E6-22574. FOIA Processing Fees

AGENCY:

Central Intelligence Agency.

ACTION:

Proposed rule.

SUMMARY:

Consistent with the Freedom of Information Act (FOIA) and Executive Order 13392, the Central Intelligence Agency (CIA) has undertaken and completed a zero-based review of its public FOIA regulations governing fees associated with the processing of FOIA requests. As a result of this review, the Agency proposes to revise its fee-related regulations to eliminate unnecessary restrictions on FOIA requesters and to consolidate all regulatory requirements regarding FOIA fees in one subsection of the Code of Federal Regulations. As required by the FOIA, the Agency is providing an opportunity for interested persons to submit comments on these proposed regulations.

DATES:

Submit comments on or before February 7, 2007.

ADDRESSES:

Submit comments in writing to the Chief of Information Management Services, Central Intelligence Agency, Washington, DC 20505, or by fax to 703-613-3007.

FOR FURTHER INFORMATION CONTACT:

Scott A. Koch, Information and Privacy Coordinator, Central Intelligence Agency, Washington, DC 20505 or by telephone, 703-613-1287.

SUPPLEMENTARY INFORMATION:

Consistent with the FOIA and Executive Order 13392, the CIA has undertaken and completed a zero-based review of its public FOIA regulations governing fees associated with the processing of FOIA requests. As a result of this review, the Agency proposes to revise its fee-related regulations to eliminate unnecessary restrictions on FOIA requesters and to simplify its fee schedule. The proposed regulations remove the unnecessary restrictions on the categories of FOIA requesters that are included in the CIA's current regulations. Under the proposed regulations, the CIA would not charge any FOIA requester, regardless of fee category, for a review fee in connection with the processing of a FOIA request.

The proposed regulations would not affect any requester submitting a request from a federal, state, or local penitentiary or correctional facility. Under both current CIA regulations and the proposed CIA regulations, the CIA will continue to place any requester submitting a request from a federal, state, or local penitentiary or correctional facility in the “All Other” fee category and will bill them for search fees and for duplication fees (with the first two hours of search and the first one hundred pages free of charge), unless the CIA grants a fee waiver.

Under the proposed regulations, the CIA would bill any requester not submitting a request from a federal, state, or local penitentiary or correctional facility, regardless of their fee category, only for the duplication costs (with the first one hundred pages free of charge) associated with the request, unless the CIA grants a fee waiver. The CIA would not bill these requesters for any search fee in connection with the processing of their request.

The proposed regulations would establish a maximum amount the CIA could bill for search fees and a maximum amount the CIA could bill for duplication fees.

The criteria the CIA would apply to fee waiver requests would remain unchanged.

List of Subjects in 32 CFR Part 1900

• Classified information
• Freedom of information

As stated in the preamble, the CIA proposes to amend 32 CFR part 1900 as follows:

PART 1900—PUBLIC ACCESS TO CIA RECORDS UNDER THE FREEDOM OF INFORMATION ACT

1. The authority citation for part 1900 is revised to read as follows:

Authority: 5 U.S.C. 552.

§ 1900.02

[Amended]

2. In § 1900.02, remove and reserve paragraphs (e) and (h).

§ 1900.12

[Amended]

3. In § 1900.12, remove and reserve paragraph (b).

§ 1900.13

[Removed]

4. Remove § 1900.13.

§ 1900.14

[Removed]

5. Remove § 1900.14.

6. Add § 1900.20 to read as follows:

§ 1900.20

Fees.

This section governs fees and fee waivers associated with Freedom of Information Act requests the CIA receives.

(a) Categories of FOIA Requesters.

(1) Commercial Use Requester means any requester who seeks information, on his or her own behalf or on the behalf of another, for a use or purpose that furthers his or her commercial, trade, or profit interests.

(2) Non-Commercial Educational or Scientific Institution means any requester that is professionally affiliated with either an accredited educational institution at any academic level or an institution engaged in research concerning the social, biological, or physical sciences.

(3) Representative of the News Media means any requester actively gathering information of current interest to the public, for an organization that is organized and operated to publish or broadcast news to the general public.

(4) All Other Requesters means any requester who does not fall within one of the other categories.

(b) Required Fee Commitment. The Agency will not accept any FOIA request unless the requester has agreed in writing to pay all applicable fees.

(1) Providing this written agreement shall not preclude a requester from seeking a fee waiver in accordance with this section.

(2) The Agency will promptly advise any requester who has purported to submit a FOIA request for information without the required written agreement of this requirement and hold the request in abeyance for thirty calendar days from the date of the Agency's notice to the requester. If the Agency has not received the required written agreement, upon expiration of the thirty calendar days, the Agency will close the case and take no further action on the FOIA request. This action does not prevent the requester from re-submitting the request with the required fee agreement at a subsequent date.

(c) Outstanding Fees. The Agency will not accept a FOIA request or administrative appeal from any requester who has outstanding fees for information services at any federal agency.

(d) Requests Processed Under Both the FOIA and the Privacy Act. The CIA will not bill for fees for any request for information processed under the provisions of the Privacy Act of 1974.

(e) Special Services. The CIA will bill any FOIA requester for the actual costs associated the CIA's provision of special services requested by a requester, such as certification that records are true copies or use of other than ordinary mail. The CIA will notify the requester of those costs before providing any special services.

(f) Review Fees. The CIA will not bill any FOIA requester for a review fee in connection with the processing of a FOIA request.

(g) Search Fees. Except as provided in this subsection, the CIA will not bill a FOIA requester for a search fee in connection with the processing of a FOIA request.

(1) Unless otherwise waived by the CIA in accordance with paragraph O below, the CIA will bill any requester submitting a FOIA request from a federal, state, or local penitentiary or correctional facility for search fees.

(2) Search means the process of looking for and retrieving information and records in response to a FOIA request and determining whether such information and records are responsive to that request.

(3) Search rates reflect the costs incurred by the Agency in searching for records in connection with a FOIA request, including but not limited to, the salary of the individual performing the work and the cost of operating any machinery, such as a central processing unit, needed to conduct the search. The Agency will bill requesters subject to search fees at the following rates:

Completed search time in minutes	Charge
1 through 120	Free.
121 through 150	Flat Rate: $30.00.
151 through 180	Flat Rate: $60.00.
181 through 210	Flat Rate: $90.00.
211 through 240	Flat Rate: $120.00.
241 through 270	Flat Rate: $150.00.
271 through 300	Flat Rate: $180.00.
301 through 330	Flat Rate: $210.00.
331 through 360	Flat Rate: $240.00.
Over 361	Flat Rate: $300.00.

(4) The CIA will execute its searches in the most efficient and least expensive manner reasonably possible.

(5) Unless otherwise waived by the CIA in accordance with paragraph O below, the CIA will bill requesters subject to search fees for the time spent searching even if it does not locate any responsive information, or even if any or all of the responsive information located is exempt from release.

(h) Duplication Fees. Unless otherwise waived by the CIA in accordance with paragraph (o) of this section, the CIA shall bill all FOIA requesters for duplication fees.

(1) Duplication means the making of a copy of information responsive to a FOIA request and deemed releasable by the Agency. Copies may be in paper form, microform, audiovisual materials, or electronic form, among others.

(2) Requested Form or Format of Disclosure.

(i) The Agency will honor a requester's specified preference of form or format of disclosure only if—

(A) The Agency can readily reproduce the information in the requested form with a reasonable amount of effort; and

(B) Providing the information in the requested form is consistent with national security or other U.S. Government interests; and

(C) The requester prepays the fees billed by the Agency.

(ii) If the Agency determines that it cannot honor a requester's specified preference of form or format of disclosure, the Agency will notify the requester.

(3) Duplication rates reflect the costs incurred by the Agency in duplicating the nonexempt information responsive to a FOIA request, including the salary of the individual performing the duplication and the cost of operating duplication machinery.

(4) For the duplication in paper form, the Agency will bill at the following rates:

Number of pages released to requester	Charge
1 through 100	None.
101 through 150	Flat Rate: $25.00.
151 through 200	Flat Rate: $50.00.
201 through 250	Flat Rate: $75.00.
251 through 300	Flat Rate: $100.00.
301 through 350	Flat Rate: $125.00.
351 through 400	Flat Rate: $150.00.
401 through 450	Flat Rate: $175.00.
451 through 500	Flat Rate: $200.00.
501 through 550	Flat Rate: $225.00.
551 through 600	Flat Rate: $250.00.
601 through 1000	Flat Rate: $450.00.
Over 1000	Flat Rate: $1000.00.

(5) For the duplication in electronic or other form, the Agency will bill at the rate of $100.00 per compact disc.

(i) No Fees Billed. The CIA will not bill for fees when the cost of collecting the fee is equal to or greater than the fee itself. Therefore, the CIA will not bill for fees for any request for information when the total bill is twenty-five (25) dollars or less.

(j) Interest. The CIA may charge interest on any unpaid bill starting on the 31st day following the date of the bill, and will assess interest at the rate provided in section 3717 of title 31 of the U.S. Code. Interest will accrue from the date of the bill until the Agency receives payment. The CIA will follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.

(k) Aggregation. Where the CIA reasonably believes that a requester or group of requesters acting together is attempting to divide a request into a series of requests for a purpose of avoiding fees, the CIA may aggregate those requests and bill accordingly. This provision is not intended to limit the CIA's authority to aggregate the processing of multiple requests when necessary to protect national security or other U.S. Government interests.

(l) Advance Payments. An advance payment is a payment made before the CIA begins or continues work on a FOIA request. The CIA may require an advance payment only as specified in this section.

(1) The CIA may require a FOIA requester to make an advance payment of up to 100 percent of the total estimated fee only when—

(i) The CIA estimates, at any time before or during the processing of a FOIA request, that the total fee will exceed $250.00; or

(ii) The requester has previously failed to pay a fee in a timely fashion and the Agency did or could have charged the requester for interest in accordance with this section.

(2) When the CIA requires an advance payment, the CIA will promptly notify the requester and hold the request in abeyance for thirty calendar days from the date of the Agency's notice to the requester. If the requester fails to remit the payment within the thirty days, the Agency will close the case and take no further action on the FOIA request. This action does not prevent the requester from re-submitting the request at a susequent date.

(m) Prepayments. A prepayment is a payment made after the CIA has completed all the work on a FOIA request but has not forwarded the final response and the processed documents to the FOIA requester. The CIA may require any requester to pay up to the full amount of the billed fee before it provides the FOIA requester with the final response and the processed documents, particularly when the FOIA requester has no payment history or has previously failed to pay a fee within thirty calendar days of the bill.

(n) Requests for Notification. Upon request, the Agency may notify a requester when the estimated costs of processing the FOIA request meet or exceed a certain threshold.

(o) Fee Waivers.

(1) In order to qualify for any fee waiver, a FOIA requester must first agree in writing to pay all applicable fees.

(2) Requesters shall submit fee waiver requests in writing. The Agency will not consider any fee waiver request received by the Agency later than thirty calendar days of the date of the requester's FOIA request.

(3) The CIA will furnish records to a FOIA requester at no charge, or at a reduced rate, whenever the CIA determines that, as a matter of administrative discretion, the interest of the U.S. Government would be served.

(4) Public interest fee waivers. The CIA will furnish records to a FOIA requester at no charge, or at a reduced rate, whenever the CIA determines, based on all available information, that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interests of the requester.

(i) In order to determine whether the first public interest fee waiver requirement has been met (i.e., that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of Government operations or activities), the Agency will consider the following four factors, in sequence:

(A) Subject matter of the requested records. The subject of the requested records must specifically concern identifiable operations or activities of the federal Government, with a connection that is direct and clear, not remote or attenuated.

(B) Informative value of the information to be disclosed. The disclosable portions of the requested information must be meaningfully informative about specific federal government activities or operations in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that is already in the public domain, in either a duplicative or substantially identical form, would not be likely to contribute to such understanding where nothing new would be added to the public's understanding.

(C) Contribution to public understanding. The disclosure must contribute to the understanding of the public at large, as opposed to the individual understanding of the requester or a narrow segment of interested persons. A requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. The CIA may presume that requesters subject to search fees under these regulations do not have the ability to effectively convey information to the public.

(D) Significance of the contribution to public understanding. The disclosure must contribute “significantly” to public understanding of Government operations or activities. The public's understanding of the subject matter in question, as compared to the level of public understanding existing before the disclosure, must be enhanced by the disclosure to a significant extent.

(ii) In order to determine whether the second public interest fee waiver requirement is met (i.e., that the disclosure of the information “is not primarily in the commercial interest of the requester”), the Agency will consider the following three factors, in sequence:

(A) Existence of commercial interest. A “commercial interest” is one that furthers a commercial, trade, or profit interest. The Agency will consider any commercial interest of the requester or any person upon whose behalf the requester may be acting that would be furthered by the disclosure. Agency personnel may consider the requester's identity and the circumstances surrounding the request and draw reasonable inferences regarding the existence of a commercial interest.

(B) Effects of disclosure on the commercial interest. If the requester has a commercial interest, the CIA will determine whether and to what extent disclosure of the requested information would further that interest.

(C) Primary interest in disclosure. The Agency will determine whether the public interest in disclosure asserted by the requester is greater in magnitude than the requester's commercial interest.

(5) If the Agency denies a request for a public interest fee waiver, it shall provide the requester with written notice of his or her administrative appeal rights. Requesters shall have the right to file an administrative appeal of the denial of a request for a public interest fee waiver provided the appeal is submitted in writing and is received by the Agency within forty-five calendar days of the date of the denial decision.

(6) The Chair of the Agency Release Panel shall adjudicate all appeals of denials of requests for public interest fee waivers.

§ 1900.23

[Amended]

7. Revise the heading of § 1900.23, to read “§ 1900.23 Notification of Decision and Right of Appeal.”

8. In § 1900.23, remove and reserve paragraph (a).

9. Amend § 1900.42 by revising paragraph (a) to read as follows:

§ 1900.42

Right of appeal and appeal procedures.

(a) Right of Appeal. A right of administrative appeal exists whenever access to any requested record or any portion thereof is denied or no records are located in response to a request. The Agency will apprise all requesters in writing of their right to appeal such decisions to the CIA Agency Release Panel through the Coordinator. Appeals of denials of requests for fee waivers shall be governed by 32 CFR 1900.20.

* * * * *

Dated: December 28, 2006.

Edmund Cohen,

Chief of Information Management Services.