, not to
exceed and additional 10 workdays.
Sec. 105-60.403 Appeal within GSA.
(a) A requester who receives a denial of a request, in whole or in
part, or a denial of a fee waiver request, may appeal that decision
within GSA. A requester may also appeal the adequacy of the search if
GSA determines that it has searched for but has no requested records.
The requester must send the appeal to the GSA FOIA Officer, General
Services Administration (CAI), 1800 F Street NW, Washington, DC 20405,
regardless of whether the denial being appealed was made in the Central
Office or in a regional office. For denials that originate in the
Office of Inspector General, the requester must send the appeal to the
Inspector General, General Services Administration, 1800 F Street NW.,
Washington, DC 20405.
(b) The GSA FOIA Officer must receive an appeal no later than 120
calendar days after receipt by the requester of the initial denial of
access or fee waiver.
(c) An appeal must be in writing, include a brief statement of the
reasons the requester thinks GSA should release the records, and
enclose copies of the initial request and denial.
The appeal letter must include the words ``Freedom of Information
Act Appeal'' on both the face of the appeal letter and on the envelope.
Failure to follow these procedures will delay processing of the appeal.
GSA has 20 workdays after receipt of a proper appeal to issue a
determination of the appeal. The 20-workday time limit shall not begin
until the GSA FOIA Officer receives the appeal. As noted in Sec. 105-
60.404, the GSA FOIA Officer may extend this time limit in unusual
circumstances.
(d) A requester who receives a denial of an appeal, or who has not
received a response to an appeal or initial request within the
statutory timeframe may seek judicial review in the United States
District Court in the district in which the requester resides or has a
principal place of business, or where the records are situated, or in
the United States District Court for the District of Columbia.
Sec. 105-60.404 Extension of time limits.
(a) In unusual circumstances, the GSA Central Office FOIA Officer
or the regional FOIA Officer may extend the time limits prescribed in
Secs. 105-60.402 and 105-60.403. For purposes of this section, the term
unusual circumstances means:
(1) 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;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are described
in a single request;
(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 GSA
having substantial subject-matter interest therein; or
(4) The need to consult with the submitter of the requested
information.
(b) If necessary, GSA may take more than one extension of time.
However, the total extension of time to respond to any single request
shall not exceed 10 workdays. The extension may be divided between the
initial and appeal stages or within a single stage. GSA will provide
written notice to the requester of any extension of time limits.
Sec. 105-60.405 Processing requests for confidential commercial
information.
(a) General. The following additional procedures apply when
processing
[[Page 60022]]
requests for confidential commercial information.
(b) Definitions. For the purposes of this section, the following
definitions apply:
(1) Confidential commercial information means records provided to
the government by a submitter that contain material arguably exempt
from release under 5 U.S.C. 552(b)(4), because disclosure could
reasonably be expected to cause substantial competitive harm.
(2) Submitter means a person or entity that provides to the
Government information that may constitute confidential commercial
information. The term ``submitter'' includes, but is not limited to,
individuals, partnerships, corporations, State governments, and foreign
governments.
(c) Designating confidential commercial information. Since January
1, 1988, submitters must designate confidential commercial information
as such when it is submitted to GSA or at a reasonable time thereafter.
For information submitted in connection with negotiated procurements,
the requirements of Federal Acquisition Regulation 48 CFR 15.407(c)(8)
and 52.215-12 also apply.
(d) Procedural requirements--consultation with the submitter. (1)
If GSA receives a FOIA request for potentially confidential commercial
information, it will notify the submitter immediately by telephone and
invite an opinion whether disclosure will or will not cause substantial
competitive harm.
(2) GSA will follow up the telephonic notice promptly in writing
before releasing any records unless paragraph (f) of this section
applies.
(3) If the submitter indicates an objection to disclosure, GSA will
give the submitter seven workdays from receipt of the letter to provide
GSA with a detailed written explanation of how disclosure of any
specified portion of the records would be competitively harmful.
(4) If the submitter verbally states that there is no objection to
disclosure, GSA will confirm this fact in writing before disclosing any
records.
(5) At the same time GSA notifies the submitter, it will also
advise the requester that there will be a delay in responding to the
request due to the need to consult with the submitter.
(6) GSA will review the reasons for nondisclosure before
independently deciding whether the information must be released or
should be withheld. If GSA decides to release the requested
information, it will provide the submitter with a written statement
explaining why his or her objections are not sustained. The letter to
the submitter will contain a copy of the material to be disclosed or
will offer the submitter an opportunity to review the material in one
of GSA's offices. If GSA decides not to release the material, it will
notify the submitter orally or in writing.
(7) If GSA determines to disclose information over a submitter's
objections, it will inform the submitter that GSA will delay disclosure
for five workdays from the estimated date the submitter receives GSA's
decision before it releases the information. The decision letter to the
requester shall state that GSA delay disclosure of material it has
determined to disclose to allow for the notification of the submitter.
(e) When notice is required. (1) For confidential commercial
information submitted prior to January 1, 1988, GSA will notify a
submitter whenever it receives a FOIA request for such information:
(i) If the records are less than 10 years old and the information
has been designated by the submitter as confidential commercial
information; or
(ii) If GSA has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm.
(2) For confidential commercial information submitted on or after
January 1, 1988, GSA will notify a submitter whenever it determines
that the agency may be required to disclose records:
(i) That the submitter has previously designated as privileged or
confidential; or
(ii) That GSA believes could reasonably be expected to cause
substantial competitive harm if disclosed.
(3) GSA will provide notice to a submitter for a period of up to 10
years after the date of submission.
(f) When notice is not required. The notice requirements of this
section will not apply if:
(1) GSA determines that the information should not be disclosed;
(2) The information has been published or has been officially made
available to the public;
(3) Disclosure of the information is required by a law other than
the FIOA;
(4) Disclosure is required by an agency rule that--
(i) Was adopted pursuant to notice and public comment;
(ii) Specifies narrow classes of records submitted to the agency
that are to be released under FIOA; and
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information
is submitted or a reasonable time thereafter, that disclosure of the
information could reasonably be expected to cause substantial
competitive harm;
(5) The information is not designated by the submitter as exempt
from disclosure under paragraph (c) of this section, unless GSA has
substantial reason to believe that the disclosure of the information
would be competitively harmful; or
(6) The designation made by the submitter in accordance with
paragraph (c) of this section appears obviously frivolous; except that,
in such cases, the agency must provide the submitter with written
notice of any final administrative decision five workdays prior to
disclosing the information.
(g) Lawsuits. If a FIOA requester sues the agency to compel
disclosure of confidential commercial information, GSA will notify the
submitter as soon as possible. If the submitter sues GSA to enjoin
disclosure of the records, GSA will notify the requester.
Subpart 105-60.5--Exemptions
Sec. 105-60.501 Categories of records exempt from disclosure under the
FIOA.
(a) 5 U.S.C. 552(b) provides that the requirements of the FIOA do
not apply to matters that are:
(1) Specifically authorized under the criteria established by an
Executive Order to be kept secret in the interest of national defense
or foreign policy and are in fact properly classified pursuant to such
Executive order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute (other than
section 552b of this title), provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Interagency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation
with the agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only
[[Page 60023]]
to the extent that the production of such law enforcement records or
information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution that furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful natural
security intelligence investigation, information furnished by a
confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions; or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(b) GSA will provide any reasonably segregable portion of a record
to a requester after deletion of the portions that are exempt under
this section. If GSA must delete information from a record before
disclosing it, this information, and the reasons for withholding it,
will be clearly described in the cover letter to the requester or in an
attachment.
(c) GSA will invoke no exemption under this section to deny access
to records that would be available pursuant to a request made under the
Privacy Act of 1974 (5 U.S.C. 522a) and implementing regulations, 41
CFR part 105-64, or if disclosure would cause no demonstrable harm to
any governmental or private interest.
(d) Whenever a request is made that involves access to records
described in Sec. 105-60.501(a)(7)(i) and the investigation or
proceeding involves a possible violation of criminal law, and there is
reason to believe that the subject of the investigation or proceeding
is not aware of it, and disclosure of the existence of the records
could reasonably be expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance continues,
treat the records as not subject to the requirements of this section.
(e) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier are
requested by a third party according to the informant's name or
personal identifier, the agency may treat the records as not subject to
the requirements of this section unless the informant's status as an
informant has been officially confirmed.
(f) Whenever a request is made that involves access to records
maintained by the Federal Bureau of Investigation pertaining to foreign
intelligence or counterintelligence, or international terrorism, and
the existence of the records is classified information as provided in
paragraph (a)(1) of this section, the Bureau may, as long as the
existence of the records remains classified information, treat the
records as not subject to the requirements of this section.
Subpart 105-60.6--Production or Disclosure by Present or Former
General Services Administration Employees in Response to Subpoenas
or Similar Demands in Judicial or Administrative Proceedings
Sec. 105-60.601 Purpose and scope of subpart.
(a) By virtue of the authority vested in the Administrator of
General Services by 5 U.S.C. 301 and 40 U.S.C. 486(c) this subpart
establishes instructions and procedures to be followed by current and
former employees of the General Services Administration in response to
subpoenas or similar demands issued in judicial or administrative
proceedings for production or disclosure of material or information
obtained as part of the performance of a person's official duties or
because of the person's official status. Nothing in these instructions
applies to responses to subpoenas or demands issued by the Congress or
in Federal grand jury proceedings.
(b) This subpart provides instructions regarding the internal
operations of GSA and the conduct of its employees, and is not intended
and does not, and may not, be relied upon to create any right or
benefit, substantive or procedural, enforceable at law by a party
against GSA.
(c) These regulations provide for procedures and a systematic means
by which GSA can evaluate whether it should comply with a demand for
official GSA information or whether applicable privileges or statutes
provide a legitimate basis for withholding the demanded information.
These regulations do not provide independent authority to withhold
information. In proceedings to which GSA is a party, these regulations
shall not be interpreted or applied to supersede or frustrate
established rules of procedure applicable to the forum in which the
matter is pending.
Sec. 105-60.602 Definitions.
For purposes of this subpart, the following definitions apply:
(a) Material means any document, record, file or data, regardless
of the physical form or the media by or through that it is maintained
or recorded, that was generated or acquired by a current or former GSA
employee by reason of the performance of that person's official duties
or because of the person's official status, or any other tangible item,
e.g., personal property possessed or controlled by GSA.
(b) Information means any knowledge or facts contained in material,
and any knowledge or facts acquired by current or former GSA employee
as part of the performance of that person's official duties or because
of that person's official status.
(c) Demand means any subpoena, order, or similar demand for the
production or disclosure of material, information or testimony
regarding such material or information, issued by a court or other
authority in a judicial or administrative proceeding, excluding
congressional subpoenas or demands in Federal Grand Jury proceedings,
and served upon a present or former GSA employee.
(d) Appropriate Authority means the following officials who are
delegated authority to approve or deny responses to demands for
material, information or testimony:
(1) The Counsel to the Inspector General for material and
information that is the responsibility of the GSA Office of Inspector
General or testimony of current or former employees of the Office of
the Inspector General;
(2) The Counsel to the GSA Board of Contract Appeals for material
and information that is the responsibility of the Board of Contract
Appeals or testimony of current or former Board of Contract Appeals
employees;
(3) The GSA General Counsel, Associate General Counsel(s) or
Regional Counsel(s) for all material, information, or testimony not
covered by paragraphs (d)(1) and (2) of this section.
[[Page 60024]]
Sec. 105-60.603 Acceptance of service of a subpoena duces tecum or
other legal demand on behalf of the General Services Administration.
(a) The Administrator of General Services Administration and the
following officials are the only GSA personnel authorized to accept
service of a subpoena or other legal demand on behalf of GSA: The GSA
General Counsel and Associate General Counsel(s) and, with respect to
material or information that is the responsibility of a regional
office, the Regional Administrator and the Regional Counsel. The
Inspector General and Counsel to the Inspector General, as well as the
Chairman and Vice Chairman of the Board of Contract Appeals, are
authorized to accept service for material or information which is the
responsibility of their respective organizations.
(b) A present or former GSA employee not authorized to accept
service of a subpoena or other demand for material, information or
testimony obtained in an official capacity shall respectfully inform
the process serve that he or she is not authorized to accept service on
behalf of GSA and refer the process server to an appropriate official
listed in paragraph (a) of this section.
(c) A Regional Administrator or Regional Counsel shall notify the
General Counsel of a demand that may raise policy concerns or affect
multiple regions.
Sec. 105-60.604 Production or disclosure prohibited unless approved by
the Appropriate Authority.
No current or former GSA employee shall, in response to a demand,
produce any material or disclose, through testimony or other means, any
information covered by this subpart, without prior approval of the
Appropriate Authority.
Sec. 105-60.605 Procedure in the event of a demand for production or
disclosure.
(a) Whenever service of demand is attempted in person or via mail
upon a current or former GSA employee for the production of material or
the disclosure of information covered by this subpart, the employee or
former employee shall immediately notify the Appropriate Authority
through his or her supervisor or his or her former service, staff, or
regional office. The supervisor shall notify the Appropriate Authority.
For current or former employees of the Office of Inspector General
located in regional offices, Counsel to the Inspector General shall be
notified through the immediate supervisor or former employing field
office.
(b) The Appropriate Authority shall require that the party seeking
material or testimony provide the Appropriate Authority with an
affidavit, declaration, statement, and/or a plan as described in
paragraphs (c)(1), (2) and (3) of this section if not included with or
described in the demand. The Appropriate Authority may in his or her
discretion waive this requirement for a demand arising out of
proceedings to which GSA or the United States is a party and in
proceedings in which the United States or GSA is not a party but has an
interest such as so-called Qui Tam proceedings, or where the
Appropriate Authority has independent knowledge of facts relevant to
the matter upon which an informed determination can be made. Any waiver
will be coordinated with the United States Department of Justice (DOJ)
in proceedings in which GSA, its current or former employees, or the
United States are represented by DOJ.
(c)(1) Oral testimony. If oral testimony is sought by a demand, the
Appropriate Authority shall require the party seeking the testimony or
the party's attorney to provide, by affidavit or other statement, a
detailed summary of the testimony sought and its relevance to the
proceedings. Any authorization for the testimony of a current or former
GSA employee shall be limited to the scope of the demand as summarized
in such statement or affidavit.
(2) Production of material. When information other than oral
testimony is sought by a demand, the Appropriate Authority shall
require the party seeking production or the party's attorney to provide
a detailed summary, by affidavit or other statement, of the information
sought and its relevance to the proceeding.
(3) The Appropriate Authority may require a plan or other
information from the party seeking testimony or production of material
of all demands reasonably foreseeable, including, but not limited to,
names of all current and former GSA and employees from whom testimony
or production is or will likely be sought, areas of inquiry, for
current employees the length of time away from duty anticipated, and
identification of documents to be used in each deposition or other
testimony, where appropriate.
(d) The Appropriate Authority will notify the current or former
employee, the appropriate supervisor, and such other persons as
circumstances may warrant, whether disclosure or production is
authorized, and of any conditions or limitations to disclosure or
production.
(e) Factors to be considered by the Appropriate Authority in
responding to demands:
(1) Whether disclosure or production is appropriate under rules of
procedure governing the proceeding out of which the demand arose;
(2) The relevance of the testimony or documents to the proceedings;
(3) The impact of the relevant substantive law concerning
applicable privileges recognized by statute, common law; judicial
interpretation or similar authority;
(4) The information provided by the issuer of the demand in
response to requests by the Appropriate Authority pursuant to
paragraphs (b) and (c) of this section;
(5) The steps taken by the issuer of the demand to minimize the
burden of disclosure or production on GSA, including but not limited to
willingness to accept authenticated copies of material in lieu of
personal appearance by GSA employees;
(6) The impact on pending or potential litigation involving GSA or
the United States as a party;
(7) In consultation with the head of the GSA organizational
component affected, the burden to GSA that disclosure or production
would entail; and
(8) Any additional factors unique to a particular demand or
proceeding.
(f) Examples of situations in which authority for production will
likely be denied by the Appropriate Authority are those in which
production would:
(1) Violate a statute or a specific regulation;
(2) Reveal classified information, unless appropriately
declassified by the originating agency;
(3) Reveal a confidential source or informant, unless the
investigative agency and the source or informant consent;
(4) Reveal records or information compiled for law enforcement
purposes that would interfere with enforcement proceedings or disclose
investigative techniques and procedures the effectiveness of which
would be impaired;
(5) Reveal trade secrets or commercial or financial information
that is privileged or confidential without prior consultation with the
person from whom it was obtained; or
(6) Be contrary to a recognized privilege.
(g) The Appropriate Authority's determination, including any
reasons for denial or limitations on disclosure or production, shall be
made as expeditiously as possible and shall be communicated in writing
to the issuer
[[Page 60025]]
of the demand and appropriate current or former GSA employee(s). In
proceedings in which GSA, its current or former employees, or the
United States are represented by DOJ the determination shall be
coordinated with DOJ, which may respond to the issuer of the subpoenas
or demand in lieu of the Appropriate Authority.
Sec. 105-60.606 Procedure where response to demand is required prior
to receiving instructions.
(a) If a response to a demand is required before the Appropriate
Authority's decision is issued, a GSA attorney designated by the
Appropriate Authority for the purpose shall appear with the employee or
former employee upon whom the demand has been made, and shall furnish
the judicial or other authority with a copy of the instructions
contained in this subpart. The attorney shall inform the court or other
authority that the demand has been or is being referred for the prompt
consideration by the Appropriate Authority. The attonery shall
respectfully request the judicial or administrative authority to stay
the demand pending receipt of the requested instructions.
(b) The designated GSA attorney shall coordinate GSA's response
with DOJ's Civil Division or the relevant Office of the United States
Attorney and may request that a DOJ or Assistant United States Attorney
appear with the employee in addition to or in lieu of a designated GSA
attorney.
(c) If an immediate demand for production or disclosure is made in
circumstances which preclude the appearance of a GSA or DOJ attorney on
the behalf of the employee or the former employee, the employee or
former employee shall respectfully make a request to the demanding
authority for sufficient time to obtain advice of counsel.
Sec. 105-60.607 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the
demand in response to a request made in accordance with Sec. 105-60.606
pending receipt of instructions, or if the court or other authority
rules that the demand must be complied with irrespective of
instructions by the Appropriate Authority not to produce the material
or disclosure the information sought, the employee or former employee
upon whom the demand has been made shall respectfully decline to
comply, citing these instructions and the decision of the United States
Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Sec. 105-60.608 Fees, expenses, and costs.
(a) In consultation with the Appropriate Authority, a current
employee who appears as a witness pursuant to a demand shall ensure
that he or she receives all fees and expenses, including travel
expenses, to which witnesses are entitled pursuant to rules applicable
to the judicial or administrative proceedings out of which the demand
arose.
(b) Witness fees and reimbursement for expenses received by a GSA
employee shall be disposed of in accordance with rules applicable to
Federal employees in effect at the time.
(c) Reimbursement to the GSA for costs associated with producing
material pursuant to a demand shall be determined in accordance with
rules applicable to the proceedings out of which the demand arose.
Dated: October 28, 1997.
David J. Barram,
Administrator.
[FR Doc. 97-29061 Filed 11-5-97; 8:45 am]
BILLING CODE 6820-34-M
