The following definitions apply to this subpart:
(a) Request, in this subpart, includes any request, as defined by
Sec. 70.2(f), as well as any appeal filed in accordance with Sec.
70.22.
(b) Direct costs means those expenditures which a component
actually incurs in searching for and duplicating (and in the case of
commercial use requests, reviewing) records to respond to a FOIA
request. Direct costs include, for example, the salary of the Federal
employee performing work (the basic rate of pay for the Federal
employee plus 16 percent of that rate to cover benefits) and the cost
of operating duplication machinery. Not included in direct costs are
overhead expenses such as costs of space, heating or lighting the
facility in which the records are kept.
(c) Reproduction means the process of making a copy of a record
necessary to respond to a request. Such copy can take the form of
paper, microform, audio-visual materials or electronic records (e.g.,
magnetic tape or disk).
(d) Search means the process of looking for and retrieving records
or information that is responsive to a FOIA request. It includes page-
by-page or line-by-line identification of information within records
and also includes reasonable efforts to locate and retrieve information
from records maintained in electronic form or format. Disclosure
officers will ensure that searches are done in the most efficient and
least expensive manner reasonably possible. A search does not include
the review of material, as defined in paragraph (e) of this section,
which is performed to determine whether material is exempt from
disclosure.
(e) Review means the process of examining records, including audio-
visual, electronic mail, etc., located in response to a request to
determine whether any portion of the located record is exempt from
disclosure, and accordingly may be withheld. It also includes the act
of preparing materials for disclosure, i.e., doing all that is
necessary to excise them and otherwise prepare them for release. Review
time includes time spent contacting any submitter, and considering and
responding to any objections to disclosure made by a submitter under
Sec. 70.26, but does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(f) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his or
her commercial, trade or profit interests, which can include furthering
those interests through litigation. Components will determine, whenever
reasonably possible, the use to which a requester will put the
requested records. When it appears that the requester will put the
records to a commercial use, either because of the nature of the
request itself or because a component has reasonable cause to doubt a
requester's stated use, the component will provide the requester a
reasonable opportunity to submit further clarification.
(g) Educational institution means an institution which:
(1) Is a preschool, public or private elementary or secondary
school, an institution of undergraduate higher education, an
institution of graduate higher education, an institution of
professional education, or an institution of vocational education, and
(2) Operates a program or programs of scholarly research. To
qualify under this definition, the program of scholarly research in
connection with which the information is sought must be carried out
under the auspices of the academic institution itself as opposed to the
individual scholarly pursuits of persons affiliated with an
institution. For example, a request from a professor to assist him or
her in writing of a book, independent of his or her institutional
responsibilities, would not qualify under this definition, whereas a
request predicated upon research funding granted to the institution
would meet its requirements. A request from a student enrolled in an
individual course of study at an educational institution would not
qualify as a request from the institution.
(h) Non-commercial scientific institution means an institution that
is not operated on a commercial basis 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.
(i) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public.
(1) Factors indicating such representation status include press
accreditation, guild membership, a history of continuing publication,
business registration, and/or Federal Communication Commission
licensing, among others.
(2) For purposes of this definition, news contemplates information
that is about current events or that would be of current interest to
the public.
(3) A freelance journalist will be treated as a representative of
the news media if the person can demonstrate a solid basis for
expecting publication of matters related to the requested information
through a qualifying news media entity. A publication contract with a
qualifying news media entity satisfies this requirement. An
individual's past publication record with such organizations is also
relevant in making this determination. Examples of news media entities
include television or radio stations broadcasting to the public at
large, and publishers of periodicals including newsletters (but only in
those instances where they can qualify as disseminators of news) who
make their products available for purchase or subscription by the
general public.
