01-6299. Public Availability of Information and the Privacy Act; Implementation

AGENCY:

Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation.

ACTION:

Final rule.

SUMMARY:

This document sets forth the final implementation regulations of the Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation (the Foundation) under the Freedom of Information Act (FOIA) and Privacy Act.

DATES:

This rule is effective April 16, 2001.

FOR FURTHER INFORMATION CONTACT:

Ellen K. Wheeler, General Counsel, at [phone].

SUPPLEMENTARY INFORMATION:

These final regulations implement the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended by the Electronic Freedom of Information Act Amendments of 1996 (Pub. L. 104-231), and the Privacy Act of 1974, 5 U.S.C. 552a. They apply to all Foundation programs, including the U.S. Institute for Environmental Conflict Resolution (USIECR). The Foundation establishes the following set of regulations to discharge its responsibilities under the FOIA and Privacy Act. The FOIA establishes: Basic procedures for public access to agency records and guidelines for waiver or reduction of fees the agency would otherwise assess for the response to the records request; categories of records that are exempt for various reasons from public disclosure; and basic requirements for federal agencies regarding their processing of and response to requests for agency records. The Privacy Act establishes: Basic procedures for individuals' access to all records in systems of records maintained by the Foundation that are retrieved by an individual's name or personal identifier. These final rules describe the procedures by which individuals may request access to records about themselves, request amendment or correction of those records, and request an accounting of disclosures of those records by the Foundation. The Foundation published these regulations as proposed at 65 FR 57773 on September 26, 2000. No comments were received during the 30-day comment period, ending October 26, 2000, and no changes were made in the final regulations set forth below.

Regulatory Flexibility Act

The Foundation, in accordance with the Regulatory Flexibility Act (5 U.S.C. 606(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Under the Freedom of Information Act, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters. Thus, fees assessed by the Foundation will be nominal. Further, the “small entities” that make FOIA requests, as compared with individual requesters and other requesters, are relatively few in number.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

List of Subjects in 36 CFR Part 1600

• Administrative practice and procedure
• Freedom of information
• Privacy

For the reasons set forth in the preamble, the Morris K. Udall Foundation amends Title 36 CFR by adding a new Chapter XVI consisting of Part 1600 to read as follows:

CHAPTER XVI—MORRIS K. UDALL SCHOLARSHIP AND EXCELLENCE IN NATIONAL ENVIRONMENTAL POLICY FOUNDATION

PART 1600—PUBLIC AVAILABILITY OF DOCUMENTS AND RECORDS

Subpart A—Procedures for Disclosure of Records Under the Freedom of Information Act

1600.1

General provisions.

1600.2

Public reading room.

1600.3

Requests for records.

1600.4

Timing of responses to requests.

1600.5

Responses to requests.

1600.6

Disclosure of requested records

1600.7

Special procedures for confidential Commercial information

1600.8

Appeals.

1600.9

Preservation of records.

1600.10

Fees.

Subpart B—Protection of Privacy and Access to Individual Records Under the Privacy Act of 1974

1600.21

General provisions.

1600.22

Requests for access to records.

1600.23

Responsibility for responding to requests for access to records.

1600.24

Responses to requests for access to records.

1600.25

Appeals from denials of requests for access to records.

1600.26

Requests for amendment or correction of records.

1600.27

Requests for accountings of record disclosures.

1600.28

Preservation of records.

1600.29

Fees.

1600.30

Notice of court-ordered and emergency disclosures.

Authority: 5 U.S.C. 552, 552a, 553; 20 U.S.C. 5608(a)(3).

Subpart A is also issued under 5 U.S.C. 571-574.

Subpart A—Procedures for Disclosure of Records Under the Freedom of Information Act

§ 1600.1

General provisions.

(a) This subpart contains the rules that the Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation (the Foundation) follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should be read together with the FOIA, which provides additional information about access to records. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, which are processed under subpart B of this part, are processed under this subpart also. Information routinely provided to the public as part of a regular Foundation activity (for example, press releases, annual reports, informational brochures and the like) may be provided to the public without following this subpart. As a matter of policy, the Foundation makes discretionary disclosures of records or information exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption, but this policy does not create any right enforceable in court.

(b) This subpart applies to all Foundation programs, including the U.S. Institute for Environmental Conflict Resolution (USIECR).

§ 1600.2

Public reading room.

(a) The Foundation maintains a public reading room that contains the records that the FOIA requires to be made regularly available for public inspection and copying. An index of reading room records shall be available for inspection and copying and shall be updated at least quarterly.

(b) The public reading room is located at the offices of the Foundation, 110 S. Church Avenue, Suite 3350, Tucson, Arizona.

(c) The Foundation also makes reading room records created on or after November 1, 1996, available electronically, if possible, at the Foundation's web site (which can be found at www.udall.gov). This includes the index of the reading room records, which will indicate which records are available electronically.

§ 1600.3

Requests for records.

(a) How made and addressed. You may make a request for records of the Foundation by writing to the General Counsel, Morris K. Udall Foundation, 110 South Church Avenue, Suite 3350, Tucson, Arizona 85701-1650. If you are making a request for records about yourself, see § 1600.21 for additional requirements. If you are making a request for records about another individual, either a written authorization signed by that individual permitting disclosure of those records to you or proof that that individual is deceased (for example, a copy of a death certificate or an obituary) will help the processing of your request. For the quickest possible handling, you should mark both your request letter and the envelope “Freedom of Information Act Request.”

(b) Description of records sought. You must describe the records that you seek in enough detail to enable Foundation personnel to locate them with a reasonable amount of effort. Whenever possible, your request should include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record. If the Foundation determines that your request does not reasonably describe records, it will tell you either what additional information is needed or why your request is otherwise insufficient. If your request does not reasonably describe the records you seek, the response to your request may be delayed.

(c) Types of records not available. The FOIA does not require the Foundation to:

(1) Compile or create records solely for the purpose of satisfying a request for records;

(2) Provide records not yet in existence, even if such records may be expected to come into existence at some future time; or

(3) Restore records destroyed or otherwise disposed of, except that the Foundation must notify the requester that the requested records have been destroyed or disposed of.

(d) Agreement to pay fees. If you make a FOIA request, your request shall be considered an agreement by you to pay all applicable fees charged under § 1600.10, up to $25.00, unless you seek a waiver of fees. The Foundation ordinarily will confirm this agreement in an acknowledgment letter. When making a request, you may specify a willingness to pay a greater or lesser amount.

§ 1600.4

Timing of responses to requests.

(a) In general. The Foundation ordinarily shall respond to requests according to their order of receipt.

(b) Multitrack processing. (1) The Foundation may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request. The anticipated number of pages involved may be considered by the Foundation in establishing processing tracks. If the Foundation sets a page limit for its faster track, it will advise those whose request is placed in its slower track(s) of the page limits of its faster track(s).

(2) If the Foundation uses multitrack processing, it may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of its faster track(s).

(c) Unusual circumstances. (1) Where the statutory time limits for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, and the Foundation decides to extend the time limits on that basis, the Foundation shall as soon as practicable notify the requester in writing of the unusual circumstances and of the date by which processing of the request can be expected to be completed. Where the extension is for more than 10 working days, the Foundation shall provide the requester with an opportunity either to modify the request so that it may be processed within the time limits or to arrange an alternative time period for processing the request or a modified request.

(2) Where the Foundation reasonably believes that multiple requests submitted by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated. Multiple requests involving unrelated matters will not be aggregated.

(d) Expedited processing. (1) Requests and appeals will be taken out of order and given expedited treatment whenever it is determined that they involve:

(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

(ii) An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information;

(2) You may ask for expedited processing of a request for records at any time.

(3) In order to request expedited processing, you must submit a statement, certified to be true and correct to the best of your knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, if you are a requester within the category in paragraph (d)(1)(ii) of this section, and you are not a full-time member of the news media, you must establish that you are a person whose main professional activity or occupation is information dissemination, though it need not be your sole occupation; you also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public's right to know about government activity generally. The formality of certification may be waived as a matter of administrative discretion.

(4) Within 10 calendar days of receipt of a request for expedited processing, the Foundation will decide whether to grant it and will notify you of the decision. If a request for expedited treatment is granted, the request will be given priority and processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.

§ 1600.5

Responses to requests.

(a) Acknowledgments of requests. On receipt of your request, the Foundation ordinarily will send an acknowledgment letter to you, which will confirm your agreement to pay fees under § 1600.3(d) and provide an assigned request number for further reference.

(b) Referral to another agency. When a requester seeks records that originated in another Federal government agency, the Foundation will refer the request to the other agency for response. If the Foundation refers the request to another agency, it will notify the requester of the referral. A request for any records classified by some other agency will be referred to that agency for response.

(c) Grants of requests. Ordinarily, the Foundation will have 20 business days from when your request is received to determine whether to grant or deny your request. Once the Foundation determines to grant a request in whole or in part, it will notify you in writing. The Foundation will inform you in the notice of any fee charged under § 1600.10 and will disclose records to you promptly on payment of any applicable fee. Records disclosed in part will be marked or annotated to show the amount of information deleted, unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted also will be indicated on the record, if technically feasible.

(d) Adverse determinations of requests. If the Foundation denies your request in any respect, it will notify you of that determination in writing. Adverse determinations, or denials of requests, consist of: a determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that a record is not readily reproducible in the form or format sought; a determination that what has been requested is not a record subject to the FOIA; a determination on any disputed fee matter, including a denial of a request for a fee waiver; and a denial of a request for expedited treatment. The denial letter shall be signed by the General Counsel or his/her designee, and shall include:

(1) The name and title or position of the person responsible for the denial;

(2) A brief statement of the reason(s) for the denial, including any FOIA exemption applied by the component in denying the request;

(3) An estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption; and

(4) A statement that the denial may be appealed under § 1600.8(a) and a description of the requirements for appeal.

§ 1600.6

Disclosure of requested records.

(a) The Foundation shall make requested records available to the public to the greatest extent possible in keeping with the FOIA, except that the following records are exempt from the disclosure requirements:

(1) Records specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and which are, in fact, properly classified pursuant to such Executive order;

(2) Records related solely to the internal personnel rules and practices of the Foundation;

(3) Records specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)), provided that such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or that the statute establishes particular criteria for withholding information or refers to particular types of matters to be withheld. An example that applies to the Foundation is the confidentiality protection for dispute resolution communications provided by the Administrative Dispute Resolution Act of 1996 (ADRA, 5 U.S.C. 571-574).

(4) Records containing trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) Interagency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the Foundation;

(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 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 which furnished information on a confidential basis, and in the case of a recorded or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national 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) Records 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 the regulation or supervision of financial institutions;

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

(b) If a requested record contains exempted material along with nonexempted material, all reasonable segregable nonexempt material shall be disclosed.

(c) Even if an exemption described in paragraph (a) of this section may be reasonably applicable to a requested record, or portion thereof, the Foundation may elect under the circumstances of any particular request not to apply the exemption to such requested record, or portion thereof, subject to the provisions in § 1600.7 for confidential commercial information. The fact that the exemption is not applied by the Foundation to any requested record, or portion thereof, has no precedential significance as to the application or non-application of the exemption to any other requested record, or portion thereof, no matter when the request is received.

§ 1600.7

Special procedures for confidential commercial information.

(a) Definitions. For purposes of this section:

(1) Business submitter means any person or entity which provides confidential commercial information, directly or indirectly, to the Foundation and who has a proprietary interest in the information.

(2) Commercial-use requester means requesters seeking information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, the Foundation shall determine, whenever reasonably possible, the use to which a requester will put the documents requested. Where the Foundation has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the Foundation shall seek additional clarification before assigning the request to a specific category.

(3) Confidential commercial information means records provided to the government by a submitter that arguably contain material exempt from disclosure under Exemption 4 of the FOIA, because disclosure could reasonably be expected to cause substantial competitive harm.

(b) In general. Confidential commercial information provided to the Foundation by a business submitter shall not be disclosed pursuant to an FOIA request except in accordance with this section.

(c) Designation of business information. Business submitters should use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, those portions of their submissions which they deem to be protected under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such designation will expire 10 years after the records were submitted to the government, unless the submitter requests, and provides reasonable justification for, a designation period of longer duration.

(d) Predisclosure notification. (1) Except as is provided for in paragraph (i) of this section, the Foundation shall, to the extent permitted by law, provide a submitter with prompt written notice of an FOIA request or administrative appeal encompassing its confidential business information whenever required under paragraph (e) of this section. Such notice shall either describe the exact nature of the business information requested or provide copies of the records or portions thereof containing the business information.

(2) Whenever the Foundation provides a business submitter with the notice set forth in paragraph (e)(1) of this section, the Foundation shall notify the requester that the request includes information that may arguably be exempt from disclosure under Exemption 4 of the FOIA and that the person or entity who submitted the information to the Foundation has been given the opportunity to comment on the proposed disclosure of information.

(e) When notice is required. The Foundation shall provide a business submitter with notice of a request whenever—

(1) The business submitter has in good faith designated the information as business information deemed protected from disclosure under 5 U.S.C. 552(b)(4); or

(2) The Foundation has reason to believe that the request seeks business information the disclosure of which may result in substantial commercial or financial injury to the business submitter.

(f) Opportunity to object to disclosure. Through the notice described in paragraph (d) of this section, the Foundation shall, to the extent permitted by law, afford a business submitter at least 10 working days within which it can provide the Foundation with a detailed written statement of any objection to disclosure. Such statement shall demonstrate why the information is contended to be a trade secret or commercial or financial information that is privileged or confidential and why disclosure would cause competitive harm. Whenever possible, the business submitter's claim of confidentiality should be supported by a statement or certification by an officer or authorized representative of the business submitter. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA.

(g) Notice of intent to disclose. (1) The Foundation shall consider carefully a business submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose confidential commercial business information. Whenever the Foundation decides to disclose such information over the objection of a business submitter, the Foundation shall forward to the business submitter a written notice at least 10 working days before the date of disclosure containing—

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

(ii) A description of the confidential commercial information to be disclosed, and

(iii) A specified disclosure date.

(2) Such notice of intent to disclose likewise shall be forwarded to the requester at least 10 working days prior to the specified disclosure date.

(h) Notice of FOIA lawsuit. Whenever a requester brings suit seeking to compel disclosure of confidential commercial information, the Foundation shall promptly notify the business submitter of such action.

(i) Exceptions to predisclosure notification. The requirements of this section shall not apply if—

(1) The Foundation determines that the information should not be disclosed;

(2) The information lawfully has been published or has been officially made available to the public;

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

(4) The designation made by the submitter in accordance with paragraph (c) of this section appears obviously frivolous; except that, in such a case, the Foundation will provide the submitter with written notice of any final decision to disclose confidential commercial information within a reasonable number of days prior to a specified disclosure date.

§ 1600.8

Appeals.

(a) Appeals of adverse determinations. If you are dissatisfied with the Foundation's response to your request, you may appeal an adverse determination denying your request, in any respect, to the Executive Director of the Foundation, 110 S. Church Avenue, Suite 3350, Tucson, AZ 85701-1650. You must make your appeal in writing, and it must be received by the Executive Director within 60 days of the date of the letter denying your request. Your appeal letter may include as much or as little related information as you wish, as long as it clearly identifies the determination (including the assigned request number, if known) that you are appealing. For the quickest possible handling, you should mark your appeal letter and the envelope “Freedom of Information Act Appeal.”

(b) Responses to appeals. The decision on your appeal will be made in writing. A decision affirming an adverse determination in whole or in part shall contain a statement of the reason(s) for the affirmance, including any FOIA exemption(s) applied, and will inform you of the FOIA provisions for court review of the decision. If the adverse determination is reversed or modified on appeal, in whole or in part, you will be notified in a written decision and your request will be reprocessed in accordance with that appeal decision.

(c) When appeal is required. If you wish to seek review by a court of any adverse determination, you must first appeal it under this section.

§ 1600.9

Preservation of records.

The Foundation will preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 14. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

§ 1600.10

Fees.

(a) In general. The Foundation will charge you for processing requests under the FOIA in accordance with paragraph (c) of this section, except where fees are limited under paragraph (d) of this section or where a waiver or reduction of fees is granted under paragraph (i) of this section. The Foundation ordinarily will collect all applicable fees before sending copies of requested records to you. You must pay fees by check or money order made payable to the United States Treasury.

(b) Definitions. For purposes of this section:

(1) Commercial use request means a request from or on behalf of a person seeking information for a use or purpose that furthers his or her commercial, trade, or profit interests, which can include furthering those interests through litigation. If the Foundation determines that you will put the records to a commercial use, either because of the nature of your request itself or because the Foundation has reasonable cause to doubt your stated use, the Foundation will provide you a reasonable opportunity to submit further clarification.

(2) Direct costs means those expenses that the Foundation actually incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work and the cost of operating duplication machinery.

(3) Duplication means the process of making a copy of a record, or the information contained in it, available in response to a FOIA request. Copies can take the form of paper, microfilm, audiovisual materials, or electronic records (for example, magnetic tape or disk), among others. The Foundation will honor your specified preference of form or format of disclosure if the record is readily reproducible with reasonable efforts in the requested form or format.

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

(5) Noncommercial scientific institution means an institution that is not operated on a “commercial” basis, as that term is defined in paragraph (b)(1) of this section, and that is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research.

(6) Representative of the news media, or news media requester, 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 entities include television or radio stations broadcasting to the public at large and publishers of periodicals (but only in those instances where they can qualify as disseminators of news) who make their products available for purchase or subscription by the general public. For freelance journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization. A publication contract would be the clearest proof, but the Foundation shall also look to the past publication record of a requester in making this determination. To be in this category, a requester must not be seeking the requested records for a commercial use. However, a request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use.

(7) Review means the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. It also includes processing any record for disclosure—for example, doing all that is necessary to redact it and prepare it for disclosure. Review costs are recoverable even if a record ultimately is not disclosed. Review time does not include time spent resolving general legal or policy issues regarding the application of exemptions.

(8) Search means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format.

(c) Fees. In responding to FOIA requests, the Foundation will charge the following fees unless a waiver or reduction of fees has been granted under paragraph (i) of this section:

(1) Search. Search fees will be charged for all requests, except for those by educational institutions, noncommercial scientific institutions, or representatives of the news media (subject to the limitations of paragraph (d) of this section). Charges may be made for time spent searching even if no responsive record is located or if the record(s) are withheld as entirely exempt from disclosure.

(2) Duplication. Duplication fees will be charged for all requests, subject to the limitations of paragraph (d) of this section. For a paper photocopy of a record, the fee will be ten cents per page. For other forms of duplication (including copies produced by computer, such as tapes or printouts), the Foundation will charge the direct costs, including operator time, of producing the copy.

(3) Review. Review fees will be charged only for commercial use requests. Review fees will be charged only for the initial record review—in other words, the review done when the Foundation determines whether an exemption applies to a particular record or record portion at the initial request level. No charge will be made for review at the administrative appeal level for an exemption already applied. However, records or record portions withheld under an exemption that is subsequently determined not to apply may be reviewed again to determine whether any other exemption not previously considered applies; the costs of that review are chargeable where it is made necessary by such a change of circumstances.

(4) Searches and reviews—amounts of fees.

(i) For each quarter hour spent in searching for and/or reviewing a requested record, the fees will be: $4.00 for clerical personnel; $7.00 for professional personnel; and $10.25 for managerial personnel.

(ii) For computer searches of records, you will be charged the direct costs of conducting the search, although certain requesters (as provided in paragraph (d)(1) of this section) will be charged no search fee and certain other requesters (as provided in paragraph (d)(4) of this section) will be entitled to the cost equivalent of two hours of manual search time without charge. These direct costs will include the cost of operating a central processing unit for that portion of operating time that is directly attributable to searching for responsive records, as well as the costs of operator/programmer salary apportionable to the search.

(d) Limitations on charging fees.

(1) No search fee will be charged for requests by educational institutions, noncommercial scientific institutions, or representatives of the news media.

(2) Review fees will be charged only for commercial use requests.

(3) No search fee or review fee will be charged for a quarter-hour period unless more than half of that period is required for search or review.

(4) Except for commercial use requests, the Foundation will provide the first 100 pages of duplication and the first two hours of search time to requesters without charge. These provisions work together, so that the Foundation will not begin to assess fees until after providing the free search and reproduction. For example, if a request involves three hours of search time and duplication of 105 pages of documents, the Foundation will charge only for the cost of one hour of search time and five pages of reproduction.

(5) Whenever a total fee calculated under paragraph (d) of this section is $14.00 or less for any request, no fee will be charged.

(e) Notice of anticipated fees in excess of $25.00. When the Foundation determines or estimates that the fees will be more than $25.00, it will notify you of the actual or estimated amount of the fees, unless you have indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the Foundation will advise you that the estimated fee may be only a portion of the total fee. In cases in which you have been notified that actual or estimated fees amount to more than $25.00, the request will not be considered received and further work will not be done on it until you agree in writing to pay the anticipated total fee. A notice under this paragraph will offer you an opportunity to discuss the matter with Foundation personnel in order to reformulate the request to meet your needs at a lower cost.

(f) Charging interest. The Foundation may charge interest on any unpaid bill starting on the 31st day following the date of billing. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the date of the billing until payment is received by the Foundation.

(g) Aggregating requests. Where the Foundation reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, it may aggregate those requests and charge accordingly. The Foundation may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, they will be aggregated only if there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.

(h) Advance payments. (1) No advance payment (that is, payment before work is begun on a request) will ordinarily be required, except as described in paragraphs (h)(2) and (3) of this section. Payment owed for work already completed (that is, a prepayment before copies are sent to you) is not considered an advance payment.

(2) Where the Foundation determines or estimates that a total fee to be charged under this section will be more than $250.00, it may require you to make an advance payment of an amount up to the amount of the entire anticipated fee before beginning to process the request, except where it receives satisfactory assurance of full payment from you and you have a history of prompt payment.

(3) If you have previously failed to pay a properly charged FOIA fee within 30 days of the date of billing, the Foundation may require you to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before it begins to process a new request or continues to process a pending request from you.

(4) In cases in which the Foundation requires advance payment or payment due under paragraph (h)(2) or (3) of this section, the request shall not be considered received and further work will not be done on it until the required payment is received.

(i) Requirements for waiver or reduction of fees.

(1) Records responsive to a request will be furnished without charge or at a charge reduced below that established under paragraph (c) of this section where the Foundation determines, based on all available information, that the requester has demonstrated that:

(i) Disclosure of the requested 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

(ii) Disclosure of the information is not primarily in the commercial interest of the requester.

(2) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver will be granted for those records.

(3) If you request a waiver or reduction of fees, your request should address the factors listed in paragraph (i)(1) of this section.

Subpart B—Protection of Privacy and Access to Individual Records Under the Privacy Act of 1974

§ 1600.21

General provisions.

(a) Purpose and scope. This subpart contains the rules that the Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation (the “Foundation”) follows under the Privacy Act of 1974, 5 U.S.C. 552a. These rules should be read together with the Privacy Act, which provides additional information about records maintained on individuals. The rules in this subpart apply to all records in systems of records maintained by the Foundation that are retrieved by an individual's name or personal identifier. They describe the procedures by which individuals may request access to records about themselves, request amendment or correction of those records, and request an accounting of disclosures of those records by the Foundation. In addition, the Foundation processes all Privacy Act requests for access to records under the Freedom of Information Act (FOIA), 5 U.S.C. 552, following the rules contained in subpart A of this part, which gives requests the benefit of both statutes.

(b) Applicability. This subpart applies to all Foundation programs, including the U.S. Institute for Environmental Conflict Resolution (USIECR).

(c) Definitions. As used in this subpart:

(1) Request for access to a record means a request made under Privacy Act subsection (d)(1).

(2) Request for amendment or correction of a record means a request made under Privacy Act subsection (d)(2).

(3) Request for an accounting means a request made under Privacy Act subsection (c)(3).

(4) Requester means an individual who makes a request for access, a request for amendment or correction, or a request for an accounting under the Privacy Act.

§ 1600.22

Requests for access to records.

(a) How made and addressed. You may make a request for access to a Foundation record about yourself by appearing in person or by writing to the Foundation. Your request should be sent or delivered to the Foundation's General Counsel, at 110 S. Church Avenue, Suite 3350, Tucson, AZ 85701-1650. For the quickest possible handling, you should mark both your request letter and the envelope “Privacy Act Request.”

(b) Description of records sought. You must describe the records that you want in enough detail to enable Foundation personnel to locate the system of records containing them with a reasonable amount of effort. Whenever possible, your request should describe the records sought, the time periods in which you believe they were compiled, and the name or identifying number of each system of records in which you believe they are kept. The Foundation publishes notices in the Federal Register that describe its systems of records. A description of the Foundation's systems of records also may be found as part of the “Privacy Act Compilation” published by the National Archives and Records Administration's Office of the Federal Register. This compilation is available in most large reference and university libraries. This compilation also can be accessed electronically at the Government Printing Office's World Wide Web site (which can be found at http://www.access.gpo.gov/​su_​docs).

(c) Agreement to pay fees. If you make a Privacy Act request for access to records, it shall be considered an agreement by you to pay all applicable fees charged under § 1600.29 up to $25.00. The Foundation ordinarily will confirm this agreement in an acknowledgment letter. When making a request, you may specify a willingness to pay a greater or lesser amount.

(d) Verification of identity. When you make a request for access to records about yourself, you must verify your identity. You must state your full name, current address, and date and place of birth. You must sign your request and your signature must either be notarized or submitted by you under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. In order to help the identification and location of requested records, you may also, at your option, include your social security number.

(e) Verification of guardianship. When making a request as the parent or guardian of a minor or as the guardian of someone determined by a court to be incompetent, for access to records about that individual, you must establish:

(1) The identity of the individual who is the subject of the record, by stating the name, current address, date and place of birth, and, at your option, the social security number of the individual;

(2) Your own identity, as required in paragraph (d) of this section;

(3) That you are the parent or guardian of that individual, which you may prove by providing a copy of the individual's birth certificate showing your parentage or by providing a court order establishing your guardianship; and (4) That you are acting on behalf of that individual in making the request.

§ 1600.23

Responsibility for responding to requests for access to records.

(a) In general. In determining which records are responsive to a request, the Foundation ordinarily will include only those records in its possession as of the date the Foundation begins its search for them. If any other date is used, the Foundation will inform the requester of that date.

(b) Authority to grant or deny requests. The Foundation's General Counsel, or his/her designee, is authorized to grant or deny any request for access to a record of the Foundation.

(c) Consultations and referrals. When the Foundation receives a request for access to a record in its possession, it will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from access under the Privacy Act. If the Foundation determines that it is best able to process the record in response to the request, then it will do so. If the Foundation determines that it is not best able to process the record, then it will either:

(1) Respond to the request regarding that record, after consulting with the agency best able to determine whether the record is exempt from access and with any other agency that has a substantial interest in it; or (2) Refer the responsibility for responding to the request regarding that record to another agency that originated the record (but only if that agency is subject to the Privacy Act). Ordinarily, the agency that originated a record will be presumed to be best able to determine whether it is exempt from access.

(d) Notice of referral. Whenever the Foundation refers all or any part of the responsibility for responding to your request to another agency, it ordinarily will notify you of the referral and inform you of the name of each agency to which the request has been referred and of the part of the request that has been referred.

(e) Timing of responses to consultations and referrals. All consultations and referrals shall be handled according to the date the Privacy Act access request was initially received by the Foundation, not any later date.

§ 1600.24

Responses to requests for access to records.

(a) Acknowledgments of requests. On receipt of your request, the Foundation ordinarily will send an acknowledgment letter, which shall confirm your agreement to pay fees under § 1600.22(c) and may provide an assigned request number for further reference.

(b) Grants of requests for access. Once the Foundation makes a determination to grant your request for access in whole or in part, it will notify you in writing. The Foundation will inform you in the notice of any fee charged under § 1600.29 and will disclose records to you promptly on payment of any applicable fee. If your request is made in person, the Foundation may disclose records to you directly, in a manner not unreasonably disruptive of its operations, on payment of any applicable fee and with a written record made of the grant of the request. If you are accompanied by another person when you make a request in person, you shall be required to authorize in writing any discussion of the records in the presence of the other person.

(c) Adverse determinations of requests for access. If the Foundation makes an adverse determination denying your request for access in any respect, it will notify you of that determination in writing. Adverse determinations, or denials of requests, consist of: a determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that what has been requested is not a record subject to the Privacy Act; a determination on any disputed fee matter; and a denial of a request for expedited treatment. The notification letter shall be signed by the General Counsel, or his/her designee, and shall include:

(1) The name and title or position of the person responsible for the denial;

(2) A brief statement of the reason(s) for the denial, including any Privacy Act exemption(s) applied by the Foundation in denying the request; and

(3) A statement that the denial may be appealed under § 1600.25(a) and a description of the requirements of § 1600.25(a).

§ 1600.25

Appeals from denials of requests for access to records.

(a) Appeals. If you are dissatisfied with the Foundation's response to your request for access to records, you may appeal an adverse determination denying your request in any respect to the Executive Director of the Foundation, 110 S. Church Avenue, Suite 3350, Tucson, AZ 85701-1650. You must make your appeal in writing, and it must be received within 60 days of the date of the letter denying your request. Your appeal letter may include as much or as little related information as you wish, as long as it clearly identifies the determination (including the assigned request number, if any) that you are appealing. For the quickest possible handling, you should mark both your appeal letter and the envelope “Privacy Act Appeal.”

(b) Responses to appeals. The decision on your appeal will be made in writing. A decision affirming an adverse determination in whole or in part will include a brief statement of the reason(s) for the affirmance, including any Privacy Act exemption applied, and will inform you of the Privacy Act provisions for court review of the decision. If the adverse determination is reversed or modified on appeal in whole or in part, you will be notified in a written decision and your request will be reprocessed in accordance with that appeal decision.

(c) When appeal is required. If you wish to seek review by a court of any adverse determination or denial of a request, you must first appeal it under this section.

§ 1600.26

Requests for amendment or correction of records.

(a) How made and addressed. You may make a request for amendment or correction of a Foundation record about yourself by following the procedures in § 1600.22. Your request should identify each particular record in question, state the amendment or correction that you want, and state why you believe that the record is not accurate, relevant, timely, or complete. You may submit any documentation that you think would be helpful.

(b) Foundation responses. Within 10 working days of receiving your request for amendment or correction of records, the Foundation will send you a written acknowledgment of its receipt of your request, and it will promptly notify you whether your request is granted or denied. If the Foundation grants your request in whole or in part, it will describe the amendment or correction made and advise you of your right to obtain a copy of the corrected or amended record. If the Foundation denies your request in whole or in part, it will send you a letter stating:

(1) The reason(s) for the denial; and

(2) The procedure for appeal of the denial under paragraph (c) of this section, including the name and business address of the official who will act on your appeal.

(c) Appeals. You may appeal a denial of a request for amendment or correction to the Executive Director in the same manner as a denial of a request for access to records (see § 1600.25), and the same procedures will be followed. If your appeal is denied, you will be advised of your right to file a Statement of Disagreement as described in paragraph (d) of this section and of your right under the Privacy Act for court review of the decision.

(d) Statements of Disagreement. If your appeal under this section is denied in whole or in part, you have the right to file a Statement of Disagreement that states your reason(s) for disagreeing with the Foundation's denial of your request for amendment or correction. Statements of Disagreement must be concise, must clearly identify each part of any record that is disputed, and should be no longer than one typed page for each fact disputed. Your Statement of Disagreement must be sent to the Foundation, which will place it in the system of records in which the disputed record is maintained and will mark the disputed record to indicate that a Statement of Disagreement has been filed and where in the system of records it may be found.

(e) Notification of amendment/correction or disagreement. Within 30 working days of the amendment or correction of a record, the Foundation shall notify all persons, organizations, or agencies to which it previously disclosed the record, if an accounting of that disclosure was made, that the record has been amended or corrected. If an individual has filed a Statement of Disagreement, the Foundation will attach a copy of it to the disputed record whenever the record is disclosed and may also attach a concise statement of its reason(s) for denying the request to amend or correct the record.

§ 1600.27

Requests for an accounting of record disclosures.

(a) How made and addressed. Except where accountings of disclosures are not required to be kept (as stated in paragraph (b) of this section), you may make a request for an accounting of any disclosure that has been made by the Foundation to another person, organization, or agency of any record about you. This accounting contains the date, nature, and purpose of each disclosure, as well as the name and address of the person, organization, or agency to which the disclosure was made. Your request for an accounting should identify each particular record in question and should be made by writing to the Foundation, following the procedures in § 1600.22.

(b) Where accountings are not required. The Foundation is not required to provide accountings to you where they relate to disclosures for which accountings are not required to be kept—in other words, disclosures that are made to employees within the agency and disclosures that are made under the FOIA.

(c) Appeals. You may appeal a denial of a request for an accounting to the Foundation Executive Director in the same manner as a denial of a request for access to records (see § 1600.25) and the same procedures will be followed.

§ 1600.28

Preservation of records.

The Foundation will preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 14. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the Act.

§ 1600.29

Fees.

The Foundation will charge fees for duplication of records under the Privacy Act in the same way in which it charges duplication fees under § 1600.10. No search or review fee will be charged for any record.

§ 1600.30

Notice of court-ordered and emergency disclosures.

(a) Court-ordered disclosures. When a record pertaining to an individual is required to be disclosed by a court order, the Foundation will make reasonable efforts to provide notice of this to the individual. Notice will be given within a reasonable time after the Foundation's receipt of the order—except that in a case in which the order is not a matter of public record, the notice will be given only after the order becomes public. This notice will be mailed to the individual's last known address and will contain a copy of the order and a description of the information disclosed.

(b) Emergency disclosures. Upon disclosing a record pertaining to an individual made under compelling circumstances affecting health or safety, the Foundation will notify that individual of the disclosure. This notice will be mailed to the individual's last known address and will state the nature of the information disclosed; the person, organization, or agency to which it was disclosed; the date of disclosure; and the compelling circumstances justifying the disclosure.

Dated: March 7, 2001.

Christopher L. Helms,

Executive Director, Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation.