[Federal Register: July 24, 2008 (Volume 73, Number 143)]
[Proposed Rules]
[Page 43153-43160]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy08-15]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 43153]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 294
RIN 3206-AK53
Implementation of the Freedom of Information Act
AGENCY: U.S. Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is proposing to
revise its regulations regarding implementation of the Freedom of
Information Act (FOIA). The purpose of the revision is to make the
regulations easier to understand and to update them with all changes to
the FOIA since the last revision.
DATES: Comments must be received on or before September 22, 2008.
ADDRESSES: Send or deliver comments to Paul Carr, Freedom of
Information/Privacy Act Officer, Center for Information Services, U.S.
Office of Personnel Management, 1900 E Street, NW., Room 5415,
Washington, DC 20415; FAX (202) 418-3251; or e-mail to foia@opm.gov.
FOR FURTHER INFORMATION CONTACT: Paul Carr, (202) 606-4018.
SUPPLEMENTARY INFORMATION: OPM is issuing proposed regulations to
revise the rules implementing 5 U.S.C. 552, concerning the Freedom of
Information Act (FOIA). The purpose of this revision to part 294 is to
include both the 1996 E-FOIA and the 2007 OPEN Government Act
amendments and to make part 294 easier to understand.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify these regulations will not have a significant economic
impact on a substantial number of small entities because costs
associated with requesting information under the Freedom of Information
Act are not affected.
List of Subjects in 5 CFR Part 294
Freedom of information.
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
Accordingly, OPM proposes to revise 5 CFR part 294 to read as
follows:
PART 294--AVAILABILITY OF OFFICIAL INFORMATION
Subpart A--Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec.
294.101 Purpose.
294.102 General definitions.
294.103 Definitions of categories and assignment of requests and
requesters to categories.
294.104 Clarifying a requester's category.
294.105 Access to the requester's own records.
294.106 Publications, periodicals, and OPM issuances.
294.107 Places to obtain records.
294.108 Procedures for obtaining records.
294.109 Fees.
294.110 Appeals.
294.111 Custody of records; subpoenas.
294.112 Confidential commercial information.
Subpart B--The Public Information Function
294.201 Public information policy.
Subpart C--Office Operations
294.301 Policy and operations.
Subpart D--Cross References
294.401 References.
Authority: 5 U.S.C. 552, Freedom of Information Act (FOIA),
Public Law 92-502, as amended by the Freedom of Information Reform
Act of 1986, Public Law 99-570, E.O. 12600, 52 FR 23781 (June 25,
1987), Public Law 104-201, Public Law 104-231, E.O. 13392 (December
14, 2005), and Public Law 110-175.
Subpart A--Provisions for the Freedom of Information Act
Sec. 294.101 Purpose.
This subpart contains the regulations the Office of Personnel
Management (OPM) follows in processing all requests for records under
the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, except
when an individual requests their own records maintained in an OPM or
government-wide systems of records. In this case, OPM will process the
request under the Privacy Act, as provided by 5 CFR 294.105.
Sec. 294.102 General definitions.
(a) All of the terms defined in the Freedom of Information Act, and
the definitions included in the ``Uniform Freedom of Information Act
Fee Schedule and Guidelines'' issued by the Office of Management and
Budget apply, regardless of whether they are defined in this subpart.
(b) Definitions, as used in this subpart:
Agency, as used in this part, refers to the U.S. Office of
Personnel Management (OPM).
Component means each separate office, division, center, or group in
OPM with responsibility for responding to FOIA requests.
Direct costs means the expenditures OPM actually incurs in
searching for, duplicating and reviewing documents to respond to a FOIA
request. Overhead expenses, such as the cost of space and heating or
lighting the facility in which the records are stored, are not included
in direct costs.
Disclose or disclosure means making records available, on request,
for examination and copying or furnishing a copy of records.
Duplication means the process of making a copy of a document
necessary to respond to a FOIA request. Among the forms that such
copies can take are paper, microform, audiovisual materials or machine
readable documentation (e.g., magnetic tape, disk or CD-ROM).
FOIA request means a written request (including letter, FAX or e-
mail), citing the FOIA, for access to records of the executive branch
of the Federal Government the requester believes are held by OPM.
Records, information, document and material mean the same as the
term agency records in 5 U.S.C. 552(f).
Review means the process of initially examining documents located
in response to a request to determine whether any documents or portion
of any document located may be withheld from disclosure. Review also
includes processing documents for disclosure; e.g., doing all that is
necessary to excise them and otherwise prepare them for release. Review
does not include the time spent resolving general legal and policy
issues regarding the application of exemptions.
[[Page 43154]]
Search means the time spent looking for material that is responsive
to a request, including page-by-page or line-by-line, manually or by
automated means, identification of material within documents.
Sec. 294.103 Definitions of categories and assignment of requests and
requesters to categories.
OPM will apply the definitions and procedures outlined in this
section to assign requesters to categories. The requester categories,
as established by 5 U.S.C. 552(a), are:
(a) Commercial use request means a FOIA request from, or on behalf
of, one who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
or institution on whose behalf the request is made. In determining
whether a request properly belongs in this category, OPM will look
first to the intended use of the documents being requested.
(b) Educational institution request means a FOIA request that is
made as authorized by, and under the auspices of, a qualifying public
or private educational institution; and the records are sought in
furtherance of scholarly goal of the institution and not an individual
goal. Educational institutions refers to public or private, preschools,
elementary or secondary schools, institutions of undergraduate or
graduate higher education, institutions of professional education or
vocational education that operate a program or programs of scholarly or
scientific research.
(c) News media request means a FOIA request from a representative
of the news media which 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. The term news means information
that is about current events or that would be of current interest to
the public. Examples of news-media entities are television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only if such entities qualify as disseminators of
news) who make their products available for purchase or subscription or
by free distribution to the general public. These examples are not all-
inclusive. Moreover, as methods of news delivery evolve (for example,
the adoption of the electronic dissemination of newspapers through
telecommunications services), such alternative media shall be
considered to be news-media entities. A freelance journalist shall be
regarded as working for a news-media entity if the journalist can
demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by the
entity. A publication contract would present a solid basis for such an
expectation; OPM may also consider the past publication record of the
requester in making such a determination.
(d) Non-commercial scientific institution request means a FOIA
request from an institution not operated on a commercial basis and is
operated solely to conduct scientific research that produces results
that are not intended to promote any particular product or industry.
(e) Other request means a FOIA request not covered in paragraphs
(a), (b), (c), or (d) of this section. However, as provided by Sec.
294.105, OPM will use its Privacy Act regulations, rather than this
subpart, when individuals ask for records about themselves that may be
filed in OPM systems of records.
Sec. 294.104 Clarifying a requester's category.
(a) Seeking clarification of a requester's category. OPM may seek
additional clarification from a requester before assigning his or her
request to a specific category if:
(1) There is reasonable cause to doubt the requester's intended use
of records; or
(2) The intended use is not clear from the request itself; or
(3) There is any other reasonable doubt about qualifications that
may affect the fees applicable or the services rendered under Sec.
294.109.
(b) Prompt notification to requester. When OPM seeks clarification
as provided by paragraph (a) of this section, it will notify a
requester promptly either by telephone or in writing of the information
or materials needed.
(c) Effect of seeking clarification on time limits for responding.
If OPM does not receive the requested information from the requester
within 30 days, OPM will assign a final requester category to the
request, calculate any fees, and apply the time limits under 5 U.S.C.
552 for responding to the FOIA request. OPM will not consider any
request for records as received from the requester until it:
(1) Receives any additional clarification needed under paragraph
(a) of this section; and
(2) Determines the clarifying information is sufficient to
correctly place the requester in one of the request categories in 5 CFR
294.103.
Sec. 294.105 Access to the requester's own records.
(a) Personnel, retirement or background investigation records. Only
the subject of a record, or his or her authorized representative, may
request records about him or herself as defined by 5 U.S.C. 552a(a)(4)
by writing to the addresses in 5 CFR 294.107. The record must be
identifiable by the subject's name or other personal identifier. OPM
will process the request under Privacy Act procedures in 5 CFR part
297.
(b) Medical records. OPM may disclose a subject's medical records
to him or her, or to his or her authorized representative. Medical
records may contain information about a subject's mental or physical
condition a physician would hesitate to give to the subject. In these
circumstances, OPM will disclose the records, including the exact
nature and probable outcome of the subject's condition, only to a
licensed physician designated in writing by the subject or his or her
designated representative. OPM will process the request under the
Privacy Act procedures in 5 CFR part 297.
Sec. 294.106 Publications, periodicals, and OPM issuances.
(a) OPM makes available in the agency's Electronic Reading Room or
for public inspection and copying the following types of records unless
a FOIA exemption applies:
(1) Records requested three or more times under FOIA;
(2) OPM administrative staff manuals and instructions that affect
members of the public;
(3) Final opinions made by OPM in the adjudication of cases;
(4) OPM policy statements and interpretations adopted but not
published in the Federal Register;
(5) Public agency documents created after October 31, 1996.
(b) OPM may delete identifying details when publishing an opinion,
statement of policy, interpretation, manual or instruction to prevent a
clearly unwarranted invasion of personal privacy.
(c) These materials are available during normal working hours.
Review of the materials must be coordinated with OPM's FOIA/PA Officer.
(d) Electronic copies are available through OPM's Electronic FOIA
Reading room at http://www.opm.gov/efoia/.
(e) Paper copies are also available by writing to: FOIA/PA Officer,
U.S. Office of Personnel Management, Office of the Chief Information
Officer, FOIA Requester Service Center, 1900 E Street, NW., Washington,
DC 20415.
(f) If a request is for material published and offered for sale
(e.g., by
[[Page 43155]]
the Superintendent of Documents, Government Printing Office), OPM will
explain where the material may be reviewed or purchased.
Sec. 294.107 Places to obtain records.
(a) Though OPM has a decentralized system for processing FOIA
requests whereby each OPM component has responsibility for responding
to FOIA requests for records they maintain, all requests for records
except as shown in paragraphs (b), (c), (d), or (e) of this section
should be sent to: FOIA/PA Officer, U.S. Office of Personnel
Management, Office of the Chief Information Officer, FOIA Requester
Service Center, 1900 E Street, NW., Washington, DC 20415. E-mail:
foia@opm.gov. Fax: See the FAX number for this office on OPM's Web site
at http://www.opm.gov/efoia.
(b) Requesting copies of background investigations. (1) The
background investigations for most former civilian and military Federal
employees, Federal contractors and applicants for Federal employment
are stored at the address below. Requests must include the subject's
hand-written signature and all of the information below. E-mail
requests cannot be accepted.
(i) Full name.
(ii) Social Security Number.
(iii) Date of birth.
(iv) Place of birth.
(v) Current home address (a Post Office Box is not acceptable).
(vi) FAX: See the FAX number for this office on OPM's Web site at
http://www.opm.gov/efoia.
(2) Mail requests to: FOI/P, OPM-FIPC, P.O. Box 618, 1137 Branchton
Road, Boyers, PA 16018-0618.
(c) Requesting personnel records for current Federal employees. The
Official Personnel Folders (OPFs) for current Federal employees are
stored at the employee's current employing agency. The request for the
records must be made directly to that agency's Freedom of Information/
Privacy office. The Department of Justice (DOJ) provides the current
list of agency Freedom of Information/Privacy contacts on its Web site
at http://www.usdoj.gov/oip/foiacontacts.htm.
(d) Requesting personnel records for non-Postal former Federal
employees. (1) The Official Personnel Folders (OPFs) for most former
civilian and military Federal employees are stored at the address
below. Requests must include the subject's hand-written signature and
all of the information below. E-mail requests cannot be accepted.
(i) Social Security Number.
(ii) Date of birth.
(iii) Name of last agency where employed.
(iv) Approximate date when last employed with the Federal
government.
(2) Mail requests to: National Personnel Records Center (NPRC), 111
Winnebago Street (indicate Civilian or Military), St. Louis, MO 63118-
4126. Fax: (314) 801-9268.
(e) Requesting personnel records for former Postal Federal
employees. (1) The Official Personnel Folders (OPFs) for former U.S.
Postal Service (USPS) employees are stored at the U.S. Postal Service.
Requests must include the subject's hand-written signature and all of
the information below. E-mail requests cannot be accepted.
(i) Social Security Number.
(ii) Date of birth.
(iii) Name of last agency where employed.
(iv) Approximate date when last employed with the U.S. Postal
Service.
(2) Mail requests to: U.S. Postal Service, General Manager,
Headquarters Personnel Division, 475 L'Enfant Plaza, SW., Washington,
DC 20260-4261.
(f) When an organization does not have records in its custody. When
an OPM organization receives a Freedom of Information Act request for
OPM records that it does not have in its possession, it will promptly
forward the request to the appropriate organization. If a person has
asked to be kept apprised of anything that will delay the official
receipt of a request, OPM will provide notice of this forwarding
action. Otherwise, OPM may, at its option, provide such notice.
(g) Records from other Government agencies. When a person seeks
records that originated in another Government agency, OPM may refer the
request to the other agency for response. Ordinarily, OPM will provide
notice of this type of referral.
(h) Creating records. If a person seeks information from OPM in a
format that does not currently exist, OPM will not ordinarily compile
the information for the purpose of creating a record to respond to the
request. OPM will advise the individual that it does not have records
in the format sought. If other existing records would reasonably
respond to the request or portions of it, OPM may provide these. If
fees as provided in Sec. 294.109 apply to any alternative records, OPM
will advise the requester before providing the records.
Sec. 294.108 Procedures for obtaining records.
Any individual (U.S./foreign), partnership, corporation,
association or government (except foreign governments seeking
intelligence agency information) may file a FOIA request with OPM. All
requests for OPM records should be sent to the OPM office listed in 5
CFR 294.107(a).
(a) Delivering a request. Requests for OPM records may be delivered
to OPM during business hours on a regular business day in the following
manner:
(1) By mail;
(2) In person;
(3) By faxing a request (FAX numbers are on the FOIA contacts list
at http://www.opm.gov/efoia/); or
(4) By e-mailing a request to foia@opm.gov, EXCEPT for those
Privacy requests shown in Sec. 294.107 (b), (c), (d), and (e).
(b) Marking the request. Mark the request for records clearly and
prominently with ``FOIA Request'' or ``Freedom of Information Act
Request.'' If the request is sent by:
(1) Mail or in an envelope, mark the outside envelope and the
letter;
(2) FAX, mark the top of the page; or
(3) E-mail, include the mark in the subject line.
(c) Information to provide in the request. The request, regardless
of the format, must describe the records sought in sufficient detail to
enable OPM staff to locate the records with a reasonable amount of
effort. OPM will regard a request for a specific category of records as
fulfilling the requirements of this paragraph, if it enables responsive
records to be identified by a technique or process that is not
unreasonably burdensome or disruptive to OPM operations. The more
information the requester includes, the easier it will be for OPM to
locate the record(s) he or she seeks. Each record request should
include specific information, such as:
(1) Requester's name, full mailing address, telephone number and,
if available, e-mail address;
(2) The approximate date the record was created;
(3) The Social Security Number, retirement claim number,
publication number or any other number the requester believes will help
OPM to identify the record;
(4) The title, name or subject matter of the record; and
(5) The author of any publication.
(d) Restrictions on e-mail requests. OPM cannot accept e-mail
requests for the following types of records because written signature
of either the requester or his or her authorized representative are
required:
(1) Individual personnel records;
(2) Individual retirement records; or
(3) Individual background investigation records.
(e) Medical records. OPM or another Government agency may disclose
the
[[Page 43156]]
medical records of an applicant, employee, or annuitant to the subject
of the record, or to a representative designated in writing. However,
medical records may contain information about an individual's mental or
physical condition that a prudent physician would hesitate to give to
the individual. Under such circumstances, OPM may disclose the records,
including the exact nature and probable outcome of the condition, only
to a licensed physician designated in writing for that purpose by the
individual or his or her designated representative.
(f) Publications. If the subject matter of a request includes
material published and offered for sale (e.g., by the Superintendent of
Documents, Government Printing Office), OPM will explain where a person
may review and/or purchase the publications.
(g) Responsibility for responding to requests. OPM has a
decentralized system for processing FOIA requests whereby each OPM
component has responsibility for responding to FOIA requests for
records they maintain. Within 10 working days of receiving a request in
OPM's FOIA Requester Service Center, or any OPM component, a request
will be reviewed to:
(1) Determine if the request is for records OPM maintains and, if
so, forward to the appropriate OPM component(s) which may have
responsive records. The OPM component(s) will have 20 business days
from receipt of the forwarded request to provide the records sought
except as provided in paragraph (g)(2) of this section.
(2) Determine if the request reasonably describes the record(s)
sought. If it does not, OPM will tell the requester why the request is
insufficient and notify the requester of any additional information
needed to process the request. OPM will also offer the requester an
opportunity to prepare and reformulate the request so it meets the
requirements of this section.
(3) Determine if another Federal agency may have the records and
refer the request to that agency for action. The request will then be
subject to that agency's FOIA regulations. If the requester or the
requester's authorized representative asks to be notified of anything
that will delay the official receipt of the requester's request, OPM
will notify the requester in writing that his or her request has been
forwarded to another agency for action.
(i) If a request is for records OPM does not have the authority to
release without consulting another agency, copies of the request will
be referred to the appropriate agency. Depending on the records sought,
the appropriate agency may respond directly to the requester.
Otherwise, the final response to a request can be made only when the
agency to whom OPM referred the documents responds to OPM.
(ii) If a request is for records containing confidential commercial
information, OPM will contact the submitter of the requested
information.
(h) Acknowledgements of requests. On receipt of a request, an OPM
component will ordinarily send an acknowledgement letter to the
requester under 5 CFR 294.109 and provide an assigned request number
for further reference; acknowledgement letters will confirm the
requester's agreement to pay fees, if required. Information regarding
the status of the request can be obtained by following the procedures
on OPM's FOIA page at http://www.opm.gov/efoia/.
(i) New Time Limits. As required by amendments to section 552 of
title 5 United States Code, effective December 31, 2008, the 20-day
period shall commence on the date on which the request is first
received by the appropriate component of OPM, but in any event not
later than ten days after the request is first received by the OPM FOIA
Requester Center.
(j) Applying the time limits. When applying the time limits in
section 552 of title 5, United States Code, OPM will not officially
consider any request to be received until it arrives in the OPM
organization that has responsibility for the records sought.
(k) Responses to requests.--(1) Grants of requests. (i) Once OPM
decides to release the requested records in whole or in part, the
requester will be informed in writing. If the records will be released,
OPM's response may include the records or where they may be reviewed.
If the records will be released only in part or the request will be
denied, OPM's response will explain the reasons for this decision, the
exemption(s) that apply and the requester's right to appeal the
decision. If there are applicable fees associated with processing a
request, OPM will release the records when payment is received as
explained in 5 CFR 294.109. Once applicable fees are paid, OPM will
provide the requester with copies of records in the format requested if
the records:
(A) Already exist in the requested format; or
(B) Are readily reproducible in the requested format.
(ii) If a requester requests information from OPM in a format that
does not currently exist, OPM will not create a record to respond to
the requester.
(2) Denials of requests. When OPM decides to withhold in part or to
deny the release of records, OPM will notify the requester in writing.
Reasons for denying a request are:
(i) Records do not exist or cannot be located;
(ii) Records are not readily reproducible in the form or format
requested;
(iii) Records are not subject to release under one of the nine
published exemptions; or
(iv) Records are the subject of a disputed fee matter, including a
denial of a fee waiver. OPM's denial letter will be signed by the
appropriate official and will include:
(A) The name and title or position of the person responsible for
the denial;
(B) A brief statement of the reason(s) for the denial, including
any FOIA exemption(s) applied;
(C) An estimate of the volume of records withheld, in number of
pages or other reasonable form of estimation. The estimate will include
specific exemptions used where the deletions are shown on the records
or if disclosure will harm an interest protected by an applicable
exemption; and
(D) The requester's right to appeal OPM's denial under 5 CFR
294.110.
(l) Expedited processing. To request expedited processing of a FOIA
request, the requester must submit a statement, certified to be true
and correct to the best of his or her knowledge, explaining the basis
for expedited processing. OPM will expedite a FOIA request or appeal
for any of the following reasons:
(1) Imminent threat to an individual's life or physical safety;
(2) Imminent loss of a substantial due-process right;
(3) An urgent need to inform the public about an actual or alleged
Federal Government activity if the request is made by a person
primarily engaged in disseminating information to the public; or
(4) A matter of widespread and exceptional media interest in which
there exists possible questions about the Government's integrity that
affects public confidence. Ordinarily, OPM will respond to a request
for expedited processing within 10 days of receipt of the request. If
OPM grants a request for expedited processing, OPM will process the
request as quickly as possible. If OPM denies a request for expedited
processing and a requester decide to appeal the denial, OPM will
expedite the review of the appeal.
Sec. 294.109 Fees.
(a) Applicability of fees. (1) OPM will provide, without charge,
reasonable
[[Page 43157]]
quantities of material available for free distribution to the public.
(2) OPM may provide other material, subject to payment of fees
intended to recoup the full allowable direct costs of providing
services. Fees for these materials may be waived if the request meets
the requirements specified in 5 CFR 294.109.
(3) If a request does not include an acceptable agreement to pay
fees and does not otherwise convey a willingness to pay fees, OPM will
promptly notify the requester of the estimated fees associated with
processing the requester's FOIA request. OPM's notice will offer the
requester an opportunity to confer with OPM staff to modify the request
to meet the requester's needs at a lower cost. OPM will process the
request when the requester or the requester's authorized representative
come to an agreement with OPM about the payment of the required fee. If
OPM does not receive a response from the requester within 30 days of
the date of notification, either of the requester's agreement to pay
the fees associated with processing the FOIA request, or a modification
to the request lowering the estimated costs, OPM will close the request
and no additional action will be taken.
(4) OPM will ordinarily respond to FOIA requests in a decentralized
manner. OPM may, at times, refer a single request to two or more
components to make separate responses directly to a requester. Each
component may assess fees for a requester's request for the direct
costs to prepare the response.
(5) If a requester authorizes fees for a document search as
provided in paragraph (c), OPM may assess charges for employee time
spent searching for documents and other direct costs of a search, even
if a fails to locate records or if the located records are determined
to be exempt from disclosure. OPM will conduct searches in the most
efficient and least expensive manner to minimize the cost for both the
requester and OPM, e.g., personnel should not engage in line-by-line
search when photocopying an entire document would be a less expensive
and quicker way to comply with a request.
(6) OPM will charge the requester for services requested and
performed, but not required, under the FOIA, such as formal
certification of records as true copies, by using the Federal User
Charge Statute (31 U.S.C. 483a) or other applicable statutes.
(7) If OPM is assessed fees from the National Archives and Records
Administration (NARA) or other institutions for retrieving records to
assist in preparing a response to a request, those fees may be passed
on to the requester.
(b) Rates used to compute fees. OPM will charge the requester the
following rates for a document search, duplication, and review as
required by 5 U.S.C. 552(a)(4). The rates below should be used in
conjunction with the fee components listed in paragraph (c) of this
section:
------------------------------------------------------------------------
Service Rate
------------------------------------------------------------------------
(1) Employee time......................... Salary rate plus 20% to
cover benefits.
(2) Photocopies (up to 8\1/2\'' x 14'')... $0.25 per page.
(3) Computer time......................... Actual direct cost.
(4) Supplies and other materials.......... Actual direct cost.
(5) Other costs not identified above...... Actual direct cost.
------------------------------------------------------------------------
(c) Assessing fees based on requester's category. (1) OPM
determines fees differently for each category of requester as defined
in 5 CFR 294.103. Requests have three cost components for the purpose
of assessing fees:
(i) The cost of document search;
(ii) The cost of review; and
(iii) The cost of duplication.
(2) OPM will apply the rates in paragraph (b) of this section to
the cost components that apply to he requester's category as follows:
----------------------------------------------------------------------------------------------------------------
Requester's category Search Review Duplication
----------------------------------------------------------------------------------------------------------------
(i) Commercial................. Actual direct Actual direct Actual direct costs.
costs. costs.
(ii) Non-commercial No charge......... No charge......... Actual direct costs.\1\
(educational or scientific
institution) or news media.
(iii) All others............... Actual direct No charge......... Actual direct costs.\1\
costs.\2\.
----------------------------------------------------------------------------------------------------------------
\1\ First 100 pages of paper copies or reasonable equivalent are copied free.
\2\ First 2 hours of manual search time are free. If requested records are maintained in a computerized data
base, OPM will use the following formula, suggested by OMB, to provide the equivalent of 2 hours manual search
time free before charging for computer search time: The operator's hourly salary plus 20% will be added to the
hourly cost of operating the central processing unit that contains the record information.
(d) OPM failure to comply with FOIA time limits. If OPM fails to
comply with the FOIA's time limits, unless ``unusual'' or
``exceptional'' circumstances as defined by 5 U.S.C. 552 apply to the
processing of the request, OPM will not assess search fees.
(e) Agreement to pay fees. If a requester makes a FOIA request, it
shall be considered an agreement by the requester to pay all applicable
fees charged under 5 CFR 294.109, unless the requester seeks a waiver
of fees. When making a request, the requester may specify a willingness
to pay a greater or lesser amount. The requester may find OPM's Freedom
of Information Act Reference Guide helpful in making his or her
request. It is available on OPM's Web site at http://www.opm.gov/efoia/
and in paper form by writing to: FOIA/Privacy Act Officer, U.S. Office
of Personnel Management, Office of the Chief Information Officer, FOIA
Requester Service Center, 1900 E Street, NW., Washington, DC 20415.
(f) Payment of fees. Fees are payable by check or money order to
the Office of Personnel Management (OPM).
(1) When the fee total is less than $25.00, OPM will usually waive
the fee except as provided in 5 CFR 294.109.
(2) If a request may reasonably result in a fee assessment of more
than $25.00, OPM will not release the records unless the requester
agrees in advance to pay the anticipated charges.
(3) OPM may put requests together (aggregate) and charge fees
accordingly when there is a reasonable belief a requester, or a group
of requesters acting in concert, is attempting to break down a request
into a series of requests to avoid the assessment of fees.
(i) If multiple requests of this type occur within a 30 day period,
OPM may notify the requester it is aggregating the requests together as
one and that it will apply the fee provisions of this section,
including any required agreement to pay fees and any advance payment.
(ii) Before aggregating requests of this type made over a period
longer than 30 days, OPM will assure that it has a solid basis on which
to conclude that requesters are acting in concert and are acting
specifically to avoid payment of fees.
(iii) OPM will not aggregate multiple requests on unrelated
subjects from one requester.
[[Page 43158]]
(g) Payment of fees in advance. If OPM estimates or determines the
fees are likely to exceed $250.00, OPM may require the payment of
applicable fees in advance.
(1) If an OPM official, who is authorized to make a decision on a
particular request, determines a requester has a history of prompt
payment of FOIA fees, OPM will provide notice of the likely cost and
obtain satisfactory assurance of full payment.
(2) When a requester or an organization a requester represents
previously failed to pay assessed fees in a timely manner (i.e.,
payment was not made within 30 days of the billing date), OPM will
require full payment of all fees in advance.
(3) If a requester or the organization the requester represents has
not paid previously assessed fees, OPM will not begin to process any
new request for records until the full amount the requester or the
organization has paid the full amount owed plus any applicable
interest, and the requester or the organization makes a full advance
payment for the new request.
(h) Waiver or reduction of fees. All requests for fee waivers or
reductions must be made at the time of the initial FOIA request. All
requests must include the grounds for requesting the reduction or
elimination of fees. OPM will waive or reduce fees only 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 release of the material is not
primarily in the commercial interest of the requester.
(1) In determining whether disclosure is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the Government, OPM
will consider the following factors:
(i) Subject of request: Whether the subject of the requested
records concerns ``the operations or activities of the Government'';
(ii) The information value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of Government operations or activities;
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ``public understanding''
of the subject;
(iv) The significance of the contribution of public understanding:
Whether disclosure of the requested information is likely to contribute
``significantly'' to public understanding of Government operations or
activities;
(2) A commercial interest is a commercial, trade, or profit
interest as these terms are commonly understood. A requester's status
as ``profit making'' or ``non-profit making'' is not the deciding
factor. Not only profit-making entities, but other organizations or
individuals may have a commercial interest to be served by disclosure,
depending on the circumstances involved. In determining whether
disclosure is or is not primarily in the commercial interest of the
requester, OPM will consider the following factors:
(i) Existence and magnitude of a commercial interest. Whether
disclosure of the requested information will further the requesters
commercial interest; and, if so,
(ii) Primary interest in disclosure. Whether the magnitude of the
identified commercial interest of the requester is sufficiently large,
in comparison with the public interest in disclosure with public
interest in disclosure is ``primarily in the commercial interest of the
requester.''
(3) In all cases, the burden of proof is on the requester to
present evidence or information in support of a request for a fee
waiver or reduction.
(i) Denial of fee waiver and reduction requests.
(1) An OPM official may deny a request for a full or partial waiver
of fees without further consideration if a request does not include:
(i) A clear statement of requester's interest in the requested
information;
(ii) A clear statement of requester's proposed use for the
information and whether the requester will derive an income or other
benefit from this use;
(iii) A clear statement of how the public will benefit from OPM's
release of the requested information; and
(iv) A clear statement of requester's qualifications, if a
specialized use is planned.
(2) A requester may appeal the denial of a waiver request as
provided by 5 CFR 294.110 of this part.
(j) Fees not paid; penalties; debt collection.
(1) OPM will promptly notify a requester if an advance payment, as
provided under this section, is required before further processing of a
request can begin. Payment of all fees is required within 30 days. OPM
will not continue processing a request until payment is received.
(2) OPM may begin assessing interest charges on an unpaid bill
starting on the 31st day following the date on which the bill was sent.
Interest will be charged at the rate allowed in 31 U.S.C. 3717, and
will accrue from the billing date.
(3) OPM may use the procedures authorized by Public Law 97-365, the
Debt Collection Act of 1982, to encourage the repayment of debts
incurred under this section. These procedures may include deciding to
disclose information to consumer reporting agencies and to use
collection agencies.
Sec. 294.110 Appeals.
(a) When an OPM official denies records or waivers of fees under
the Freedom of Information Act, the requester may appeal to: Office of
the General Counsel, U.S. Office of Personnel Management, 1900 E
Street, NW., Washington, DC 20415. If the Office of the General Counsel
denied the FOIA request, a requester may appeal the denial to the:
Deputy Director, U.S. Office of Personnel Management, 1900 E Street,
NW., Washington, DC 20415.
(b) An appeal must be received in writing within 60 calendar days
from the date of OPM's letter denying a request. The appellant should
mark the letter and envelope with the words ``FOIA Appeal'' and include
a copy of his or her initial request and the letter of denial.
Additionally, the appellant should explain why OPM should release the
requested records, grant a fee waiver request, or expedite the
processing of his or her request. If OPM was not able to find the
records the requester wanted, the appellant should explain why he or
she believes the search was inadequate. If OPM denied a requester
access to records and told him or her that the records were not subject
to FOIA, the appellant should explain why he or she believes the
records are subject to FOIA.
(c) The appeals provided for in this section constitute the final
available levels of administrative review. If OPM affirms a denial of
information or a denial of a fee waiver, a requester may seek judicial
review in the district court of the United States District in the
district where he or she resides, or has his or her principal place of
business, or in which the agency records are located; or in the
District of Columbia.
(d) If an official of another agency denies a FOIA request for
records in one of OPM's government-wide systems of records, the
requester should consult that agency's regulations for any appeal
rights which may apply. An agency may, at its discretion, direct these
appeals to OPM's Office of the General Counsel.
Sec. 294.111 Custody of records; subpoenas.
(a) The Center for Information Services, OPM, has official custody
of
[[Page 43159]]
OPM records. A subpoena or other judicial order for an official record
from OPM must be signed by a judge and should be served on the: FOIA/PA
Office, U.S. Office of Personnel Management, Office of the Chief
Information Officer, FOIA Requester Service Center, 1900 E Street, NW.,
Washington, DC 20415.
(b) See 5 CFR part 297 for the steps other officials should take on
receipt of a subpoena or other judicial order for an OPM record.
Sec. 294.112 Confidential commercial information.
(a) In general, OPM will not disclose confidential commercial
information in response to a FOIA request except in accordance with
this section.
(b) The following definitions from Executive Order 12600 apply to
this section:
(1) Confidential commercial information means records provided to
the Government by a submitter that arguably contain material exempt
from release under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), because
disclosure could reasonably be expected to cause substantial
competitive harm.
(2) Submitter means any person or entity who provides confidential
commercial information, directly or indirectly, to OPM. The term
includes, but is not limited to, corporations, State governments and
foreign governments.
(c) Designation of confidential commercial information. Submitters
of confidential commercial information must show by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, any portions of their submissions they consider to be
confidential information and protected from disclosure under Exemption
4.
(d) Notice to submitters. OPM will, to the extent permitted by law,
provide prompt written notice to an information submitter of FOIA
requests or administrative appeals if:
(1) The submitter has made a good faith designation that the
requested material is confidential commercial information; or
(2) OPM has reason to believe the requested material may be
confidential commercial information.
(e) The written notice required in paragraph (d) of this section
will either describe the confidential commercial material requested or
include as an attachment, copies or pertinent portions of the records.
(f) Whenever OPM provides the notification and opportunity to
object required by paragraphs (d) and (h) of this section, OPM will
advise the requester that notice and an opportunity to object are being
provided to the submitter.
(g) The notice requirements of paragraph (d) of this section will
not apply if:
(1) OPM determines the information should not be disclosed;
(2) The information has been lawfully published or officially made
available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552);
(4) The information was submitted on or after August 20, 1992, and
has not been designated by the submitter as exempt from disclosure in
accordance with paragraph (c) of this section, unless OPM has
substantial reason to believe disclosure of the information would
result in competitive harm; or
(5) The designation made by the submitter in accordance with
paragraph (c) of this section appears obviously frivolous. In such a
case, OPM will, within a reasonable number of days prior to a specified
disclosure date, notify the submitter in writing of any final
administrative decision to disclose the information.
(h) The notice described in paragraph (d) of this section will give
a submitter a reasonable period from the date of the notice to provide
OPM with a detailed written statement of any objection to disclosure.
The statement must specify all the reasons for withholding any of the
material under any exemption of the FOIA. When Exemption 4 of the FOIA
is cited as the reason for withholding information, the specification
will demonstrate the basis for any contention that the material is a
trade secret, commercial or financial information that is privileged or
confidential. The statement must also include a specification of any
claim of competitive harm, including the degree of such harm, that will
result from disclosure. The information provided in response to this
paragraph may also be subject to disclosure under the FOIA. Information
provided in response to this paragraph will also be subject to the
designation requirements of paragraph (c) of this section. Failure to
object in a timely manner, will be considered a statement of no
objection by OPM, unless OPM extends the time for objection upon timely
request from the submitter and for good cause shown. The provisions of
this paragraph concerning opportunity to object will not apply to
notices of administrative appeals when the submitter has been
previously provided an opportunity to object at the time the request
was initially considered.
(i) OPM will carefully consider a submitter's objections and
specific grounds for nondisclosure, when it is received within the
period of time described in paragraph (h) of this section, prior to
determining whether to disclose the information. Whenever OPM decides
to disclose the information over the objection of a submitter, OPM will
send the submitter a written notice that will include:
(1) A statement of the reasons the submitter's disclosure
objections were not sustained;
(2) A description of the information to be disclosed; and
(3) A specific disclosure date.
(j) OPM will notify both the submitter and the requester of its
intent to disclose material a reasonable number of days prior to the
specific disclosure date.
(k) If a requester brings suit seeking to compel disclosure of
confidential commercial information, OPM will promptly notify the
submitter.
Subpart B--The Public Information Function
Sec. 294.201 Public information policy.
(a) OPM's public information policy is to release information about
the functions and programs administered by OPM through news releases,
publications, the world wide web or other methods.
(b) The Director, Office of Communications and Public Liaison,
carries out OPM's public information policy. In addition, each OPM
employee will cooperate in carrying out this policy.
Subpart C--Office Operations
Sec. 294.301 Policy and operations.
(a) Statements of Office policy and interpretations of the laws and
regulations administered by the Office which the Office has adopted,
whether or not published in the Federal Register are available to the
public.
(b) Generally, memoranda, correspondence, opinions, data, staff
studies, information received in confidence, and similar documentary
material, when prepared for the purpose of internal communication
within the Office or between the Office and other agencies,
organizations, or persons, are not available to the public.
Subpart D--Cross References
Sec. 294.401 References.
The table below provides assistance in locating other OPM
regulations in title 5 of the Code of Federal Regulations with
provisions on the disclosure of records:
[[Page 43160]]
------------------------------------------------------------------------
Location (CFR
Type of information part No.)
------------------------------------------------------------------------
Classification appeal records......................... 511
Classification information............................ 175
Employee performance folders.......................... 293
Examination and related subjects records.............. 300
Grade and pay retention records....................... 536
Investigative records................................. 736
Job grading reviews and appeals records............... 532
Medical information................................... 297 & 293
Official Personnel Folders............................ 293
Privacy and personnel records......................... 297
Retirement............................................ 831 & 841
------------------------------------------------------------------------
[FR Doc. E8-16796 Filed 7-23-08; 8:45 am]
BILLING CODE 6325-47-P