E7-10420. Freedom of Information Act Regulations

AGENCY:

Office of the Director of National Intelligence.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

This proposed regulation will provide the public the guidelines under which the Office of the Director of National Intelligence will implement the Freedom of Information Act, 5 U.S.C. 552.

DATES:

Submit comments on or before July 5, 2007.

ADDRESSES:

You may submit comments by any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Mail: Chief FOIA Officer c/o Director of Intelligence Staff, Office of the Director of National Intelligence, Washington, DC 20511.

FOR FURTHER INFORMATION CONTACT:

Mr. John F. Hackett, [phone].

SUPPLEMENTARY INFORMATION:

The Office of the Director of National Intelligence (ODNI) was created by the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638. The first Director of National Intelligence, Ambassador John D. Negroponte, was sworn into Office on April 21, 2005, and the ODNI began operations on April 22, 2005. Because the majority of documents held by the ODNI at its inception were previously maintained by the Central Intelligence Agency (CIA), and because the ODNI did not have a FOIA staff upon stand-up, the CIA agreed to handle the administrative aspects of the ODNI's FOIA processing. Through this arrangement, the ODNI makes all legal decisions regarding the handling of FOIA requests for ODNI records and the CIA assists with the administrative tasks associated with processing FOIA requests, including the intake and tracking of requests, as well as drafting correspondence to requesters. The ODNI has gradually built up its FOIA program and is now proposing its own FOIA regulations. The proposed regulations address all aspects of FOIA processing, including how and where to submit FOIA requests, fees for record services, procedures for handling business information, requests for expedited processing and the right to appeal denials of information.

Therefore, as discussed in the preamble, and under the authority of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3638, the ODNI proposes to establish 32 CFR Chapter XVII and add part 1700 to read as follows:

CHAPTER XVII—OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

PART 1700—PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT

1700.1

Authority and purpose.

1700.2

Definitions.

1700.3

Contact for general information and requests.

1700.4

Suggestions and complaints.

1700.5

Preliminary information.

1700.6

Requirements as to form and content.

1700.7

Fees for records services.

1700.8

Processing of requests for records.

1700.9

Action on the request.

1700.10

Payment of fees, notification of decision, and right of appeal.

1700.11

Procedures for business information.

1700.12

Procedures for information concerning other persons.

1700.13

Allocation of resources.

1700.14

Requests for expedited processing.

1700.15

Right of appeal and appeal procedures.

1700.16

Action by appeals authority.

Authority: 5 U.S.C. 552, 50 U.S.C. 401-442; Pub L. 108-458, 188 Stat. 3638.

§ 1700.1

Authority and purpose.

(a) Authority: This part is issued under the authority of and in order to implement the Freedom of Information Act, as amended, 5 U.S.C. 552; the National Security Act of 1947, as amended, 50 U.S.C. 401-442; and the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3638.

(b) Purpose in general. This part prescribes procedures for:

(1) ODNI administration of the FOIA;

(2) Requesting records pursuant to the FOIA; and

(3) Filing an administrative appeal of an initial adverse decision under the FOIA.

§ 1700.2

Definitions.

For purposes of this part, the following terms have the meanings indicated:

(a) Days means calendar days when ODNI is operating and specifically excludes Saturdays, Sundays, and legal public holidays;

(b) Control means actual possession and ownership or the authority of ODNI pursuant to federal statute or privilege to regulate official or public access to a particular record or records. It does not establish an obligation to create any record or data compilation, although ODNI reserves the right to offer production of a compilation as an alternative to production of records;

(c) Direct costs means those expenditures which ODNI actually incurs in the processing of a FOIA request; it does not include overhead factors such as space;

(d) Pages means paper copies of standard office size or the dollar value equivalent in other media;

(e) Reproduction means generation of a copy of a requested record in a form appropriate for release;

(f) Review means all time expended in examining a record to determine whether any portion must be withheld pursuant to law and in effecting any required deletions but excludes personnel hours expended in resolving general legal or policy issues; it also means personnel hours of professional time;

(g) Search means all time expended in looking for and retrieving material that may be responsive to a request utilizing available paper and electronic indices and finding aids; it also means personnel hours of professional time or the dollar value equivalent in computer searches;

(h) Employee or staff member means any employee, detailee, assignee, employee of a contracting organization or independent contractor of the ODNI or any of its component organizations, unless otherwise excepted;

(i) Expression of interest means a written or electronic communication submitted by any person requesting information on or concerning the FOIA program, the availability of documents from ODNI, or both;

(j) Fees means those direct costs which may be assessed a requester considering the categories established by the FOIA; requesters should submit information to assist the ODNI in determining the proper fee category and the ODNI may draw reasonable inferences from the identity and activities of the requester in making such determinations; the fee categories include:

(1) Commercial: A request in which the disclosure sought is primarily in the commercial interest of the requester and which furthers such commercial, trade, income or profit interests;

(2) Non-commercial educational or scientific institution: A request from an accredited United States educational institution at any academic level or institution engaged in research concerning the social, biological, or physical sciences or an instructor or researcher or member of such institutions; it also means that the information will be used in a specific scholarly or analytical work, will contribute to the advancement of public knowledge, and will be disseminated to the general public;

(3) Representative of the news media: 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 components 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.

(4) All other: A request from an individual not within paragraphs (j)(1), (2), or (3) of this section;

(k) Freedom of Information Act, “FOIA,” or “the Act” means the statute as codified at 5 U.S.C. 552;

(l) Interested party means any official in the executive, military, congressional, or judicial branches of government, United States or foreign, or U.S. Government contractor who, in the sole discretion of the ODNI, has a subject matter or physical interest in the documents or information at issue;

(m) ODNI means the Office of the Director of National Intelligence and its component organizations. It does not include members of the Intelligence Community as defined by the National Security Intelligence Reform Act of 2004, section 1073, or other federal entities subsequently designated in accordance with this authority, unless specifically designated as included in this Part or in the notice of a system of records;

(n) Originator means the U.S. Government official who originated the document at issue or successor in office or such official who has been delegated release or declassification authority pursuant to law;

(o) Potential requester means a person, organization, or other entity who submits an expression of interest;

(p) Reasonably described record means a description of a record by unique identification number or descriptive terms that permits an ODNI staff member familiar with the subject matter area to locate documents with reasonable effort given existing indices and finding aids;

(q) Records means all documents, irrespective of physical or electronic form, under the control of ODNI pursuant to federal law or in connection with the transaction of public business at the time ODNI accepts an expression of interest as a formal request or initiates a search, whichever is later, and appropriate for preservation by the ODNI as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the ODNI or because of the informational value of the data contained therein; it does not include:

(1) Commercially available materials or materials made available in electronic or other public reading rooms, except to the extent that such materials are incorporated into any form of analysis or otherwise distributed or published by ODNI;

(2) Personal records maintained by ODNI staff that have not been created, used, disseminated or maintained in a manner inconsistent with their characterization as private;

(3) Objects or items, such as equipment, machinery or material, whatever the historical or evidentiary value; and

(4) Anything that is not a tangible reduction of information to accessible electronic or paper media, such as an individual's memory or oral communications.

(r) Responsive records means those records that ODNI has determined to be within the scope of a formal request.

§ 1700.3

Contact for general information and requests.

For general information on this Part, to inquire about the FOIA program at ODNI, or to file a FOIA request (or expression of interest), please direct communication in writing to the Office of the Director of National Intelligence, Chief FOIA Officer c/o Director, Information Management Office, Washington, DC 20511 by mail or by facsimile at [phone]. For general information or status information on pending cases only, call the ODNI FOIA Customer Service Center at [phone]. Collect calls cannot be accepted.

§ 1700.4

Suggestions and complaints.

ODNI welcomes suggestions or complaints with regard to its administration of the FOIA. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. ODNI will not respond to all communications but will take such actions as determined feasible and appropriate.

§ 1700.5

Preliminary information.

Members of the public shall address all communications to the point of contact specified in § 1700.3 and clearly delineate the communication as a request under the FOIA. ODNI staff who receive a FOIA request shall expeditiously forward the request to the Director, Information Management Office. Requests and appeals (as well as referrals and consultations) received from FOIA requesters who owe outstanding fees for information services at this or other federal agencies will not be accepted and action on all pending requests shall be terminated in such circumstances.

§ 1700.6

Requirements as to form and content.

(a) Required information. No particular form is required. A request must reasonably describe the record or records of interest and be submitted in accordance with this regulation. Documents must be described sufficiently to enable a staff member familiar with the subject to locate the documents with a reasonable amount of effort. In most cases, documents must be locatable through the indexing of ODNI systems. Extremely broad or vague requests, or requests requiring research in order to ascertain meaning may require further clarification before they are accepted as formal requests.

(b) Additional information for fee determination. A requester must provide sufficient personally identifying information to allow staff to determine the appropriate fee category and to contact the requester easily. A requester must agree to pay all applicable fees or fees not to exceed a certain amount or must request a fee waiver in connection with a request.

(c) Otherwise. Communications that do not meet the above requirements will be considered an expression of interest. ODNI staff should attempt to help a potential requester define a request properly. Although staff will take reasonable measures to clarify vague or broad requests, ODNI is not required to clarify an expression of interest that does not meet the requirements of a formal request.

§ 1700.7

Fees for records services.

(a) In general. Search, review, and reproduction fees will be charged in accordance with the provisions below relating to schedule, limitations, and category of requester. Applicable fees will be due even if a subsequent search locates no responsive records or some or all of the responsive records must be denied under one or more of the exemptions of the FOIA.

(b) Fee waiver requests. Records will be furnished without charge or at a reduced rate when ODNI determines:

(1) As a matter of administrative discretion, the interest of the United States Government would be served, or

(2) It is in the public interest to provide responsive records because the disclosure is likely to contribute significantly to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester.

(c) Fee waiver appeals. Denials of requests for fee waivers or reductions may be appealed to the Director of the Intelligence Staff, or his functional equivalent, through the ODNI Chief FOIA Officer. A requester is encouraged to provide any explanation or argument as to how his or her request satisfies the requirements of this regulation and the Act. See § 1700.15 for further details on appeals.

(d) Time for fee waiver requests and appeals. Appeals should be resolved prior to the initiation of processing and the incurring of costs. However, fee waiver requests will be accepted at any time prior to an agency decision regarding the request, except when processing has been initiated, in which case the requester must agree to be responsible for costs in the event of an adverse administrative or judicial decision.

(e) Agreement to pay fees. In order to protect requesters from large and/or unanticipated charges, ODNI will request a payment commitment when staff estimate that fees will exceed $100.00, not including charges associated with the first 100 pages of production and two hours of search (when applicable). ODNI will hold in abeyance for 45 days requests requiring such agreement and will thereafter deem the request closed. A request deemed closed may be reopened upon receipt of an appropriate fee commitment or a requester may limit the scope of his or her request.

(f) Advance payment. The ODNI may require an advance payment of up to 100 percent of the estimated fees when projected fees exceed $250.00, not including charges associated with the first 100 pages of production and two hours of search (when applicable), or when the requester previously failed to pay fees in a timely fashion, for fees of any amount. ODNI will hold in abeyance for 45 days those requests where advance payment has been requested.

(g) Schedule of fees. (1) In general. The schedule of fees for services performed in responding to requests for records is as follows:

Personnel Search and Review

Clerical/Technical	Quarter hour	$5.00
Professional/Supervisory	Quarter hour	10.00
Manager/Senior Professional	Quarter hour	18.00

Computer Search and Production

Search (on-line)	Flat rate	10.00
Search (off-line)	Flat rate	30.00
Other activity	Per minute	10.00
Tapes (mainframe cassette)	Each	9.00
Tapes (mainframe cartridge)	Each	9.00
Tapes (mainframe reel)	Each	20.00
Tapes (PC 9mm)	Each	25.00
Diskette (3.5″)	Each	4.00
CD (bulk recorded)	Each	10.00
CD (recordable)	Each	20.00
Telecommunications	Per minute	.50
Paper (mainframe printer)	Per page	.10
Paper (PC b&w laser printer)	Per page	.10
Paper (PC color printer)	Per page	1.00

Paper Production

Photocopy (standard or legal)	Per page	.10
Microfiche.	Per frame	.20
Pre-printed (if available)	Per 100 pages	5.00
Published (if available)	Per item	NTIS

(2) Application of schedule. Personnel search time includes time expended in manual paper records searches, indices searches, review of computer search results for relevance, personal computer system searches, and various reproduction services. In any event where the actual cost to ODNI of a particular item is less than the above schedule (e.g., a large production run of a document resulting in a cost less than $5.00 per hundred pages), then the actual lesser cost will be charged. Items published and available at the National Technical Information Service (NTIS) are also available from ODNI pursuant to this part at the NTIS price as authorized by statute.

(3) Other services. For all other types of output, production, or reproduction (e.g., photographs, maps, or published reports), ODNI will charge actual cost or amounts authorized by statute. Determinations of actual cost shall include the commercial cost of the media, the personnel time expended in making the item to be released, and an allocated cost of the equipment used in making the item, or, if the production is effected by a commercial service, then that charge shall be deemed the actual cost for purposes of this regulation.

(h) Limitations on collection of fees. (1) In general. No fees will be charged if the cost of collecting the fee is equal to or greater than the fee itself. That cost includes the administrative costs to ODNI of billing, receiving, recording, and processing the fee for deposit to the Treasury Department and, as of the date of these regulations, is deemed to be $10.00.

(2) [Reserved]

(i) Fee categories. There are four categories of FOIA requesters for fee purposes: Commercial use requesters, educational and non-commercial scientific institution requesters, representatives of the news media requesters, and all other requesters. The categories are defined in § 1700.2 and applicable fees will be assessed as follows:

(1) Commercial use requesters: Charges which recover the full direct costs of searching for, reviewing, and duplicating responsive records (if any);

(2) Educational and non-commercial scientific institution requesters, and representatives of the news media requesters: Only charges for reproduction beyond the first 100 pages;

(3) All other requesters: Charges which recover the full direct cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time which will be furnished without charge.

(j) Associated requests. If it appears a requester or a group of requesters acting in concert have requested portions of an apparently unitary request for the purpose of avoiding the assessment of fees, ODNI may aggregate any such requests and charge accordingly. Requests from multiple requesters will not be aggregated without clear evidence. ODNI will not aggregate multiple unrelated requests.

§ 1700.8

Processing of requests for records.

(a) In general. Requests meeting the requirements of § 1700.3 through § 1700.7 shall be accepted as formal requests and processed under the FOIA and these regulations. A request will not be considered received until it reaches the Information Management Office. Ordinarily upon its receipt a request will be date-stamped as received. It is this date that establishes when your request is received for administrative purposes, not any earlier date such as the date of the letter or its postmark date. For the quickest possible handling, both the request letter and the envelope should be marked “Freedom of Information Act Request.”

(b) Electronic Reading Room. ODNI maintains an online FOIA Reading Room on the ODNI Web site which contains the information that the FOIA requires be routinely made available for public inspection and copying as well as other information determined to be of general public interest.

(c) Confirming the existence of certain documents. In processing a request, ODNI shall decline to confirm or deny the existence of responsive records whenever the fact of their existence or nonexistence is itself classified under Executive Order 12958 and its amending orders, reveals intelligence sources and methods protected pursuant to 50 U.S.C. 403-1(i)(1), or would be an invasion of the personal privacy of third parties. In such circumstances, ODNI, in its final written response, shall so inform the requester and advise of his or her right to file an administrative appeal.

(d) Time for response. Whenever the statutory time limits for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, and the component determines to extend the time limits on that basis, ODNI will inform the requester in writing and advise the requester of the right to narrow the scope of his or her request or agree to an alternative time frame for processing.

(e) Multitrack processing. ODNI 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, including through limits based on the number of pages involved. ODNI may provide requesters in its slower track 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.

§ 1700.9

Action on the request.

(a) Initial action for access. ODNI staff identified to search for records pursuant to a FOIA request shall search all relevant record systems within their cognizance as of the date the search is commenced. A staff member tasked to conduct a search shall:

(1) Determine whether records exists;

(2) Determine whether and to what extent any FOIA exemptions apply;

(3) Make recommendations for withholding records or portions of records that originated in the staff member's organization and for which there is a legal basis for denial or make a recommendation in accordance with § 1700.8(c). In making recommendations, ODNI staff shall be guided by the procedures specified in § 1700.11 regarding confidential commercial information and § 1700.12 regarding third party information; and

(4) Forward to the Director, Information Management Office, all records responsive to the request.

(b) Referrals and consultations. ODNI records containing information originated by other ODNI components shall be forwarded to those entities for action in accordance with paragraph (a) of this section and returned. Records originated by other federal agencies or ODNI records containing other federal agency information shall be forwarded to such agencies for processing and direct response to the requester or for consultation and return to the ODNI. ODNI will notify the requester if it makes a referral for direct response.

(c) Release of information. When the Director, Information Management Office (or Appeals Authority) makes a final determination to release records, the records will be forwarded to the requester in an appropriate format promptly upon compliance with any preliminary procedural requirements, including payment of fees. If any portion of a record is withheld initially or upon appeal, the Director, Information Management Office (or Appeals Authority) will provide a written response that shall include, at a minimum:

(1) The basis for the withholding, citing the specific statutory exemption or exemptions invoked under the FOIA with respect to each portion withheld, unless documents are withheld in accordance with § 1700.8(c);

(2) When the withholding is based in whole or in part on a security classification, the explanation shall include a determination that the record meets the cited criteria and rationale of the governing Executive Order;

(3) When the denial is based on 5 U.S.C. 552(b)(3), the statute relied upon; and

(4) Notice to the requester of the right to judicial review.

§ 1700.10

Payment of fees, notification of decision, and right of appeal.

(a) Fees in general. Fees collected under this Part do not accrue to ODNI and shall be deposited immediately to the general account of the United States Treasury.

(b) Notification of decision. Upon completion of all required review and the receipt of accrued fees (or promise to pay such fees), ODNI will promptly inform the requester in writing of those records or portions of records that will be released and those that will be denied.

(1) For documents to be released, ODNI will provide paper copies or documents on electronic media, if requested and available;

(2) For documents not released or partially released, ODNI shall explain the reasons for any denial and give notice of a right of administrative appeal. For partial releases, redactions will be made to ensure requesters can see the placement and general length of redactions with the applicable exemption or exemptions clearly with respect to each redaction.

§ 1700.11

Procedures for business information.

(a) In general. Business information obtained by ODNI from a submitter shall not be disclosed pursuant to a FOIA request except in accordance with this section. For purposes of this section, the following definitions apply:

(1) Business information means commercial or financial information in which a legal entity has a recognized property interest;

(2) Confidential commercial information means such business information provided to the United States Government by a submitter which is reasonably believed to contain information exempt from release under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm; and

(3) Submitter means any person or entity who provides confidential commercial information to the United States Government; it includes, but is not limited to, corporations, businesses (however organized), State governments, and foreign governments.

(b) Designation of confidential commercial information. A submitter of business information will use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be confidential commercial information and hence protected from required disclosure pursuant to Exemption 4 of the FOIA. Such designations shall expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.

(c) Process in event of FOIA request—(1) Notice to submitters. ODNI shall provide a submitter with prompt written notice of receipt of a FOIA request encompassing business information whenever:

(i) The submitter has in good faith designated the information as confidential commercial information, or

(ii) ODNI staff believe that disclosure of the information could reasonably be expected to cause substantial competitive harm, and

(iii) The information was submitted within the last 10 years unless the submitter requested and provided acceptable justification for a specific notice period of greater duration.

(2) Form of notice. Communication to a submitter of commercial information shall either describe the exact nature of the confidential commercial information at issue or provide copies of the responsive records containing such information.

(3) Response by submitter. (i) Within seven days of the notice described in paragraph (c)(1) of this section, all claims of confidentiality by a submitter must be supported by a detailed statement of any objection to disclosure. Such statement shall:

(A) Affirm that the information has not been disclosed to the public;

(B) Explain why the information is a trade secret or confidential commercial information;

(C) Explain in detail how disclosure of the information will result in substantial competitive harm;

(D) Affirm that the submitter will provide ODNI and the Department of Justice with such litigation support as requested; and

(E) Be certified by an officer authorized to legally bind the submitter.

(ii) It should be noted that information provided by a submitter pursuant to this provision may itself be subject to disclosure under the FOIA.

(4) Decision and notice of intent to disclose. (i) ODNI shall consider carefully a submitter's objections and specific grounds for nondisclosure prior to its final determination. If the Director, Information Management Office, decides to disclose a document over the objection of a submitter, ODNI shall provide the submitter a written notice that shall include:

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

(B) A description of the information to be disclosed; and

(C) A specified disclosure date that is seven days after the date of the instant notice.

(ii) When notice is given to a submitter under this section, the ODNI shall also notify the requester and, if the ODNI notifies a submitter that it intends to disclose information, then the requester shall be notified also and given the proposed date for disclosure.

(5) Notice of FOIA lawsuit. If a requester initiates legal action seeking to compel disclosure of information asserted to be within the scope of this section, ODNI shall promptly notify the submitter. The submitter, as specified above, shall provide such litigation assistance as required by ODNI and the Department of Justice.

(6) Exceptions to notice requirement. The notice requirements of this section shall not apply if ODNI determines that:

(i) The information should not be disclosed, pursuant to Exemption 4 and/or any other exemption of the FOIA;

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

(iii) The disclosure of the information is otherwise required by law or federal regulation; or

(iv) The designation made by the submitter under this section appears frivolous, except that, in such a case, the ODNI will, within a reasonable time prior to the specified disclosure date, give the submitter written notice of any final decision to disclose the information.

§ 1700.12

Procedures for information concerning other persons.

(a) In general. Personal information concerning individuals other than the requester shall not be disclosed under the FOIA if the proposed release would constitute a clearly unwarranted invasion of personal privacy, or, if the information was compiled for law enforcement purposes, it could reasonably be expected to constitute an unwarranted invasion of personal privacy. See 5 U.S.C. 552(b)(6) and (b)(7)(C). For purposes of this section, the following definitions apply:

(1) Personal information means any information about an individual that is not a matter of public record, or easily discernible to the public, or protected from disclosure because of the implications that arise from Government possession of such information.

(2) Public interest means the public interest in understanding the operations and activities of the United States Government and not simply any matter that might be of general interest to the requester or members of the public.

(b) Determination to be made. In making the required determination under this section and pursuant to Exemptions 6 and 7(C) of the FOIA, ODNI will balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information.

(c) Otherwise. A requester seeking information on a third party is encouraged to provide a signed affidavit or declaration from the third party consenting to disclosure of the information. However, any such statements shall be narrowly construed and the Director, Information Management Office, in the exercise of that officer's discretion and administrative authority, may seek clarification from the third party prior to any or all releases.

§ 1700.13

Allocation of resources.

(a) In general. ODNI shall devote such personnel and other resources to the responsibilities imposed by the FOIA as may be appropriate and reasonable considering:

(1) The totality of resources available;

(2) The demands imposed on ODNI in fulfillment of its statutory responsibilities or otherwise by law;

(3) The demand imposed upon ODNI component organizations by the ODNI or otherwise by law;

(4) The information review and release demands imposed by Congress or other governmental authority; and

(5) The rights of all members of the public under the various information review and disclosure laws.

(b) Discharge of FOIA responsibilities. ODNI and its components shall exercise due diligence in their responsibilities under FOIA and must allocate a reasonable level of resources to requests under the Act on a strictly “first-in, first-out” basis and utilizing two or more processing queues to ensure that complex and simple requests receive equitable attention. The ODNI Chief FOIA Officer is responsible for management of the ODNI-wide program defined by this Part and for establishing priorities for cases consistent with established law. The Director, Information Management Office, shall provide policy and resource direction as necessary.

§ 1700.14

Requests for expedited processing.

(a) In general. All requests will be handled in the order received on a strictly “first-in, first-out” basis. Exceptions to this rule will only be made in accordance with the following procedures.

(b) Procedure. Requests for expedited processing will be approved only when a requester establishes compelling need for records to the satisfaction of the Director, Information Management Office, and it appears to him or her that substantive records relevant to the stated needs may exist and be deemed releasable. A requester may make a request with a certification of “compelling need” and the Director, Information Management Office, will decide whether to grant expedited processing and will notify the requester of his or her decision. The certification shall set forth with specificity the relevant facts upon which the requester relies and will attest that the statement is true and accurate. A “compelling need” is deemed to exist:

(1) When failure to obtain requested 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) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.

§ 1700.15

Right to appeal and appeal procedures.

(a) Right to appeal. Individuals who disagree with a decision not to produce a document or parts of a document, to deny a fee category request, to deny a request for a fee waiver or fee reduction, to deny expedited processing, or a decision regarding a fee estimate or a determination that no records exist, should submit a written request for review to the Chief FOIA Officer c/o Director, Information Management Office, Office of the Director of National Intelligence, Washington, DC 20511. The words “FOIA APPEAL” should be written on the letter and the envelope. The appeal must be signed by the individual or his legal counsel.

(b) Requirements as to time and form. Appeals of adverse decisions must be received within 45 days of the date of the ODNI's initial decision. Requesters should include a statement of the reasons supporting the request for reversal of the initial decision.

(c) Exceptions. No appeal shall be accepted if the requester has outstanding fees for information services at this or another federal agency. In addition, no appeal shall be accepted if the information in question has been the subject of an administrative review within the previous two years or is the subject of pending litigation in the Federal courts.

§ 1700.16

Action by appeals authority.

(a) The Director of the Intelligence Staff, after consultation with any ODNI component organization involved in the initial decision as well as with the Office of General Counsel, will make a final determination on the appeal. Appeals of denials of requests for expedited processing shall be acted on expeditiously.

(b) The Director, Information Management Office, will ordinarily be the initial deciding official on FOIA requests to the ODNI. However, in the event the Director of the Intelligence Staff makes an initial decision that is later appealed, the Principal Deputy Director for National Intelligence will decide the appeal in accordance with the procedures in this section.

Dated: May 17, 2007.

David Shedd,

Acting Director of the Intelligence Staff.