[Federal Register Volume 62, Number 165 (Tuesday, August 26, 1997)]
[Proposed Rules]
[Pages 45184-45196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22079]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Parts 16 and 50
[Attorney General Order No. 2105-97]
RIN 1105-AA20
Revision of Department of Justice Freedom of Information Act and
Privacy Act Regulations and Implementation of Electronic Freedom of
Information Act Amendments of 1996
AGENCY: Department of Justice.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document sets forth proposed revisions of the
Department's regulations under both the Freedom of Information Act
(FOIA) and the Privacy Act of 1974. The FOIA and Privacy Act
regulations have been streamlined and condensed, in accordance with the
principles of the National Performance Review, with more ``user-
friendly'' language wherever possible. These revisions also reflect the
principles established by President Clinton and Attorney General Reno
in their FOIA Policy Memoranda of October 4, 1993. The new statement of
discretionary disclosure policy will supersede the existing regulation
regarding discretionary access to records of historical interest.
Additionally, the regulations have been updated to reflect developments
in the case law and to include updated cost figures to be used in
calculating and charging fees. These proposed revisions also contain
new provisions implementing the Electronic Freedom of Information Act
Amendments of 1996.
DATES: Submit comments on or before September 25, 1997.
ADDRESSES: Address all comments concerning this proposed rule to Janice
Galli McLeod, Office of Information and Privacy, U.S. Department of
Justice, Flag Building, Suite 570, Washington, DC 20530-0001.
FOR FURTHER INFORMATION CONTACT: Janice Galli McLeod ((202) 514-3642).
SUPPLEMENTARY INFORMATION: These comprehensive revisions of subparts A
and D of part 16 incorporate changes to the language and structure of
the regulations and also add new provisions
[[Page 45185]]
to implement the Electronic Freedom of Information Act Amendments of
1996 (Public Law 104-231). New provisions implementing the amendments
are found at Sec. 16.2(c) (electronic reading rooms), Sec. 16.5 (timing
of responses), Sec. 16.6(b) (deletion marking), Sec. 16.6(c)(3) (volume
estimation), Sec. 16.11(b)(3) (format of disclosure), and
Sec. 16.11(b)(8) (electronic searches).
Proposed revisions of the Department's fee schedule can be found at
Sec. 16.11(c) and (d). The duplication charge will remain the same at
ten cents per page, while document search and review charges will
increase to $4.00, $7.00, and $10.25 per quarter hour for clerical,
professional, and managerial time, respectively. The amount at or below
which the Department will not charge a fee will increase from $8.00 to
$14.00.
Proposed revisions to the Privacy Act regulations include a second
method for the verification of identity for persons seeking access to
their own records in Sec. 16.41(d) and the elimination of existing
subsection Sec. 16.43(d) regarding limitations on access to medical
records.
For specific sections and subsections of the regulations
implementing the Electronic Freedom of Information Act Amendments of
1996, the following effective dates apply:
Sec. 16.2(c)--electronic reading rooms--November 1, 1997;
Sec. 16.5(b), (c), and (d)--processing requests under multi-track
systems, under unusual circumstances, and with expedited treatment--
October 2, 1997; and
Sec. 16.6(c)(3)--volume estimation--October 2, 1997.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 606(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities. Under the Freedom of
Information Act, agencies may recover only the direct costs of
searching for, reviewing, and duplicating the records processed for
requesters. Thus, fees assessed by the Department are nominal. Further,
the ``small entities'' that make FOIA requests, as compared with
individual requesters and other requesters, are relatively few in
number.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Office of Management and Budget has determined that this rule is a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review, and accordingly this rule has
been reviewed by that Office.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
List of Subjects
28 CFR Part 16
Administrative practice and procedure, Freedom of information,
Privacy.
28 CFR Part 50
Administrative practice and procedure.
For the reasons stated in the preamble, the Department of Justice
proposes to amend 28 CFR Chapter I, Parts 16 and 50, as follows:
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
1. The authority citation for part 16 is revised to read as
follows:
Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C.
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717.
2. Subpart A of part 16 is revised to read as follows:
Subpart A--Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec.
16.1 General provisions.
16.2 Public reading rooms.
16.3 Requirements for making requests.
16.4 Responsibility for responding to requests.
16.5 Timing of responses to requests.
16.6 Responses to requests.
16.7 Classified information.
16.8 Business information.
16.9 Appeals.
16.10 Preservation of records.
16.11 Fees.
16.12 Other rights and services.
Subpart A--Procedures for Disclosure of Records Under the Freedom
of Information Act
Sec. 16.1 General provisions.
(a) This subpart contains the rules that the Department of Justice
follows in processing requests for records under the Freedom of
Information Act (FOIA), 5 U.S.C. 552. Requests made by individuals for
records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a,
which are processed under subpart D of this part, are processed under
this subpart also. Information routinely provided to the public as part
of a regular Department activity (for example, press releases issued by
the Office of Public Affairs) may be provided to the public without
following this subpart. As a matter of policy, the Department makes
discretionary disclosures of records or information exempt under the
FOIA whenever disclosure would not foreseeably harm an interest
protected by a FOIA exemption, but this policy does not create any
right enforceable in court.
(b) As used in this subpart, component means each separate bureau,
office, board, division, commission, service, or administration of the
Department of Justice.
Sec. 16.2 Public reading rooms.
(a) The Department maintains public reading rooms that contain the
records that the FOIA requires to be made regularly available for
public inspection and copying. Each Department component is responsible
for determining which of the records it generates are required to be
made available in this way and for making those records available
either in its own reading room or in the Department's central reading
room. Each component shall maintain and make available for public
inspection and copying a current subject-matter index of its reading
room records. Each index shall be updated regularly, at least
quarterly, with respect to newly included records.
(b) The Department maintains public reading rooms or areas at the
locations listed below:
[[Page 45186]]
(1) Bureau of Prisons--on the Seventh Floor, 500 First Street, NW.,
Washington, DC;
(2) Civil Rights Division--in Room 930, 320 First Street, NW.,
Washington, DC;
(3) Community Relations Service--in Suite 2000, 600 E Street, NW.,
Washington, DC;
(4) Drug Enforcement Administration--in Room W-7216, 700 Army Navy
Drive, Arlington, Virginia;
(5) Executive Office for Immigration Review (Board of Immigration
Appeals)--in Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia;
(6) Federal Bureau of Investigation--at the J. Edgar Hoover
Building, 935 Pennsylvania Avenue, NW., Washington, DC;
(7) Foreign Claims Settlement Commission--in Room 6002, 600 E
Street, NW., Washington, DC;
(8) Immigration and Naturalization Service--425 I Street, NW.,
Washington, DC;
(9) Office of Justice Programs--in Room 1245 B, 633 Indiana Avenue,
NW., Washington, DC;
(10) Pardon Attorney--on the Fourth Floor, 500 First Street, NW.,
Washington, DC;
(11) United States Attorneys and United States Marshals--at the
principal offices of the United States Attorneys and the United States
Marshals, which are listed in most telephone books; and
(12) All other components of the Department of Justice--in Room
6505 at the Main Justice Building, 950 Pennsylvania Avenue, NW.,
Washington, DC.
(c) Components shall also make reading room records created by the
Department on or after November 1, 1996, available electronically
through the Department's World Wide Web site (which can be found at
http://www.usdoj.gov). This includes each component's index of its
reading room records, which will indicate which records are available
electronically.
Sec. 16.3 Requirements for making requests.
(a) How made and addressed. You may make a request for records of
the Department of Justice by writing directly to the Department
component that maintains those records. If you are making a request for
records about yourself, see Sec. 16.41(d) for additional requirements.
If you are making a request for records about another individual,
either a written authorization signed by that individual permitting
disclosure of those records to you or proof that that individual is
deceased (for example, a copy of a death certificate or an obituary)
will help the processing of your request. Your request should be sent
to the component's FOIA office at the address listed in Appendix I to
Part 16. In most cases, your FOIA request should be sent to a
component's central FOIA office. For records held by a field office of
the Federal Bureau of Investigation (FBI) or the Immigration and
Naturalization Service (INS), however, you must write directly to that
FBI or INS field office address, which can be found in most telephone
books, or by calling the component's central FOIA office. (The
functions of each component are summarized in Part 0 of this title and
in the description of the Department and its components in the ``United
States Government Manual,'' which is issued annually and is available
in most libraries, as well as for sale from the Government Printing
Office's Superintendent of Documents. This manual also can be accessed
electronically at the Government Printing Office's World Wide Web site
(which can be found at http://www.access.gpo.gov/su__docs).) If you
cannot determine where within the Department to send your request, you
may send it to the FOIA/PA Mail Referral Unit, Justice Management
Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW.,
Washington, DC 20530-0001. That office will forward your request to the
component(s) it believes most likely to have the records that you want.
Your request will be considered received as of the date it is received
by the proper component's FOIA office. For the quickest possible
handling, you should mark both your request letter and the envelope
``Freedom of Information Act Request.''
(b) Description of records sought. You must describe the records
that you seek in enough detail to enable Department personnel to locate
them with a reasonable amount of effort. Whenever possible, your
request should include specific information about each record sought,
such as the date, title or name, author, recipient, and subject matter
of the record. In addition, if you want records about a court case, you
should provide the title of the case, the court in which the case was
filed, and the nature of the case. If known, you should include any
file designations or descriptions for the records that you want. As a
general rule, the more specific you are about the records or type of
records that you want, the more likely the Department will be able to
locate those records in response to your request. If a component
determines that your request does not reasonably describe records, it
shall tell you either what additional information is needed or why your
request is otherwise insufficient. The component also shall give you an
opportunity to discuss your request so that you may modify it to meet
the requirements of this section.
(c) Agreement to pay fees. If you make a FOIA request, it shall be
considered an agreement by you to pay all applicable fees charged under
Sec. 16.11, up to $25.00, unless you seek a waiver of fees. The
component responsible for responding to your request ordinarily will
confirm this agreement in an acknowledgement letter. When making a
request, you may specify a willingness to pay a greater or lesser
amount.
Sec. 16.4 Responsibility for responding to requests.
(a) In general. Except as stated in paragraphs (c), (d), and (e) of
this section, the component that first receives a request for a record
and has possession of that record is the component responsible for
responding to the request. In determining which records are responsive
to a request, a component ordinarily will include only records in its
possession as of the date the component begins its search for them. If
any other date is used, the component shall inform the requester of
that date.
(b) Authority to grant or deny requests. The head of a component,
or the component head's designee, is authorized to grant or deny any
request for a record of that component.
(c) Consultations and referrals. When a component receives a
request for a record in its possession, it shall determine whether
another component, or another agency of the Federal Government, is
better able to determine whether the record is exempt from disclosure
under the FOIA and, if so, whether it should be disclosed as a matter
of administrative discretion. If the receiving component determines
that it is best able to process the record in response to the request,
then it shall do so. If the receiving component determines that it is
not best able to process the record, then it shall either:
(1) Respond to the request regarding that record, after consulting
with the component or agency best able to determine whether to disclose
it and with any other component or agency that has a substantial
interest in it; or
(2) Refer the responsibility for responding to the request
regarding that record to the component best able to determine whether
to disclose it, or to another agency that originated the record (but
only if that agency is subject to the FOIA). Ordinarily, the component
or agency that originated a record will
[[Page 45187]]
be presumed to be best able to determine whether to disclose it.
(d) Law enforcement information. Whenever a request is made for a
record containing information that relates to an investigation of a
possible violation of law and was originated by another component or
agency, the receiving component shall either refer the responsibility
for responding to the request regarding that information to that other
component or agency or shall consult with that other component or
agency.
(e) Classified information. Whenever a request is made for a record
containing information that has been classified, or may be appropriate
for classification, by another component or agency under Executive
Order 12958 or any other executive order concerning the classification
of records, the receiving component shall refer the responsibility for
responding to the request regarding that information to the component
or agency that classified the information, should consider the
information for classification, or has the primary interest in it, as
appropriate. Whenever a record contains information that has been
derivatively classified by a component because it contains information
classified by another component or agency, the component shall refer
the responsibility for responding to the request regarding that
information to the component or agency that classified the underlying
information.
(f) Notice of referral. Whenever a component refers all or any part
of the responsibility for responding to a request to another component
or agency, it ordinarily shall notify the requester of the referral and
inform the requester of the name of each component or agency to which
the request has been referred and of the part of the request that has
been referred.
(g) Timing of responses to consultations and referrals. All
consultations and referrals will be handled according to the date the
FOIA request initially was received by the first component or agency,
not any later date.
(h) Agreements regarding consultations and referrals. Components
may make agreements with other components or agencies to eliminate the
need for consultations or referrals for particular types of records.
Sec. 16.5 Timing of responses to requests.
(a) In general. Components ordinarily shall respond to requests
according to their order of receipt.
(b) Multitrack processing. (1) A component 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. If a component does so, it shall advise requesters in its
slower track(s) of the limits of its faster track(s).
(2) A component using multitrack processing may provide requesters
in its slower track(s) with an opportunity to limit the scope of their
requests in order to qualify for faster processing within the specified
limits of the component's faster track(s). A component doing so will
contact the requester either by telephone or by letter, whichever is
most efficient in each case.
(c) Unusual circumstances. (1) Where the time limits for processing
a request cannot be met because of unusual circumstances and the
component determines to extend the time limits on that basis, the
component shall as soon as practicable notify the requester in writing
of the unusual circumstances and of the date by which processing of the
request can be expected to be completed. Where the extension is for
more than ten working days, the component shall provide the requester
with an opportunity either to modify the request so that it may be
processed within the time limits or to arrange an alternative time
period with the component for processing the request or a modified
request.
(2) Where a component reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in
concert, constitute a single request that would otherwise involve
unusual circumstances, and the requests involve clearly related
matters, they may be aggregated. Multiple requests involving unrelated
matters will not be aggregated.
(d) Expedited processing. (1) Requests and appeals will be taken
out of order and given expedited treatment whenever it is determined
that they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person primarily engaged in
disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the government's integrity which
affect public confidence.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, a request for expedited processing must be received by
the proper component. Requests based on the categories in paragraphs
(d)(1)(i), (ii), and (iii) of this section must be submitted to the
component that maintains the records requested. Requests based on the
category in paragraph (d)(1)(iv) of this section must be submitted to
the Director of Public Affairs, whose address is: Office of Public
Affairs, U.S. Department of Justice, Room 1128, 950 Pennsylvania
Avenue, NW., Washington, DC 20530-0001.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
person's knowledge and belief, explaining in detail the basis for
requesting expedited processing. For example, a requester within the
category in paragraph (d)(1)(ii) of this section, if not a full-time
member of the news media, must establish that he or she is a person
whose main professional activity or occupation is information
dissemination, though it need not be his or her sole occupation. A
requester within the category in paragraph (d)(1)(ii) of this section
also must establish a particular urgency to inform the public about the
government activity involved in the request, beyond the public's right
to know about government activity generally. The formality of
certification may be waived as a matter of administrative discretion.
(4) Within ten calendar days of its receipt of a request for
expedited processing, the proper component shall decide whether to
grant it and shall notify the requester of the decision. If a request
for expedited treatment is granted, the request shall be given priority
and shall be processed as soon as practicable. If a request for
expedited processing is denied, any appeal of that decision shall be
acted on expeditiously.
Sec. 16.6 Responses to requests.
(a) Acknowledgements of requests. On receipt of a request, a
component ordinarily shall send an acknowledgement letter to the
requester which shall confirm the requester's agreement to pay fees
under Sec. 16.3(c) and provide an assigned request number for further
reference.
(b) Grants of requests. Once a component makes a determination to
grant a request in whole or in part, it shall notify the requester in
writing. The
[[Page 45188]]
component shall inform the requester in the notice of any fee charged
under Sec. 16.11 and shall disclose records to the requester promptly
on payment of any applicable fee. Records disclosed in part shall be
marked or annotated to show both the amount and the location of the
information deleted wherever practicable.
(c) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, consist of: a determination to withhold any
requested record in whole or in part; a determination that a requested
record does not exist or cannot be located; a determination that what
has been requested is not a record subject to the Act; a determination
on any disputed fee matter, including a denial of a request for a fee
waiver; and a denial of a request for expedited treatment. The denial
letter shall be signed by the head of the component, or the component
head's designee, and shall include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reason(s) for the denial, including
any FOIA exemption applied by the component in denying the request;
(3) An estimate of the volume of records or information withheld,
in number of pages or in some other reasonable form of estimation. This
estimate does not need to be provided if the volume is otherwise
indicated through deletions on records disclosed in part, or if
providing an estimate would harm an interest protected by an applicable
exemption; and
(4) A statement that the denial may be appealed under Sec. 16.9(a)
and a description of the requirements of Sec. 16.9(a).
Sec. 16.7 Classified information.
In processing a request for information that is classified under
Executive Order 12958 (3 CFR, 1996 Comp., p. 333) or any other
executive order, the originating component shall review the information
to determine whether it should remain classified. Information
determined to no longer require classification shall not be withheld on
the basis of Exemption 1 of the FOIA. On receipt of any appeal
involving classified information, the Office of Information and Privacy
shall take appropriate action to ensure compliance with part 17 of this
title.
Sec. 16.8 Business information.
(a) In general. Business information obtained by the Department
from a submitter will be disclosed under the FOIA only under this
section.
(b) Definitions. For purposes of this section:
(1) Business information means commercial or financial information
obtained by the Department from a submitter that may be protected from
disclosure under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from whom the Department
obtains business information, directly or indirectly. The term includes
corporations; state, local, and tribal governments; and foreign
governments.
(c) Designation of business 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
protected from disclosure under Exemption 4. These designations will
expire ten years after the date of the submission unless the submitter
requests, and provides justification for, a longer designation period.
(d) Notice to submitters. A component shall provide a submitter
with prompt written notice of a FOIA request or administrative appeal
that seeks its business information wherever required under paragraph
(e) of this section, except as provided in paragraph (h) of this
section, in order to give the submitter an opportunity to object to
disclosure of any specified portion of that information under paragraph
(f) of this section. The notice shall either describe the business
information requested or include copies of the requested records or
record portions containing the information. When notification of a
voluminous number of submitters is required, notification may be made
by posting or publishing the notice in a place reasonably likely to
accomplish it.
(e) Where notice is required. Notice shall be given to a submitter
wherever:
(1) The information has been designated in good faith by the
submitter as information considered protected from disclosure under
Exemption 4; or
(2) The component has reason to believe that the information may be
protected from disclosure under Exemption 4.
(f) Opportunity to object to disclosure. A component will allow a
submitter a reasonable time to respond to the notice described in
paragraph (d) of this section. If a submitter has any objection to
disclosure, it is required to submit a detailed written statement. The
statement must specify all grounds for withholding any portion of the
information under any exemption of the FOIA and, in the case of
Exemption 4, it must show why the information is a trade secret or
commercial or financial information that is privileged or confidential.
In the event that a submitter fails to respond to the notice within the
time specified in it, the submitter will be considered to have no
objection to disclosure of the information. Information provided by a
submitter under this paragraph may itself be subject to disclosure
under the FOIA.
(g) Notice of intent to disclose. A component shall consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose business information. Whenever a component
decides to disclose business information over the objection of a
submitter, the component shall give the submitter written notice, which
shall include:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections was not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(h) Exceptions to notice requirements. The notice requirements of
paragraphs (d) and (g) of this section shall not apply if:
(1) The component determines that the information should not be
disclosed;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous--except that, in such a case,
the component shall, within a reasonable time prior to a specified
disclosure date, give the submitter written notice of any final
decision to disclose the information.
(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of business information, the component
shall promptly notify the submitter.
(j) Corresponding notice to requesters. Whenever a component
provides a submitter with notice and an opportunity to object to
disclosure
[[Page 45189]]
under paragraph (d) of this section, the component shall also notify
the requester(s). Whenever a component notifies a submitter of its
intent to disclose requested information under paragraph (g) of this
section, the component shall also notify the requester(s). Whenever a
submitter files a lawsuit seeking to prevent the disclosure of business
information, the component shall notify the requester(s).
Sec. 16.9 Appeals.
(a) Appeals of adverse determinations. If you are dissatisfied with
a component's response to your request, you may appeal an adverse
determination denying your request, in any respect, to the Office of
Information and Privacy, U.S. Department of Justice, Flag Building,
Suite 570, Washington, DC 20530-0001. You must make your appeal in
writing and it must be received by the Office of Information and
Privacy within 60 days of the date of the letter denying your request.
Your appeal letter may include as much or as little related information
as you wish, as long as it clearly identifies the component
determination (including the assigned request number, if known) that
you are appealing. For the quickest possible handling, you should mark
your appeal letter and the envelope ``Freedom of Information Act
Appeal.'' Unless the Attorney General directs otherwise, a Director of
the Office of Information and Privacy will act on behalf of the
Attorney General on all appeals under this section, except that:
(1) In the case of an adverse determination by the Deputy Attorney
General or the Associate Attorney General, the Attorney General or the
Attorney General's designee will act on the appeal;
(2) An adverse determination by the Attorney General will be the
final action of the Department; and
(3) An appeal ordinarily will not be acted on if the request
becomes a matter of FOIA litigation.
(b) Responses to appeals. The decision on your appeal will be made
in writing. A decision affirming an adverse determination in whole or
in part shall contain a statement of the reason(s) for the affirmance,
including any FOIA exemption(s) applied, and will inform you of the
FOIA provisions for court review of the decision. If the adverse
determination is reversed or modified on appeal, in whole or in part,
you will be notified in a written decision and your request will be
reprocessed in accordance with that appeal decision.
(c) When appeal is required. If you wish to seek review by a court
of any adverse determination, you must first appeal it under this
section.
Sec. 16.10 Preservation of records.
Each component shall preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the FOIA.
Sec. 16.11 Fees.
(a) In general. Components shall charge for processing requests
under the FOIA in accordance with paragraph (c) of this section, except
where fees are limited under paragraph (d) of this section or where a
waiver or reduction of fees is granted under paragraph (k) of this
section. A component ordinarily shall collect all applicable fees
before sending copies of requested records to a requester. Requesters
will pay fees by check or money order made payable to the Treasury of
the United States.
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his or
her commercial, trade, or profit interests, which can include
furthering those interests through litigation. Components shall
determine, whenever reasonably possible, the use to which a requester
will put the requested records. When it appears that the requester will
put the records to a commercial use, either because of the nature of
the request itself or because a component has reasonable cause to doubt
a requester's stated use, the component shall provide the requester a
reasonable opportunity to submit further clarification.
(2) Direct costs means those expenses that an agency actually
incurs in searching for and duplicating (and, in the case of commercial
use requests, reviewing) records to respond to a FOIA request. Direct
costs include, for example, the salary of the employee performing the
work (the basic rate of pay for the employee, plus 16 percent of that
rate to cover benefits) and the cost of operating duplication
machinery. Not included in direct costs are overhead expenses such as
the costs of space and heating or lighting of the facility in which the
records are kept.
(3) Duplication means the making of a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, microform, audiovisual materials, or
electronic records (for example, magnetic tape or disk), among others.
Components shall honor a requester's specified preference of form or
format of disclosure if the record is readily reproducible with
reasonable efforts in the requested form or format by the office
responding to the request.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, or an
institution of professional education, or an institution of vocational
education, that operates a program of scholarly research. To be in this
category, a requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are not sought for a commercial use but are sought to further
scholarly research.
(5) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis, as that term is defined in
paragraph (b)(1) of this section, and that is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry. To be in this
category, a requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are not sought for a commercial use but are sought to further
scientific research.
(6) Representative of the news media, or news media requester,
means any person actively gathering news for an entity that is
organized and operated to publish or broadcast news to the public. The
term ``news'' means information that is about current events or that
would be of current interest to the public. Examples of news media
entities include television or radio stations broadcasting to the
public at large and publishers of periodicals (but only in those
instances where they can qualify as disseminators of ``news'') who make
their products available for purchase or subscription by the general
public. For ``freelance'' journalists to be regarded as working for a
news organization, they must demonstrate a solid basis for expecting
publication through that organization. A publication contract would be
the clearest proof, but 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
[[Page 45190]]
records supporting the news-dissemination function of the requester
shall not be considered to be for a commercial use.
(7) Review means the examination of a record located in response to
a request in order to determine whether any portion of it is exempt
from disclosure. It also includes processing any record for
disclosure--for example, doing all that is necessary to redact it and
prepare it for disclosure. Review costs are recoverable even if a
record ultimately is not disclosed. Review time includes time spent
considering any formal objection to disclosure made by a business
submitter under Sec. 16.8, but does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
(8) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Components shall
ensure that searches are done in the most efficient and least expensive
manner reasonably possible. For example, components shall not search
line-by-line where duplicating an entire document would be quicker and
less expensive.
(c) Fees. In responding to FOIA requests, components shall charge
the following fees unless a waiver or reduction of fees has been
granted under paragraph (k) of this section:
(1) Search. (i) Search fees shall be charged for all requests--
other than requests made by educational institutions, noncommercial
scientific institutions, or representatives of the news media--subject
to the limitations of paragraph (d) of this section. Components may
charge for time spent searching even if they do not locate any
responsive record or if they withhold the record(s) located as entirely
exempt from disclosure.
(ii) For each quarter hour spent by clerical personnel in searching
for and retrieving a requested record, the fee will be $4.00. Where a
search and retrieval cannot be performed entirely by clerical
personnel--for example, where the identification of records within the
scope of a request requires the use of professional personnel--the fee
will be $7.00 for each quarter hour of search time spent by
professional personnel. Where the time of managerial personnel is
required, the fee will be $10.25 for each quarter hour of time spent by
those personnel.
(iii) For computer searches of records, requesters will be charged
the direct costs of conducting the search, although certain requesters
(as provided in paragraph (d)(1) of this section) will be charged no
search fee and certain other requesters (as provided in paragraph
(d)(3) of this section) will be entitled to the cost equivalent of two
hours of manual search time without charge. These direct costs will
include the cost of operating a central processing unit for that
portion of operating time that is directly attributable to searching
for responsive records, as well as the costs of operator/programmer
salary apportionable to the search.
(2) Duplication. Duplication fees will be charged to all
requesters, subject to the limitations of paragraph (d) of this
section. For a paper photocopy of a record (no more than one copy of
which need be supplied), the fee will be ten cents per page. For copies
produced by computer, such as tapes or printouts, components will
charge the direct costs, including operator time, of producing the
copy. For other forms of duplication, components will charge the direct
costs of that duplication.
(3) Review. Review fees will be charged to requesters who make a
commercial use request. Review fees will be charged only for the
initial record review--in other words, the review done when a component
determines whether an exemption applies to a particular record or
record portion at the initial request level. No charge will be made for
review at the administrative appeal level for an exemption already
applied. However, records or record portions withheld under an
exemption that is subsequently determined not to apply may be reviewed
again to determine whether any other exemption not previously
considered applies; the costs of that review are chargeable where it is
made necessary by a change of circumstances. Review fees will be
charged at the same rates as those charged for a search under paragraph
(c)(1)(ii) of this section.
(d) Limitations on charging fees. (1) No search fee will be charged
for requests by educational institutions, noncommercial scientific
institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use,
components will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent);
and
(ii) The first two hours of search (or the cost equivalent).
(4) Whenever a total fee calculated under paragraph (c) of this
section is $14.00 or less for any request, no fee will be charged.
(5) The provisions of paragraphs (d)(3) and (4) of this section
work together. This means that for requesters other than those seeking
records for a commercial use, no fee will be charged unless the cost of
search in excess of two hours plus the cost of duplication in excess of
100 pages totals more than $14.00.
(e) Notice of anticipated fees in excess of $25.00. When a
component determines or estimates that the fees to be charged under
this section will amount to more than $25.00, the component shall
notify the requester of the actual or estimated amount of the fees,
unless the requester has indicated a willingness to pay fees as high as
those anticipated. If only a portion of the fee can be estimated
readily, the component shall advise the requester that the estimated
fee may be only a portion of the total fee. In cases in which a
requester has been notified that actual or estimated fees amount to
more than $25.00, the request shall not be considered received and
further work shall not be done on it until the requester agrees to pay
the anticipated total fee. Any such agreement should be memorialized in
writing. A notice under this paragraph will offer the requester an
opportunity to discuss the matter with Department personnel in order to
reformulate the request to meet the requester's needs at a lower cost.
(f) Charges for other services. Apart from the other provisions of
this section, when a component chooses as a matter of administrative
discretion to provide a special service--such as certifying that
records are true copies or sending them by other than ordinary mail--
the direct costs of providing the service ordinarily will be charged.
(g) Charging interest. Components may charge interest on any unpaid
bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the date of the billing until payment
is received by the component. Components will follow the provisions of
the Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as
amended, and its administrative procedures, including the use of
consumer reporting agencies, collection agencies, and offset.
(h) Aggregating requests. Where a component reasonably believes
that a requester or a group of requesters acting
[[Page 45191]]
together is attempting to divide a request into a series of requests
for the purpose of avoiding fees, the component may aggregate those
requests and charge accordingly. Components may presume that multiple
requests of this type made within a 30-day period have been made in
order to avoid fees. Where requests are separated by a longer period,
components will aggregate them only where there exists a solid basis
for determining that aggregation is warranted under all the
circumstances involved. Multiple requests involving unrelated matters
will not be aggregated.
(i) Advance payments. (1) For requests other than those described
in paragraphs (i) (2) and (3) of this section, a component shall not
require the requester to make an advance payment--in other words, a
payment made before work is begun or continued on a request. Payment
owed for work already completed (i.e., a prepayment before copies are
sent to a requester) is not an advance payment.
(2) Where a component determines or estimates that a total fee to
be charged under this section will be more than $250.00, it may require
the requester to make an advance payment of an amount up to the amount
of the entire anticipated fee before beginning to process the request,
except where it receives a satisfactory assurance of full payment from
a requester that has a history of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to any component or agency within 30 days of the date
of billing, a component may require the requester to pay the full
amount due, plus any applicable interest, and to make an advance
payment of the full amount of any anticipated fee, before the component
begins to process a new request or continues to process a pending
request from that requester.
(4) In cases in which a component requires advance payment or
payment due under paragraph (i) (2) or (3) of this section, the request
shall not be considered received and further work will not be done on
it until the required payment is received.
(j) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. Where records responsive to requests
are maintained for distribution by agencies operating such statutorily
based fee schedule programs, components will inform requesters of the
steps for obtaining records from those sources so that they may do so
most economically.
(k) Waiver or reduction of fees. (1) Records responsive to a
request will be furnished without charge or at a charge reduced below
that established under paragraph (c) of this section where a component
determines, based on all available information, that disclosure of the
requested information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.
(2) To determine whether the first fee waiver requirement is met,
components will consider the following factors:
(i) The subject of the request: Whether the subject of the
requested records concerns ``the operations or activities of the
government.'' The subject of the requested records must concern
identifiable operations or activities of the federal government, with a
connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about government
operations or activities in order to be ``likely to contribute'' to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be as
likely to contribute to such understanding where nothing new would be
added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject, as opposed to the
individual understanding of the requester. A requester's expertise in
the subject area and ability and intention to effectively convey
information to the public shall be considered. It shall be presumed
that a representative of the news media will satisfy this
consideration.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a significant extent. Components shall
not make value judgments about whether information that would
contribute significantly to public understanding of the operations or
activities of the government is ``important'' enough to be made public.
(3) To determine whether the second fee waiver requirement is met,
components will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. Components shall consider any commercial interest
of the requester (with reference to the definition of ``commercial
use'' in paragraph (b)(1) of this section), or of any person on whose
behalf the requester may be acting, that would be furthered by the
requested disclosure. Requesters shall be given an opportunity in the
administrative process to provide explanatory information regarding
this consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. Components ordinarily
shall presume that where a news media requester has satisfied the
public interest standard, the public interest will be the interest
primarily served by disclosure to that requester. Disclosure to data
brokers or others who merely compile and market government information
for direct economic return shall not be presumed to primarily serve the
public interest.
(4) Where only some of the requested records satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(5) Requests for the waiver or reduction of fees should address the
factors listed in paragraphs (k) (2) and (3) of this section, insofar
as they apply to each request. Components will exercise their
discretion to consider the cost-effectiveness of their investment of
administrative resources in this decisionmaking process, however, in
deciding to grant waivers or reductions of fees.
[[Page 45192]]
Sec. 16.12 Other rights and services.
Nothing in this subpart shall be construed to entitle any person,
as of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
3. Subpart D of part 16 is revised to read as follows:
Subpart D--Protection of Privacy and Access to Individual Records Under
the Privacy Act of 1974
Sec.
16.40 General provisions.
16.41 Requests for access to records.
16.42 Responsibility for responding to requests for access to
records.
16.43 Responses to requests for access to records.
16.44 Classified information.
16.45 Appeals from denials of requests for access to records.
16.46 Requests for amendment or correction of records.
16.47 Requests for an accounting of record disclosures.
16.48 Preservation of records.
16.49 Fees.
16.50 Notice of court-ordered and emergency disclosures.
16.51 Security of systems of records.
16.52 Contracts for the operation of record systems.
16.53 Use and collection of social security numbers.
16.54 Employee standards of conduct.
16.55 Other rights and services.
Subpart D--Protection of Privacy and Access to Individual Records
Under the Privacy Act of 1974
Sec. 16.40 General provisions.
(a) Purpose and scope. This subpart contains the rules that the
Department of Justice follows under the Privacy Act of 1974, 5 U.S.C.
552a. The rules in this subpart apply to all records in systems of
records maintained by the Department that are retrieved by an
individual's name or personal identifier. They describe the procedures
by which individuals may request access to records about themselves,
request amendment or correction of those records, and request an
accounting of disclosures of those records by the Department. In
addition, the Department processes all Privacy Act requests for access
to records under the Freedom of Information Act (FOIA), 5 U.S.C. 552,
following the rules contained in subpart A of this part, which gives
requesters the benefit of both statutes.
(b) Definitions. As used in this subpart:
(1) Component means each separate bureau, office, board, division,
commission, service, or administration of the Department of Justice.
(2) Request for access to a record means a request made under
Privacy Act subsection (d)(1).
(3) Request for amendment or correction of a record means a request
made under Privacy Act subsection (d)(2).
(4) Request for an accounting means a request made under Privacy
Act subsection (c)(3).
(5) Requester means an individual who makes a request for access, a
request for amendment or correction, or a request for an accounting
under the Privacy Act.
(c) Authority to request records for a law enforcement purpose. The
head of a component or a United States Attorney, or either's designee,
is authorized to make written requests under subsection (b)(7) of the
Privacy Act for records maintained by other agencies that are necessary
to carry out an authorized law enforcement activity.
Sec. 16.41 Requests for access to records.
(a) How made and addressed. You may make a request for access to a
Department of Justice record about yourself by appearing in person or
by writing directly to the Department component that maintains the
record. Your request should be sent or delivered to the component's
Privacy Act office at the address listed in Appendix I to this part. In
most cases, a component's central Privacy Act office is the place to
send a Privacy Act request. For records held by a field office of the
Federal Bureau of Investigation (FBI) or the Immigration and
Naturalization Service (INS), however, you must write directly to that
FBI or INS field office address, which can be found in most telephone
books, or by calling the component's central Privacy Act office. (The
functions of each component are summarized in part 0 of this title and
in the description of the Department and its components in the ``United
States Government Manual,'' which is issued annually and is available
in most libraries, as well as for sale from the Government Printing
Office's Superintendent of Documents. This manual also can be accessed
electronically at the Government Printing Office's World Wide Web site
(which can be found at http://www.access.gpo.gov/su__docs). If you
cannot determine where within the Department to send your request, you
may send it to the FOIA/PA Mail Referral Unit, Justice Management
Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW.,
Washington, DC 20530-0001, and that office will forward it to the
component(s) it believes most likely to have the records that you seek.
For the quickest possible handling, you should mark both your request
letter and the envelope ``Privacy Act Request.''
(b) Description of records sought. You must describe the records
that you want in enough detail to enable Department personnel to locate
the system of records containing them with a reasonable amount of
effort. Whenever possible, your request should describe the records
sought, the time periods in which you believe they were compiled, and
the name or identifying number of each system of records in which you
believe they are kept. The Department publishes notices in the Federal
Register that describe its components' systems of records. A
description of the Department's systems of records also may be found as
part of the ``Privacy Act Compilation'' published by the National
Archives and Records Administration's Office of the Federal Register.
This compilation is available in most large reference and university
libraries. This compilation also can be accessed electronically at the
Government Printing Office's World Wide Web site (which can be found at
http://www.access.gpo.gov/su__docs).
(c) Agreement to pay fees. If you make a Privacy Act request for
access to records, it shall be considered an agreement by you to pay
all applicable fees charged under Sec. 16.49, up to $25.00. The
component responsible for responding to your request ordinarily shall
confirm this agreement in an acknowledgment letter. When making a
request, you may specify a willingness to pay a greater or lesser
amount.
(d) Verification of identity. When you make a request for access to
records about yourself, you must verify your identity. You must state
your full name, current address, and date and place of birth. You must
sign your request and your signature must either be notarized or
submitted by you under 28 U.S.C. 1746, a law that permits statements to
be made under penalty of perjury as a substitute for notarization.
While no specific form is required, you may obtain forms for this
purpose from the FOIA/PA Mail Referral Unit, Justice Management
Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW.,
Washington, DC 20530-0001. In order to help the identification and
location of requested records, you may also, at your option, include
your social security number.
(e) Verification of guardianship. When making a request as the
parent or guardian of a minor or as the guardian of someone determined
by a court to be incompetent, for access to records about that
individual, you must establish:
[[Page 45193]]
(1) The identity of the individual who is the subject of the
record, by stating the name, current address, date and place of birth,
and, at your option, the social security number of the individual;
(2) Your own identity, as required in paragraph (d) of this
section;
(3) That you are the parent or guardian of that individual, which
you may prove by providing a copy of the individual's birth certificate
showing your parentage or by providing a court order establishing your
guardianship; and
(4) That you are acting on behalf of that individual in making the
request.
Sec. 16.42 Responsibility for responding to requests for access to
records.
(a) In general. Except as stated in paragraphs (c), (d), and (e) of
this section, the component that first receives a request for access to
a record, and has possession of that record, is the component
responsible for responding to the request. In determining which records
are responsive to a request, a component ordinarily shall include only
those records in its possession as of the date the component begins its
search for them. If any other date is used, the component shall inform
the requester of that date.
(b) Authority to grant or deny requests. The head of a component,
or the component head's designee, is authorized to grant or deny any
request for access to a record of that component.
(c) Consultations and referrals. When a component receives a
request for access to a record in its possession, it shall determine
whether another component, or another agency of the Federal Government,
is better able to determine whether the record is exempt from access
under the Privacy Act. If the receiving component determines that it is
best able to process the record in response to the request, then it
shall do so. If the receiving component determines that it is not best
able to process the record, then it shall either:
(1) Respond to the request regarding that record, after consulting
with the component or agency best able to determine whether the record
is exempt from access and with any other component or agency that has a
substantial interest in it; or
(2) Refer the responsibility for responding to the request
regarding that record to the component best able to determine whether
it is exempt from access, or to another agency that originated the
record (but only if that agency is subject to the Privacy Act).
Ordinarily, the component or agency that originated a record will be
presumed to be best able to determine whether it is exempt from access.
(d) Law enforcement information. Whenever a request is made for
access to a record containing information that relates to an
investigation of a possible violation of law and that was originated by
another component or agency, the receiving component shall either refer
the responsibility for responding to the request regarding that
information to that other component or agency or shall consult with
that other component or agency.
(e) Classified information. Whenever a request is made for access
to a record containing information that has been classified by or may
be appropriate for classification by another component or agency under
Executive Order 12958 or any other executive order concerning the
classification of records, the receiving component shall refer the
responsibility for responding to the request regarding that information
to the component or agency that classified the information, should
consider the information for classification, or has the primary
interest in it, as appropriate. Whenever a record contains information
that has been derivatively classified by a component because it
contains information classified by another component or agency, the
component shall refer the responsibility for responding to the request
regarding that information to the component or agency that classified
the underlying information.
(f) Notice of referral. Whenever a component refers all or any part
of the responsibility for responding to a request to another component
or agency, it ordinarily shall notify the requester of the referral and
inform the requester of the name of each component or agency to which
the request has been referred and of the part of the request that has
been referred.
(g) Timing of responses to consultations and referrals. All
consultations and referrals shall be handled according to the date the
Privacy Act access request was initially received by the first
component or agency, not any later date.
(h) Agreements regarding consultations and referrals. Components
may make agreements with other components or agencies to eliminate the
need for consultations or referrals for particular types of records.
Sec. 16.43 Responses to requests for access to records.
(a) Acknowledgements of requests. On receipt of a request, a
component ordinarily shall send an acknowledgement letter to the
requester which shall confirm the requester's agreement to pay fees
under Sec. 16.41(c) and provide an assigned request number for further
reference.
(b) Grants of requests for access. Once a component makes a
determination to grant a request for access in whole or in part, it
shall notify the requester in writing. The component shall inform the
requester in the notice of any fee charged under Sec. 16.49 and shall
disclose records to the requester promptly on payment of any applicable
fee. If a request is made in person, the component may disclose records
to the requester directly, in a manner not unreasonably disruptive of
its operations, on payment of any applicable fee and with a written
record made of the grant of the request. If a requester is accompanied
by another person, the requester shall be required to authorize in
writing any discussion of the records in the presence of the other
person.
(c) Adverse determinations of requests for access. A component
making an adverse determination denying a request for access in any
respect shall notify the requester of that determination in writing.
Adverse determinations, or denials of requests, consist of: a
determination to withhold any requested record in whole or in part; a
determination that a requested record does not exist or cannot be
located; a determination that what has been requested is not a record
subject to the Privacy Act; a determination on any disputed fee matter;
and a denial of a request for expedited treatment. The notification
letter shall be signed by the head of the component, or the component
head's designee, and shall include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reason(s) for the denial, including
any Privacy Act exemption(s) applied by the component in denying the
request; and
(3) A statement that the denial may be appealed under Sec. 16.45(a)
and a description of the requirements of Sec. 16.45(a).
Sec. 16.44 Classified information.
In processing a request for access to a record containing
information that is classified under Executive Order 12958 or any other
executive order, the originating component shall review the information
to determine whether it should remain classified. Information
determined to no longer require classification shall not be withheld
from a requester on the basis of Exemption (k)(1) of the Privacy Act.
On receipt of any appeal involving classified
[[Page 45194]]
information, the Office of Information and Privacy shall take
appropriate action to ensure compliance with part 17 of this title.
Sec. 16.45 Appeals from denials of requests for access to records.
(a) Appeals. If you are dissatisfied with a component's response to
your request for access to records, you may appeal an adverse
determination denying your request in any respect to the Office of
Information and Privacy, U.S. Department of Justice, Flag Building,
Suite 570, Washington, DC 20530-0001. You must make your appeal in
writing and it must be received by the Office of Information and
Privacy within 60 days of the date of the letter denying your request.
Your appeal letter may include as much or as little related information
as you wish, as long as it clearly identifies the component
determination (including the assigned request number, if known) that
you are appealing. For the quickest possible handling, you should mark
both your appeal letter and the envelope ``Privacy Act Appeal.'' Unless
the Attorney General directs otherwise, a Director of the Office of
Information and Privacy will act on behalf of the Attorney General on
all appeals under this section, except that:
(1) In the case of an adverse determination by the Deputy Attorney
General or the Associate Attorney General, the Attorney General or the
Attorney General's designee will act on the appeal;
(2) An adverse determination by the Attorney General will be the
final action of the Department; and
(3) An appeal ordinarily will not be acted on if the request
becomes a matter of litigation.
(b) Responses to appeals. The decision on your appeal will be made
in writing. A decision affirming an adverse determination in whole or
in part will include a brief statement of the reason(s) for the
affirmance, including any Privacy Act exemption applied, and will
inform you of the Privacy Act provisions for court review of the
decision. If the adverse determination is reversed or modified on
appeal in whole or in part, you will be notified in a written decision
and your request will be reprocessed in accordance with that appeal
decision.
(c) When appeal is required. If you wish to seek review by a court
of any adverse determination or denial of a request, you must first
appeal it under this section.
Sec. 16.46 Requests for amendment or correction of records.
(a) How made and addressed. Unless the record is not subject to
amendment or correction as stated in paragraph (f) of this section, you
may make a request for amendment or correction of a Department of
Justice record about yourself by writing directly to the Department
component that maintains the record, following the procedures in
Sec. 16.41. Your request should identify each particular record in
question, state the amendment or correction that you want, and state
why you believe that the record is not accurate, relevant, timely, or
complete. You may submit any documentation that you think would be
helpful. If you believe that the same record is in more than one system
of records, you should state that and address your request to each
component that maintains a system of records containing the record.
(b) Component responses. Within ten working days of receiving your
request for amendment or correction of records, a component shall send
you a written acknowledgement of its receipt of your request, and it
shall promptly notify you whether your request is granted or denied. If
the component grants your request in whole or in part, it shall
describe the amendment or correction made and shall advise you of your
right to obtain a copy of the corrected or amended record, in
disclosable form. If the component denies your request in whole or in
part, it shall send you a letter signed by the head of the component,
or the component head's designee, that shall state:
(1) The reason(s) for the denial; and
(2) The procedure for appeal of the denial under paragraph (c) of
this section, including the name and business address of the official
who will act on your appeal.
(c) Appeals. You may appeal a denial of a request for amendment or
correction to the Office of Information and Privacy in the same manner
as a denial of a request for access to records (see Sec. 16.45) and the
same procedures shall be followed. If your appeal is denied, you shall
be advised of your right to file a Statement of Disagreement as
described in paragraph (d) of this section and of your right under the
Privacy Act for court review of the decision.
(d) Statements of Disagreement. If your appeal under this section
is denied in whole or in part, you have the right to file a Statement
of Disagreement that states your reason(s) for disagreeing with the
Department's denial of your request for amendment or correction.
Statements of Disagreement must be concise, must clearly identify each
part of any record that is disputed, and should be no longer than one
typed page for each fact disputed. Your Statement of Disagreement must
be sent to the component involved, which shall place it in the system
of records in which the disputed record is maintained and shall mark
the disputed record to indicate that a Statement of Disagreement has
been filed and where in the system of records it may be found.
(e) Notification of amendment/correction or disagreement. Within 30
working days of the amendment or correction of a record, the component
that maintains the record shall notify all persons, organizations, or
agencies to which it previously disclosed the record, if an accounting
of that disclosure was made, that the record has been amended or
corrected. If an individual has filed a Statement of Disagreement, the
component shall append a copy of it to the disputed record whenever the
record is disclosed and may also append a concise statement of its
reason(s) for denying the request to amend or correct the record.
(f) Records not subject to amendment or correction. The following
records are not subject to amendment or correction:
(1) Transcripts of testimony given under oath or written statements
made under oath;
(2) Transcripts of grand jury proceedings, judicial proceedings, or
quasi-judicial proceedings, which are the official record of those
proceedings;
(3) Presentence records that originated with the courts; and
(4) Records in systems of records that have been exempted from
amendment and correction under Privacy Act, 5 U.S.C. 552a(j) or (k) by
notice published in the Federal Register.
Sec. 16.47 Requests for an accounting of record disclosures.
(a) How made and addressed. Except where accountings of disclosures
are not required to be kept (as stated in paragraph (b) of this
section), you may make a request for an accounting of any disclosure
that has been made by the Department to another person, organization,
or agency of any record about you. This accounting contains the date,
nature, and purpose of each disclosure, as well as the name and address
of the person, organization, or agency to which the disclosure was
made. Your request for an accounting should identify each particular
record in question and should be made by writing directly to the
Department component that maintains the record, following the
procedures in Sec. 16.41.
[[Page 45195]]
(b) Where accountings are not required. Components are not required
to provide accountings to you where they relate to:
(1) Disclosures for which accountings are not required to be kept--
in other words, disclosures that are made to employees within the
agency and disclosures that are made under the FOIA;
(2) Disclosures made to law enforcement agencies for authorized law
enforcement activities in response to written requests from those law
enforcement agencies specifying the law enforcement activities for
which the disclosures are sought; or
(3) Disclosures made from law enforcement systems of records that
have been exempted from accounting requirements.
(c) Appeals. You may appeal a denial of a request for an accounting
to the Office of Information and Privacy in the same manner as a denial
of a request for access to records (see Sec. 16.45) and the same
procedures will be followed.
Sec. 16.48 Preservation of records.
Each component will preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the Act.
Sec. 16.49 Fees.
Components shall charge fees for duplication of records under the
Privacy Act in the same way in which they charge duplication fees under
Sec. 16.11. No search or review fee may be charged for any record
unless the record has been exempted from access under Exemptions (j)(2)
or (k)(2) of the Privacy Act.
Sec. 16.50 Notice of court-ordered and emergency disclosures.
(a) Court-ordered disclosures. When a record pertaining to an
individual is required to be disclosed by a court order, the component
shall make reasonable efforts to provide notice of this to the
individual. Notice shall be given within a reasonable time after the
component's receipt of the order--except that in a case in which the
order is not a matter of public record, the notice shall be given only
after the order becomes public. This notice shall be mailed to the
individual's last known address and shall contain a copy of the order
and a description of the information disclosed. Notice shall not be
given if disclosure is made from a criminal law enforcement system of
records that has been exempted from the notice requirement.
(b) Emergency disclosures. Upon disclosing a record pertaining to
an individual made under compelling circumstances affecting health or
safety, the component shall notify that individual of the disclosure.
This notice shall be mailed to the individual's last known address and
shall state the nature of the information disclosed; the person,
organization, or agency to which it was disclosed; the date of
disclosure; and the compelling circumstances justifying the disclosure.
Sec. 16.51 Security of systems of records.
(a) Each component shall establish administrative and physical
controls to prevent unauthorized access to its systems of records, to
prevent unauthorized disclosure of records, and to prevent physical
damage to or destruction of records. The stringency of these controls
shall correspond to the sensitivity of the records that the controls
protect. At a minimum, each component's administrative and physical
controls shall ensure that:
(1) Records are protected from public view;
(2) The area in which records are kept is supervised during
business hours to prevent unauthorized persons from having access to
them;
(3) Records are inaccessible to unauthorized persons outside of
business hours; and
(4) Records are not disclosed to unauthorized persons or under
unauthorized circumstances in either verbal or written form.
(b) Each component shall have procedures that restrict access to
records to only those individuals within the Department who must have
access to those records in order to perform their duties and that
prevent inadvertent disclosure of records.
Sec. 16.52 Contracts for the operation of record systems.
Any approved contract for the operation of a record system will
contain the standard contract requirements issued by the General
Services Administration to ensure compliance with the requirements of
the Privacy Act for that record system. The contracting component will
be responsible for ensuring that the contractor complies with these
contract requirements.
Sec. 16.53 Use and collection of social security numbers.
Each component shall ensure that employees authorized to collect
information are aware:
(a) That individuals may not be denied any right, benefit, or
privilege as a result of refusing to provide their social security
numbers, unless the collection is authorized either by a statute or by
a regulation issued prior to 1975; and
(b) That individuals requested to provide their social security
numbers must be informed of:
(1) Whether providing social security numbers is mandatory or
voluntary;
(2) Any statutory or regulatory authority that authorizes the
collection of social security numbers; and
(3) The uses that will be made of the numbers.
Sec. 16.54 Employee standards of conduct.
Each component will inform its employees of the provisions of the
Privacy Act, including the Act's civil liability and criminal penalty
provisions. Unless otherwise permitted by law, an employee of the
Department of Justice shall:
(a) Collect from individuals only the information that is relevant
and necessary to discharge the responsibilities of the Department;
(b) Collect information about an individual directly from that
individual whenever practicable;
(c) Inform each individual from whom information is collected of:
(1) The legal authority to collect the information and whether
providing it is mandatory or voluntary;
(2) The principal purpose for which the Department intends to use
the information;
(3) The routine uses the Department may make of the information;
and
(4) The effects on the individual, if any, of not providing the
information;
(d) Ensure that the component maintains no system of records
without public notice and that it notifies appropriate Department
officials of the existence or development of any system of records that
is not the subject of a current or planned public notice;
(e) Maintain all records that are used by the Department in making
any determination about an individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to ensure
fairness to the individual in the determination;
(f) Except as to disclosures made to an agency or made under the
FOIA, make reasonable efforts, prior to disseminating any record about
an individual, to ensure that the record is accurate, relevant, timely,
and complete;
[[Page 45196]]
(g) Maintain no record describing how an individual exercises his
or her First Amendment rights, unless it is expressly authorized by
statute or by the individual about whom the record is maintained, or is
pertinent to and within the scope of an authorized law enforcement
activity;
(h) When required by the Act, maintain an accounting in the
specified form of all disclosures of records by the Department to
persons, organizations, or agencies;
(i) Maintain and use records with care to prevent the unauthorized
or inadvertent disclosure of a record to anyone; and
(j) Notify the appropriate Department official of any record that
contains information that the Privacy Act does not permit the
Department to maintain.
Sec. 16.55 Other rights and services.
Nothing in this subpart shall be construed to entitle any person,
as of right, to any service or to the disclosure of any record to which
such person is not entitled under the Privacy Act.
4. Appendix I of part 16 is revised to read as follows:
Appendix I to Part 16--Components of the Department of Justice
Unless a separate address is listed below, the address for each
component is: [component name], U.S. Department of Justice, 950
Pennsylvania Avenue, NW., Washington, DC 20530-0001. For all
components marked by an asterisk, FOIA and Privacy Act requests
should be sent to the Office of Information and Privacy, U.S.
Department of Justice, Flag Bldg., Suite 570, Washington, DC 20530-
0001. The components are:
A.
Office of the Attorney General *
Office of the Deputy Attorney General *
Office of the Associate Attorney General *
Office of the Solicitor General
B.
Office of Information and Privacy *
Office of the Inspector General
Office of Intelligence Policy and Review
Office of Investigative Agency Policies
Office of Legal Counsel
Office of Legislative Affairs *
Office of Policy Development *
Office of Professional Responsibility
Office of Public Affairs *
C.
Antitrust Division, U.S. Department of Justice, LPB Bldg., Suite
200, Washington, DC 20530-0001
Civil Division, U.S. Department of Justice, 901E Bldg., Room
808, Washington, DC 20530-0001
Civil Rights Division, U.S. Department of Justice, NYAV Bldg.,
Room 8000B, Washington, DC 20530-0001
Criminal Division, U.S. Department of Justice, WCTR Bldg., Suite
1075, Washington, DC 20530-0001
Environment and Natural Resources Division
Justice Management Division
Tax Division, U.S. Department of Justice, JCB Bldg., Room 6823,
Washington, DC 20530-0001
Bureau of Prisons, U.S. Department of Justice, HOLC Bldg., Room
714, 320 First Street, NW., Washington, DC 20534-0001
Community Relations Service, U.S. Department of Justice, BICN
Bldg., Suite 2000, Washington, DC 20350-0001
Drug Enforcement Administration, U.S. Department of Justice,
Washington, DC 20537-0001
Executive Office for Immigration Review, U.S. Department of
Justice, Suite 2400, 5107 Leesburg Pike, Falls Church, VA 22041-0001
Executive Office for United States Attorneys, U.S. Department of
Justice, BICN Bldg., Room 7100, Washington, DC 20350-0001
Executive Office for United States Trustees, U.S. Department of
Justice, 901E Bldg., Room 780, Washington, DC 20530-0001
Federal Bureau of Investigation, U.S. Department of Justice, 935
Pennsylvania Avenue, NW., Washington, DC 20535-0001 (for field
offices, consult your telephone book)
Foreign Claims Settlement Commission, U.S. Department of
Justice, BICN Bldg., Room 6002, 600 E Street, NW., Washington, DC
20579-0001
Immigration and Naturalization Service, U.S. Department of
Justice, CAB Bldg., 425 Eye Street, NW., Washington, DC 20536-0001
(for field offices, consult your telephone book)
INTERPOL-U.S. National Central Bureau, U.S. Department of
Justice, BICN Bldg., Washington, DC 20350-0001
National Drug Intelligence Center, U.S. Department of Justice,
Fifth Floor, 319 Washington Street, Johnstown, PA 15901-1622
Office of Community Oriented Policing Services, U.S. Department
of Justice, VT1 Bldg., Room 1000, Washington, DC 20530-0001
Office of Justice Programs, U.S. Department of Justice, IND
Bldg., Room 1245, 633 Indiana Avenue, NW., Washington, DC 20531-0001
Pardon Attorney, U.S. Department of Justice, FRST Bldg., Fourth
Floor, Washington, DC 20530-0001
United States Marshals Service, U.S. Department of Justice,
Lincoln Place, Room 1250, 600 Army Navy Drive, Arlington, VA 22202-
4210
PART 50--STATEMENTS OF POLICY
5. The authority citation for part 50 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, and 42 U.S.C. 1921
et seq., 1973c.
Sec. 50.8 [Removed and reserved]
6. Section 50.8 is removed and reserved.
Dated: August 13, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-22079 Filed 8-25-97; 8:45 am]
BILLING CODE 4410-BE-P
