[Federal Register: June 9, 2000 (Volume 65, Number 112)]
[Proposed Rules]
[Page 36759-36765]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jn00-34]
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Part II
Department of Education
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34 CFR Part 5
The Freedom of Information Act; Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 5
The Freedom of Information Act
AGENCY: Office of the Chief Information Officer, Department of
Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the Department's regulations
that implement the Freedom of Information Act (FOIA). These amendments
are needed to establish new provisions implementing the Electronic
Freedom of Information Act Amendments of 1996. The regulations have
been streamlined and condensed, with more user-friendly language
wherever possible.
DATES: We must receive your comments on or before July 10, 2000.
ADDRESSES: Address all comments about these proposed regulations to
John Tressler, U.S. Department of Education, 400 Maryland Avenue, SW.,
ROB3, Room 5640, Washington, DC 20202-4110. If you prefer to send your
comments through the Internet use the following address:
comments@ed.gov
You must include the term FOIA in the subject line of your
electronic message.
FOR FURTHER INFORMATION CONTACT: John Tressler. Telephone: (202) 708-
8900. If you use a telecommunications device for the deaf (TDD), you
may call the Federal Information Relay Service (FIRS) at 1-800-877-
8339.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
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 program.
During and after the comment period, you may inspect all public
comments about these proposed regulations in room 5640, ROB3, Seventh
and D Streets, SW., Washington, DC, 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 you may call (202) 205-
8113 or (202) 260-9895. If you use a TDD, you may call the Federal
Information Relay Service at 1-800-877-8339.
Background
The FOIA generally provides that any person has a right,
enforceable in court, of access to Federal agency records. However,
some records (or portions of those records) are protected from
disclosure by one of nine exemptions or by one of three special law
enforcement record exclusions.
The FOIA was amended by the Electronic Freedom of Information Act
Amendments of 1996 (Public Law 104-231, October 2, 1996). The
amendments provided specifically for the disclosure of electronic
records.
The proposed revisions of part 5 change the language and structure
of the regulations and would implement the provisions of the Electronic
Freedom of Information Act Amendments of 1996. The new provisions
implementing the 1996 amendments are in Sec. 5.11(a)(4) (electronic
reading rooms) and Sec. 5.20 (How do I make a FOIA request?). Proposed
revisions of the Department's fee schedule are in Sec. 5.30. Other
changes would make the regulations easier to understand.
Clarity of the Regulations
Executive Order 12866 and the President's memorandum of June 1,
1998 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 (e.g.,
grouping and order of sections, use of headings, paragraphing) improve
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. 5.30 What is the schedule of fees?
* 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?
Send any comments concerning how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the 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.
These proposed regulations involve procedural rights of individuals
under the Freedom of Information Act. Individuals are not considered to
be entities under the Regulatory Flexibility Act.
Paperwork Reduction Act of 1995
These proposed regulations do not contain any information
collection requirements.
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 either of the
following sites:
http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use the PDF you must have Adobe Acrobat Reader, which is available
free at either of the previous sites. If you have questions about using
the PDF, call the U.S. Government Printing Office (GPO) at (202) 512-
1530 or, toll free, at 1-888-293-6498.
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: http:/www.access.gpo.gov/
nara/index.html
(Catalog of Federal Domestic Assistance Number does not apply.)
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List of Subjects in 34 CFR Part 5
Freedom of Information.
Dated: June 2, 2000.
Richard W. Riley,
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--THE FREEDOM OF INFORMATION ACT
Subpart A--General
Sec.
5.1 What is the purpose of these regulations?
5.2 What definitions apply?
Subpart B--Records Available to the Public
5.10 What is the Department's general policy regarding disclosure
of agency records?
5.11 How does the Department make agency records publicly
available?
5.12 Does the FOIA require the Department to create new records?
Subpart C--Procedures for Requesting Access to Records
5.20 How do I make a FOIA request?
5.21 What procedures does the Department follow for requests for
business information?
5.22 Who may deny a FOIA request?
Subpart D--Fees and Charges
5.30 What is the schedule of fees?
5.31 Will I be notified of my estimated fees?
5.32 How are fee payments made?
5.33 Under what circumstances must fees be paid in advance?
5.34 What happens if fees are not paid?
5.35 Under what circumstances may fees be waived?
Subpart E--Administrative Appeals
5.40 How do I appeal the denial of a FOIA request or an adverse
fee determination?
5.41 Who decides administrative appeals?
5.42 What is the review process for appeals?
Appendix A to Part 5--Summary of Current U.S. Department of
Education Fees for Processing FOIA Requests
Authority: 5 U.S.C. 552.
Subpart A--General
Sec. 5.1 What is the purpose of these regulations?
This part contains the rules that the Department of Education
(Department or ``we'') follows in processing requests for records under
the Freedom of Information Act (FOIA), 5 U.S.C. 552. These regulations
inform you of the Department's FOIA policies and procedures.
Sec. 5.2 What definitions apply?
As used in this part:
Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552.
Agency records. (1) The term means documentary materials,
regardless of physical form or characteristics, including those in
electronic form, made or received by the Department under Federal law
in connection with the transaction of public business and in the
Department's possession and control at the time a FOIA request is
received.
(2) These records include all documentary materials either
preserved by the Department or appropriate for preservation as evidence
of its organization, functions, policies, decisions, procedures and
operations, or because of the informational value of the data contained
in the records.
(3) Records do not include the following:
(i) Tangible, evidentiary objects or equipment;
(ii) Library or museum materials made or acquired and preserved
solely for reference or exhibition purposes;
(iii) Extra copies of documents preserved only for convenience of
reference; and
(iv) Stocks of publications.
FOIA request means a written request for agency records that
reasonably describes the records sought, made by any individual,
organization or business.
Subpart B--Records Available to the Public
Sec. 5.10 What is the Department's general policy regarding disclosure
of agency records?
The Department's policy is one of full disclosure limited only by
the obligations of confidentiality and the administrative necessities
recognized by the Act. Thus, the Department makes agency records
available for public inspection and copying, subject to the exemptions
in 5 U.S.C. 552 (b)(1)-(9). As a matter of policy, the Department makes
discretionary disclosures of records exempt under the FOIA if it is not
foreseeable that disclosure would harm an interest protected by the
FOIA. This policy, however, does not create any right enforceable in
court.
Sec. 5.11 How does the Department make agency records publicly
available?
(a)(1) The Department maintains a FOIA Reading Room containing a
wide variety of agency records, including Department publications,
whether available for purchase or not.
(2) The FOIA Reading Room currently contains the following agency
records:
(i) All final opinions (including concurring and dissenting
opinions) and all orders made in the adjudication of cases (initial
decisions and reconsiderations in matters that are not the result of
administrative proceedings such as hearings or formal appeals are not
opinions and orders in the adjudication of cases).
(ii) Those statements of policy and interpretations that have been
adopted by the agency and are not published in the Federal Register.
(iii) Administrative staff manuals and instructions to staff that
affect any member of the public.
(iv) Copies of all records that have been released to any person
under 5 U.S.C. 552(a)(3) and that, because of the nature of their
subject matter, the Department determines have become (or are likely to
become) the subject of subsequent requests for substantially the same
records.
(v) An index of the records referred to under paragraph (a)(2)(iv)
of this section.
(3) The FOIA Reading Room is located at the National Library of
Education, 400 Maryland Avenue, SW., Washington, DC, Levels B and SB,
and is open to the public between 9 a.m. and 5 p.m., Eastern time,
Monday through Friday, except Federal holidays.
(4) Reading room records created after November 1, 1996 are
available on the Department's Web site at http://www.ed.gov/offices/
ocio/infocall/info9.html
(b) The Department publishes the following records in the Federal
Register:
(1) Descriptions of the Department's central and field organization
and established locations, including Department contacts and methods by
which the public can obtain information or decisions, or make
submissions or requests.
(2) Statements of the general course and method the Department uses
to channel and determine functions, including the nature and
requirements of all formal and informal procedures available.
(3) Rules of procedures, descriptions of forms available and
locations where forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations.
(4) Substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpretations
of general applicability formulated and adopted by the Department.
(5) Every amendment, revision, or repeal of the materials described
in paragraphs (b)(1) through (4) of this section.
(c)(1) You may seek access to agency records not available as
described in
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paragraphs (a) and (b) of this section by submitting a written request
to the Department, in accordance with the procedures in Sec. 5.20.
(2) The Department may deny access to agency records or portions of
records under one or more of the FOIA exemptions listed at 5 U.S.C.
552(b)(1)-(9).
Sec. 5.12 Does the FOIA require the Department to create new records?
We are not required to create records by compiling selected items
from the files, or by creating data such as ratios, proportions,
percentages, per capitas, frequency distributions, trends,
correlations, and comparisons. If these data have been compiled and are
available as an existing agency record, we make the record available as
provided in Sec. 5.11.
Subpart C--Procedures for Requesting Access to Records
Sec. 5.20 How do I make a FOIA request?
(a)(1) In order to seek access to agency records you must submit
your request in writing by one of the following methods:
(i) U.S. mail or its equivalent to FOIA Officer, Department of
Education, 400 Maryland Avenue, SW., Washington, DC 20202-4651.
(ii) Fax transmitted to FOIA Officer, Department of Education at
(202) 708-9346.
(iii) An e-mail message submitted to OCIO_FOIA@ed.gov.
(2) Be sure to clearly mark your submission as a ``FOIA Request''
and include your name, address, and telephone number or numbers with
your request.
(b) Your request must reasonably describe the records sought and
may include additional information that would assist the Department in
locating the responsive records. In some instances, we may require you
to submit additional information in order to clarify the nature of your
request. In those situations, your request is not considered to be
received for the purposes of 5 U.S.C. 552(a)(6) until we have received
the necessary information from you.
(c) Your request may also specify that the records be provided in a
specific form or format. We make reasonable efforts to comply with
those requests.
(d) We process requests for electronic records and retrieve those
records if retrieval can be achieved through reasonable efforts (in
terms of both time and resources), and these efforts would not
significantly interfere with the operation of an automated information
system.
(e) Your request must also indicate whether you are willing to pay
the fees associated with processing the request or if you are seeking a
fee waiver.
(f) Once the office that maintains the records sought in your
request has received your request, and you have provided us with any
necessary clarifications, we make every reasonable effort to process
your request within the twenty working day statutory requirement. Where
unusual circumstances arise as defined in 5 U.S.C. 552(a)(6)(B)(iii),
the Department may grant an extension of up to ten (10) additional
working days.
Sec. 5.21 What procedures does the Department follow for requests for
business information?
(a) 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).
(2) Submitter means any person or entity from whom the Department
obtains business information, directly or indirectly. The term includes
corporations and state, local, tribal, and foreign governments.
(b) Designation of business information. A submitter of business
information must use good-faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable later
time, any portions of its submission that it considers to be protected
from disclosure under 5 U.S.C. 552(b)(4). These designations expire ten
years after the date of the submission unless the submitter requests,
and provides justification for, a longer designation period.
(c) Notice to submitters. The Department provides a submitter with
prompt written notice of a FOIA request or administrative appeal that
seeks its business information if required under paragraph (d) of this
section, except as provided in paragraph (g) of this section, in order
to give the submitter an opportunity to object to disclosure of any
specified portion of that information under paragraph (e) of this
section. If the Department must notify a voluminous number of
submitters, we may post or publish the notice in a place reasonably
likely to accomplish notification.
(d) If notice is required. The Department notifies a submitter if--
(1) The submitter in good faith has designated the information as
information considered protected from disclosure under 5 U.S.C.
552(b)(4); or
(2) The Department has reason to believe that the information may
be protected from disclosure under 5 U.S.C. 552(b)(4).
(e) Opportunity to object to disclosure. We allow a submitter a
reasonable time to respond to the notice described in paragraph (c) of
this section and specify that time period within the notice. If a
submitter has any objection to disclosure, it must submit a detailed
written statement. The statement must specify all grounds for
withholding any portion of the information under any exemption of the
FOIA and, in the case of objecting to disclosure under 5 U.S.C.
552(b)(4), it must show why the information is a trade secret or
commercial or financial information that is privileged or confidential.
If a submitter fails to respond to the notice within the time specified
in it, the submitter may not object to disclosure of the information.
The Department only considers information provided by the submitter
that we receive before we make a disclosure decision. Information
provided by a submitter under this paragraph may itself be subject to
disclosure under the FOIA.
(f) Notice of intent to disclose. We consider a submitter's
objections and specific grounds for nondisclosure in deciding whether
to disclose business information. If we decide to disclose business
information over the objection of a submitter, we give the submitter
written notice, which includes the following:
(1) A statement of the reason or reasons why each of the
submitter's disclosure objections was not sustained.
(2) A description of the business information to be disclosed.
(3) A specified disclosure date that is a reasonable time after the
notice of intent to disclose.
(g) Exceptions to notice requirements. The notice requirements of
paragraphs (c) and (f) of this section do not apply if--
(1) The Department determines that the information should not be
disclosed;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous--except that, in such a case,
the Department, within a reasonable time before a specified disclosure
date, gives
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the submitter written notice of any final decision to disclose the
information.
(h) Notice of FOIA lawsuit. If a requester files a lawsuit seeking
to compel the disclosure of business information, we promptly notify
the submitter.
(i) Corresponding notice to requesters. If we provide a submitter
with notice and an opportunity to object to disclosure under paragraph
(c) of this section, we also notify the requester or requesters. If we
notify a submitter of our intent to disclose requested information
under paragraph (f) of this section, we also notify the requester or
requesters. If a submitter files a lawsuit seeking to prevent the
disclosure of business information, we notify the requester or
requesters.
Sec. 5.22 Who may deny a FOIA request?
The Department's FOIA Officer, the Inspector General or designee,
and the Regional FOIA Review Officers may deny a FOIA request. Denials
of requests--
(a) Are in writing;
(b) Contain a statement of the reasons for the denial and
information on how to file an appeal under subpart E of this part; and
(c) Identify the person to whom an appeal should be submitted.
Subpart D--Fees and Charges
Sec. 5.30 What is the schedule of fees?
(a) Fees under this part are assessed in accordance with the Office
of Management and Budget's ``Uniform FOIA Fee Schedule and
Guidelines,'' 52 FR 10012 (March 27, 1987), as follows:
(1) Search for records--(i) General. We charge full search fees for
records requested for commercial use. We do not charge a search fee for
requests made by representatives of the news media or by educational or
noncommercial scientific institutions whose purpose is scholarly or
scientific research and whose request is not for commercial use. For
any other non-commercial requests, we provide the first two hours of
search time without charge, except as provided in paragraph (a)(1)(iii)
of this section. We calculate and assess search fees to the nearest
quarter hour.
(ii) Manual search. We calculate the charge for a manual search by
multiplying the search time (to the nearest quarter hour) by the sum of
the basic rate of pay per hour of the employee conducting the search
plus 16 percent of that rate.
(iii) Computer search. The charge for a computer search is the
actual direct cost of providing the service, including the cost of
operating the central processing unit (CPU) for the operating time that
is directly attributable to searching for records responsive to a FOIA
request, and the operator's or programmer's salary apportionable to the
search.
(2) Review of records. If records are requested for commercial use,
we charge fees for the initial examination of a record to determine
whether it should be disclosed. We calculate review fees by multiplying
the review time (to the nearest quarter hour) by the sum of the basic
rate of pay per hour of the employee conducting the review plus 16
percent of that rate. If you request records that are stored outside
Washington, DC, we add the mailing and handling costs of transporting
records for review.
(3) Duplication of records. We do not charge a duplication fee for
the first 100 pages, except in the case of commercial use requests.
Duplication charges for paper copy reproduction of documents on
photocopy machines is 15 cents per page.
(4) Certification of records. The charge for certifying records is
$5 per record certified.
(5) Other. If we have not established a specific fee for a service,
or you request a service that does not fall under one of the categories
in paragraphs (a)(1) through (a)(4) of this section, the FOIA Officer
may establish an appropriate fee, based on direct costs, on a case-by-
case basis.
(b) If we award a contract for the search or duplication of records
responsive to FOIA requests, the fees charged are the actual costs
under the contract.
(c) We do not charge a fee if the total amount of the fee would be
less than $10. If the total amount of the fee is $10 or more, we charge
applicable search and review costs even if no records are located or
disclosed.
(d) If the Department determines that a requester, or a group of
requesters, is attempting to break down a request into multiple
requests for the purpose of avoiding fee assessment, we combine the
requests for the purposes of charging fees.
Sec. 5.31 Will I be notified of my estimated fees?
If the estimated fees total more than $25, or more than the amount
specified in the request if that amount exceeds $25, we--
(a) Promptly notify you of the amount of the estimated fee or that
portion of the fee that can readily be estimated; and
(b) Offer you the opportunity to modify your request.
Sec. 5.32 How are fee payments made?
You must make fee payments by personal check or bank draft drawn on
a bank in the United States, postal money order, or credit card (once
necessary procedures are established). You must make fee payments
payable to the U.S. Department of Education, and mail your payment to
the FOIA Officer, Department of Education, 400 Maryland Avenue, SW.,
Washington, DC 20202-4651. On request, we give you a receipt for fees
paid.
Sec. 5.33 Under what circumstances must fees be paid in advance?
(a) If the estimated fee for processing a request exceeds $250, the
FOIA Officer--
(1) Notifies you of anticipated fees and obtains satisfactory
assurance of payment; or
(2) Requires advance payment before records are released.
(b) If you have previously failed to pay a fee, we require that the
previous charges plus any accrued interest be paid before we process
any subsequent requests. In addition, we require advance payment of
estimated fees for your current request.
(c) Requests under this part are not deemed to have been received
for purposes of 5 U.S.C. 552(a)(6) until we receive satisfactory
assurance of payment or advance payment.
Sec. 5.34 What happens if fees are not paid?
If you do not pay a fee within 30 days after we send you a bill, we
charge you interest at the rate designated at 31 U.S.C. 3717. The FOIA
Officer may take other steps permitted by Federal debt collection
statutes, including the use of collection agencies or disclosure to
consumer-reporting organizations.
Sec. 5.35 Under what circumstances may fees be waived?
(a) The FOIA provides for a fee waiver if disclosure of the
information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.
(b)(1) You must apply to the FOIA Officer for a fee waiver and
address in detail each of the factors in paragraphs (b)(2)(i) through
(b)(2)(vi) of this section. Simply stating that the fee waiver criteria
have been satisfied is insufficient for a fee waiver. In evaluating the
fee waiver request, the FOIA Officer may ask for clarification or
additional information.
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(2) The FOIA Officer will grant a fee waiver only if each of the
following six fee waiver criteria have been met:
(i) The subject of the requested records concerns the operations or
activities of the Government.
(ii) The disclosure is likely to contribute to an understanding of
government operations or activities.
(iii) The disclosure of the requested information will contribute
to the understanding of the public at large, as opposed to an
individual's understanding of government operations or activities.
(iv) The disclosure is likely to contribute significantly to public
understanding of government operations or activities.
(v) The requester either does not have a commercial interest that
would be furthered by the requested disclosure.
(vi) Any commercial interest of the requester is outweighed by the
public interest in disclosure.
(c) You must ask for a fee waiver for each request to which the
waiver may apply. We do not grant a standing fee waiver. We consider
the merit of each fee waiver request.
Subpart E--Administrative Appeals
Sec. 5.40 How do I appeal the denial of a FOIA request or an adverse
fee determination?
(a) Appeal of denials. If we deny your FOIA request in whole or in
part under Sec. 5.21, or when we advise you that we are unable to
locate responsive records, you may file an appeal seeking
administrative review of the denial, within 30 calendar days of your
receipt of the denial letter.
(b) Appeal of adverse fee determinations. If we issue an adverse
fee determination, you may file an appeal seeking administrative review
of the adverse determination, within 30 calendar days from receipt of
the denial letter. You may appeal any of the following:
(1) Our estimate of fees to be charged.
(2) Our calculation of fees.
(3) Our denial of a request for a fee waiver, in whole or in part.
(c) Contents of an appeal letter. Your appeal must be in writing
and must include--
(1) Copies of the request and the denial;
(2) A statement of all legal and factual bases for the appeal; and
(3) Any evidence or argument you wish us to consider in deciding
the appeal.
Sec. 5.41 Who decides administrative appeals?
The Secretary delegates authority to serve as the Department's FOIA
Appeals Officer to a specific position or person. We provide the name
and address of that person to the requester in a denial issued under
Sec. 5.21.
Sec. 5.42 What is the review process for appeals?
(a) An appeal determination is in writing. A determination denying
an appeal in whole or in part states the reasons for the adverse
decision, and advises you of the right to judicial review of the
decision.
(b) Once the FOIA Appeals Officer has received your appeal for a
denial of a FOIA request, we make every reasonable effort to process it
within the twenty working day statutory requirement. Where unusual
circumstances arise as defined in 5 U.S.C. 552(a)(6)(B)(iii), the
Department may grant an extension of up to ten (10) additional working
days.
(c) Failure to comply with time limits stated in 5 U.S.C. 552(a)(6)
constitutes an exhaustion of your administrative remedies.
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