98-15948. Public Availability of Agency Records and Informational Materials  

  • [Federal Register Volume 63, Number 116 (Wednesday, June 17, 1998)]
    [Proposed Rules]
    [Pages 33023-33033]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 98-15948]
    
    
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    GENERAL SERVICES ADMINISTRATION
    
    41 CFR Part 105-60
    
    RIN 3090-AG16
    
    
    Public Availability of Agency Records and Informational Materials
    
    AGENCY: Office of Management and Workplace Programs, GSA.
    
    ACTION: Proposed rule.
    
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    SUMMARY: The General Services Administration (GSA) proposes to revise 
    its regulations which implement the Freedom of Information Act (FOIA), 
    to incorporate the requirements of the Electronic Freedom of 
    Information Act Amendments of 1996, 5 U.S.C. 552, as amended by Public 
    Law 104-231.
    
    DATES: Comments must be received by July 17, 1998.
    
    ADDRESSES: Comments should be submitted to the Freedom of Information 
    Officer (CAI), General Services Administration, 1800 F Street, NW., 
    Washington, DC 20405.
    
    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).
    
    
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    SUPPLEMENTARY INFORMATION: 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. 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. Sec. 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. Sec. Sec. 601-612. Pursuant to 5 U.S.C. Sec. 605(b), this rule 
    is therefore exempt from the initial and final regulatory flexibility 
    analyses requirements of sections 603 and 604.
    
    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; the Electronic 
    Freedom of Information Act Amendments of 1996, 5 U.S.C. 552, as amended 
    by Public Law 104-213; and Executive Order 12600, Predisclosure 
    Notification Procedures for Confidential Commercial Information, of 
    June 23, 1987.
        The revisions also update organizational references.
        For the reasons set out in the preamble, 41 CFR Part 105-60 is 
    proposed to be 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  Public Information Handbook and Index.
    105-60.305  Fees.
    105-60.305-1  Definitions.
    105-60.305-2  Scope of 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.
    
    Subpart 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 of 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 options 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 which 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:
        (a) GSA records are available to the greatest extent possible in 
    keeping with
    
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    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. GSA will provide the record in the form or format 
    requested if the record is reproducible by the agency in that form or 
    format without significant expenditure of resources. GSA will make 
    reasonable efforts to maintain its records in forms or formats that are 
    reproducible for purposes of this section.
        (d) 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. GSA may compile records or perform 
    minor reprogramming to extract records from a database or system when 
    doing so will not significantly interfere with the operation of the 
    automated system in question or involve a significant expenditure of 
    resources.
        (b) 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 would otherwise 
    be authorized.
        (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) Fees for locating and duplicating records are listed in 
    Sec. 105-60.305-10.
    
    
    Sec. 105-60.103-2  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 is 
    permissive rather than mandatory. GSA will not withhold a record unless 
    there is a compelling reason to do so; i.e., disclosure will likely 
    cause harm to a Governmental or private interest. In the absence of a 
    compelling reason, GSA will disclose a record even if it otherwise is 
    subject to exemption. GSA will cite the compelling reason(s) to 
    requesters when any 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 
    subpart 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 that 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 
    paragraph (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 through an 
    extensive electronic home page, http://www.gsa.gov/. A public handbook 
    listing those materials as described in Sec. 105-60.304 is available at 
    GSA's Central Office in Washington, DC, and at the website at http://
    www.gsa.gov/staff/c/ca/publ.htm. Members of the public who do not have 
    the means to access this information electronically, and who are not 
    located in the Washington, DC area, may contact the Freedom of 
    Information Act office in any of the regional offices listed in this 
    regulation. These offices will make arrangements for members of the 
    public to access the information at a computer located at the FOIA 
    office. 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 and 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.
    
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    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 this section 105-
    60.302, are located in the following places:
    
    Central Office (GSA Headquarters)
        General Services Administration, Washington, DC, Telephone: 202-
    501-2262, FAX: 202-501-2727, Email: gsa.foia@gsa.gov, 1800 F Street, 
    NW (CAI), Washington, DC 20405
    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, DC 
    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: 312-353-
    5385
    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 (7ADQ), 819 Taylor Street, Fort 
    Worth, TX 76102, Telephone: 817-978-3902, FAX: 817-978-4867
    Rock 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: 202-708-4655
    
        (b) Time. The offices listed in paragraph (a) of this section will 
    be open to the public during the business hours of the GSA office where 
    they are located.
        (c) Reproduction services and fees. 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  Public Information Handbook and Index.
    
        GSA publishes a handbook for the public that identifies information 
    regarding any matter described in Sec. 105-60.302. This handbook also 
    lists published information available from GSA and describes the 
    procedures the public may use to obtain information using the Freedom 
    of Information Act (FOIA). This handbook may be obtained without charge 
    from any of the GSA FOIA offices listed in Sec. 105-60.303(a), or at 
    the GSA Internet Homepage (http://www.gsa.gov/staff/c/ca/cai/
    foiabk.htm).
    
    
    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 which 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 which 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 searches 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 c of this section). 
    Searches may be done manually or by computer using existing programming 
    or are programming when this would not significantly interfere with the 
    operation of the automated system in question.
        (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, microform, 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
    
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    documents for disclosure. See Sec. 015-60.305-6.
        (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 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 which 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 
    terms 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;
        (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 which 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 which 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 which are likely to exceed $250. When the 
    anticipated total fee exceeds $250, the requester will receive notice 
    to prepay and at the same time will be given an opportunity to modify 
    his or her request to reduce the fee. When 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.
    
    [[Page 33028]]
    
        (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 staff would be unable to locate the requested 
    records: $29 per hour or fraction of an hour.
        Computer searches: Direct cost to GSA.
        Transportation 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: 10 cents 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) through (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 requester if the fee is $25 or less as 
    the cost of collection is greater than the fee.
        (2) Educational 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 $5.00. 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 $35.00. 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 searches 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) reaches the equivalent dollar amount of two hours of the 
    salary of the person performing a manual search, i.e., the operator, 
    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 requesters are not 
    entitled to two hours of free search time.
        (e) Determining category of requester. GSA may ask any requester to 
    provide additional information at any time to determine what fee 
    category he or she falls under.
    
    
    Sec. 105-60.305-11  Fees for authenticated and attested copies.
    
        The fees set forth in Sec. 105-60.30510 to 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 day 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 GSA reasonably believes that a 
    requester, or group of requesters acting in concert, is attempting to 
    break a 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 charge 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 
    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 a waiver or the 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 request should explain how disclosure of the 
    information would contribute significantly to public's 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 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's understanding.'' The focus here must be on the 
    contribution to public's 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's understanding through the requested disclosure.
    
    [[Page 33029]]
    
        (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's interest in disclosure, that 
    disclosure is ``primarily in the commercial interest of the 
    requester.''
        (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 20-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 (GSA), Washington, DC 20405. Requesters may FAX requests 
    to (202) 501-2727, or submit a request by electronic 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 envelope. The 20-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 (GSA), 18th and F Streets, NW., Washington, DC 20405, 
    (202) 501-2262.
    
    
    Sec. 105-60.402-2   Response to initial requests.
    
        (a) GSA will respond to an initial FOIA request that reasonably 
    describes requested records, including a fee waiver request, within 20 
    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 record to be disclosed are not provided with the initial letter, 
    the records will be sent as soon as possible thereafter.
        (b) 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 an additional 10 workdays. This notice will afford 
    requesters an opportunity to limit the scope of the request so that it 
    may be processed within prescribed time limits or an opportunity to 
    arrange an alternative time frame for processing the request or a 
    modified request. Such mutually agreed time frames will supersede the 
    10 day limit for extensions.
        (c) GSA will consider requests for expedited processing from 
    requesters who submit a statement describing a compelling need and 
    certifying that this need is true and correct to the best of such 
    person's knowledge and belief. A compelling need means:
        (1) Failure to obtain the records on an expedited basis could 
    reasonably be expected to pose an imminent threat to the life or 
    physical safety of an individual; or
        (2) The information is urgently needed by an individual primarily 
    engaged in disseminating information in order to inform the public 
    concerning actual or alleged Federal Government activity. An individual 
    primarily engaged in disseminating information means a person whose 
    primary activity involves publishing or otherwise disseminating 
    information to the public. ``Urgently needed'' information has a 
    particular value that will be lost if not disseminated quickly, such as 
    a breaking news story or general public interest. Information of 
    historical interest only, or information sought for litigation or 
    commercial activities would not qualify, nor would a news media 
    publication or broadcast deadline unrelated to the newsbreaking nature 
    of the information.
        (d) GSA will decide whether to grant expedited processing within 
    five working days of receipt of the request. If the request is granted, 
    GSA will process the request ahead of non-expedited requests, as soon 
    as practicable. If the request is not granted, GSA will give 
    expeditious consideration to administrative appeals of this denial.
        (e) GSA may, at its discretion, establish three processing queues 
    based on whether any request have been granted expedited status and on 
    the difficulty and complexity of preparing a response. Within each 
    queue, responses will be prepared on a ``first in, first out'' basis. 
    One queue will be made up of expedited requests; the second, of simple 
    responses that clearly can be prepared without requesting an extension 
    of time; the third, of responses that will require an extension of 
    time.
    
    
    Sec. 105-60.403  Appeal within GSA.
    
        (a) A requester who receives a denial of a request, in whole or in 
    part, a denial of a request for expedited processing or 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), 
    Washington, DC 20405, regardless of whether the denial being appealed 
    was made in the Central Office or in a regional office. For denials 
    which 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.
    
    [[Page 33030]]
    
        (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 and include a brief statement of 
    the reasons he or she thinks GSA should release the records or provide 
    expedited processing and enclose copies of the initial request and 
    denial. The appeal letter must include the word ``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 of 
    denial of records to issue a determination with respect to 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. GSA will process 
    appeals of denials of expedited processing as soon as possible after 
    receiving them.
        (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 time frame 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 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 an 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 which 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 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 which provides to the 
    Government information which 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 have been required to 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 15.406(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 and 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 5 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 will 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;
    
    [[Page 33031]]
    
        (3) Disclosure of the information is required by law other than the 
    FOIA;
        (4) Disclosure is required by an agency rule that:
        (i) Was adopted pursuant to notice and public comment;
        (ii) Species narrow classes of records submitted to the agency that 
    are to be released under FOIA; 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 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 FOIA 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 
    FOIA.
    
        (a) 5 U.S.C. 552(b) provides that the requirements of the FOIA 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 which 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 of 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 record or information 
    compiled by a 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) 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. Unless indicating the extent of the deletion would harm an 
    interest protected by an exemption, the amount of deleted information 
    shall be indicated on the released portion of paper records by use of 
    brackets or darkened areas indicating removal of information. In the 
    case of electronic deletion, the amount of redacted information shall 
    be indicated at the place in the record where such deletion was made, 
    unless including the indication would harm an interest protected by the 
    exemption under which the exemption was made.
        (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) Pursuant to National Defense Authorization Act for Fiscal Year 
    1997, Pub. L. 104-201, section 821, 110 Stat. 2422, GSA will invoke 
    Exemption 3 to deny access to any proposal submitted by a vendor in 
    response to the requirements of a solicitation for a competitive 
    proposal unless the proposal is set forth or incorporated by reference 
    in a contract entered into between the agency and the contractor that 
    submitted the proposal.
        (e) Whenever a request is made which 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.
        (f) 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.
        (g) 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.
    
    [[Page 33032]]
    
    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.
    
    
    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 which it is maintained 
    or recorded, which 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 which 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 which 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 for all material, information, or testimony not 
    covered by paragraphs (d)(1) and (2) of this section.
    
    
    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 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 which is the responsibility of a regional office, the 
    Regional Administrator and 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 are 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 server 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 which 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 a 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 
    office, 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 waive this 
    requirement for a demand arising out of proceedings to which GSA or the 
    United States is a party. 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 employees from whom testimony or 
    production is or will likely be sought, areas of inquiry, for current
    
    [[Page 33033]]
    
    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 or 
    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 on GSA which disclosure or production 
    would entail; and
        (8) Any additional factors unique to a particular demand or 
    proceeding.
        (f) The Appropriate Authority shall not approve a disclosure or 
    production which 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 which 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 
    which 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 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 attorney 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 compiled with irrespective of 
    instructions by the Appropriate Authority not to produce the material 
    or disclose 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: June 9, 1998.
    Joseph R. Rodriquez,
    Acting Associate Administrator for Management and Workplace Programs.
    [FR Doc. 98-15948 Filed 6-16-98; 8:45 am]
    BILLING CODE 6820-34-M
    
    
    

Document Information

Published:
06/17/1998
Department:
General Services Administration
Entry Type:
Proposed Rule
Action:
Proposed rule.
Document Number:
98-15948
Dates:
Comments must be received by July 17, 1998.
Pages:
33023-33033 (11 pages)
RINs:
3090-AG16: Public Availability of Agency Records
RIN Links:
https://www.federalregister.gov/regulations/3090-AG16/public-availability-of-agency-records
PDF File:
98-15948.pdf
CFR: (46)
41 CFR 60.303(a)
41 CFR 60.305-1(b)
41 CFR 60.302
41 CFR 105.-60.605
41 CFR 105-60.000
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