Freedom of Information Act Guide
[Code of Federal Regulations]
[Title 45, Volume 3, Parts 500 to 1199]
[Revised as of October 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR1100] [Page 321-325] TITLE 45--PUBLIC WELFARE
CHAPTER XI--NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
PART 1100--STATEMENT FOR THE GUIDANCE OF THE PUBLIC--ORGANIZATION, PROCEDURE
AND AVAILABILITY OF INFORMATION
1100.3 Availability of information to the public.
1100.4 Current index.
1100.5 Agency procedures for handling requests for documents.
1100.7 Foundation report of actions.
Authority: 5 U.S.C. 552, as amended by Pub. L. 99-570,
100 Stat. 3207.
Source: 52 FR 48266, Dec. 21, 1987, unless otherwise
Sec. 1100.1 Definitions.
(a) Agency means the National Endownment for the Arts,
the National Endowment for the Humanities, the Institute of Museum Services,
or the Federal Council on the Arts and the Humanities.
(b) Commercial use request means a request by or on
behalf of anyone who seeks information for a use or purpose that furthers
the commercial trade or profit interests of the requestor (or the person
on whose behalf the request is made.) The agency must determined the use
to which a requestor will put the document. Where the agency has reasonable
cause to doubt the use to which a requestor will put the records sought
or the use is not clear from the request, the agency may seek additional
clarification. The requestor fears the burden of demonstrating the use
or purpose of the information requested.
(c) Direct costs mens those expenditures which an agency
actually incurs in searching for and duplication documents to respond
to a Freedom of Information Act (FOIA) request. In the case of commercial
use requests, the term shall also include expenditures for reviewing documents.
(d) Duplication means the process of making a copy of
a document necessary to respond to a FOIA
request. Such copies may be in the form of paper, microfilm, machine readable
documents, or other materials.
(e) Educational institution means a preschool, elementary,
or secondary school, an institution of graduate or undergraduate higher
education, an institution of professional education, or an institution
of vocational education, which operates a program or programs of scholarly
(f) Non-commercial scientific institution means an institution
that is not operated on a "commercial use" basis as defined in paragraph
(b) of this section and which is operated solely for the purposes of conducting
scientific research the results of which are not intended to promote any
particular product or industry.
(g) Representative of the news media means any person
actively gathering news for an entity that is organized and operated to
publish or broadcast information that is about current events or that
would be of current interest to the public. Freelance journalists may
be regarded as working for a news organization if they can demonstrate
a sound basis for expecting publication though that organization, even
though not actually employed by it.
(h) Review means the process of examining a document
located in response to a commercial use request to determine whether any
portion is permitted to be withheld. Review includes processing documents
for disclosure, including all that is necessary to excise them and otherwise
prepare them for release. Review does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
(i) Search means all the time that is spent looking
for material that responds to a request, including page-by-page or line-by-line
identification of material in documents. Searches may be done manually
or by computer using exisiting programs.
Sec. 1100.2 Organization.
The National Foundation on the Arts and the Humanities
was established by the National Foundation on the Arts
and the Humanities Act of 1965, 20 U.S.C. 951 et seq. The Foundation
is composed of the National Endowment for the Arts, the National Endowment
for the Humanities, the Institute of Museum Services, and the Federal
Council on the Arts and the Humanities. The Institute of Museum Services
became a part of the National Foundation on the Arts and the Humanities
pursuant to Pub. L. 97-394 (December 30, 1982) and Pub. L. 98-306 (May
31, 1984). Each Endowment is headed by a Chairman and has an advisory
national council composed of 26 presidential appointees. The Institute
of Museum Services is headed by a Director and has a National Museum Services
Board composed of 15 presidential appointees. The Federal Council on the
Arts and the Humanities, comprised of Executive branch officials and appointees
of the legislative branch, is authorized to make agreements to indemnify
against loss or damage for certain exhibitions and advise on arts and
Sec. 1100.3 Availability of information to the public.
(a) All inquiries, or requests should be addressed
to the appropriate agency. Descriptive brochures of the organization,
programs, and function of each agency are available upon request. Inquiries
involving work of the National Endowment for the Arts should be addressed
to the National Endowment for the Arts, 1100 Pennsylvania Avenue, NW.,
Washington, DC 20506. The telephone number of the National Endowment for
the Arts is (202) 682-5400. Requests or inquiries involving the National
Endowment for the Humanities should be addressed to the National Endowment
for the Humanities, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
The telephone number of the National Endowment for the Humanities is (202)
786-0310. Requests or inquiries involving the Institute of Museum Services
should be addressed to the Institute of Museum Services, 1100 Pennsylvania
Avenue, NW., Washington, DC 20506. The telephone number of the Institute
of Museum Services is (202) 786-0536.
(b) The head of each agency is responsible for the effective
administration of the Freedom of Information Act. The head of each agency
pursuant to this responsibility hereby directs that every effort be expended
to facilitate service to the public with respect to the obtaining of information
(c) Requests for access to records of the National Endowment
for the Arts, the National Endowment for the Humanities, or the Institute
of Museum Services may be filed by mail with the General Counsel of the
National Endowment for the Arts, the Deputy Chairman of the National Endowment
for the Humanities, or the Public Affairs Officer of the Institute of
Museum Services, as is appropriate. Requests for access to records of
the Federal Council on the Arts and the Humanities should be directed
to the attention of the National Endowment for the Humanities. All requests
should reasonably describe the record or records sought. Requests submitted
should be clearly identified as being made pursuant to the Freedom of
Sec. 1100.4 Current index.
Each agency shall maintain and make available for
public inspection and copying a current index providing identifying information
for the public as to any matter which is issued, adopted, or promulgated
and which is required to be made available pursuant to 5 U.S.C. 552(a)
(1) and (2). Publication and distribution of such indices has been determined
by the Foundation to be unnecessary and impracticable. The indices will
be provided upon request at a cost not to exceed the direct cost of the
Sec. 1100.5 Agency procedures for handling requests for documents.
(a) Upon receiving a request for documents in accordance
with the rules of this part, the General Counsel of the National Endowment
for the Arts, Deputy Chairman of the National Endowment for the Humanities,
or the Public Affairs Officer of the Institute of Museum Services, as
is appropriate, shall determine whether or not the request shall be granted
in whole or in part.
(1) The determination shall be made within ten (10)
days (excepting Saturdays, Sundays, and legal holidays) after receipt
of such request.
(2) The requestor shall be notified of the determination
and the reasons that support it. When a request is denied in whole or
in part, the requestor, will be notified of his or her rights to appeal
the determination to the head of the agency.
(b)(1) Any party whose request for documents has been
denied in whole or in part may file an appeal no later than ten (10) working
days following receipt of the notification of denial. Appeals must be
addressed to the Chairman, National Endowment for the Arts, Washington,
DC 20506, the Chairman, National Endowment for the Humanities, Washington,
DC 20506, or the Director Institute of Museum Services, Washington, DC
20506, as is appropriate.
(2) The head of the agency or his delegatee shall make
a determination with respect to the appeal within twenty (20) days (excepting
Saturdays, Sundays, and legal holidays) after the agency has received
the appeal, except as provided in paragraph (c) of this section. If, on
appeal, the denial is upheld either in whole or in part, the head of the
agency shall notify the party submitting the appeal of the judicial review
provisions of 5 U.S.C. 552(a)(4)(B).
(c) In unusual circumstances, the time limits prescribed
to determine a request for documents with respect to initial actions or
actions on appeal may be extended by written notice from the General Counsel
of the National Endowment for the Arts, the Deputy Chairman of the National
Endowment for the Humanities, or the Public Affairs Officer of the Institute
of Museum Services as is appropriate. The notice shall describe the reason
for the extension and the date on which the determination is expected
to be made. No notice shall specify a date that would result in an extension
of more than ten (10) days (excepting Saturdays, Sundays, and legal holidays).
As is used in this paragraph, unusual circumstances means:
(1) The need to search for and collect the requested
records from field facilities or other establishments that are separate
from the office processing the request;
(2) The need to search for, collect, and appropriately
examine a volumious amount of separate and distinct records which are
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 or among two or more components of
the agency having a substantial subject-matter interest in the request.
Sec. 1100.6 Fees.
(a) Categories of fees. Fees will be charged according
to the Category of the FOIA
(1) Commercial use requests. The agency will assess
charges to recover the full direct cost of searching for, reviewing, and
duplicating the requested document. The agency may recover the cost of
searching for and reviewing records even if there is ultimately no disclosure.
(2) Requests from educational and non-commercial scientific
institutions. The agency will charge for duplication costs. To qualify
for this category the requestor must show: (i) That requested records
are being sought under the auspices of a qualified institution as defined
in Sec. 1100.1 (e) or (f) of this part; (ii) the records are not sought
for commercial use; and (iii) the records are being sought in furtherance
of scholarly or scientific research of the institution.
(3) Requests by representatives of the news media. The
agency will charge duplication costs for the requests in this category.
(4) All other requests. All other requests shall be
charged fees which, recover the full reasonable cost for searching for
and duplicating the requested records.
(b) General fee schedule. The agency shall use the most
efficient and least costly method to comply with requests for documents
made under the FOIA. The agency will charge fees to recover all allowable
direct costs incurred. The agency may charge fees for searching for and
reviewing requested documents even if the documents are determined
to be exempt from disclosure or cannot be located. If search charges
are likely to exceed $25, the agency shall notify the requestor, unless
the requestor has indicated in advance the willingness to pay higher fees.
The following fees shall be charged in accordance with paragraph (a) of
(1) Searches--(i) Manual. The fee charged will be the
salary rate(s) (i.e., basic pay plus 16.1 percent) of the employee(s)
conducting the search.
(ii) Computer. The fee charged will be the actual direct
cost of providing the service including the cost of operating the central
processing unit for the operating time that is directly attributed to
searching for records responsive to a request and the operator/ programmer
salary apportionable to the search.
(2) Review. The fee charged will equal the salary rate(s)
(basic pay plus 16.1 percent) of the employee(s) conducting the review.
(3) Duplication. Copies of documents photocopied on
one-side of a 8\1/2\ x 11 inch sheet of paper will be provided at $.10
per page. Photocopies on two sides of a single 8\1/2\ x 11 inch sheet
of paper will be provided at $.20 per page. For duplication of other materials,
the charge will be the direct cost of duplication.
(c) Restrictions on charging fees. (1) Except for documents
provided in response to a commercial use request, the first 100 pages
of duplication or the first two (2) hours of search time shall be provided
at no charge. For the purposes of this section, two (2) hours of search
time by computer entitles the requestor to two (2) hours of computer operator
salary translated into computer search costs. Computer search costs consist
of operator salary plus central proceeding unit operating time costs for
the duration of the search.
(2) Fees shall not be charged to any requestor, including
commercial use requestors, if the cost of collecting a fee would be equal
to or greater than the fee itself.
(d) Waiver or reduction of fees. (1) Documents shall
be furnished without charge or at reduced charge if disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities
of the government and is not primarily in the commercial interest of the
(2) The following factors shall be used to determine
whether a fee will be waived or reduced:
(i) The subject of the request. Whether the subject
of the requested records concerns "the operations or activities of the
(ii) The informative value of the information to be
disclosed. Whether the disclosure is "likely to contribute" to an understanding
of government operations or activities;
(iii) The contribution to an understanding of the subject
by the general public likely to result from disclosure. Whether disclosure
of the requested information will contribute to "public understanding";
(iv) The significance of the contribution to public
understanding. Whether disclosure is likely to contribute "significantly"
to public understanding of government operations or activities;
(v) The existence and magnitude of a commercial interest.
Whether the requestor has a commercial interest that would be furthered
by the disclosure; and if so
(vi) The primary interest in disclosure. Whether the
magnitude of the identified commercial interest of the requestor is sufficiently
large in comparison with the public interest in disclosure, that disclosure
is "primarily in the commercial interest of the requester."
(e) Assessment and collection of fees. (1) Interest
will accrue from the date the bill is mailed if the fee is not paid within
thirty (30) days. Interest will be assessed at the rate prescribed in
31 U.S.C. 3717.
(2) If the agency reasonably believes that a requestor(s)
is making multiple requests to avoid the assessment of fees, the agency
may aggregate such requests and charge accordingly.
(3) The agency may request an advance payment of the
(i) The allowable charges are likely to exceed $250;
(ii) The requestor has failed previously to pay a fee
in a timely fashion.
(4) When the agency requests an advance payment, the
time limits prescribed in section (a)(6) of the Freedom
of Information Act will begin only after the agency has received full
Sec. 1100.7 Foundation report of actions.
On or before March 1 of each calendar year, each member agency of the
National Foundation on the Arts and the Humanities shall submit a report
of its activities with regard to public information requests during the
preceding calendar year to the Speaker of the House of Representatives
and to the President of the Senate. The report shall include:
(a) The number of determinations made by each member agency of the National
Foundation on the Arts and the Humanities not to comply with requests
for records made to the agency under the provisions of this part and the
reasons for each such determination;
(b) The number of appeals made by persons under such provision, the result
of such appeals, and the reasons for the action upon each appeal that
results in the denial of information;
(c) The names and titles or positions of each person responsible for the
denial of records requested under the provisions of this part and the
number of instances of participation for each;
(d) The results of each proceeding conducted pursuant to 5 U.S.C. 552(a)(4)(F),
as amended, including a report of the disciplinary action taken against
the officer of employee who was primarily responsible for improperly withholding
records or an explanation of why disciplinary action was not taken;
(e) A copy of every rule made by the Foundation implementing the provisions
of the FOIA.
(f) A copy of the fee schedule and the total amount of fees collected
by the agency for making records available under this section; and
(g) Such other information as indicates efforts to administer the provisions
of the FOIA, as amended.
National Endowment for the Arts · an independent federal agency
1100 Pennsylvania Avenue NW
Washington, DC 20506