[Federal Register Volume 63, Number 250 (Wednesday, December 30, 1998)]
[Rules and Regulations]
[Pages 71771-71785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34099]
=======================================================================
-----------------------------------------------------------------------
PRESIDIO TRUST
36 CFR Parts 1007, 1008 and 1009
RIN 3212-AA01
Management of the Presidio: Freedom of Information Act, Privacy
Act, and Federal Tort Claims Act
AGENCY: The Presidio Trust.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Presidio Trust (Trust) published proposed regulations in
the Federal Register on September 18, 1998 (63 FR 50024-50055)
concerning management of the area under the administrative jurisdiction
of the Trust as well as various administrative matters. The public
comment period on portions of these proposed regulations (proposed 36
CFR Parts 1007, 1008, and 1009) closed on November 17, 1998, while the
public comment period on the remaining portions (proposed 36 CFR Parts
1001, 1002, 1003, 1004, 1005, and 1006) was extended until January 8,
1999. See 63 FR 64023 (November 18, 1998). In today's action, the Trust
is promulgating final regulations concerning the Freedom of Information
Act (Part 1007), the Privacy Act (Part 1008), and the Federal Tort
Claims Act (Part 1009).
DATES: These regulations will be effective on January 29, 1999.
[[Page 71772]]
FOR FURTHER INFORMATION CONTACT: Karen A. Cook, General Counsel, The
Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA
94129-0052, Telephone: 415-561-5300.
SUPPLEMENTARY INFORMATION:
Background
The Presidio Trust is today promulgating final regulations
concerning processing of requests under the Freedom of Information Act
(FOIA), requests under the Privacy Act, and claims under the Federal
Tort Claims Act. These regulations were proposed by the Trust by
publication in the Federal Register on September 18, 1998 (63 FR 50024-
50055). Other background information concerning the Presidio Trust and
this rulemaking was presented in the preamble to the proposed
regulations.
Consideration of Comments Received and Discussion of Changes Made
The Trust solicited public comment on these regulations in their
proposed form for a period of sixty days. In addition, the Trust
consulted with the Secretary of the Interior, who serves on the Trust's
Board of Directors pursuant to sec. 103(c)(1)(A) of the Trust Act, as
well as with officials of the Department of the Interior and the
National Park Service designated by the Secretary of the Interior to
facilitate such consultation. Staff of the Trust also thoroughly
reviewed the proposed regulations for grammar, punctuation, and
readability.
One written comment was received from the public. This comment is
available for public inspection and copying by contacting the Trust at
the address noted above. The commenter objected to proposed
Sec. 1007.8(c)(3), which provides for judicial review of adverse FOIA
decisions by the Trust only in the U.S. District Court for the Northern
District of California. The commenter believed that this restriction
would have the potential to curtail the public's ability to appeal a
decision by the Trust. This was not the Trust's intention in proposing
this regulation; rather, the Trust proposed this regulation in order to
adhere to the limitations established in the Trust's enabling statute,
Title I of Public Law 104-333. Section 104(h) of that law limits suits
against the Trust to the U.S. District Court for the Northern District
of California. As a result, the final regulation on this point remains
unchanged.
The one written comment received also objected to the elimination
of language describing the factors likely to be used in reviewing
requests for fee reduction or waiver. This language is found in the
regulations of the Department of the Interior--on which the Trust based
its FOIA regulations--at 43 CFR 2.21(a)(2) and (a)(3). These factors
were not included in the Trust's proposed regulations because the Trust
believes they are not a necessary part of the regulatory language,
which the Trust wants to keep as simple and short as possible. This
should not be read as an indication that the Trust will not look to
these factors, among others, in making decisions on fee waiver
requests. The commenter noted that these factors are intended to
educate the individuals and organizations seeking information in the
public interest as to the kinds of requests for information for which
fee waivers or reductions may be granted. The Trust agrees that this is
the intent behind publishing these factors and believes that this
intent will best be served by publishing these factors in informal
guidance to the public concerning FOIA requests of the Trust. The Trust
anticipates that this guidance will be published on the Trust's
internet website (http://www.presidiotrust.gov) in the near future.
As a result of informal consultations and internal review, the
Trust made a number of minor modifications to the proposed version of
these regulations. None of these modifications effects any substantive
change in the intent of the proposed regulations; in fact, most are
concerned with matters of format and punctuation. For ease of reference
and public notice, they are enumerated below:
The authority citation for the FOIA regulations was amended to add
a reference to Executive order 12,600, Predisclosure Notification
Procedures for Confidential Commercial Information. In particular,
Sec. 1007.4(c) relies on this authority.
The definitions of ``FOIA'' and ``FOIA Officer,'' which were
contained in Sec. 1001.4 of the proposed regulations published on
September 18, 1998 (63 FR 50033), have been incorporated into
Sec. 1007.1(a) and (b) of these final regulations. This change was
necessary because the comment period on Part 1001 of the proposed
regulations has not yet closed, but these definitions are essential to
understanding Part 1007.
For the sake of readability, the final regulations also revised the
language in Parts 1007 and 1008 requiring prominent legends on both the
envelope containing a request or appeal and the document itself. This
revision was made to Sec. Sec. 1007.3(b)(5), 1008.11(b)(2), and
1008.14(b)(2) and conforms to the language used in Sec. 1007.7(c)(3),
which reads: ``To expedite processing, both the envelope containing a
notice of appeal and the face of the notice should bear the legend
`FREEDOM OF INFORMATION APPEAL.' '' No substantive change is intended
by this minor change in wording.
In Sec. 1007.5(d)(4), the proposed language was not as clear as
possible concerning whether the decision due within ten calendar days
of receiving a request for expedited processing was to be made
concerning the request for expedited processing or the underlying FOIA
request itself. The final regulation states more clearly that the
decision due within ten calendar days is on the request for expedited
processing, which, if granted, will result in priority being given to
processing of the underlying FOIA request.
Proposed Sec. 1007.9(a)(1) referred to the ``current schedule of
charges determined by the Board * * * .'' This provision has been
revised, for the sake of administrative efficiency and consistent with
Board resolution, to indicate that the schedule of charges will be
determined by the Trust's Executive Director. A similar change has been
made in Sec. 1008.15(d)(2), which refers to the same schedule of
charges. In addition, each of these sections has been revised to
incorporate into the regulatory language the requirement that these
charges be set at the level necessary to recoup the full allowable
direct costs to the Trust. This requirement was noted in the preamble
to the proposed regulations (at 63 FR 50030) and has been set pursuant
to 5 U.S.C. 552(a)(4)(A)(i) by sec. 7 of the Office of Management and
Budget's Uniform Freedom of Information Act Fee Schedule and
Guidelines, 52 FR 10012 (Mar. 27, 1987). The current charges for
services that are likely to be requested on a regular basis are as
follows:
--For black and white copies of documents reproduced on a standard
office photocopying machine in sizes of 8\1/2\ x 11 inches or 8\1/2\
x 14 inches, the charge is $0.20 per page for single-sided copies and
$0.40 per page for double-sided copies. For copies of documents that
require special handling because of their age, size, or color, the
charge will be based on the direct costs of reproducing the materials.
--Time for search and review of documents in response to requests will
be charged at the rate of $6.25 per quarter hour (or portion thereof)
when the search and review is performed by administrative staff and
$10.00 per hour (or portion thereof) when the
[[Page 71773]]
search and review is performed by professional staff.
--Other materials or services provided in response to a request--
including but not limited to delivery by means other than regular mail;
searching, reviewing, or providing records in microfiche or electronic
form; or authenticating copies--will be charged at the full allowable
direct cost to the Trust calculated on a case-by-case basis.
Proposed Sec. 1007.9(a)(2) referred to ``the costs of collecting''
a fee. In order to be consistent with the OMB Guidelines noted above,
this provision has been revised to refer to ``the costs of routine
collection and processing'' of a fee. The Trust has determined that
this is currently $5.00.
Proposed Sec. 1007.9(h)(1) allowed the Trust to require advance
payment of FOIA fees where the fees are anticipated ``to exceed $250.00
and the requester does not have a history of prompt payment of FOIA
fees * * * .'' This language was taken directly from the FOIA
regulations of the Department of the Interior at 43 CFR 2.20(h). FOIA
itself provides that ``[n]o agency may require advance payment of any
fee unless the requester has previously failed to pay fees in a timely
fashion, or the agency has determined that the fee will exceed $250.''
5 U.S.C. 552(a)(4)(A)(v). The statute therefore authorizes the Trust to
require advance payment of fees that will exceed $250 regardless of the
requester's payment history. Accordingly, the Trust has revised
Sec. 1007.9(h)(1) to be consistent with the statute by removing the
phrase ``and the requester does not have a history of prompt payment of
FOIA fees.''
The other criterion of the statutory provision concerning timely
payment of fees is already covered by Sec. 1007.9(h)(2). In order to
clarify that--consistent with common practice--processing of all new or
pending FOIA requests by a requester, regardless of when they were
received by the Trust, will ordinarily be suspended for non-payment of
fees billed to that requester, these final regulations have deleted the
word ``new'' in the two places where it appears in proposed
Sec. 1007.9(h)(2). Also along these lines, the final regulations append
the phrase ``at the requester's expense'' to proposed Sec. 1007.1(c)(1)
in order to make clear that, consistent with the Trust Act's
requirement that the Trust become self-sufficient, personal copies of
documents that the Trust makes available for inspection are not
ordinarily provided free of charge.
In Sec. 1008.2 of the proposed regulations, the term ``Privacy
Act'' was defined as ``section 3 of the Privacy Act, 5 U.S.C. 552a.''
For the sake of clarity, this was revised to state that ``Privacy Act
means 5 U.S.C. 552a.'' Other definitions in Sec. 1008.2 were placed in
proper alphabetical order.
Several provisions of the proposed regulations referred to the
``compendium'' to be published under proposed Sec. 1001.7. Because the
comment period on proposed Sec. 1001.7 has not yet closed, this
reference has been changed to refer to the ``compilation'' required
under Sec. 1001.7(b) of the Trust's final interim regulations, which
are currently in effect. This change was made to
Sec. Sec. 1007.9(a)(1), 1007.9(a)(2), and 1008.15(d)(2) of the proposed
regulations.
Minor grammatical changes were made to enhance the readability of
certain provisions, including Sec. Sec. 1007.3(b)(3)(i)(A),
1007.4(b)(1)(i), and 1008.9(d). In Sec. 1008.16(d)(1), the cross-
reference to Sec. 1008.12 was corrected to Sec. 1008.11. In addition,
semicolons, articles, and disjunctive or conjunctive prepositions were
added in various locations to improve readability.
Regulatory Impact and Congressional Review
This rulemaking will not have an annual effect of $100 million or
more on the economy nor adversely affect productivity, competition,
jobs, prices, the environment, public health or safety, or State or
local governments. This rule will not interfere with an action taken or
planned by another agency or raise new legal or policy issues. In
short, little or no effect on the national economy will result from
adoption of this rule. Because this rule is not ``economically
significant,'' it is not subject to review by the Office of Management
and Budget under Executive Order 12866.
The Trust has determined and certifies pursuant to the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., that this rule will not have a
significant economic effect on a substantial number of small entities.
The Trust has determined and certifies pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rule will not
impose a cost of $100 million or more in any given year on local,
State, or tribal governments or private entities.
In accordance with the Congressional Review Act, 5 U.S.C. 801 et
seq., the Trust has submitted a copy of this rule, together with other
required information, to each House of Congress and to the Comptroller
General of the United States prior to publication of this rule in the
Federal Register. This rule is not a ``major rule'' within the meaning
of the Congressional Review Act, 5 U.S.C. 801 et seq.
Environmental Impact
The Presidio Trust prepared an Environmental Assessment (EA) in
connection with the proposed version of this rule. The EA determined
that the proposed version of this rule would not have a significant
effect on the quality of the human environment because it is neither
intended nor expected to change the physical status quo of the Presidio
in any significant manner. As a result, the Trust issued a Finding of
No Significant Impact (FONSI) concerning the proposed rule and
therefore did not prepare an Environmental Impact Statement concerning
the proposed rule. The EA and the FONSI were prepared in accordance
with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et
seq. (NEPA), and regulations of the Council on Environmental Quality
for implementing the procedural provisions of NEPA, 40 CFR parts 1500-
1508. Both the EA and the FONSI are available for public inspection at
the offices of the Presidio Trust, 34 Graham Street, The Presidio, San
Francisco, CA 94129, between the hours of 9:00 a.m. and 5:00 p.m.,
Monday through Friday, except Federal holidays.
In light of the non-substantive changes made to the proposed
version of this rule before its consideration by the Trust as a final
rule, the Trust has adopted the prior EA and issued a Finding of No
Significant Impact with respect to this final rule.
Paperwork Reduction Act
This final rule contains no information collection requirements.
Therefore, clearance by the Office of Management and Budget under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is not required.
Other Applicable Authorities
The Presidio Trust has determined that these regulations meet the
applicable standards provided in secs. 3 (a) and (b) of Executive Order
12988.
List of Subjects
36 CFR Part 1007
Administrative practice and procedure, Freedom of information,
Records.
36 CFR Part 1008
Administrative practice and procedure, Privacy, Records.
[[Page 71774]]
36 CFR Part 1009
Administrative practice and procedure, Tort claims.
Dated: December 18, 1998.
James E. Meadows,
Executive Director.
Accordingly, the Presidio Trust adds 36 CFR Parts 1007, 1008, and
1009, as set forth below:
PART 1007--REQUESTS UNDER THE FREEDOM OF INFORMATION ACT
Sec.
1007.1 Purpose and scope.
1007.2 Records available.
1007.3 Requests for records.
1007.4 Preliminary processing of requests.
1007.5 Action on initial requests.
1007.6 Time limits for processing initial requests.
1007.7 Appeals.
1007.8 Action on appeals.
1007.9 Fees.
1007.10 Waiver of fees.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note); 5 U.S.C. 552; E.O. 12,600, 52 FR 23781, 3 CFR, 1988 Comp., p.
235.
Sec. 1007.1 Purpose and scope.
(a) This part contains the procedures for submission to and
consideration by the Presidio Trust of requests for records under FOIA.
As used in this part, the term ``FOIA'' means the Freedom of
Information Act, 5 U.S.C. 552.
(b) Before invoking the formal procedures set out below, persons
seeking records from the Presidio Trust may find it useful to consult
with the Presidio Trust's FOIA Officer, who can be reached at The
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052,
Telephone: (415) 561-5300. As used in this part, the term ``FOIA
Officer'' means the employee designated by the Executive Director to
process FOIA requests and otherwise supervise the Presidio Trust's
compliance with FOIA, or the alternate employee so designated to
perform these duties in the absence of the FOIA Officer.
(c) The procedures in this part do not apply to:
(1) Records published in the Federal Register, the Bylaws of the
Presidio Trust, statements of policy and interpretations, and other
materials that have been published by the Presidio Trust on its
internet website (http://www.presidiotrust.gov) or are routinely made
available for inspection and copying at the requester's expense.
(2) Records or information compiled for law enforcement purposes
and covered by the disclosure exemption described in Sec. 1007.2(c)(7)
if:
(i) The investigation or proceeding involves a possible violation
of criminal law; and
(ii) There is reason to believe that:
(A) The subject of the investigation or proceeding is not aware of
its pendency, and
(B) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings.
(3) Informant records maintained by the United States Park Police
under an informant's name or personal identifier, if requested by a
third party according to the informant's name or personal identifier,
unless the informant's status as an informant has been officially
confirmed.
Sec. 1007.2 Records available.
(a) Policy. It is the policy of the Presidio Trust to make its
records available to the public to the greatest extent possible
consistent with the purposes of the Presidio Trust Act and the Freedom
of Information Act.
(b) Statutory disclosure requirement. FOIA requires that the
Presidio Trust, on a request from a member of the public submitted in
accordance with the procedures in this part, make requested records
available for inspection and copying.
(c) Statutory exemptions. Exempted from FOIA's statutory disclosure
requirement are matters that are:
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense
or foreign policy and
(ii) Are in fact properly classified pursuant to such Executive
order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute (other than
the Privacy Act), provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings,
(ii) Would deprive a person of a right to a fair or an impartial
adjudication,
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source,
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(d) Decisions on requests. It is the policy of the Presidio Trust
to withhold information falling within an exemption only if:
(1) Disclosure is prohibited by statute or Executive order or
(2) Sound grounds exist for invocation of the exemption.
(e) Disclosure of reasonably segregable nonexempt material. If a
requested record contains material covered by an exemption and material
that is not exempt, and it is determined under the procedures in this
part to withhold the exempt material, any reasonably segregable
nonexempt material shall be separated from the exempt material and
released. In such circumstances, the records disclosed in part shall be
marked or annotated to show both the amount and the location of the
information deleted wherever practicable.
Sec. 1007.3 Requests for records.
(a) Submission of requests. A request to inspect or copy records
shall be submitted to the Presidio Trust's FOIA
[[Page 71775]]
Officer at P.O. Box 29052, San Francisco, CA 94129-0052.
(b) Form of requests. (1) Requests under this part shall be in
writing and must specifically invoke FOIA.
(2) A request must reasonably describe the records requested. A
request reasonably describes the records requested if it will enable an
employee of the Presidio Trust familiar with the subject area of the
request to locate the record with a reasonable amount of effort. If
such information is available, the request should identify the subject
matter of the record, the date when it was made, the place where it was
made, the person or office that made it, the present custodian of the
record, and any other information that will assist in locating the
requested record. If the request involves a matter known by the
requester to be in litigation, the request should also state the case
name and court hearing the case.
(3)(i) A request shall:
(A) Specify the fee category (commercial use, educational
institution, noncommercial scientific institution, news media, or
other, as defined in Sec. 1007.9 of this chapter) in which the
requester claims the request falls and the basis of this claim; and
(B) State the maximum amount of fees that the requester is willing
to pay or include a request for a fee waiver.
(ii) Requesters are advised that, under Sec. 1007.9 (f), (g) and
(h), the time for responding to requests may be delayed:
(A) If a requester has not sufficiently identified the fee category
applicable to the request;
(B) If a requester has not stated a willingness to pay fees as high
as anticipated by the Presidio Trust; or
(C) If a fee waiver request is denied and the requester has not
included an alternative statement of willingness to pay fees as high as
anticipated by the Presidio Trust.
(4) A request seeking a fee waiver shall, to the extent possible,
address why the requester believes that the criteria for fee waivers
set out in Sec. 1007.10 are met.
(5) To expedite processing, both the envelope containing a request
and the face of the request should bear the legend ``FREEDOM OF
INFORMATION REQUEST.''
(c) Creation of records. A request may seek only records that are
in existence at the time the request is received. A request may not
seek records that come into existence after the date on which it is
received and may not require that new records be created in response to
the request by, for example, combining or compiling selected items from
manual files, preparing a new computer program, or calculating
proportions, percentages, frequency distributions, trends or
comparisons. In those instances where the Presidio Trust determines
that creating a new record will be less burdensome than disclosing
large volumes of unassembled material, the Presidio Trust may, in its
discretion, agree to creation of a new record as an alternative to
disclosing existing records.
Sec. 1007.4 Preliminary processing of requests.
(a) Scope of requests. Unless a request clearly specifies
otherwise, requests to the Presidio Trust may be presumed to seek only
records of the Presidio Trust.
(b) Records of other departments and agencies. (1) If a requested
record in the possession of the Presidio Trust originated with another
Federal department or agency, the request shall be referred to that
agency unless:
(i) The record is of primary interest to the Presidio Trust, for
example, because it was developed or prepared pursuant to the Presidio
Trust's regulations or request,
(ii) The Presidio Trust is in a better position than the
originating agency to assess whether the record is exempt from
disclosure, or
(iii) The originating agency is not subject to FOIA.
(2) A request for documents that were classified by another agency
shall be referred to that agency.
(c) Consultation with submitters of commercial and financial
information. (1) If a request seeks a record containing trade secrets
or commercial or financial information submitted by a person outside of
the Federal government, the Presidio Trust shall provide the submitter
with notice of the request whenever:
(i) The submitter has made a good faith designation of the
information as commercially or financially sensitive, or
(ii) The Presidio Trust has reason to believe that disclosure of
the information may result in commercial or financial injury to the
submitter.
(2) Where notification of a voluminous number of submitters is
required, such notification may be accomplished by posting or
publishing the notice in a place reasonably calculated to accomplish
notification.
(3) The notice to the submitter shall afford the submitter a
reasonable period within which to provide a detailed statement of any
objection to disclosure. The submitter's statement shall explain the
basis on which the information is claimed to be exempt under FOIA,
including a specification of any claim of competitive or other business
harm that would result from disclosure. The statement shall also
include a certification that the information is confidential, has not
been disclosed to the public by the submitter, and is not routinely
available to the public from other sources.
(4) If a submitter's statement cannot be obtained within the time
limit for processing the request under Sec. 1007.6, the requester shall
be notified of the delay as provided in Sec. 1007.6(f).
(5) Notification to a submitter is not required if:
(i) The Presidio Trust determines, prior to giving notice, that the
request for the record should be denied;
(ii) The information has previously been lawfully published or
officially made available to the public;
(iii) Disclosure is required by a statute (other than FOIA) or
regulation (other than this part);
(iv) Disclosure is clearly prohibited by a statute, as described in
Sec. 1007.2(c)(3);
(v) The information was not designated by the submitter as
confidential when it was submitted, or a reasonable time thereafter, if
the submitter was specifically afforded an opportunity to make such a
designation; however, a submitter will be notified of a request for
information that was not designated as confidential at the time of
submission, or a reasonable time thereafter, if there is substantial
reason to believe that disclosure of the information would result in
competitive harm;
(vi) The designation of confidentiality made by the submitter is
obviously frivolous; or
(vii) The information was submitted to the Presidio Trust more than
10 years prior to the date of the request, unless the Presidio Trust
has reason to believe that it continues to be confidential.
(6) If a requester brings suit to compel disclosure of information,
the submitter of the information will be promptly notified.
Sec. 1007.5 Action on initial requests.
(a) Authority. (1) Requests shall be decided by the FOIA Officer.
(2) A decision to withhold a requested record, to release a record
that is exempt from disclosure, or to deny a fee waiver shall be made
only after consultation with the General Counsel.
(b) Form of grant. (1) When a requested record has been determined
to be available, the FOIA Officer shall notify the requester as to when
and where the record is available for inspection or, as the case may
be, when and how copies will be provided. If fees are due, the FOIA
Officer shall state the amount of fees due and the procedures for
payment, as described in Sec. 1007.9.
[[Page 71776]]
(2) The FOIA Officer shall honor a requester's specified preference
of form or format of disclosure (e.g., paper, microform, audiovisual
materials, or electronic records) if the record is readily available to
the Presidio Trust in the requested form or format or if the record is
reproducible by the Presidio Trust with reasonable efforts in the
requested form or format.
(3) If a requested record (or portion thereof) is being made
available over the objections of a submitter made in accordance with
Sec. 1007.4(c), both the requester and the submitter shall be notified
of the decision. The notice to the submitter (a copy of which shall be
made available to the requester) shall be forwarded a reasonable number
of days prior to the date on which disclosure is to be made and shall
include:
(i) A statement of the reasons why the submitter's objections were
not sustained;
(ii) A specification of the portions of the record to be disclosed,
if the submitter's objections were sustained in part; and
(iii) A specified disclosure date.
(4) If a claim of confidentiality has been found frivolous in
accordance with Sec. 1007.4(c)(5)(vi) and a determination is made to
release the information without consultation with the submitter, the
submitter of the information shall be notified of the decision and the
reasons therefor a reasonable number of days prior to the date on which
disclosure is to be made.
(c) Form of denial. (1) A decision withholding a requested record
shall be in writing and shall include:
(i) A listing of the names and titles or positions of each person
responsible for the denial;
(ii) A reference to the specific exemption or exemptions
authorizing the withholding;
(iii) If neither a statute nor an Executive order requires
withholding, the sound ground for withholding;
(iv) 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
(v) A statement that the denial may be appealed and a reference to
the procedures in Sec. 1007.7 for appeal.
(2) A decision denying a request for failure to reasonably describe
requested records or for other procedural deficiency or because
requested records cannot be located shall be in writing and shall
include:
(i) A description of the basis of the decision;
(ii) A list of the names and titles or positions of each person
responsible; and
(iii) A statement that the matter may be appealed and a reference
to the procedures in Sec. 1007.7 for appeal.
(d) Expedited processing. (1) Requests and appeals will be taken
out of order and given expedited treatment whenever it is determined by
the FOIA Officer that they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person primarily engaged in
disseminating information.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time.
(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.
(4) Within ten calendar days of receiving of a request for
expedited processing, the FOIA Officer shall decide whether to grant
the request for expedited processing and shall notify the requester of
the decision. If a request for expedited processing is granted, the
underlying FOIA 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. 1007.6 Time limits for processing initial requests.
(a) Basic limit. Requests for records shall be processed promptly.
A determination whether to grant or deny a request shall be made within
20 working days after receipt of a request. This determination shall be
communicated immediately to the requester.
(b) Running of basic time limit. (1) The 20 working day time limit
begins to run when a request meeting the requirements of Sec. 1007.3(b)
is received at the Presidio Trust.
(2) The running of the basic time limit may be delayed or tolled as
explained in Sec. 1007.9 (f), (g) and (h) if a requester:
(i) Has not stated a willingness to pay fees as high as are
anticipated and has not sought and been granted a full fee waiver, or
(ii) Has not made a required advance payment.
(c) Extensions of time. In the following unusual circumstances, the
time limit for acting on an initial request may be extended to the
extent reasonably necessary to the proper processing of the request,
but in no case may the time limit be extended by more than 20 working
days:
(1) The need to search for and collect the requested records from
facilities or other establishments that are separate from the main
office of the Presidio Trust;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records demanded in a single
request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request.
(d) Notice of extension. A requester shall be notified in writing
of an extension under paragraph (c) of this section. The notice shall
state the reason for the extension and the date on which a
determination on the request is expected to be made.
(e) Treatment of delay as denial. If no determination has been
reached at the end of the 20 working day period for deciding an initial
request, or an extension thereof under Sec. 1007.6(c), the requester
may deem the request denied and may exercise a right of appeal in
accordance with Sec. 1007.7.
(f) Notice of delay. When a determination cannot be reached within
the time limit, or extension thereof, the requester shall be notified
of the reason for the delay, of the date on which a determination may
be expected, and of the right to treat the delay as a denial for
purposes of appeal, including a reference to the procedures for filing
an appeal in Sec. 1007.7.
Sec. 1007.7 Appeals.
(a) Right of appeal. A requester may appeal to the Executive
Director when:
(1) Records have been withheld;
(2) A request has been denied for failure to describe requested
records or for other procedural deficiency or because requested records
cannot be located;
(3) A fee waiver has been denied;
(4) A request has not been decided within the time limits provided
in Sec. 1007.6; or
(5) A request for expedited processing under Sec. 1007.5(d) has
been denied.
(b) Time for appeal. An appeal must be received at the office of
the Presidio Trust no later than 20 working days after the date of the
initial denial, in the
[[Page 71777]]
case of a denial of an entire request, or 20 working days after records
have been made available, in the case of a partial denial.
(c) Form of appeal. (1) An appeal shall be initiated by filing a
written notice of appeal. The notice shall be accompanied by copies of
the original request and the initial denial and should, in order to
expedite the appellate process and give the requester an opportunity to
present his or her arguments, contain a brief statement of the reasons
why the requester believes the initial denial to have been in error.
(2) The appeal shall be addressed to the Executive Director, The
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(3) To expedite processing, both the envelope containing a notice
of appeal and the face of the notice should bear the legend ``FREEDOM
OF INFORMATION APPEAL.''
Sec. 1007.8 Action on appeals.
(a) Authority. Appeals shall be decided by the Executive Director
after consultation with the FOIA Officer and the General Counsel.
(b) Time limit. A final determination shall be made within 20
working days after receipt of an appeal meeting the requirements of
Sec. 1007.7(c).
(c) Extensions of time. (1) If the time limit for responding to the
initial request for a record was not extended under the provisions of
Sec. 1007.6(c) or was extended for fewer than 10 working days, the time
for processing of the appeal may be extended to the extent reasonably
necessary to the proper processing of the appeal, but in no event may
the extension, when taken together with any extension made during
processing of the initial request, result in an aggregate extension
with respect to any one request of more than 10 working days. The time
for processing of an appeal may be extended only if one or more of the
unusual circumstances listed in Sec. 1007.6(c) requires an extension.
(2) The appellant shall be advised in writing of the reasons for
the extension and the date on which a final determination on the appeal
is expected to be dispatched.
(3) If no determination on the appeal has been reached at the end
of the 20 working day period, or the extension thereof, the requester
is deemed to have exhausted his administrative remedies, giving rise to
a right of review in the United States District Court for the Northern
District of California, as specified in 5 U.S.C. 552(a)(4).
(4) When no determination can be reached within the applicable time
limit, the appeal will nevertheless continue to be processed. On
expiration of the time limit, the requester shall be informed of the
reason for the delay, of the date on which a determination may be
reached to be dispatched, and of the right to seek judicial review.
(d) Form of decision. (1) The final determination on an appeal
shall be in writing and shall state the basis for the determination. If
the determination is to release the requested records or portions
thereof, the FOIA Officer shall immediately make the records available.
If the determination upholds in whole or part the initial denial of a
request for records, the determination shall advise the requester of
the right to obtain judicial review in the U.S. District Court for the
Northern District of California and shall set forth the names and
titles or positions of each person responsible for the denial.
(2) If a requested record (or portion thereof) is being made
available over the objections of a submitter made in accordance with
Sec. 1007.4(c), the submitter shall be provided notice as described in
Sec. 1007.5(b)(3).
Sec. 1007.9 Fees.
(a) Policy. (1) Unless waived pursuant to the provisions of
Sec. 1007.10, fees for responding to FOIA requests shall be charged in
accordance with the provisions of this section and the current schedule
of charges determined by the Executive Director and published in the
compilation provided under Sec. 1001.7(b) of this chapter. Such charges
shall be set at the level necessary to recoup the full allowable direct
costs to the Trust.
(2) Fees shall not be charged if the total amount chargeable does
not exceed the costs of routine collection and processing of the fee.
The Trust shall periodically determine the cost of routine collection
and processing of a fee and publish such amount in the compilation
provided under Sec. 1001.7(b) of this chapter.
(3) Where there is a reasonable basis to conclude that a requester
or group of requesters acting in concert has divided a request into a
series of requests on a single subject or related subjects to avoid
assessment of fees, the requests may be aggregated and fees charged
accordingly.
(4) Fees shall be charged to recover the full costs of providing
such services as certifying that records are true copies or sending
records by a method other than regular mail, when the Trust elects to
provide such services.
(5) The following definitions shall apply to this part:
(i) The term search includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents or databases. Searches
shall be undertaken in the most efficient and least expensive manner
possible, consistent with the Presidio Trust's obligations under FOIA
and other applicable laws.
(ii) The term duplication refers to the process of making a copy of
a record necessary to respond to a FOIA request. Such copies can take
the form of paper copy, microform, audio-visual materials, or machine-
readable documentation (e.g., magnetic tape or disk), among others. The
copy provided shall be in a form that is reasonably usable by
requesters.
(iii) A commercial use request is a request from or on behalf of a
person who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is made. The intended use of records may be
determined on the basis of information submitted by a requester and
from reasonable inferences based on the identity of the requester and
any other available information.
(iv) An educational institution is a preschool, a public or private
elementary or secondary school, an institution of graduate higher
education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education, which operates a program or programs of scholarly research.
(v) A noncommercial scientific institution is an institution that
is not operated for commerce, trade or profit 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.
(vi) A representative of the news media is 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 is (or would be) of current
interest to the public. Examples of news media entities include, but
are not limited to, television or radio stations broadcasting to the
public at large, and publishers of periodicals (but only in those
instances when they can qualify as disseminators of ``news'') who make
their products available for purchase or subscription by the general
public. As traditional methods of news delivery evolve (e.g.,
electronic dissemination of newspapers through
[[Page 71778]]
telecommunications services), such alternative media would be included
in this category. Free-lance journalists may be considered
representatives of the news media if they demonstrate a solid basis for
expecting publication through a news organization, even though not
actually employed by it. A publication contract or past record of
publication, or evidence of a specific free-lance assignment from a
news organization may indicate a solid basis for expecting publication.
(b) Commercial use requests. (1) A requester seeking records for
commercial use shall be charged fees for costs incurred in document
search and review (even if the search and review fails to locate
records that are not exempt from disclosure) and duplication.
(2) A commercial use requester may not be charged fees for time
spent resolving legal and policy issues affecting access to requested
records.
(c) Educational and noncommercial scientific institution requests.
(1) A requester seeking records under the auspices of an educational
institution in furtherance of scholarly research or a noncommercial
scientific institution in furtherance of scientific research shall be
charged for document duplication, except that the first 100 pages of
paper copies (or the equivalent cost thereof if the records are in some
other form) shall be provided without charge.
(2) Such requesters may not be charged fees for costs incurred in:
(i) Searching for requested records,
(ii) Examining requested records to determine whether they are
exempt from mandatory disclosure,
(iii) Deleting reasonably segregable exempt matter,
(iv) Monitoring the requester's inspection of agency records, or
(v) Resolving legal and policy issues affecting access to requested
records.
(d) News media requests. (1) A representative of the news media
shall be charged for document duplication, except that the first 100
pages of paper copies (or the equivalent cost thereof if the records
are in some other form) shall be provided without charge.
(2) Representatives of the news media may not be charged fees for
costs incurred in:
(i) Searching for requested records,
(ii) Examining requested records to determine whether they are
exempt from mandatory disclosure,
(iii) Deleting reasonably segregable exempt matter,
(iv) Monitoring the requester's inspection of agency records, or
(v) Resolving legal and policy issues affecting access to requested
records.
(e) Other requests. (1) A requester not covered by paragraphs (b),
(c), or (d) of this section shall be charged fees for document search
(even if the search fails to locate records that are not exempt from
disclosure) and duplication, except that the first two hours of search
time and the first 100 pages of paper copies (or the equivalent cost
thereof if the records are in some other form) shall be provided
without charge.
(2) Such requesters may not be charged for costs incurred in:
(i) Examining requested records to determine whether they are
exempt from disclosure,
(ii) Deleting reasonably segregable exempt matter,
(iii) Monitoring the requester's inspection of agency records, or
(iv) Resolving legal and policy issues affecting access to
requested records.
(f) Requests for clarification. Where a request does not provide
sufficient information to determine whether it is covered by paragraph
(b), (c), (d), or (e) of this section, the requester should be asked to
provide additional clarification. If it is necessary to seek such
clarification, the request may be deemed to have not been received for
purposes of the time limits established in Sec. 1007.6 until the
clarification is received. Requests to requesters for clarification
shall be made promptly.
(g) Notice of anticipated fees. Where a request does not state a
willingness to pay fees as high as anticipated by the Presidio Trust,
and the requester has not sought and been granted a full waiver of fees
under Sec. 1007.10, the request may be deemed to have not been received
for purposes of the time limits established in Sec. 1007.6 until the
requester has been notified of and agrees to pay the anticipated fee.
Advice to requesters with respect to anticipated fees shall be provided
promptly.
(h) Advance payment. (1) Where it is anticipated that allowable
fees are likely to exceed $250.00, the requester may be required to
make an advance payment of the entire fee before processing of his or
her request.
(2) Where a requester has previously failed to pay a fee within 30
days of the date of billing, processing of any request from that
requester shall ordinarily be suspended until the requester pays any
amount still owed, including applicable interest, and makes advance
payment of allowable fees anticipated in connection with the request.
(3) Advance payment of fees may not be required except as described
in paragraphs (h) (1) and (2) of this section.
(4) Issuance of a notice requiring payment of overdue fees or
advance payment shall toll the time limit in Sec. 1007.6 until receipt
of payment.
(i) Form of payment. Payment of fees should be made by check or
money order payable to the Presidio Trust. Where appropriate, the
official responsible for handling a request may require that payment by
check be made in the form of a certified check.
(j) Billing procedures. A bill for collection shall be prepared for
each request that requires collection of fees.
(k) Collection of fees. The bill for collection or an accompanying
letter to the requester shall include a statement that interest will be
charged in accordance with the Debt Collection Act of 1982, 31 U.S.C.
3717, and implementing regulations, 4 CFR 102.13, if the fees are not
paid within 30 days of the date of the bill for collection is mailed or
hand-delivered to the requester. This requirement does not apply if the
requester is a unit of State or local government. Other authorities of
the Debt Collection Act of 1982 shall be used, as appropriate, to
collect the fees.
Sec. 1007.10 Waiver of fees.
(a) Statutory fee waiver. Documents shall be furnished without
charge or at a charge reduced below the fees chargeable under
Sec. 1007.9 if disclosure of the information is in the public interest
because it:
(1) Is likely to contribute significantly to public understanding
of the operations or activities of the government and
(2) Is not primarily in the commercial interest of the requester.
(b) Elimination or reduction of fees. Ordinarily, in the
circumstances where the criteria of paragraph (a) of this section are
met, fees will be reduced by twenty-five percent from the fees
otherwise chargeable to the requester. In exceptional circumstances,
and with the approval of the Executive Director, fees may be reduced
below this level or waived entirely.
(c) Notice of denial. If a requested statutory fee waiver or
reduction is denied, the requester shall be notified in writing. The
notice shall include:
(1) A statement of the basis on which the waiver or reduction has
been denied;
(2) A listing of the names and titles or positions of each person
responsible for the denial; and
(3) A statement that the denial may be appealed to the Executive
Director and a description of the procedures in Sec. 1007.7 for appeal.
[[Page 71779]]
PART 1008--REQUESTS UNDER THE PRIVACY ACT
Sec.
1008.1 Purpose and scope.
1008.2 Definitions.
1008.3 Records subject to the Privacy Act.
1008.4 Standards for maintenance of records subject to the Privacy
Act.
1008.5 Federal Register notices describing systems of records.
1008.6 Assuring integrity of records.
1008.7 Conduct of employees.
1008.8 Government contracts.
1008.9 Disclosure of records.
1008.10 Accounting for disclosures.
1008.11 Requests for notification of existence of records:
Submission.
1008.12 Requests for notification of existence of records: Action
on.
1008.13 Requests for access to records.
1008.14 Requests for access to records: Submission.
1008.15 Requests for access to records: Initial decision.
1008.16 Requests for notification of existence of records and for
access to records: Appeals.
1008.17 Requests for access to records: Special situations.
1008.18 Amendment of records.
1008.19 Petitions for amendment: Submission and form.
1008.20 Petitions for amendment: Processing and initial decision.
1008.21 Petitions for amendment: Time limits for processing.
1008.22 Petitions for amendment: Appeals.
1008.23 Petitions for amendment: Action on appeals.
1008.24 Statements of disagreement.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note); 5 U.S.C. 552a.
Sec. 1008.1 Purpose and scope.
This part contains the regulations of the Presidio Trust
implementing section 3 of the Privacy Act. Sections 1008.3 through
1008.10 describe the procedures and policies of the Presidio Trust
concerning maintenance of records which are subject to the Privacy Act.
Sections 1008.11 through 1008.17 describe the procedure under which
individuals may determine whether systems of records subject to the
Privacy Act contain records relating to them and the procedure under
which they may seek access to existing records. Sections 1008.18
through 1008.24 describe the procedure under which individuals may
petition for amendment of records subject to the Privacy Act relating
to them.
Sec. 1008.2 Definitions.
The following terms have the following meanings as used in this
part:
Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence.
Maintain means maintain, collect, use or disseminate.
Privacy Act means 5 U.S.C. 552a.
Privacy Act Officer means the Presidio Trust official charged with
responsibility for carrying out the functions assigned in this part.
Record means any item, collection, or grouping of information about
an individual that is maintained by the Presidio Trust, including, but
not limited to, education, financial transactions, medical history, and
criminal or employment history and that contains the individual's name,
or the identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print, or a
photograph. Related definitions include:
(1) System of records means a group of any records under the
control of the Presidio Trust from which information is retrieved by
the name of the individual or by some identifying number, symbol, or
other identifying particular assigned to the individual.
(2) Medical records means records which relate to the
identification, prevention, cure or alleviation of any disease, illness
or injury including psychological disorders, alcoholism and drug
addiction.
(3) Personnel records means records used for personnel management
programs or processes such as staffing, employee development,
retirement, and grievances and appeals.
(4) Statistical records means records in a system of records
maintained for statistical research or reporting purposes only and not
used in whole or in part in making any determination about an
identifiable individual.
Routine use means a use of a record for a purpose which is
compatible with the purpose for which it was collected.
System manager means the official designated in a system notice as
having administrative responsibility for a system of records.
System notice means the notice describing a system of records
required by 5 U.S.C. 552a(e)(4) to be published in the Federal Register
upon establishment or revision of the system of records.
Sec. 1008.3 Records subject to the Privacy Act.
The Privacy Act applies to all records which the Presidio Trust
maintains in a system of records.
Sec. 1008.4 Standards for maintenance of records subject to the
Privacy Act.
(a) Content of records. Records subject to the Privacy Act shall
contain only such information about an individual as is relevant and
necessary to accomplish a purpose of the Presidio Trust required to be
accomplished by statute or Executive Order of the President.
(b) Standards of accuracy. Records subject to the Privacy Act which
are used in making any determination about any individual shall be
maintained with such accuracy, relevance, timeliness, and completeness
as is reasonably necessary to assure fairness to the individual in
making the determination.
(c) Collection of information. (1) Information which may be used in
making determinations about an individual's rights, benefits, and
privileges under Federal programs shall, to the greatest extent
practicable, be collected directly from that individual.
(2) In deciding whether collection of information from an
individual, as opposed to a third party source, is practicable, the
following factors, among others, may be considered:
(i) Whether the nature of the information sought is such that it
can only be obtained from a third party;
(ii) Whether the cost of collecting the information from the
individual is unreasonable when compared with the cost of collecting it
from a third party;
(iii) Whether there is a risk that information collected from third
parties, if inaccurate, could result in an adverse determination to the
individual concerned;
(iv) Whether the information, if supplied by the individual, would
have to be verified by a third party; or (v) Whether provisions can be
made for verification, by the individual, of information collected from
third parties.
(d) Advice to individuals concerning uses of information. (1) Each
individual who is asked to supply information about him or herself
which will be added to a system of records shall be informed of the
basis for requesting the information, how it may be used, and what the
consequences, if any, are of not supplying the information.
(2) At a minimum, the notice to the individual must state:
(i) The authority (whether granted by statute or Executive Order of
the President) which authorizes the solicitation of the information and
whether disclosure of such information is mandatory or voluntary;
(ii) The principal purpose or purposes for which the information is
intended to be used;
(iii) The routine uses which may be made of the information; and
(iv) The effects on the individual, if any, of not providing all or
any part of the requested information.
(3)(i) When information is collected on a standard form, the notice
to the individual shall be provided on the form, on a tear-off sheet
attached to the form, or on a separate sheet, whichever is most
practical.
[[Page 71780]]
(ii) When information is collected by an interviewer, the
interviewer shall provide the individual with a written notice which
the individual may retain. If the interview is conducted by telephone,
however, the interviewer may summarize the notice for the individual
and need not provide a copy to the individual unless the individual
requests a copy.
(iii) An individual may be asked to acknowledge, in writing, that
the notice required by this section has been provided.
(e) Records concerning activity protected by the First Amendment.
No record may be maintained describing how any individual exercises
rights guaranteed by the First Amendment to the Constitution unless the
maintenance of the record is:
(1) Expressly authorized by statute or by the individual about whom
the record is maintained; or
(2) Pertinent to and within the scope of an authorized law
enforcement activity.
Sec. 1008.5 Federal Register notices describing systems of records.
The Privacy Act requires publication of a notice in the Federal
Register describing each system of records subject to the Privacy Act.
Such notice will be published prior to the establishment or a revision
of the system of records. 5 U.S.C. 552a(e)(4).
Sec. 1008.6 Assuring integrity of records.
(a) Statutory requirement. The Privacy Act requires that records
subject to the Privacy Act be maintained with appropriate
administrative, technical and physical safeguards to insure the
security and confidentiality of records and to protect against any
anticipated threats or hazards to their security or integrity which
could result in substantial harm, embarrassment, inconvenience, or
unfairness to any individual on whom information is maintained, 5
U.S.C. 552a(e)(10).
(b) Records security. Whether maintained in physical or electronic
form, records subject to the Privacy Act shall be maintained in a
secure manner commensurate with the sensitivity of the information
contained in the system of records. The Privacy Act Officer will
periodically review these security measures to ensure their adequacy.
Sec. 1008.7 Conduct of employees.
(a) Handling of records subject to the Privacy Act. Employees whose
duties require handling of records subject to the Privacy Act shall, at
all times, take care to protect the integrity, security and
confidentiality of these records.
(b) Disclosure of records. No employee of the Presidio Trust may
disclose records subject to the Privacy Act unless disclosure is
permitted under Sec. 1008.9 or is to the individual to whom the record
pertains.
(c) Alteration of records. No employee of the Presidio Trust may
alter or destroy a record subject to the Privacy Act unless such
alteration or destruction is:
(1) Properly undertaken in the course of the employee's regular
duties; or
(2) Required by a decision under Sec. Sec. 1008.18 through 1008.23
or the decision of a court of competent jurisdiction.
Sec. 1008.8 Government contracts.
(a) Required contract provisions. When a contract provides for the
operation by or on behalf of the Presidio Trust of a system of records
to accomplish a Presidio Trust function, the contract shall, consistent
with the Presidio Trust's authority, cause the requirements of 5 U.S.C.
552a and the regulations contained in this part to be applied to such
system.
(b) System manager. A regular employee of the Presidio Trust will
be the manager for a system of records operated by a contractor.
Sec. 1008.9 Disclosure of records.
(a) Prohibition of disclosure. No record contained in a system of
records may be disclosed by any means of communication to any person,
or to another agency, except pursuant to a written request by, or with
the prior written consent of, the individual to whom the record
pertains.
(b) General exceptions. The prohibition contained in paragraph (a)
of this section does not apply where disclosure of the record would be:
(1) To those officers or employees of the Presidio Trust who have a
need for the record in the performance of their duties; or
(2) Required by the Freedom of Information Act, 5 U.S.C. 552.
(c) Specific exceptions. The prohibition contained in paragraph (a)
of this section does not apply where disclosure of the record would be:
(1) For a routine use which has been described in a system notice
published in the Federal Register;
(2) To the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to the
provisions of Title 13, U.S. Code.
(3) To a recipient who has provided the system manager responsible
for the system in which the record is maintained with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(4) To the National Archives and Records Administration as a record
which has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the Archivist
of the United States or the designee of the Archivist to determine
whether the record has such value;
(5) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is
authorized by law, and if the head of the agency or instrumentality has
made a written request to the Presidio Trust specifying the particular
portion desired and the law enforcement activity for which the record
is sought;
(6) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(7) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(8) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office;
(9) Pursuant to the order of a court of competent jurisdiction; or
(10) To a consumer reporting agency in accordance with section 3(d)
of the Federal Claims Collection Act of 1966, as amended (31 U.S.C.
3711(f)).
(d) Reviewing records prior to disclosure. (1) Prior to any
disclosure of a record about an individual, unless disclosure is
required by the Freedom of Information Act, reasonable efforts shall be
made to ensure that the records are accurate, complete, timely and
relevant for agency purposes.
(2) When a record is disclosed in connection with a Freedom of
Information Act request made under this part and it is appropriate and
administratively feasible to do so, the requester shall be informed of
any information known to the Presidio Trust indicating that the record
may not be fully accurate, complete, or timely.
Sec. 1008.10 Accounting for disclosures.
(a) Maintenance of an accounting. (1) Where a record is disclosed
to any
[[Page 71781]]
person, or to another agency, under any of the specific exceptions
provided by Sec. 1008.9(c), an accounting shall be made.
(2) The accounting shall record:
(i) The date, nature, and purpose of each disclosure of a record to
any person or to another agency; and
(ii) The name and address of the person or agency to whom the
disclosure was made.
(3) Accountings prepared under this section shall be maintained for
at least five years or the life of the record, whichever is longer,
after the disclosure for which the accounting is made.
(b) Access to accountings. (1) Except for accountings of
disclosures made under Sec. 1008.9(c)(5), accountings of all
disclosures of a record shall be made available to the individual to
whom the record relates at the individual's request.
(2) An individual desiring access to an accounting of disclosures
of a record pertaining to the individual shall submit a request by
following the procedures of Sec. 1008.13.
(c) Notification of disclosure. When a record is disclosed pursuant
to Sec. 1008.9(c)(9) as the result of the order of a court of competent
jurisdiction, reasonable efforts shall be made to notify the individual
to whom the record pertains as soon as the order becomes a matter of
public record.
Sec. 1008.11 Request for notification of existence of records:
Submission.
(a) Submission of requests. (1) Individuals desiring to determine
under the Privacy Act whether a system of records contains records
pertaining to them shall address inquiries to the Privacy Act Officer,
The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052,
unless the system notice describing the system prescribes or permits
submission to some other official or officials.
(2) Individuals desiring to determine whether records pertaining to
them are maintained in two or more systems shall make a separate
inquiry concerning each system.
(b) Form of request. (1) An inquiry to determine whether a system
of records contains records pertaining to an individual shall be in
writing.
(2) To expedite processing, both the envelope containing a request
and the face of the request should bear the legend ``PRIVACY ACT
INQUIRY.''
(3) The request shall state that the individual is seeking
information concerning records pertaining to him or herself and shall
supply such additional identifying information, if any, as is called
for in the system notice describing the system.
(4) Individuals who have reason to believe that information
pertaining to them may be filed under a name other than the name they
are currently using (e.g., maiden name), shall include such information
in the request.
Sec. 1008.12 Requests for notification of existence of records: Action
on.
(a) Decisions on request. (1) Individuals inquiring to determine
whether a system of records contains records pertaining to them shall
be promptly advised whether the system contains records pertaining to
them unless:
(i) The records were compiled in reasonable anticipation of a civil
action or proceeding; or
(ii) The system of records is one which has been excepted from the
notification provisions of the Privacy Act by rulemaking.
(2) If the records were compiled in reasonable anticipation of a
civil action or proceeding or the system of records is one which has
been excepted from the notification provisions of the Privacy Act by
rulemaking, the individuals will be promptly notified that they are not
entitled to notification of whether the system contains records
pertaining to them.
(b) Authority to deny requests. A decision to deny a request for
notification of the existence of records shall be made by the Privacy
Act officer in consultation with the General Counsel.
(c) Form of decision. (1) No particular form is required for a
decision informing individuals whether a system of records contains
records pertaining to them.
(2) A decision declining to inform an individual whether or not a
system of records contains records pertaining to him or her shall be in
writing and shall:
(i) State the basis for denial of the request;
(ii) Advise the individual that an appeal of the declination may be
made to the Executive Director pursuant to Sec. 1008.16 by writing to
the Executive Director, The Presidio Trust, P.O. Box 29052, San
Francisco, CA 94129-0052; and
(iii) State that the appeal must be received by the foregoing
official within 20 working days of the date of the decision.
(3) If the decision declining a request for notification of the
existence of records involves records which fall under the jurisdiction
of another agency, the individual shall be informed in a written
response which shall:
(i) State the reasons for the denial;
(ii) Include the name, position title, and address of the official
responsible for the denial; and (iii) Advise the individual that an
appeal of the declination may be made only to the appropriate official
of the relevant agency, and include that official's name, position
title, and address.
(4) Copies of decisions declining a request for notification of the
existence of records made pursuant to paragraphs (c)(2) and (c)(3) of
this section shall be provided to the Privacy Act Officer.
Sec. 1008.13 Requests for access to records.
The Privacy Act permits individuals, upon request, to gain access
to their records or to any information pertaining to them which is
contained in a system and to review the records and have a copy made of
all or any portion thereof in a form comprehensive to them. 5 U.S.C.
552a(d)(1). A request for access shall be submitted in accordance with
the procedures in this part.
Sec. 1008.14 Requests for access to records: Submission.
(a) Submission of requests. (1) Requests for access to records
shall be submitted to the Privacy Act Officer unless the system notice
describing the system prescribes or permits submission to some other
official or officials.
(2) Individuals desiring access to records maintained in two or
more separate systems shall submit a separate request for access to the
records in each system.
(b) Form of request. (1) A request for access to records subject to
the Privacy Act shall be in writing and addressed to Privacy Act
Officer, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-
0052.
(2) To expedite processing, both the envelope containing a request
and the face of the request should bear the legend ``PRIVACY ACT
REQUEST FOR ACCESS.''
(3) Requesters shall specify whether they seek all of the records
contained in the system which relate to them or only some portion
thereof. If only a portion of the records which relate to the
individual are sought, the request shall reasonably describe the
specific record or records sought.
(4) If the requester seeks to have copies of the requested records
made, the request shall state the maximum amount of copying fees which
the requester is willing to pay. A request which does not state the
amount of fees the requester is willing to pay will be treated as a
request to inspect the requested records. Requesters are further
notified that under Sec. 1008.15(d) the failure to state willingness to
pay fees as high as are anticipated by the
[[Page 71782]]
Presidio Trust will delay processing of a request.
(5) The request shall supply such identifying information, if any,
as is called for in the system notice describing the system.
(6) Requests failing to meet the requirements of this paragraph
shall be returned to the requester with a written notice advising the
requester of the deficiency in the request.
Sec. 1008.15 Requests for access to records: Initial decision.
(a) Decisions on requests. A request made under this part for
access to a record shall be granted promptly unless the record:
(1) Was compiled in reasonable anticipation of a civil action or
proceeding; or
(2) Is contained in a system of records which has been excepted
from the access provisions of the Privacy Act by rulemaking.
(b) Authority to deny requests. A decision to deny a request for
access under this part shall be made by the Privacy Act Officer in
consultation with the General Counsel.
(c) Form of decision. (1) No particular form is required for a
decision granting access to a record. The decision shall, however,
advise the individual requesting the record as to where and when the
record is available for inspection or, as the case may be, where and
when copies will be available. If fees are due under Sec. 1008.15(d),
the individual requesting the record shall also be notified of the
amount of fees due or, if the exact amount has not been determined, the
approximate amount of fees due.
(2) A decision denying a request for access, in whole or part,
shall be in writing and shall:
(i) State the basis for denial of the request;
(ii) Contain a statement that the denial may be appealed to the
Executive Director pursuant to Sec. 1008.16 by writing to the Executive
Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-
0052; and (iii) State that the appeal must be received by the foregoing
official within 20 working days of the date of the decision.
(3) If the decision denying a request for access involves records
which fall under the jurisdiction of another agency, the individual
shall be informed in a written response which shall:
(i) State the reasons for the denial;
(ii) Include the name, position title, and address of the official
responsible for the denial; and
(iii) Advise the individual that an appeal of the declination may
be made only to the appropriate official of the relevant agency, and
include that official's name, position title, and address.
(4) Copies of decisions denying requests for access made pursuant
to paragraphs (c)(2) and (c)(3) of this section will be provided to the
Privacy Act Officer.
(d) Fees. (1) No fees may be charged for the cost of searching for
or reviewing a record in response to a request made under Sec. 1008.14.
(2) Unless the Privacy Act Officer determines that reduction or
waiver of fees is appropriate, fees for copying a record in response to
a request made under Sec. 1008.14 shall be charged in accordance with
the provisions of this section and the current schedule of charges
determined by the Executive Director and published in the compilation
provided under Sec. 1001.7(b) of this chapter. Such charges shall be
set at the level necessary to recoup the full allowable direct costs to
the Trust.
(3) Where it is anticipated that fees chargeable in connection with
a request will exceed the amount the person submitting the request has
indicated a willingness to pay, the Privacy Act Officer shall notify
the requester and shall not complete processing of the request until
the requester has agreed, in writing, to pay fees as high as are
anticipated.
Sec. 1008.16 Requests for notification of existence of records and for
access to records: Appeals.
(a) Right of appeal. Except for appeals pertaining to records under
the jurisdiction of another agency, individuals who have been notified
that they are not entitled to notification of whether a system of
records contains records pertaining to them or have been denied access,
in whole or part, to a requested record may appeal to the Executive
Director.
(b) Time for appeal. (1) An appeal must be received by the
Executive Director no later than 20 working days after the date of the
initial decision on a request.
(2) The Executive Director may, for good cause shown, extend the
time for submission of an appeal if a written request for additional
time is received within 20 working days of the date of the initial
decision on the request.
(c) Form of appeal. (1) An appeal shall be in writing and shall
attach copies of the initial request and the decision on the request.
(2) The appeal shall contain a brief statement of the reasons why
the appellant believes the decision on the initial request to have been
in error.
(3) The appeal shall be addressed to the Executive Director, The
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(d) Action on appeals. (1) Appeals from decisions on initial
requests made pursuant to Sec. Sec. 1008.11 and 1008.14 shall be
decided for the Presidio Trust by the Executive Director after
consultation with the General Counsel.
(2) The decision on an appeal shall be in writing and shall state
the basis for the decision.
Sec. 1008.17 Requests for access to records: Special situations.
(a) Medical records. (1) Medical records shall be disclosed to the
individual to whom they pertain unless it is determined, in
consultation with a medical doctor, that disclosure should be made to a
medical doctor of the individual's choosing.
(2) If it is determined that disclosure of medical records directly
to the individual to whom they pertain could have an adverse effect on
that individual, the individual may designate a medical doctor to
receive the records and the records will be disclosed to that doctor.
(b) Inspection in presence of third party. (1) Individuals wishing
to inspect records pertaining to them which have been opened for their
inspection may, during the inspection, be accompanied by a person of
their own choosing.
(2) When such a procedure is deemed appropriate, individuals to
whom the records pertain may be required to furnish a written statement
authorizing discussion of their records in the accompanying person's
presence.
Sec. 1008.18 Amendment of records.
The Privacy Act permits individuals to request amendment of records
pertaining to them if they believe the records are not accurate,
relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for
amendment of a record shall be submitted in accordance with the
procedures in this part.
Sec. 1008.19 Petitions for amendment: Submission and form.
(a) Submission of petitions for amendment. (1) A request for
amendment of a record shall be submitted to the Privacy Act Officer
unless the system notice describing the system prescribes or permits
submission to a different official or officials. If an individual
wishes to request amendment of records located in more than one system,
a separate petition must be submitted with respect to each system.
(2) A petition for amendment of a record may be submitted only if
the
[[Page 71783]]
individual submitting the petition has previously requested and been
granted access to the record and has inspected or been given a copy of
the record.
(b) Form of petition. (1) A petition for amendment shall be in
writing and shall specifically identify the record for which amendment
is sought.
(2) The petition shall state, in detail, the reasons why the
petitioner believes the record, or the objectionable portion thereof,
is not accurate, relevant, timely or complete. Copies of documents or
evidence relied upon in support of these reasons shall be submitted
with the petition.
(3) The petition shall state, specifically and in detail, the
changes sought in the record. If the changes involve rewriting the
record or portions thereof or involve adding new language to the
record, the petition shall propose specific language to implement the
changes.
Sec. 1008.20 Petitions for amendment: Processing and initial decision.
(a) Decisions on petitions. In reviewing a record in response to a
petition for amendment, the accuracy, relevance, timeliness and
completeness of the record shall be assessed against the criteria set
out in Sec. 1008.4.
(b) Authority to decide. A decision on a petition for amendment
shall be made by the Privacy Act Officer in consultation with the
General Counsel.
(c) Acknowledgment of receipt. Unless processing of a petition is
completed within ten working days, the receipt of the petition for
amendment shall be acknowledged in writing by the Privacy Act Officer.
(d) Inadequate petitions. (1) If a petition does not meet the
requirements of Sec. 1008.19, the petitioner shall be so advised and
shall be told what additional information must be submitted to meet the
requirements of Sec. 1008.19.
(2) If the petitioner fails to submit the additional information
within a reasonable time, the petition may be rejected. The rejection
shall be in writing and shall meet the requirements of paragraph (e) of
this section.
(e) Form of decision. (1) A decision on a petition for amendment
shall be in writing and shall state concisely the basis for the
decision.
(2) If the petition for amendment is rejected, in whole or part,
the petitioner shall be informed in a written response which shall:
(i) State concisely the basis for the decision;
(ii) Advise the petitioner that the rejection may be appealed to
the Executive Director, The Presidio Trust, P.O. Box 29052, San
Francisco, CA 94129-0052; and
(iii) State that the appeal must be received by the foregoing
official within 20 working days of the decision.
(3) If the petition for amendment involves records which fall under
the jurisdiction of another agency and is rejected, in whole or part,
the petitioner shall be informed in a written response which shall:
(i) State concisely the basis for the decision;
(ii) Include the name, position title, and address of the official
responsible for the denial; and
(iii) Advise the individual that an appeal of the rejection may be
made only to the appropriate official of the relevant agency, and
include that official's name, position title, and address.
(4) Copies of rejections of petitions for amendment made pursuant
to paragraphs (e)(2) and (e)(3) of this section will be provided to the
Privacy Act Officer.
(f) Implementation of initial decision. If a petition for amendment
is accepted, in whole or part, the system manager maintaining the
record shall:
(1) Correct the record accordingly and,
(2) Where an accounting of disclosures has been made pursuant to
Sec. 1008.10, advise all previous recipients of the record that the
correction was made and the substance of the correction.
Sec. 1008.21 Petitions for amendment: Time limits for processing.
(a) Acknowledgment of receipt. The acknowledgment of receipt of a
petition required by Sec. 1008.20(c) shall be dispatched not later than
ten working days after receipt of the petition by the Privacy Act
Officer, unless a decision on the petition has been previously
dispatched.
(b) Decision on petition. A petition for amendment shall be
processed promptly. A determination whether to accept or reject the
petition for amendment shall be made within 30 working days after
receipt of the petition by the system manager responsible for the
system containing the challenged record.
(c) Suspension of time limit. The 30 working day time limit for a
decision on a petition shall be suspended if it is necessary to notify
the petitioner, pursuant to Sec. 1008.20(d), that additional
information in support of the petition is required. Running of the 30
working day time limit shall resume on receipt of the additional
information by the system manager responsible for the system containing
the challenged record.
(d) Extensions of time. (1) The 30 working day time limit for a
decision on a petition may be extended if the Privacy Act Officer
determines that an extension is necessary for one of the following
reasons:
(i) A decision on the petition requires analysis of voluminous
record or records;
(ii) Some or all of the challenged records must be collected from
facilities other than the facility at which the Privacy Act Officer is
located; or
(iii) Some or all of the challenged records are of concern to
another agency of the Federal Government whose assistance and views are
being sought in processing the request.
(2) If the official responsible for making a decision on the
petition determines that an extension is necessary, the official shall
promptly inform the petitioner of the extension and the date on which a
decision is expected to be dispatched.
Sec. 1008.22 Petitions for amendment: Appeals.
(a) Right of appeal. Except for appeals pertaining to records under
the jurisdiction of another agency, where a petition for amendment has
been rejected in whole or in part, the individual submitting the
petition may appeal the denial to the Executive Director.
(b) Time for appeal. (1) An appeal must be received no later than
20 working days after the date of the decision on a petition.
(2) The Executive Director may, for good cause shown, extend the
time for submission of an appeal if a written request for additional
time is received within 20 working days of the date of the decision on
a petition.
(c) Form of appeal. (1) An appeal shall be in writing and shall
attach copies of the initial petition and the decision on that
petition.
(2) The appeal shall contain a brief statement of the reasons why
the appellant believes the decision on the petition to have been in
error.
(3) The appeal shall be addressed to the Executive Director, The
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
Sec. 1008.23 Petitions for amendment: Action on appeals.
(a) Authority. Appeals from decisions on initial petitions for
amendment shall be decided by the Executive Director, in consultation
with the General Counsel.
(b) Time limit. (1) A final determination on any appeal shall be
made within 30 working days after receipt of the appeal.
[[Page 71784]]
(2) The 30 working day period for decision on an appeal may be
extended, for good cause shown, by the Executive Director. If the 30
working day period is extended, the individual submitting the appeal
shall be notified of the extension and of the date on which a
determination on the appeal is expected to be dispatched.
(c) Form of decision. (1) The final determination on an appeal
shall be in writing and shall state the basis for the determination.
(2) If the determination upholds, in whole or part, the initial
decision rejecting the petition for amendment, the determination shall
also advise the individual submitting the appeal:
(i) Of his or her right to file a concise statement of the reasons
for disagreeing with the decision of the Presidio Trust;
(ii) Of the procedure established by Sec. 1008.24 for the filing of
the statement of disagreement;
(iii) That the statement which is filed will be made available to
anyone to whom the record is subsequently disclosed together with, at
the discretion of the Presidio Trust, a brief statement by the Presidio
Trust summarizing its reasons for refusing to amend the record;
(iv) That prior recipients of the challenged record will be
provided a copy of any statement of dispute to the extent that an
accounting of disclosure was maintained; and
(v) Of his or her right to seek judicial review of the Presidio
Trust's refusal to amend the record.
(3) If the determination reverses, in whole or in part, the initial
decision rejecting the petition for amendment, the system manager
responsible for the system containing the challenged record shall be
directed to:
(i) Amend the challenged record accordingly; and
(ii) If an accounting of disclosures has been made, advise all
previous recipients of the record of the amendment and its substance.
Sec. 1008.24 Statements of disagreement.
(a) Filing of statement. If the determination of the Executive
Director under Sec. 1008.23 rejects in whole or part, a petition for
amendment, the individual submitting the petition may file with the
Privacy Act Officer a concise written statement setting forth the
reasons for disagreement with the determination of the Presidio Trust.
(b) Disclosure of statements. In any disclosure of a record
containing information about which an individual has filed a statement
of disagreement under this section which occurs after the filing of the
statement, the disputed portion of the record will be clearly noted and
the recipient shall be provided copies of the statement of
disagreement. If appropriate, a concise statement of the reasons of the
Presidio Trust for not making the requested amendments may also be
provided to the recipient.
(c) Maintenance of statements. System managers shall develop
procedures to assure that statements of disagreement filed with them
shall be maintained in such a way as to assure dissemination of the
statements to recipients of the records to which the statements
pertain.
PART 1009--ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT
Sec.
1009.1 Purpose.
1009.2 Procedure for filing claims.
1009.3 Denial of claims.
1009.4 Payment of claims.
1009.5 Indemnification of Presidio Trust directors and employees.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note); 28 U.S.C. 2672.
Sec. 1009.1 Purpose.
The purpose of this part is to establish procedures for the filing
and settlement of claims under the Federal Tort Claims Act (in part, 28
U.S.C. secs. 2401(b), 2671-2680, as amended by Pub. L. 89-506, 80 Stat.
306). The officers to whom authority is delegated to settle tort claims
shall follow and be guided by the regulations issued by the Attorney
General prescribing standards and procedures for settlement of tort
claims (28 CFR part 14).
Sec. 1009.2 Procedure for filing claims.
(a) The procedure for filing and the contents of claims shall be
pursuant to 28 CFR 14.2, 14.3 and 14.4.
(b) Claims shall be filed directly with the Presidio Trust.
(c) Upon receipt of a claim, the time and date of receipt shall be
recorded. The claim shall be forwarded with the investigative file
immediately to the General Counsel for determination.
Sec. 1009.3 Denial of claims.
Denial of a claim shall be communicated as provided by 28 CFR 14.9.
Sec. 1009.4 Payment of claims.
(a) When an award of $2,500 or less is made, the voucher signed by
the claimant shall be transmitted for payment to the Presidio Trust.
When an award over $2,500 is made, transmittal for payment will be made
as prescribed by 28 CFR 14.10.
(b) Prior to payment, appropriate releases shall be obtained as
provided in 28 CFR 14.10.
Sec. 1009.5 Indemnification of Presidio Trust directors and employees.
(a) The Presidio Trust may indemnify a Presidio Trust director or
employee who is personally named as a defendant in any civil suit in
state or federal court or an arbitration proceeding or other proceeding
seeking damages against a Presidio Trust director or employee
personally, for any verdict, judgment, or other monetary award which is
rendered against such director or employee, provided that the conduct
giving rise to the verdict, judgment, or award was taken within the
scope of his or her duties or employment and that such indemnification
is in the interest of the Presidio Trust as determined by
(1) the Board, with respect to claims against an employee; or
(2) a majority of the Board, exclusive of the director against whom
claims have been made, with respect to claims against a director.
(b) The Presidio Trust may settle or compromise a personal damage
claim against a Presidio Trust director or employee by the payment of
available funds, at any time, provided the alleged conduct giving rise
to the personal damage claim was taken within the scope of the duties
or employment of the director or employee and that such settlement or
compromise is in the interest of the Presidio Trust as determined by:
(1) the Board, with respect to claims against an employee; or
(2) a majority of the Board, exclusive of the director against whom
claims have been made, with respect to claims against a director.
(c) The Presidio Trust will not entertain a request either to agree
to indemnify or to settle a personal damage claim before entry of an
adverse verdict, judgment, or award, unless exceptional circumstances
exist as determined by:
(1) the Board, with respect to claims against an employee; or
(2) a majority of the Board, exclusive of the director against whom
claims have been made, with respect to claims against a director.
(d) A Presidio Trust director or employee may request
indemnification to satisfy a verdict, judgment, or award entered
against the director or employee. The director or employee shall submit
a written request, with appropriate documentation including copies of
the verdict, judgment, award, or settlement proposal, in a timely
manner to the General Counsel, who shall make a recommended disposition
[[Page 71785]]
of the request. Where appropriate, the Presidio Trust shall seek the
views of the Department of Justice. The General Counsel shall forward
the request, the accompanying documentation, and the General Counsel's
recommendation to the Board for decision. In the event that a claim is
made against the General Counsel, the Chair shall designate a director
or employee of the Trust to fulfill the duties otherwise assigned to
the General Counsel under this section.
(e) Any payment under this section either to indemnify a Presidio
Trust director or employee or to settle a personal damage claim shall
be contingent upon the availability of funds.
[FR Doc. 98-34099 Filed 12-29-98; 8:45 am]
BILLING CODE 4310-04-RU
