FR Doc E8-28174[Federal Register: November 26, 2008 (Volume 73, Number 229)]
[Proposed Rules]
[Page 71986-71999]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no08-40]
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DEPARTMENT OF EDUCATION
34 CFR Part 5
RIN 1880-AA84
[Docket ID ED-2008-OM-0011]
Availability of Information to the Public
AGENCY: Office of Management, Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the regulations governing the
Department's compliance with the Freedom of Information Act, as amended
(FOIA or the Act). The proposed regulations are intended to update the
Department's current regulations to reflect the changes in the FOIA
over recent years.
DATES: We must receive your comments on or before December 26, 2008.
Comments received after this date will not be considered.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by e-mail. Please submit your comments only
one time, in order to ensure that we do not receive duplicate copies.
In addition, please include the Docket ID at the top of your comments.
The Department scans all first-class and priority mail using an
irradiation process, which can result in lengthy delays in mail
delivery. Please keep this in mind when submitting your comments and
consider using the Federal eRulemaking Portal, commercial delivery
services, or hand delivery.
Federal eRulemaking Portal: Go to http://www.regulations.gov
to submit your comments electronically. Information
on using Regulations.gov, including instructions for accessing agency
documents, submitting comments, and viewing the docket, is available on
the site under ``How To Use This Site.''
Postal Mail, Commercial Delivery, or Hand Delivery: If you
mail or deliver your comments about these proposed regulations, address
them to Delores J. Barber, U.S. Department of Education, 400 Maryland
Avenue, SW., Washington, DC 20202-4536.
Privacy Note: The Department's policy for comments received from
members of the public (including those comments submitted by mail,
commercial delivery, or hand delivery) is to make these submissions
available for public viewing in their entirety on the Federal
eRulemaking Portal at http://www.regulations.gov. Therefore, commenters
should be careful to include, in their comments, only information that
they wish to make publicly available on the Internet.
FOR FURTHER INFORMATION CONTACT: Delores J. Barber, U.S. Department of
Education, 400 Maryland Avenue, SW., Washington, DC 20202-4536.
Telephone: (202) 401-8365 or via Internet: EDFOIAManager@ed.gov.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the FOIA
program.
[[Page 71987]]
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You may also inspect the comments, in person, in the FOIA e-Reading
Room, National Library of Education, 400 Maryland Avenue SW., Plaza
Level (Level B, Room BE101), Washington, DC 20202-4536 between the
hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of
each week except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Background
The regulations proposed in this Notice of proposed rulemaking
(NPRM) implement changes made to the FOIA (5 U.S.C. 552) in recent
years and articulate more clearly, to the public, the Department's
policy for processing FOIA requests for publicly available records in
the most cost-effective and efficient manner. In developing this NPRM,
we have rewritten the Department's existing regulations to be
consistent with the FOIA, including its amendments.\1\
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\1\ Numerous changes have been made to the FOIA since the
Department last updated its FOIA regulations in 34 CFR Part 5. Most
significantly, Congress passed the Electronic Freedom of Information
Act Amendments of 1996 (E-FOIA Amendments) (Pub. L. 104-231) and the
OPEN Government Act of 2007 (Pub. L. 110-175), both of which amended
the FOIA. Under the E-FOIA Amendments, electronic records were
explicitly made subject to the FOIA and agencies were required to
make all reading room records created after November 1, 1996
electronically available. The OPEN Government Act of 2007 made a
number of amendments to procedural issues affecting FOIA
administration, including the protection of fee status for news
media, time limits for agencies to act upon FOIA requests, the
availability of agency records maintained by a private entity, the
establishment of a FOIA Public Liaison and FOIA Requester Service
Center, and the requirement to describe the exemptions authorizing
the redaction of material provided under the FOIA.
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Significant Proposed Regulations
We discuss substantive issues under the sections of the proposed
regulations to which they pertain. Generally, we do not address
proposed regulatory provisions that are technical or otherwise minor in
effect.
Subpart A--General Provisions
Statute: Section 552(a)(1) of title 5, United States Code provides
the general framework for the disclosure of agency records to the
public, and requires each agency to promulgate rules to effect such
public disclosures for that agency.
Current Regulations: Current Sec. Sec. 5.1 (Act), 5.2
(Department), and 5.5 (Records) define terms that are necessary to
understand what Department records are covered by the FOIA. Current
Sec. 5.6 (Statutory definitions) states that the definitions in the
FOIA and the Office of Management and Budget's (OMB) ``Uniform FOIA Fee
Schedule and Guidelines'' (OMB Guidelines), 52 FR 10012 (March 27,
1987) apply to the Department's FOIA regulations. Current Sec. Sec.
5.11 (Purpose and scope) and 5.12 (General policy) state the purpose
and scope of the Department's FOIA regulations, as well as the
Department's general policy regarding public access to agency records.
Current Sec. 5.74 (Further disclosures) addresses discretionary
disclosures made by the Department.
Proposed Regulations: Proposed Sec. Sec. 5.1, 5.2, and 5.3 would
not substantially alter the regulations in current subpart A.
Proposed Sec. 5.1 (Purpose) would revise and combine current
Sec. Sec. 5.1 and 5.11, and would state the Department's purpose in
promulgating FOIA regulations--that is, to inform the public of the
regulations that the Department follows for processing FOIA requests.
In addition, current Sec. Sec. 5.71(a) (Protection of personal
privacy) and 5.73 (Records not available) would be removed because
proposed Sec. 5.1 would expressly reference the exemptions to
disclosure set out in the FOIA, which cover the protection of personal
privacy and records not publicly available under the FOIA.
Proposed Sec. 5.2 (General policy) would incorporate current Sec.
5.12 and would update current Sec. 5.74, and would state the
Department's general policy to make information publicly available,
limited only by the obligations of confidentiality and the
administrative necessities recognized by the Act, or unless otherwise
exempted from disclosure pursuant to law.
Proposed Sec. 5.3 (Definitions) would consolidate the definitions
in current Sec. Sec. 5.1, 5.2, and 5.5, except that proposed Sec.
5.3(d)(1) and (d)(2) would clarify that agency records include records
in electronic format and records maintained for the Department by an
entity under government contract. Proposed Sec. 5.3 would also define
the terms component and FOIA request.
Reasons: Proposed Sec. Sec. 5.1 and 5.2 are intended to condense
and clarify the general purpose of the Department's FOIA regulations
and the Department's policy for implementation of the FOIA. Proposed
Sec. 5.1 expressly references the exemptions to disclosure listed in
the FOIA to ensure public understanding of the bases on which the
Department may not release information under the FOIA. With this
specific reference to the FOIA's exemptions, we believe it is
unnecessary to include in these regulations separate provisions on the
protection of personal privacy and a description of records not
available under the FOIA.
The Department proposes to consolidate the definitions applicable
to this part in a single section (proposed Sec. 5.3) following the
statement of the purpose and policy of the regulations to facilitate
public understanding of the Department's FOIA regulations. In addition,
we would clarify, in proposed Sec. 5.3(e)(2)(i) and (ii), that agency
records include records in electronic format and records maintained for
the Department by a contractor. We propose to make these changes to the
Department's definition of agency records to ensure that the definition
conforms with the statutory changes made to the definition of the term
``record'' under the FOIA.
Proposed Sec. 5.2 would update the language in current Sec. 5.74
regarding discretionary disclosures of agency records because the
Department believes the proposed language would provide the public with
a clearer understanding of the considerations the Department gives when
determining whether to disclose agency records under the FOIA.
Finally, the proposed regulations in subpart A would not include
the language from current Sec. 5.6, which states that the definitions
in the FOIA and the OMB Guidelines apply to the Department's
regulations, because the Department does not believe that this
statement is necessary, as the proposed regulations incorporate by
reference definitions in both the FOIA and the OMB Guidelines, where
appropriate.
Subpart B--Agency Records Available to the Public Statute
Section 552(a)(2) of title 5, United States Code requires each
agency to ensure that certain categories of information are available
for public inspection and copying. These categories of information
include final opinions and orders made in the adjudication of cases;
statements of policy and interpretations of policy adopted by the
agency and not
[[Page 71988]]
published in the Federal Register; administrative staff manuals; copies
of all records, in any form or format, that have been disclosed and are
likely to be the subject of future FOIA requests; and an index of such
commonly-requested records. Moreover, the Electronic Freedom of
Information Act Amendments of 1996 (Pub. L. 104-231) (E-FOIA
Amendments) require agencies to make reading room records created after
November 1, 1996, available to the public in electronic format.
Current Regulations: The bulk of subpart B and subpart F of the
current regulations address what agency records of the Department are
covered by the FOIA and how the Department manages those records.
Current Sec. 5.13 (Records available) addresses what types of
records at the Department are publicly available under the FOIA.
Current Sec. 5.14 (Published documents) establishes that published
records of the Department are available for examination. Current Sec.
5.15 (Creation of records) states that the Department is not required
to create records by compiling requested items from files. Current
Sec. 5.16 (Deletion of identifying details) allows the Department to
delete information from records made available pursuant to section
552(a)(2) of title 5, United States Code if disclosing the information
would constitute a clearly unwarranted invasion of personal privacy.
Current Sec. 5.17 (Records in records centers) states that a requester
may obtain records stored by the Department in the National Archives or
other record centers of the General Services Administration. Current
Sec. 5.18 (Destroyed records) addresses the destruction of records
pursuant to law.
Current Sec. Sec. 5.70 through 5.74 address the availability and
unavailability of specific types of records (current Sec. Sec. 5.70,
5.72, and 5.73), and the protection of personal privacy and proprietary
information (current Sec. 5.71).
Proposed Regulations: Proposed Sec. 5.10 (Public reading room)
would replace current Sec. Sec. 5.13, 5.14, 5.16, and 5.17 by
consolidating much of the content from these sections and incorporating
changes made to the FOIA by the E-FOIA Amendments.
Proposed Sec. 5.11 (Business information) would replace and
significantly update current Sec. 5.71(b) consistent with Executive
Order 12600, 52 FR 23781 (June 25, 1987). Executive Order 12600 directs
agencies to establish procedures to notify submitters if the agency has
determined that it may be required to disclose the submitter's business
information under the Act.
Proposed Sec. 5.12 (Creation of agency records not required) would
be substantively the same as current Sec. 5.15 (Creation of records)
in that both sections make clear that the Department is not required to
create new agency records in response to a FOIA request.
Proposed Sec. 5.13 (Preservation of records) would, consistent
with changes in the FOIA, replace current Sec. 5.18 (Destroyed
records) and clarify that the Department does not destroy records that
are the subject of a pending FOIA request, appeal, or lawsuit.
Reasons: Proposed Sec. 5.10 would condense and clarify the
substance of current Sec. Sec. 5.13(b) and (c), 5.14 and 5.17 by
focusing on the FOIA reading room requirements. The proposed
regulations would provide detailed access instructions and would
identify the agency records available for public inspection and copying
in the reading rooms, including information required to be made
available in electronic reading rooms and previously released agency
records that the Department has determined are likely to be the subject
of future FOIA requests. The proposed regulations would not include the
substance of current Sec. 5.13(a) because the Department believes that
the substance of current Sec. 5.13(a) is addressed sufficiently in the
FOIA at 5 U.S.C. 552(a). In addition, the proposed regulations would
not specifically include the substance of current Sec. Sec. 5.14
(Published documents) and 5.17 (Records in records centers) because we
believe that questions about these issues are best addressed on a case-
by-case basis. Finally, the proposed regulations would not include the
substance of current Sec. 5.16 (Deletion of identifying details)
because we believe that this issue is more appropriately addressed
through internal Departmental guidance.
Proposed Sec. 5.11 (Business information) would significantly
update and replace current Sec. 5.71(b) to describe the process by
which the Department discloses business information submitted to the
Department as a result of a FOIA request, consistent with Executive
Order 12600.
Whereas current Sec. 5.71(b) only states that business information
will not be disclosed if it is considered to be confidential, proposed
Sec. 5.11 would describe in detail the process by which the Department
would respond to FOIA requests for agency records containing business
information submitted to the Department.
Under proposed Sec. 5.11(c), submitters would be required to use
good faith efforts to designate, at the time of submission, business
information it considers to be protected from disclosure under
Exemption 4 of the Act (5 U.S.C. 552(b)(4)). If the Department receives
a FOIA request for agency records containing information that the
submitter has designated as ``business information,'' pursuant to
proposed Sec. 5.11(d), the Department would notify the submitter if
the Department determines that it may be required to disclose this
information, unless one of the exceptions in proposed Sec. 5.11(a)
applies.
Where the Department notifies a submitter that it may be required
to disclose information the submitter has designated as ``business
information,'' the Department would, at that time, give the submitter
an opportunity under proposed Sec. 5.11(e) to object to the proposed
disclosure. If the submitter objected to part or all of the disclosure
within the requisite time period, the Department would, unless one of
the exceptions in proposed Sec. 5.11(g) applies, consider the
objections and inform the submitter, in writing, of its final decision
regarding disclosure under proposed Sec. 5.11(f). Proposed Sec.
5.11(g) describes the instances when the Department is not required to
give the submitter notice that it may be required to disclose
information the submitter has designated as ``business information.''
These include the following: (a) If the Department does not disclose
the information, (b) if the Department has previously lawfully
published the information, (c) if the information has been made
publicly available, (d) if the disclosure is required by law (other
than the FOIA), or (e) if the designations made by the submitter are
determined by the Department to be frivolous. Moreover, this proposed
section also ensures that the Department notifies (1) submitters of any
FOIA lawsuits filed by requesters (proposed Sec. 5.11(h)), (2)
requesters of submitters' opportunity to object to disclosure (proposed
Sec. 5.11(i)), and (3) requesters of any reverse FOIA lawsuits filed
by submitters (proposed Sec. 5.11(j)).
Proposed Sec. 5.12 (Creation of agency records not required) would
update, but not make any substantive changes to, current Sec. 5.15. We
have retained the substance of the current Sec. 5.15 because we
believe it is important to inform the public that the Department is not
obligated to create new agency records when responding to FOIA
requests. The FOIA only requires that the Department produce records
that exist at the time it receives a FOIA request.
Proposed Sec. 5.13 (Preservation of records) would replace current
Sec. 5.18 (Destroyed records), which states that the Department
destroys records in
[[Page 71989]]
accordance with the requirements in the Records Disposal Act of 1943
(44 U.S.C. 366 through 380), the Federal Property Management
Regulations (41 CFR parts 101 through 111), and the Records Control
Schedules. Proposed Sec. 5.13 more accurately states the requirements
regarding the limitation on the destruction of agency records.
We have not included current Sec. Sec. 5.70 (Policy) and 5.72
(Records available), which address the types of records available under
the FOIA, in the proposed regulations. Because the scope of the FOIA
has expanded over the years, current Sec. Sec. 5.70 and 5.72 no longer
accurately reflect the legal requirements governing the availability of
records under the FOIA.
Subpart C--Procedures for Requesting Access to Agency Records and
Disclosure of Agency Records
Statute: Section 552(a) of title 5, United States Code details the
basic requirements of the process by which a requester can request
access to publicly available records and the process by which an agency
must disclose such records.
Current Regulations: Current Sec. Sec. 5.19, 5.32, 5.51, 5.52, and
5.53 address the procedures by which FOIA requests are made and
procedures used by the Department to respond to FOIA requests.
Current Sec. 5.19 (Records of other departments and agencies)
states that FOIA requests for records originating in or concerning
another agency may be referred to that agency for processing and that
requesters in those instances will be so notified. Current Sec. 5.51
(Procedure) addresses the procedure by which a requester should make a
request. It further states that a determination whether to release or
to deny access to requested records will be made within 10 working days
and that the Department may only extend this deadline by an additional
10 working days. Current Sec. 5.52 (Copies of records) states that the
Department produces copies of records releasable under the FOIA
promptly after receipt of fees. Current Sec. 5.53 (Denial of requests
for records) addresses the procedure by which the Department denies a
FOIA request for records, specifically indicating that the denial shall
be in writing and must include the reasons for the denial and notice of
appeal rights. This section, along with current Sec. 5.32 (Freedom of
information officer), vests authority to deny a FOIA request in the
Department's Freedom of Information Officer.
Proposed Regulations: Proposed Sec. Sec. 5.20 and 5.21 would
consolidate much of the substance of current Sec. 5.19, 5.32, 5.51,
and 5.53. The proposed regulations would not only provide more explicit
instructions to aid in the public's understanding of how to make a FOIA
request and how the Department processes such FOIA requests, but also
would update the regulations to make them consistent with changes made
to the FOIA in recent years.
Proposed Sec. 5.20 (Requirements for making FOIA requests) would
replace current Sec. 5.51(a) through (c) and would provide additional
information regarding the specific requirements that must be met for
the Department to deem a FOIA request sufficient for processing.
Proposed Sec. 5.21 (Procedures for processing FOIA requests) would
substantially incorporate current Sec. Sec. 5.19, 5.32, 5.51, and
5.53, but would also reflect a number of changes. Current Sec. 5.51(b)
states that the Department will refer FOIA requesters to the
appropriate office within the Department in cases when the information
sought by the requester is not located in the office where the FOIA
request has been made. Proposed Sec. 5.21 would not include the
substance of current Sec. 5.51(b); instead, it would allow for the
Department to handle referrals of FOIA requests received by one
component to an appropriate component (i.e., the component responsible
for maintaining the information sought under the FOIA request) within
the Department. Further, proposed Sec. 5.21 would not incorporate the
requirement, reflected in current Sec. 5.51(c), that envelopes
containing written FOIA requests be clearly marked as such. Finally,
the time limits for processing FOIA requests (in proposed Sec.
5.21(c)) also have been updated from the time limits in current Sec.
5.51(d) and Sec. 5.51(e).
Reasons: We propose to amend the regulatory sections regarding FOIA
requests for agency records and the Department's process for release of
publicly available information to clarify the process for the public.
Proposed Sec. 5.20 would update and expand current Sec. 5.51(a)
through (c) by stating that a FOIA request must be made in writing and
must be transmitted to the Department as indicated on the Department's
Web site. Proposed Sec. 5.20 would require that the request reasonably
describe the agency records sought and would explain what kinds of
information about records are helpful to enable the Department to
identify the requested records and respond to the FOIA request. Under
proposed Sec. 5.20(c), if a request does not reasonably describe the
requested records, the Department would either administratively close
it as insufficient or request clarification from the requester.
Proposed Sec. 5.20(d) would also cross-reference Departmental
regulations under the Privacy Act of 1974 that require the verification
of the requester's identity where the requester seeks records
pertaining to the requester, a minor, or an individual who is legally
incompetent.
We believe that the changes reflected in proposed Sec. 5.20, which
provide more detail on how to make a FOIA request, would assist the
public in understanding the requirements for making a FOIA request and
ultimately alleviate some processing delays resulting from insufficient
FOIA requests.
Proposed Sec. 5.21 would describe the process by which the
Department processes FOIA requests. Whereas current Sec. Sec. 5.19,
5.32, 5.51, and 5.53 provide limited information on the processes used
by the Department and do not reflect recent amendments to the Act,
proposed Sec. 5.21 describes in detail the processes used by the
Department to respond to FOIA requests.
Under proposed Sec. 5.21(a) and (b), upon receipt of a FOIA
request the Department would promptly notify the requester of the
Department's receipt of the request and make a determination whether to
grant the request within 20 working days. While current Sec. 5.51
states that the Department will respond within 10 working days, as was
originally required by the Act, proposed Sec. 5.21(e) would conform to
a change in the Act that now provides for determinations to be made
within 20 working days. See 5 U.S.C. 552(a)(6)(A)(i). The proposed
section would reflect the language of the Act regarding the
commencement date of this 20-day time limit. Proposed Sec. 5.21(d)
also would state, consistent with the Act, that the Department may
contact the requester to seek additional information concerning the
FOIA request and may toll the 20-day time limit until it receives the
requested information. See 5 U.S.C. 552(a)(6)(A)(ii).
Consistent with current Sec. 5.19, proposed Sec. 5.21(b) provides
that, if the FOIA request seeks agency records created or maintained by
another agency, the Department would either respond to the request
after consultation or refer the request to the other agency for
processing.
Proposed Sec. 5.21(e) would substantially incorporate current
Sec. 5.51(d) by listing examples of the unusual circumstances under
which the Department could extend the time limit for processing FOIA
requests and would
[[Page 71990]]
provide for notification to the requester of the extended time limit.
Proposed Sec. 5.21(e) would not include the language from current
Sec. 5.51(d) that limits the Department's ability to extend the time
period for processing FOIA requests to ``no longer than an additional
10 working days,'' as this limitation does not accurately reflect the
requirements of the Act. See 5 U.S.C. 552(a)(6)(B)(ii). In addition,
proposed Sec. 5.21(e) would specifically explain that this
notification is made to afford the requester the opportunity to modify
the FOIA request or to arrange an alternate time limit for the
Department to respond to the FOIA request. The Department believes that
providing this information to the requester would facilitate
communication with the requester about the scope of FOIA requests that
constitute ``unusual circumstances'' and that, ultimately, this would
speed the processing of those FOIA requests.
Proposed Sec. 5.21(f) would also provide contact information for
the Department's FOIA Public Liaison and FOIA Requester Service Center,
as set forth in the Act. We propose to add these provisions to conform
the Department's FOIA regulations with sections 552(a)(6)(B)(ii) and
552(a)(7)(B) of title 5, United States Code, which were amended on
December 31, 2007, to require that agencies provide contact information
for their respective FOIA Public Liaisons and FOIA Requester Service
Centers.
Proposed Sec. 5.21(h) would substantially incorporate and expand
upon current Sec. Sec. 5.32 and 5.53, by identifying who is authorized
to deny a FOIA request on behalf of the Department, by describing the
process by which the requester is given notification of the denial, and
by providing examples of determinations that constitute a denial of a
FOIA request. Specifically, proposed Sec. 5.21(h) would differ from
current Sec. 5.53 in that it would state that denials of FOIA
requests, in whole or in part, must not only be made in writing and
include the name and title or position of the denying employee or
officer, a statement of the reasons for the denial, and a statement of
appeal rights, but also include an estimate of the volume of records
denied and an indication of the exemption under which any deletions
have been made. The Department believes that by providing additional
information regarding denials of FOIA requests the Department will
eliminate much of the confusion experienced by requesters whose FOIA
requests are denied in whole or in part.
Finally, proposed Sec. 5.21(i) (Timing of responses to FOIA
requests) is a new section that describes the Department's processing
of FOIA requests. Specifically, proposed Sec. 5.21(i)(1) describes the
Department's use of multitrack processing of FOIA requests, pursuant to
section 552(a)(6)(D) of title 5, United States Code, and proposed Sec.
5.21(i)(2) would describe the Department's use of expedited processing,
pursuant to section 552(a)(6)(E) of title 5, United States Code. Under
proposed Sec. 5.21(i)(2)(iii) and (i)(2)(iv), a request for expedited
processing must contain a detailed explanation of the basis for such
request, and the Department would make a determination on such request
within 10 calendar days of receipt. Expedited processing would only
occur if the Department determines that the FOIA request involves one
or more of the following: (1) A circumstance 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; (2) a
circumstance in which an urgent need of a person primarily engaged in
disseminating information exists to inform the public about an actual
or alleged Federal Government activity; or (3) other circumstances that
the Department determines demonstrate a compelling need for expedited
processing.
These proposed regulations would not include the substance of
current Sec. 5.52, as we believe that issues regarding multiple
duplications and the provision of copies of agency records published or
available for sale are best addressed on a case-by-case basis.
We believe that adding specificity to the Department's current
regulations regarding its process for responding to FOIA requests will
result in the public having a better understanding of this process. We
also believe that the requirements for requesting expedited processing
of FOIA requests, reflected in proposed Sec. 5.21(i)(2), will
alleviate delays resulting from insufficient FOIA requests for
expedited processing of FOIA requests.
Subpart D--Fees
Statute: Section 552(a)(4)(A) of title 5, United States Code
requires agencies to promulgate regulations specifying the fee schedule
and establishing the procedures and guidelines for waiver or reduction
of fees. Specifically, the FOIA requires each agency's fee schedule to
conform to the OMB Guidelines. The FOIA further states that agency
records are provided at a reduced fee or without a fee if disclosure is
in the public interest. Moreover, an agency may require advance payment
of fees where fees are determined or expected to exceed $250 or where a
requester has previously failed to timely pay fees. Lastly, the FOIA
limits fees to direct costs of search, duplication, and review.
Current Regulations: Current subpart E establishes the fees and
charges assessed by the Department when processing a FOIA request.
Current Sec. 5.60 (Schedule of fees) establishes the manner in
which fees are charged for agency records searches, review of agency
records, duplication of agency records, certification of agency
records, and other charges established for services provided in
response to a FOIA request. Current Sec. 5.61 (Notification of
estimated fees) provides for notification to the requester when the
estimated fees for the FOIA request exceed $25 or the maximum amount
specified in the FOIA request, whichever is greater. Current Sec. 5.62
(Advance payment of fees) addresses the circumstances under which the
Department requires advance payment of estimated fees from FOIA
requesters. Current Sec. 5.63 (Payment of fees and interest) allows
the Department to assess interest on FOIA request fees that remain
outstanding 30 days after the date the billing was sent, provides for
the collection of FOIA request fees under the Debt Collection Act of
1982, as amended and states the form and manner in which FOIA fees must
be paid. Current Sec. 5.64 (Waiver or reduction of fees) states the
circumstances under which FOIA request fees may be reduced or waived.
Proposed Regulations: Proposed Sec. 5.30 (Fees generally) would
provide the general basis by which the Department will assess fees, and
would partially incorporate the substance of current Sec. 5.63(b),
establishing the form of payment required but omitting the address to
which fee payments must be sent and the requirement that payment made
by personal check or bank draft be drawn on a bank in the United
States.
Proposed Sec. 5.31 (Fee definitions) is new and would define
various activities applicable to the Department's processing of FOIA
requests (i.e., ``duplication'' (proposed Sec. 5.31(c)), ``review''
(proposed Sec. 5.31(g)), and ``search'' (proposed Sec. 5.31(h))).
This section would also define the terms ``commercial use request''
(proposed Sec. 5.31(a)), ``direct costs'' (proposed Sec. 5.31(b)),
``educational institution'' (proposed Sec. 5.31(d)), ``noncommercial
scientific institution'' (proposed Sec. 5.31(e)), and ``representative
of the news media'' or ``news media requester'' (proposed Sec.
5.31(f)).
Proposed Sec. 5.32 (Assessment of fees) would incorporate language
from
[[Page 71991]]
current Sec. Sec. 5.60, 5.61, 5.62, and 5.63. First, the proposed
regulations would outline the types of fees and the process by which
they are assessed. Current Sec. 5.60 (Schedule of fees) distinguishes
between manual and computer search fees, which are calculated using the
basic rate of pay of the employee(s) doing the search plus 16 percent,
with an additional charge of $287 per hour for computer searches.
Proposed Sec. 5.32 would specify that search fees include only the
time spent searching for the requested responsive agency records and
consist of the direct costs of the search. Thus, the proposed
regulations do not include the additional $287 fee per hour for
computer searches, but rather establishes that FOIA requesters are
charged the direct costs of the computer search. Proposed Sec.
5.32(a)(2) would incorporate the substance of Sec. 5.60(a)(2), which
states that review fees include the actual costs of the initial review
of the responsive records and that review fees are charged only for
commercial use FOIA requests. However, proposed Sec. 5.32 would
clarify that review costs are assessed at the administrative appeal
level unless the review includes records not reviewed, or exemptions
not asserted, initially.
Second, under proposed Sec. 5.32(a)(3), once the search and review
are completed, duplication costs would be assessed at $0.20 per page,
an increase from the $0.10 per page fee reflected in current Sec.
5.60(a)(3). Proposed Sec. 5.32(a)(3) would also include a fee of $3.00
per CD for documents recorded on CD, which would provide requesters
with an additional FOIA request processing option that is not available
under the current regulations.
Third, proposed Sec. 5.32(b) would describe certain limitations on
the fees charged by the Department for responding to FOIA requests.
Specifically, proposed Sec. 5.32(b)(1) would incorporate current Sec.
5.60(a)(1), which states that fees assessed for non-commercial use FOIA
requests made by an educational or noncommercial scientific institution
or the news media are limited to duplication costs only. Moreover,
consistent with current Sec. 5.60(a)(1), proposed Sec. 5.32(b)(2)
would establish that the Department would not assess fees for the first
two hours of search time and the first 100 pages of copying for any
FOIA request other than commercial use requests. Proposed Sec.
5.32(b)(3) would update current Sec. 5.60(c) by increasing from $5 to
$25 the threshold amount of fees a FOIA request must accumulate before
the Department charges a FOIA requester for those fees.
Fourth, proposed Sec. 5.32(c) would state that if the Department
anticipates the fees for a request to be in excess of $25 and the
requester has not stated a willingness to pay such fees, the Department
would notify the requester of the fees before processing. Proposed
Sec. 5.32(c) substantially incorporates current Sec. 5.61 and would
clarify that such FOIA requests would not be deemed received by the
Department until the requester agrees to the payment of fees or pays
such fees.
Fifth, proposed Sec. 5.32(d) would update current Sec. 5.60(a)(4)
by reserving to the Department the right to provide special services
(e.g., certification of records) to a requester at the direct cost of
such services.
Sixth, proposed Sec. 5.32(e) would incorporate the substance of
current Sec. 5.63(a), but would indicate that interest is charged on
unpaid fees, pursuant to the Debt Collection Act of 1982, as amended
(Pub. L. 97-365), beginning on the 31st day after the billing date.
Seventh, proposed Sec. 5.32(f) would incorporate without
substantial alteration current Sec. 5.60(d) by stating that the
Department may aggregate FOIA requests for purposes of assessing fees
when the FOIA requests are related in purpose and the Department
reasonably believes that FOIA requests were submitted separately to
avoid or reduce applicable fees.
Eighth, proposed Sec. 5.32(g) would describe when and how the
Department requests advance payment before processing a FOIA request.
Proposed Sec. 5.32(g)(2) would incorporate current Sec. 5.62(a),
which states that if a fee is more than $250, the Department notifies
the requester of the cost and obtains payment assurance from requesters
with a history of prompt payment or requires advance payment of fees if
the requester has no history of payment. Proposed Sec. 5.32(g)(3)
would substantially incorporate current Sec. 5.62(b), which provides
that when a requester has previously failed to timely pay a fee, the
Department does not process the request until the payment is received
in full. Consistent with current Sec. 5.62(c), proposed Sec.
5.32(g)(4) clarifies that when the Department requires advance payment
of fees for a FOIA request, the request is not considered received
until payment is received by the Department.
Ninth, proposed Sec. 5.32(h) would add, consistent with section
552(a)(6)(A)(iii)(II) of title 5, United States Code, a provision that
the time limit for responding to a FOIA request would be tolled where
it is necessary for the Department to clarify issues regarding fee
assessment with the requester.
Lastly, proposed Sec. 5.32(i) would state that the fee schedule
described in this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for producing particular types of agency records.
Proposed Sec. 5.33 (Requirements for waiver or reduction of fees)
would update current Sec. 5.64 (Waiver or reduction of fees) by
providing more detail as to what factors the Department considers to
determine whether a waiver or reduction of fees is warranted and
whether applicable fee waiver criteria have been met. First, proposed
Sec. 5.33(a) would state the two requirements for a reduction or
waiver of fees, i.e. when disclosure is (1) in the public interest and
(2) not primarily in the commercial interest of the requester. Second,
proposed Sec. 5.33(b) would detail the factors taken into account to
determine if the disclosure is in the public interest and proposed
Sec. 5.33(c) would detail the factors taken into account to determine
whether disclosure is primarily in the commercial interest of the
requester. Third, proposed Sec. 5.33(d) would clarify that if a fee
waiver requirement is met only for a portion of a FOIA request, the
Department waives or reduces fees only for that portion of the request.
Fourth, proposed Sec. 5.33(e) would clarify that a requester seeking a
fee waiver or reduction must submit evidence demonstrating that the
FOIA request meets the criteria set forth in current Sec. 5.33(a)
through (c). Finally, proposed Sec. 5.33(f) would clarify that the
Department does not grant standing fee waivers, but rather considers
each waiver request on a case by case basis.
Reasons: The amended fee provisions are intended to update the fee
assessment and waiver processes to be consistent with the current law
and government practice, as well as the OMB Guidelines, and to clarify
them for the public. We believe that clarifying the Department's
current regulations and providing additional information are necessary
to ensure public understanding of the processes by which fees are
assessed and by which the Department may waive or reduce these fees.
Proposed Sec. 5.30, which partially incorporates current Sec.
5.63(b), would omit the address to which fee payments must be sent.
Proposed Sec. 5.30 would no longer require that payments made by
personal check or bank draft be drawn on a bank in the United States.
We removed these requirements in current Sec. 5.63(b) in order to
permit the
[[Page 71992]]
Department to adapt to technological changes that would enable us to
collect fees via other methods.
Proposed Sec. 5.31 (Fee definitions) is a new section and is
intended to promote transparency and public understanding by defining
key terms that are used to assess fees for different types of FOIA
requests (e.g., commercial use FOIA requests, FOIA requests made by
educational institutions, FOIA requests made by noncommercial
scientific institutions, and FOIA requests made by a representative of
a news media). The amount of fees charged, if any, depends on the type
of request (commercial or non-commercial), whether the request is made
by an educational institution, noncommercial scientific institution or
representative of the news media, and the nature of the request (e.g.,
FOIA requests requiring one or more of the following: the search,
review and duplication of copies of agency records). The proposed
regulations would define terms (e.g., ``commercial use request,''
``direct costs,'' ``duplication,'' ``educational institution,''
``representative of the news media,'' ``review'' and ``search'') that
are essential to understanding when fees are assessed for a FOIA
request and what those fees will be.
Proposed Sec. 5.32 (Assessment of fees) would provide to the
public a comprehensive breakdown of fees charged when the Department
responds to a FOIA request, consistent with the OMB Guidelines.
Proposed Sec. 5.32(a)(1) establishes that FOIA requesters will be
charged the direct costs of the computer search and eliminates the
specified $287 hourly search charge in current Sec. 5.60(a)(1)(iii) to
account for changes in technology that have occurred since the current
regulations were drafted. Proposed Sec. 5.32(a)(1) also would clarify
that, for purposes of calculating fees, time spent searching for agency
records in response to a FOIA request includes time spent searching for
the records, regardless of whether the search results in finding the
requested records and regardless of whether the Department releases the
records under the Act. We believe this language is necessary to assist
the public in better understanding the costs associated with a search
in response to a FOIA request.
Proposed Sec. 5.32(a)(2) largely tracks current Sec. 5.60(a)(2),
which states that review fees include the actual costs of the initial
review of the responsive records and that review fees are charged only
for commercial use FOIA requests. However, proposed Sec. 5.32 would
clarify that review costs are assessed at the administrative appeal
level where the review includes records not reviewed, or exemptions not
asserted, initially. We propose to make this clarification to assist
the public in better understanding the costs associated with an
administrative appeal of an initial FOIA request decision.
Proposed Sec. 5.32(a)(3) would increase the fees for duplication
from $0.10 per page to $0.20 per page, and proposed Sec. 5.32(b)(3)
would increase the threshold amount of total fees a FOIA request must
accumulate from $5 to $25 before the Department charges a FOIA
requester for those fees. Proposed Sec. 5.32(a)(3) also would
establish a $3.00 fee per CD for documents recorded on CD, and at the
direct cost for duplication for electronic copies and other forms of
duplication. The Department proposes to make these changes in the
regulations to address inflation in the years since the current
regulations were issued and to account for new technology in the
reproduction of copies in electronic formats, including CD.
Proposed Sec. 5.32(c) would also establish that if the Department
estimates or determines that the fees for a FOIA request exceed $25,
the FOIA requester must agree in writing to pay these fees before the
Department will consider the FOIA request received. We believe this
provision is necessary to allow the Department to avoid spending time
and resources processing FOIA requests that will not be completed due
to the requester's refusal to pay the assessed fees. In addition,
proposed Sec. 5.32(d) (Charges for other services) would update
current Sec. 5.60(a)(4), which specifies that the cost of
certification of records is $5, and consolidate it with current Sec.
5.60(a)(5) by establishing that the Department will charge the FOIA
requester the direct costs of other services, including the
certification of agency records. We believe this expansion is necessary
to allow for flexibility in pricing in accordance with standard rates.
Proposed Sec. 5.32(e) (Charging interest) would incorporate
current Sec. 5.63, with no substantive changes.
Proposed Sec. 5.32(g) substantially tracks Sec. 5.62, but with
one minor clarification. Current Sec. 5.62(b) states that if a
requester has previously failed to pay a fee in a timely fashion, the
Department does not process the FOIA request until the requester pays
the arrears in full and makes an advance payment of the estimated fees
for the new request. Proposed Sec. 5.32(g)(3) would clarify what is
meant by paying a fee in a ``timely fashion.'' Specifically, it would
provide the Department with the ability to require a requester who has
previously failed to pay a properly assessed FOIA fee within 30
calendar days of the billing date to pay in advance the full amount of
estimated or actual fees before it further processes a new or pending
FOIA request from that requester.
Proposed Sec. 5.32(h) would establish that the time limit for
responding to a FOIA request is tolled where it is necessary for the
Department to clarify issues regarding fee assessment with the
requester. We propose to add this provision because we believe it is
necessary to comply with section 552(a)(6)(A)(iii)(II) of title 5,
United States Code.
We have included proposed Sec. 5.32(i) to clarify for the public
that the fee schedule in this part would not apply to fees charged
under any statute that specifically requires an agency to set and
collect fees for producing particular types of agency records,
consistent with the Act. See 5 U.S.C. 552(a)(4)(A)(vi).
Proposed Sec. 5.33 would incorporate the requirements of current
Sec. 5.64, but would provide additional information regarding the
factors considered by the Department to determine whether applicable
fee waiver criteria have been met. We believe this information is
necessary to provide requesters with a clear understanding of the
criteria they must meet to qualify for a fee waiver and reduction.
Subpart E--Administrative Review
Statute: Section 552(a)(6)(A) through (C) of title 5, United States
Code require agencies to make determinations on appeal within 20
working days, although this deadline may be extended under ``unusual
circumstances.'' These provisions of the FOIA also provide a right to
judicial review after the exhaustion of administrative remedies.
Current Regulations: Current subpart G establishes the procedure
used by the Department to conduct administrative reviews of FOIA
requests.
Current Sec. 5.80 (Review of denial of a record) provides for the
review of a denial of a written FOIA request.
Current Sec. Sec. 5.81 (Time for initiation of request for review)
and 5.82 (By whom review is made) state that a requester whose FOIA
request has been denied may initiate an administrative review of the
denial by filing a written request addressed to the Secretary within 30
days of receipt of the full or partial denial.
Current Sec. 5.83 (Contents of request for review) states that
requests for review must include a copy of the written FOIA request and
the denial. Current Sec. 5.84 (Consideration on review) provides that
administrative reviews will be limited to the written record, including
any
[[Page 71993]]
written argument submitted by the requester.
Current Sec. 5.85 (Decisions on review) details the process by
which the Department makes a decision on review, providing for the
Department's issuance of a written determination within 20 working days
from receipt of the appeal, with a 10-day extension of the deadline
permitted where no extension was granted during the initial review.
Under this provision, the Department's decision must state the reasons
for the decision and, where an appeal is denied in whole or in part, it
must also notify the requester of the right to judicial review of the
decision. Failure to comply with the applicable time limits constitutes
exhaustion of the FOIA requester's administrative remedies.
Proposed Regulations: The proposed regulation for Sec. 5.40 would
provide a more condensed and user-friendly version of the regulations
reflected in current subpart G. Proposed Sec. 5.40(b) would change the
time period within which an administrative review of a denial of a FOIA
request must be made from 30 days of receipt of the determination to
deny (as stated in current Sec. 5.81) to 35 calendar days of the date
on the determination letter to deny the FOIA request. No other
substantive changes have been made to this section.
Reasons: We believe that establishing a 35-day time period from
the date of the determination letter to deny a FOIA request will allow
both the Department and the FOIA requester to determine more clearly
the deadline by which an appeal must be filed. The Department proposes
to establish a 35-day time period from the date on the determination
letter because we believe that a period of 35 days from the date of the
letter is consistent with the time afforded under the current
regulations (i.e., 30 days from the date of receipt of the
determination letter). We have added 5 more days to the time period to
allow adequate time for delivery of the determination letter.
Executive Order 12866
1. Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those we have
determined to be necessary for implementing the FOIA effectively and
efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of this regulatory action, we have determined that the
benefits would justify the costs.
Elsewhere in the preamble, under the heading SIGNIFICANT PROPOSED
REGULATIONS, we discuss the potential costs and benefits of these
proposed regulations.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 5.1 Purpose.)
Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
To send any comments that concern how the Department could make
these proposed regulations easier to understand, see the instructions
in the ADDRESSES section of this preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
The proposed regulations would reduce the burden on FOIA
requesters, including small entities as defined by the Regulatory
Flexibility Act of 1980, as amended, by providing detailed information
and instruction on obtaining access to publicly available Department
records and by ensuring that the Department's regulations conform to
the current FOIA.
Paperwork Reduction Act of 1995
These proposed regulations do not contain any information
collection requirements.
Intergovernmental Review
This program is not subject to Executive Order 12372 and the
regulations in 34 CFR part 79.
Assessment of Educational Impact
In accordance with section 411 of the General Education Provisions
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on
whether these proposed regulations would require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
To use PDF, you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498, or in
the Washington, DC area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: www.gpoaccess.gov/nara/
index.html.
(Category of Federal Domestic Assistance Number does not apply.)
List of Subjects in 34 CFR Part 5
Freedom of information.
Dated: November 17, 2008.
Margaret Spellings,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend title 34 of the Code of Federal Regulations by revising part 5
to read as follows:
PART 5--AVAILABILITY OF INFORMATION TO THE PUBLIC
Subpart A--General Provisions
Sec.
5.1 Purpose.
5.2 General policy.
5.3 Definitions.
Subpart B--Agency Records Available to the Public
5.10 Public reading room.
5.11 Business information.
5.12 Creation of agency records not required.
5.13 Preservation of agency records.
[[Page 71994]]
Subpart C--Procedures for Requesting Access to Records and Disclosure
of Records
5.20 Requirements for making FOIA requests.
5.21 Procedure for processing FOIA requests.
Subpart D--Fees
5.30 Fees generally.
5.31 Fee definitions.
5.32 Assessment of fees.
5.33 Requirements for waiver or reduction of fees.
Subpart E--Administrative Review
5.40 Appeals of adverse determinations.
Authority: 5 U.S.C. 552.
Subpart A--General Provisions
Sec. 5.1 Purpose.
This part contains the regulations that the United States
Department of Education follows in processing requests for records
under the Freedom of Information Act, as amended, 5 U.S.C. 552. These
regulations must be read in conjunction with the FOIA, including its
exemptions to disclosure, and, when appropriate, in conjunction with
the Privacy Act of 1974, as amended, 5 U.S.C. 552a, and its
implementing regulations in 34 CFR part 5b.
(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)
Sec. 5.2 General policy.
The Department's policy is to make information publicly available,
limited only by the obligations of confidentiality and the
administrative necessities recognized by the Act, as defined in Sec.
5.3(a), or unless otherwise exempted from disclosure pursuant to law.
As a matter of policy, the Department makes discretionary disclosures
of agency records or information exempt under the Act only after full
and deliberate consideration of the institutional, commercial, law
enforcement, and personal privacy interests that could be implicated by
disclosure of the information. This policy does not, however, create
any right or benefit, substantive or procedural, enforceable by any
person against the Department. Information routinely provided to the
public in the ordinary course of the Department's official business
(e.g., press releases) is not subject to the requirements in this part.
(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)
Sec. 5.3 Definitions.
As used in this part:
(a) Act or FOIA means the Freedom of Information Act, as amended, 5
U.S.C. 552.
(b) Department means the United States Department of Education.
(c) Component means each separate bureau, office, board, division,
commission, service, administration, or other organizational entity of
the Department.
(d) FOIA request means a written request for agency records that
reasonably describes the agency records sought, made by any person,
including a member of the public (U.S. or foreign citizen/entity),
partnership, corporation, association, and foreign or domestic
governments (excluding Federal agencies).
(e)(1) Agency records are documentary materials regardless of
physical form or characteristics that--
(i) Are either created or obtained by the Department; and
(ii) Are under the Department's control at the time it receives a
FOIA request.
(2) Agency records include--
(i) Records created, stored, and retrievable in electronic format;
(ii) Records maintained for the Department by a private entity
under a records management contract with the Federal Government; and
(iii) Documentary materials preserved by the Department as evidence
of the organization, functions, policies, decisions, procedures,
operations or other activities of the Department or because of the
informational value of data contained therein.
(3) Agency records do not include tangible, evidentiary objects or
equipment; library or museum materials made or acquired and preserved
solely for reference or exhibition purposes; extra copies of documents
preserved only for convenience of reference; stocks of publications;
and personal records created for the convenience of an individual and
not used to conduct Department business or incorporated into the
Department's recordkeeping system or files.
(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)
Subpart B--Agency Records Available to the Public
Sec. 5.10 Public reading room.
(a) General. Pursuant to 5 U.S.C. 552(a)(2), the Department
maintains a public reading room containing agency records that the FOIA
requires to be made regularly available for public inspection and
copying. Published records of the Department, whether or not available
for purchase, are made available for examination. The Department's
public reading room is located at the National Library of Education,
400 Maryland Avenue, SW., Plaza Level (Level B), Washington, DC 20202-
0008. The hours of operation are 9:00 a.m. to 5:00 p.m., Monday through
Friday (except Federal holidays).
(b) Reading room records. Agency records maintained in the public
reading room include final opinions and orders in adjudications,
statements of policy and interpretations adopted by the Department and
not published in the Federal Register, administrative staff manuals and
instructions affecting the public, and copies of all agency records
regardless of form or format released to the public pursuant to a FOIA
request that the Department determines are likely to be the subject of
future FOIA requests.
(c) Electronic access. The Department makes reading room records
created on or after November 1, 1996, available through its electronic
reading room, located on the Department's FOIA Web site at
http://www.ed.gov/policy/gen/leg/foia/foiatoc.html.
(Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(2), 20 U.S.C. 3474)
Sec. 5.11 Business information.
(a) General. The Department discloses business information it
obtains from a submitter under the Act in accordance with this section.
(b) Definitions. For purposes of this section:
(1) Business information means commercial or financial information
obtained by the Department from a submitter that may be protected from
disclosure under 5 U.S.C. 552(b)(4) (Exemption 4 of the Act).
(2) Submitter means any person or entity (including corporations;
State, local, and tribal governments; and foreign governments) from
whom the Department obtains business information.
(c) Designation of business information. (1) A submitter must use
good faith efforts to designate, by appropriate markings, either at the
time of submission or at a reasonable time thereafter, any portion of
its submission that it considers to be business information protected
from disclosure under Exemption 4 of the Act.
(2) A submitter's designations are not binding on the Department
and will expire 10 years after the date of the submission unless the
submitter requests, and provides justification for, a longer
designation period.
(3) A blanket designation on each page of a submission that all
information contained on the page is protected from disclosure under
Exemption 4 presumptively will not be considered a good faith effort.
(d) Notice to submitters. Except as provided in paragraph (g) of
this section, the Department promptly
[[Page 71995]]
notifies a submitter whenever a FOIA request or administrative appeal
is made under the Act seeking disclosure of the information the
submitter has designated in good faith as business information
protected from disclosure under paragraph (c) of this section, or the
Department otherwise has reason to believe that it may be required to
disclose information sought to be designated by the submitter as
business information protected from disclosure under Exemption 4 of the
Act. This notice includes either a description of the business
information requested or copies of the requested agency records or
portions of agency records containing the requested business
information as well as a time period, consistent with Sec. 5.21(c),
within which the submitter can object to the disclosure pursuant to
paragraph (e) of this section.
(e) Opportunity to object to disclosure. (1) If a submitter objects
to disclosure, it must submit to the Department a detailed written
statement specifying all grounds under Exemption 4 of the Act for
denying access to the information, or a portion of the information
sought.
(2) A submitter's failure to object to the disclosure by the
deadline established by the Department in the notice provided under
paragraph (d) of this section constitutes a waiver of the submitter's
right to object to disclosure under paragraph (e) of this section.
(3) A submitter's response to a notice from the Department under
paragraph (d) of this section may itself be subject to disclosure under
the Act.
(f) Notice of intent to disclose. The Department considers a
submitter's objections and submissions made in support thereof in
deciding whether to disclose business information sought to be
protected by the submitter. Whenever the Department decides to disclose
information over a submitter's objection, the Department gives the
submitter written notice, which includes:
(1) A statement of the reasons why the submitter's objections to
disclosure were not sustained.
(2) A description of the information to be disclosed.
(3) A specified disclosure date that is a reasonable time
subsequent to the notice.
(g) Exceptions to notice requirements. The notice requirements of
paragraph (d) of this section do not apply if--
(1) The Department does not disclose the business information of
the submitter;
(2) The Department has previously lawfully published the
information;
(3) The information has been made available to the public by the
requester or by third parties;
(4) Disclosure of the information is required by statute (other
than the Act) or regulation issued in accordance with the requirements
of Executive Order 12600 (52 FR 23781, 3 CFR, 1987 Comp., p. 235); or
(5) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous, except that, in such case,
the Department must provide the submitter with written notice of any
final administrative disclosure determination in accordance with
paragraph (f) of this section.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of a submitter's business information,
the Department promptly notifies the submitter.
(i) Corresponding notice to requester. The Department notifies the
requester whenever it notifies a submitter of its opportunity to object
to disclosure, of the Department's intent to disclose requested
information designated as business information by the submitter, or of
the filing of a lawsuit.
(j) Notice of reverse FOIA lawsuit. Whenever a submitter files a
lawsuit seeking to prevent the disclosure of the submitter's
information, the Department promptly notifies the requester, and
advises the requester that its request will be held in abeyance until
the lawsuit initiated by the submitter is resolved.
(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)
Sec. 5.12 Creation of agency records not required.
In response to a FOIA request, the Department produces only those
agency records that are not already publicly available and that are in
existence at the time it receives a request. The Department does not
create new agency records in response to a FOIA request by, for
example, extrapolating information from existing agency records,
reformatting available information, preparing new electronic programs
or databases, or creating data through calculations of ratios,
proportions, percentages, trends, frequency distributions,
correlations, or comparisons.
(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)
Sec. 5.13 Preservation of agency records.
The Department does not destroy agency records that are the subject
of a pending FOIA request, appeal, or lawsuit.
(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)
Subpart C--Procedures for Requesting Access to Agency Records and
Disclosure of Agency Records
Sec. 5.20 Requirements for making FOIA requests.
(a) Making a FOIA request. Any FOIA request for an agency record
must be in writing (via paper, facsimile, or electronic mail) and
transmitted to the Department as indicated on the Department's Web
site. See http://www.ed.gov/policy/gen/leg/foia/request_foia.html.
(b) Description of agency records sought. A FOIA request must
reasonably describe the agency record sought, to enable Department
personnel to locate the agency record or records with a reasonable
amount of effort. Whenever possible, a FOIA request should describe the
type of agency record requested, the subject matter of the agency
record, the date, if known, or general time period when it was created,
and the person or office that created it. Requesters who have detailed
information that would assist in identifying and locating the agency
records sought are urged to provide this information to the Department
to expedite the handling of a FOIA request.
(c) FOIA request deemed insufficient. If the Department determines
that a FOIA request does not reasonably describe the agency record or
records sought, the FOIA request will be deemed insufficient under the
Act. In that case, the Department informs the requester of the reason
the FOIA request is insufficient and, at the Department's option,
either administratively closes the FOIA request as insufficient without
determining whether to grant the FOIA request or provides the requester
an opportunity to modify the FOIA request to meet the requirements of
this section.
(d) Verification of identity. In compliance with the Privacy Act of
1974, as amended, 5 U.S.C. 552a, FOIA requests for agency records
pertaining to the requester, a minor, or an individual who is legally
incompetent must include verification of the requester's identity
pursuant to 34 CFR 5b.5.
(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)
Sec. 5.21 Procedures for processing FOIA requests.
(a) Acknowledgements of FOIA requests. The Department promptly
notifies the requester when it receives a FOIA request.
(b) Consultation and referrals. When the Department receives a FOIA
request for a record or records created by or otherwise received from
another agency of the Federal Government, it either responds to the
FOIA request after
[[Page 71996]]
consultation with the other agency, or refers the FOIA request to the
other agency for processing. When the Department refers a FOIA request
to another agency for processing, the Department will so notify the
requester.
(c) Decisions on FOIA requests. The Department determines whether
to comply with a FOIA request within 20 working days after the
appropriate component of the Department first receives the request.
This time period commences on the date that the request is received by
the appropriate component of the Department, but commences no later
than 10 calendar days after the request is received by the component of
the Department designated pursuant to Sec. 5.20(a) to receive FOIA
requests for agency records. The Department's failure to comply with
these times limits constitutes exhaustion of the requester's
administrative remedies for the purposes of judicial action to compel
disclosure.
(d) Requests for additional information. The Department may make
one request for additional information from the requester and toll the
20-day period while awaiting receipt of the additional information.
(e) Extension of time period for processing a FOIA request. The
Department may extend the time period for processing a FOIA request
only in unusual circumstances, as described in paragraphs (e)(1)
through (e)(3) of this section, in which case the Department notifies
the requester of the extension in writing. A notice of extension
affords the requester the opportunity either to modify its FOIA request
so that it may be processed within the 20-day time limit, or to arrange
with the Department an alternative time period within which the FOIA
request will be processed. For the purposes of this section, unusual
circumstances include:
(1) The need to search for and collect the requested agency records
from field facilities or other establishments that are separate from
the office processing the request.
(2) The need to search for, collect, and review and process
voluminous agency records responsive to the FOIA request.
(3) The need to consult with other agencies or agency components
having a substantial interest in the determination on the FOIA request.
(f) FOIA Public Liaison and FOIA Requester Service Center. The
Department's FOIA Public Liaison assists in the resolution of disputes
between the requester and the Department. The Department provides
information about the status of a FOIA request to the requester through
the Department's FOIA Requester Service Center. Contact information for
the Department's FOIA Public Liaison and FOIA Requester Service Center
may be found at http://www.ed.gov/policy/gen/leg/foia/contacts.html.
(g) Notification of determination. Once the Department makes a
determination to grant a FOIA request in whole or in part, it notifies
the requester in writing of its decision.
(h) Denials of FOIA requests. (1) Only Departmental officers or
employees delegated the authority to deny a FOIA request may deny a
FOIA request on behalf of the Department.
(2)(i) The Department notifies the requester in writing of any
decision to deny a FOIA request in whole or in part. Denials under this
paragraph can include the following: A determination to deny access in
whole or in part to any agency record responsive to a request; a
determination that a requested agency record does not exist or cannot
be located in the Department's records; a determination that a
requested agency record is not readily retrievable or reproducible in
the form or format sought by the requester; a determination that what
has been requested is not a record subject to the FOIA; a determination
on any disputed fee matter, including a denial of a request for a fee
waiver; and a denial of a request for expedited processing.
(ii) All determinations denying a FOIA request in whole or in part
are signed by an officer or employee designated under paragraph (h)(1)
of this section, and include:
(A) The name and title or position of the denying officer or
employee.
(B) A brief statement of the reason or reasons for the denial,
including any exemptions applicable under the Act.
(C) An estimate of the volume of agency records or information
denied, by number of pages or other reasonable estimate (except where
the volume of agency records or information denied is apparent from
deletions made on agency records disclosed in part, or providing an
estimate would harm an interest protected by an applicable exemption
under the Act).
(D) Where an agency record has been disclosed only in part, an
indication of the exemption under the Act justifying the redaction in
the agency record (unless providing this information would harm an
interest protected by an applicable exemption under the Act).
(E) A statement of appeal rights and a list of requirements for
filing an appeal under Sec. 5.40.
(i) Timing of responses to FOIA requests--(1) Multitrack
processing. The Department may use two or more processing tracks to
distinguish between simple and more complex FOIA requests based on one
or more of the following: The time and work necessary to process the
FOIA request, the volume of agency records responsive to the FOIA
request, and whether the FOIA request qualifies for expedited
processing as described in paragraph (i)(2) of this section.
(2) Expedited processing. (i) The Department gives expedited
treatment to FOIA requests and appeals whenever the Department
determines that a FOIA request involves one or more of the following:
(A) A circumstance 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.
(B) The urgent need of a person primarily engaged in disseminating
information to inform the public about an actual or alleged Federal
Government activity; or
(C) Other circumstances that the Department determines demonstrate
a compelling need for expedited processing.
(ii) A requester may ask for expedited processing at the time of
the initial FOIA request or at any time thereafter.
(iii) A request for expedited processing must contain a detailed
explanation of the basis for the request, and must be accompanied by a
statement certifying the truth of the circumstances alleged or other
evidence of the requester's compelling need acceptable to the
Department.
(iv) The Department makes a determination whether to grant or deny
a request for expedited processing within 10 calendar days of its
receipt by the component of the Department designated pursuant to Sec.
5.20(a) to receive FOIA requests for agency records, and processes FOIA
requests accepted for expedited processing as soon as practicable and
on a priority basis.
(Authority: 5 U.S.C. 552(a), 20 U.S.C. 3474)
Subpart D--Fees
Sec. 5.30 Fees generally.
The Department assesses fees for processing FOIA requests in
accordance with Sec. 5.32(a), except where fees are limited under
Sec. 5.32(b) or where a waiver or reduction of fees is granted under
Sec. 5.33. Requesters must pay fees by check or money order made
payable to the U.S. Department of Education, and must include the FOIA
request number on the check or money order. The Department retains full
discretion to limit or adjust fees.
[[Page 71997]]
(Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 3474)
Sec. 5.31 Fee definitions.
(a) Commercial use request means a request from or on behalf of a
FOIA requester seeking information for a use or purpose that furthers
the requester's commercial, trade, or profit interests, which can
include furthering those interests through litigation. For the purpose
of assessing fees under the Act, the Department determines, whenever
reasonably possible, the use to which a requester will put the
requested agency records.
(b) Direct costs mean those expenses that an agency actually incurs
in searching for and duplicating (and, in the case of commercial use
FOIA requests, reviewing) agency records to respond to a FOIA request.
Direct costs include, for example, the pro rata salary of the
employee(s) performing the work (i.e., basic rate of pay plus 16
percent) and the cost of operating duplication machinery. The
Department's other overhead expenses are not included in direct costs.
(c) Duplication means making a copy of the agency record, or of the
information in it, as necessary to respond to a FOIA request. Copies
can be made in several forms and formats, including paper and
electronic records. The Department honors a requester's specified
preference as to form or format of disclosure, provided that the agency
record is readily reproducible with reasonable effort in the requested
form or format.
(d) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education,
that operates a program of scholarly research. To qualify as an
educational institution under this part, a requester must demonstrate
that an educational institution authorized the request and that the
agency records are not sought for individual or commercial use, but are
instead sought to further scholarly research. A request for agency
records for the purpose of affecting a requester's application for, or
prospect of obtaining, new or additional grants, contracts, or similar
funding is presumptively a commercial use request.
(e) Noncommercial scientific institution means an institution 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. A noncommercial scientific institution does not operate
for a ``commercial use'', as the term is defined in paragraph (a) of
this section. To qualify as a noncommercial scientific institution
under this part, a requester must demonstrate that a noncommercial
scientific institution authorized the request and that the agency
records are sought to further scientific research and not for a
commercial use. A request for agency records for the purpose of
affecting a requester's application for, or prospect of obtaining, new
or additional grants, contracts, or similar funding is presumptively a
commercial use request.
(f) Representative of the news media, or news media requester,
means any person or entity that gathers information of potential
interest to a segment of the public, uses its editorial skills to turn
the raw materials into a distinct work, and distributes that work to an
audience. For the purposes of this section, the term ``news'' means
information about current events or information that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large and
publishers of periodicals that qualify as disseminators of news and
make their products available for purchase by, subscription by, or free
distribution to the general public. To be regarded as a representative
of the news media, a ``freelance'' journalist must demonstrate a solid
basis for expecting publication, such as a publication contract or a
past publication record. For inclusion in this category, a requester
must not be seeking the requested agency records for a commercial use.
(g) Review means the examination of an agency record located in
response to a FOIA request to determine whether any portion of the
record is exempt from disclosure under the Act. Reviewing the record
includes processing the agency record for disclosure and making
redactions and other preparations for disclosure. Review costs are
recoverable even if an agency record ultimately is not disclosed.
Review time includes time spent considering any formal objection to
disclosure but does not include time spent resolving general legal or
policy issues regarding the application of exemptions under the Act.
(h) Search means the process of looking for and retrieving agency
records or information responsive to a FOIA request. Searching includes
page-by-page or line-by-line identification of information within
agency records and reasonable efforts to locate and retrieve
information from agency records maintained in electronic form or
format, provided that such efforts do not significantly interfere with
the operation of the Department's automated information systems.
(Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 3474)
Sec. 5.32 Assessment of fees.
(a) Fees. In responding to FOIA requests, the Department charges
the following fees (in accordance with the Office of Management and
Budget's ``Uniform FOIA Fee Schedule and Guidelines,'' 52 FR 10012
(March 27, 1987)), unless it has granted a waiver or reduction of fees
under Sec. 5.33 and subject to the limitations set forth in paragraph
(b) of this section:
(1) Search. The Department charges search fees, subject to the
limitations of paragraph (b) of this section. Search time includes time
spent searching, regardless of whether the search results in the
location of responsive agency records and, if so, whether such agency
records are released to the requester under the Act. The requester will
be charged the direct costs, as defined in Sec. 5.31(b), of the
search. In the case of computer searches for agency records, the
Department charges the requester for the direct cost of conducting the
search, subject to the limitations set forth in paragraph (b) of this
section.
(2) Review. (i) The Department charges fees for initial agency
record review at the same rate as for searches, subject to the
limitations set forth in paragraph (b) of this section.
(ii) No fees are charged for review at the administrative appeal
level except in connection with--
(A) The review of agency records other than agency records
identified as responsive to the FOIA request in the initial decision;
and
(B) The Department's decision regarding whether to assert that an
exemption exists under the Act that was not cited in the decision on
the initial FOIA request.
(iii) Review fees are not assessed for FOIA requests other than
those made for a ``commercial use,'' as the term is defined in Sec.
5.31(a).
(3) Duplication. The Department charges duplication fees at the
rate of $0.20 per page for paper photocopies of agency records, $3.00
per CD for documents recorded on CD, and at the direct cost for
duplication for electronic copies and other forms of duplication,
subject to the limitations of paragraph (b) of this section.
(b) Limitations on fees.
(1) Fees are limited to charges for document duplication when
agency
[[Page 71998]]
records are not sought for commercial use and the request is made by--
(i) An educational or noncommercial scientific institution, whose
purpose is scholarly or scientific research; or
(ii) A representative of the news media.
(2) For FOIA requests other than commercial use FOIA requests, the
Department provides the first 100 pages of agency records released (or
the cost equivalent) and the first two hours of search (or the cost
equivalent) without charge, pursuant to 5 U.S.C. 552(a)(4)(A)(iv)(II).
(3) Whenever the Department calculates that the fees assessable for
a FOIA request under paragraph (a) of this section total $25.00 or
less, the Department processes the FOIA request without charge to the
requester.
(c) Notice of anticipated fees in excess of $25. When the
Department estimates or determines that the fees for processing a FOIA
request will total more than $25 and the requester has not stated a
willingness to pay such fees, the Department notifies the requester of
the anticipated amount of fees before processing the FOIA request. If
the Department can readily anticipate fees for processing only a
portion of a request, the Department advises the requester that the
anticipated fee is for processing only a portion of the request. When
the Department has notified a requester of anticipated fees greater
than $25, the Department does not further process the request until the
requester agrees in writing to pay the anticipated total fee.
(d) Charges for other services. When the Department chooses as a
matter of administrative discretion to provide a special service, such
as certification of agency records, it charges the requester the direct
cost of providing the service.
(e) Charging interest. The Department charges interest on any
unpaid bill assessed at the rate provided in 31 U.S.C. 3717. In
charging interest, the Department follows the provisions of the Debt
Collection Act of 1982, as amended (Pub. L. 97-365, 96 Stat. 1749), and
its administrative procedures, including the use of consumer reporting
agencies, collection agencies, and offset.
(f) Aggregating FOIA requests. When the Department reasonably
believes that a requester, or a group of requesters acting together, is
attempting to divide a FOIA request into a series of FOIA requests for
the purpose of avoiding or reducing otherwise applicable fees, the
Department may aggregate such FOIA requests for the purpose of
assessing fees. The Department does not aggregate multiple FOIA
requests involving unrelated matters.
(g) Advance payments. (1) For FOIA requests other than those
described in paragraphs (g)(2) and (g)(3) of this section, the
Department does not require the requester to pay fees in advance.
(2) Where the Department estimates or determines that fees for
processing a FOIA request will total more than $250, it may require the
requester to pay the fees in advance, except where the Department
receives a satisfactory assurance of full payment from a requester with
a history of prompt payment of FOIA fees.
(3) The Department may require a requester who has previously
failed to pay a properly assessed FOIA fee within 30 calendar days of
the billing date to pay in advance the full amount of estimated or
actual fees before it further processes a new or pending FOIA request
from that requester.
(4) When the Department requires advance payment of estimated or
assessed fees, it does not consider the FOIA request received and does
not further process the FOIA request until payment is received.
(h) Tolling. When necessary for the Department to clarify issues
regarding fee assessment with the FOIA requester, the time limit for
responding to the FOIA request is tolled until the Department resolves
such issues with the requester.
(i) Other statutory requirements. The fee schedule of this section
does not apply to fees charged under any statute that specifically
requires an agency to set and collect fees for producing particular
types of agency records.
(Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C.
3474)
Sec. 5.33 Requirements for waiver or reduction of fees.
(a) The Department processes a FOIA request for agency records
without charge or at a charge less than that established under Sec.
5.32(a) when the Department determines that--
(1) 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
(2) Disclosure of the information is not primarily in the
commercial interest of the requester.
(b) To determine whether a FOIA request is eligible for waiver or
reduction of fees pursuant to paragraph (a)(1) of this section, the
Department considers the following factors:
(1) Whether the subject of the request specifically concerns
identifiable operations or activities of the government.
(2) Whether the disclosable portions of the requested information
will be meaningfully informative in relation to the subject matter of
the request.
(3) The disclosure's contribution to public understanding of
government operations, i.e., the understanding of the public at large,
as opposed to an individual or a narrow segment of interested persons
(including whether the requester has expertise in the subject area of
the FOIA request as well as the intention and demonstrated ability to
disseminate the information to the public).
(4) The significance of the disclosure's contribution to public
understanding of government operations or activities, i.e., the
public's understanding of the subject matter existing prior to the
disclosure must be likely to be enhanced significantly by the
disclosure.
(c) To determine whether a FOIA request is eligible for waiver or
reduction of fees pursuant to paragraph (a)(2) of this section, the
Department considers the following factors:
(1) The existence of the requester's commercial interest, i.e.,
whether the requester has a commercial interest that would be furthered
by the requested disclosure.
(2) If a commercial interest is identified, whether the commercial
interest of the requester is sufficiently large in comparison with the
public interest in disclosure, that disclosure is primarily in the
commercial interest of the requester.
(d) When the fee waiver requirements are met only with respect to a
portion of a FOIA request, the Department waives or reduces fees only
for that portion of the request.
(e) A requester seeking a waiver or reduction of fees must submit
evidence demonstrating that the FOIA request meets all the criteria
listed in paragraphs (a) through (c) of this section.
(f) A requester must seek a fee waiver for each FOIA request for
which a waiver is sought. The Department does not grant standing fee
waivers but considers each fee waiver request independently on its
merits.
(Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(4)(A), 20 U.S.C. 3474)
Subpart E--Administrative Review
Sec. 5.40 Appeals of adverse determinations.
(a) In general. A requester may seek an administrative review of an
adverse determination on the FOIA request made by the requester by
submitting an
[[Page 71999]]
appeal of the determination to the Department. Adverse determinations
include denials of access to agency records, in whole or in part; ``no
agency records'' responses; and adverse fee decisions, including
denials of requests for fee waivers, and all aspects of fee
assessments.
(b) Appeal requirements. A requester must submit an appeal within
35 calendar days of the date on the adverse determination letter issued
by the Department or, where the requester has received no
determination, at any time after the due date for such determination.
An appeal must be in writing and must include a detailed statement of
all legal and factual bases for the appeal. The requester's failure to
comply with time limits set forth in this section constitutes
exhaustion of the requester's administrative remedies for the purposes
of initiating judicial action to compel disclosure.
(c) Determination on appeal. (1) The Department makes a written
determination on an administrative appeal within 20 working days after
receiving the appeal. The time limit may be extended in accordance with
Sec. 5.21(c) through (e). The Department's failure to comply with time
limits set forth in this section constitutes exhaustion of the
requester's administrative remedies for the purposes of initiating
judicial action to compel disclosure.
(2) The Department's determination on an appeal constitutes the
Department's final action on the FOIA request. Any Department
determination denying an appeal in whole or in part includes the
reasons for the denial, including any exemptions asserted under the
Act, and notice of the requester's right to seek judicial review of the
determination in accordance with 5 U.S.C. 552(a)(4). Where the
Department makes a determination to grant an appeal in whole or in
part, it processes the FOIA request subject to the appeal in accordance
with the determination on appeal.
(Authority: 5 U.S.C. 552(a), 5 U.S.C. 552(a)(6), 20 U.S.C. 3474)
[FR Doc. E8-28174 Filed 11-25-08; 8:45 am]
BILLING CODE 4000-01-P