41 C.F.R. PART 51–8—PUBLIC AVAILABILITY OF AGENCY MATERIALS
Title 41 - Public Contracts and Property Management
Authority: 5 U.S.C. 552.
Source: 54 FR 15189, Apr. 17, 1989, unless otherwise noted. Redesignated at 56 FR 48983, Sept. 26, 1991.
These regulations implement the provisions of the “Freedom of Information Act,” 5 U.S.C. 552. They establish procedures under which the public may inspect and obtain copies of material maintained by the Committee, provide for administrative appeal of initial determinations to deny requests for material, and prescribe fees to be charged by the Committee to recover search, review, and duplication costs. [59 FR 59344, Nov. 16, 1994] (a) These regulations shall apply to all final determinations made by the Committee, including all objections; and to any other Committee records reasonably described and requested by a person in accordance with these regulations—except to the extent that such material is exempt in accordance with paragraph (b) of this section. Where a request does not reasonably describe the requested information, the requester will be asked to provide more specific information. (b) Requests for inspection and copies shall not be granted with respect to matters that are: (1) Related to records: (i) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and (ii) In fact properly classified pursuant to such Executive Order; (2) Related solely to the internal personnel rules and practices of the Committee; (3) Specifically exempted from disclosure by statute; (4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) Inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the Committee; (6) Personnel, medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information: (i) Could reasonably be expected to interfere with enforcement proceedings, (ii) Would deprive a person of a right to a fair trial or an impartial adjudication, (iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy, (iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution, which furnished information on a confidential basis and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (vi) Could reasonably be expected to endanger the life or physical safety of any individual; (8) Contained in or related to examination, operation, or condition of reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) Geological and geophysical information and data, including maps concerning wells. (c) Whenever a request is made which involves access to records described in paragraph (b)(7)(i) of this section and: (1) The investigation or proceeding involves a possible violation of criminal law; and (2) There is reason to believe that: (i) The subject of the investigation or proceeding is not aware of its pendency, and (ii) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, then the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section. (d) Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed. (e) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in paragraph (b)(1) of this section, the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section. As used in this part: (a) The term Act means the Freedom of Information Act (5 U.S.C. 552), as amended. (b) The term Chairperson means the Chairperson of the Committee for Purchase From People Who Are Blind or Severely Disabled. (c) The term Executive Director means the Executive Director of the Committee for Purchase from People who are Blind or Severely Disabled. (d) The term exempt materials means those materials described in §51–8.2(b). (e) The term non-exempt materials refers to all materials described in §51–8.2(a), except exempt materials included in §51–8.2(b). (f) The term duplication refers to the process of making a copy of a document necessary to respond to a request. Such copies can take the form of paper copy, audio-visual materials, or machine readable materials (e.g., magnetic tape or disk), among others. (g) The term search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents. (h) The term review refers to the process of examining documents located in response to a request that is for a commercial use to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions. [54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26, 1991, and amended at 59 FR 59344, Nov. 16, 1994] Material described in 5 U.S.C. 552(a)(2) shall be available for inspection during normal business hours at the Committee's offices, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202–3259. An individual who intends to visit the Committee offices to inspect this material shall make an appointment with the Executive Director at least one week in advance, except when the Committee has provided notification to the individual that the material is available for inspection in the Committee offices, in which case an appointment must be made at least 24 hours in advance. [59 FR 59344, Nov. 16, 1994, as amended at 63 FR 16440, Apr. 3, 1998; 65 FR 35287, June 2, 2000] (a) Requests to obtain copies of any material maintained by the Committee must be submitted in writing to the Executive Director at the Committee's offices, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202–3259. The requester may in his or her petition ask for a fee waiver if there is likely to be a charge for the requested information. All requests for records shall be deemed to have been made pursuant to the FOIA, regardless of whether the Act is specifically mentioned. Failure to submit a request in accordance with these procedures may delay the processing of the request. (b) A request must reasonably describe the records to enable agency personnel to locate them with reasonable effort. Where possible, a requester should supply specific information regarding dates, titles, and other identification which will help to identify the records. (c) If the Committee determines that a request does not reasonably describe the records, it shall inform the requester of this fact and extend to the requester an opportunity to clarify the request or to confer promptly with knowledgeable agency personnel to attempt to identify the records he or she is seeking. The “date of receipt” in such instances shall be the date of receipt of the amended or clarified request. (d) Nothing in this part shall be interpreted to preclude the Committee from honoring an oral request for information, but, if the requester is dissatisfied with the response, the Committee official involved shall advise the requester to submit a written request in accordance with paragraph (a) of this section. The “date of receipt” of such a request shall be the date of receipt of the written request. For recordkeeping purposes, the Committee in responding to an oral request for information may ask the requester to confirm the oral request in writing. [54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26, 1991, and amended at 59 FR 59345, Nov. 16, 1994; 63 FR 16440, Apr. 3, 1998; 65 FR 35287, June 2, 2000] When the Committee reasonably believes that a requester, or a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the Committee may aggregate any such requests and charge accordingly. Elements to be considered in determining whether a belief would be reasonable include the time period in which the requests have occurred and the subject matter involved. (a) An initial determination whether, and to what extent, to grant each request for records or a fee waiver shall be made by the Executive Director within 10 days (excepting Saturdays, Sundays, and legal public holidays) after receipt of that request. The person making the request shall be notified as soon as the determination is made. (b) In making an initial determination whether and to what extent requested information will be released, the Committee shall first consider whether the material requested is of a type described in §51–8.2(a); if it is, the request shall be granted unless the material is exempted by §51–8.2(b). If the material requested is not a type described in §51–8.2(a), or is the subject of one or more exemptions, the request may be denied. (c) If a determination is made to grant a request, the relevant material shall be furnished as soon as possible following the determination to grant the request, and after payment of the fee specified in §51–8.12 when required, except that copies of less than 10 pages of material requested in person ordinarily will be furnished immediately following the determination to grant the request. (d) Where portions of the requested material are exempt under §51–8.2(b), and are reasonably segregable from the remainder of the material, those portions shall be excised from the materials disclosed. (e) If a determination is made to deny a request, or a portion thereof, the notification shall include a statement of the reasons for such action, shall set forth the name and position of the person responsible for the denial, and shall advise the requester of the right, and the procedures required under §51–8.10 to appeal the denial to the Chairperson. (f) The Committee will require prepayment of fees for search, review, and reproduction which are likely to exceed $250.00. When the anticipated total fee exceeds $250.00, the requester will receive notice to prepay and at the same time will be given an opportunity to modify his or her request to reduce the fee. The Committee will also inform the requester that fees for search time will be charged even if the search proves unsuccessful. The Committee will not start processing a request until payment is received. (g) Whenever duplication fees or search fees are anticipated to exceed $25.00, but not more than $250.00 and the requester has not indicated, in advance, a willingness to pay fees as high as those anticipated, the Committee will notify the requester of the amount of the anticipated fee. Similarly, where an extensive and therefore costly successful search is anticipated, the Committee will notify requesters of the anticipated fees. The Committee will not start processing the request until assurance of payment is received. (h) Photocopies and directives furnished to the public are restricted to one copy of each page. [54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26, 1991, and amended at 59 FR 59345, Nov. 16, 1994] (a) When, in responding to an FOIA request, the Committee cannot readily determine whether the information obtained from a person is privileged or confidential business information or when a submitter has labeled information as proprietary at the time of submission, it shall: (1) Obtain and consider the views of the submitter of the information and provide the submitter at least 10 working days to object to any decision to disclose the information and to provide reasons for the objection; (2) Provide business information submitters with notice of any determination to disclose such records, to which the submitter has objected to disclosure, 10 working days prior to the disclosure date, and the reasons for which its disclosure objection is not sustained; (3) Notify business information submitters promptly of all instances in which FOIA requesters are bringing suit seeking to compel disclosure of submitted information. (b) The submitter, in responding to a request under paragraph (a)(1) of this section, must explain fully all grounds upon which disclosure is opposed. For example, if the submitter maintains that disclosure is likely to cause substantial harm to its competitive position, the submitter must explain how disclosure would cause such harm. (c) When a central nonprofit agency has submitted business information on behalf of a workshop, the workshop shall be considered to be the “business information submitter” for the purposes of this section. (a) When the Committee receives a request to make available current records that are the primary responsibility of another agency, the Committee will refer the request to the agency concerned for appropriate action. (b) The Committee will notify the requestor of the referral in paragraph (a) of this section and include the name and address of the office to which the request was referred. (a) An appeal to the Chairperson of any denial, in whole or in part, of a request for access to and copies of material may be made by submission of a written request for reconsideration. Such requests shall state the specific reasons for reconsideration that address directly the grounds upon which the denial was based. Requests must be addressed to the Chairperson at the Committee offices and must be received within 30 calendar days of the requester's receipt of the Committee's initial denial. (b) The Chairperson shall make a determination with respect to any appeal within 20 days (excepting Saturdays, Sundays, and legal public holidays) after receipt of the request for reconsideration. The person making such a request shall immediately be notified by mail of the determination. (c) If the initial denial is reversed by the Chairperson, any material with which the reversal is concerned shall be made available in accordance with §51–8.7(b). (d) If the denial is upheld, in whole or in part, the Chairperson shall include in the notification a statement of the requester's right of judicial review under 5 U.S.C. 552(a)(4), and the name and position of the person responsible for the denial. [54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26, 1991, and amended at 59 FR 59345, Nov. 16, 1994] (a) Whenever unusual circumstances exist, such as those set forth in paragraph (b) of this section, the times within which determinations must be made by the Executive Director on requests for access (10 working days), and by the Chairperson on requests for reconsideration (20 working days), may be extended by written notice to the requester for a time not to exceed an aggregate of 30 working days. The notice shall set forth the reasons for such extension, and the date on which a determination is expected to be made. Extensions of time shall be utilized only to the extent reasonably necessary to the proper processing of the particular request. (b) As used in this section, “unusual circumstances” may mean: (1) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are the subject of a single request; (2) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request; or (3) The need to obtain and consider the views of a business information submitter under §51–8.8. [54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26, 1991, and amended at 59 FR 59345, Nov. 16, 1994] (a) This schedule sets forth fees to be charged for processing requests for records under the FOIA. No higher fees or charges in addition to those provided for in this schedule may be charged a party requesting records under FOIA. (b) Subject to the criteria set forth in §51–8.13, fees may be assessed under FOIA on all requests involving document search, duplication, and review. Fees may also be charged in situations involving special service to requests, such as certifying that records requested are true copies, or sending records by special methods such as express mail, etc. (c) Instances in which fees may not be charged are as follows: (1) No charge shall be made for the first 100 pages of duplicated information (8 (2) Also, no charge shall be made—even to commercial use requesters—if the cost of collecting a fee would be equal to or greater than the fee itself; (3) In addition, fees shall not be charged for time spent by an agency employee in resolving legal or policy issues, or in monitoring a requester's inspection of agency records; (4) Documents shall also be furnished without charge when members of the public provide their own copying equipment, in which case no copying fee will be charged (although search and review fees may still be assessed). (d) Fees for records and related services are as follows: (1) The fee for photocopies of pages 8 (2) The fee for photocopies larger than 8 (3) The fee for other forms of duplicated information, such as microfilm, audio-visual materials, or machine-readable documentation (i.e., magnetic tape or disk) shall be the actual direct cost of producing the document(s); (4) Manual searches shall be charged at the salary rate of the employee conducting the search, plus 16 percent of the employee's basic pay. (e) Computer searches and services shall be charged at the rate of $22.00 per minute. The $22.00-per-minute rate includes the cost of operating the central processing unit (CPU), and the computer operator's salary. When the services of a computer programmer or a computer program analyst are required in connection with an FOIA request, the fee for those services shall be $16.00 and $20.00 per hour, respectively. (f) Charges for unsuccessful searches, or searches which fail to locate records or which locate records which are exempt from disclosure, shall be assessed at the same fee rate as searches which result in disclosure of records. (g) The fee for providing review services shall be the hourly salary rate (i.e., basic pay plus 16 percent) of the employee conducting the review to determine whether any information is exempt from mandatory disclosure. (a) Under the FOIA, as amended, there are four categories of FOIA requesters: Commercial use requesters; educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. The Act prescribes specific levels of fees for each category. (b) Commercial use requesters. For commercial use requesters, the Committee shall assess charges which recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Commercial use requesters are not entitled to two hours of free search time nor 100 free pages of reproduction of documents referenced in §51–8.12(c)(1). The Committee may charge for the cost of searching for and reviewing records for commercial use requesters even if there is ultimately no disclosure of records. (1) A commercial use requester is defined as one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. (2) In determining whether a requester properly belongs in this category the Committee must determine whether the requester will put the documents to a commercial use. Where the Committee has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the Committee may seek additional clarification from the requester. (c) Educational and non-commercial scientific institution requesters. Fees for this category of requesters shall be limited to the cost of providing duplication service alone, minus the charge for the first 100 reproduced pages. No charge shall be made for search or review services. To qualify for this category, requesters must show that the request is being made as authorized by and under the auspices of an eligible institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly research (if the request is from a non-commercial scientific institution). (1) The term “educational institution” refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research. (2) The term “non-commercial scientific institution” refers to an institution that is not operated on a “commercial” basis, and which is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. (d) Requesters who are representatives of the news media—Fees for this category of requesters shall also be limited to the cost of providing duplication service alone, minus the charge for the first 100 reproduced pages. No charge shall be made for providing search for review services. Requests in this category must not be made for a commercial use. (1) The term “representative of the news media” refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. (2) The term “news” means information that is about current events or that would be of current interest to the public. (3) Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals which disseminate news and who make their products available for purchase or subscription by the general public. (4) “Freelance” journalists may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. (e) All other requesters. Fees for requesters who do not fit into any of the above categories shall be assessed for the full reasonable direct cost of searching for and duplicating documents that are responsive to a request, except that the first 100 pages of reproduction and the first two hours of search time shall be furnished without charge. The Committee will waive or reduce fees on requests for information if disclosure of the information is deemed to be 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. (a) In determining when fees shall be waived or reduced, the Committee will consider the following six factors: (1) The subject of the request, i.e., whether the subject of the requested records concerns “the operations or activities of the Government;” (2) The informative value of the information to be disclosed, i.e., whether the disclosure is “likely to contribute” to an understanding of Government operations or activities; (3) The contribution to an understanding of the subject by the general public likely to result from disclosure, i.e., whether disclosure of the requested information will contribute to “public understanding”; (4) The significance of the contribution to public understanding, i.e., whether the disclosure is likely to contribute “significantly” to public understanding of Government operations or activities; (5) The existence and magnitude of a commercial interest, i.e., whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so, (6) The primary interest in disclosure, i.e., whether the magnitude of the identified 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.” (b) The Committee may waive or reduce fees associated with a request for disclosure regardless of whether a waiver or reduction has been requested if the Committee determines that disclosure will primarily benefit the general public. (c) Fees shall be waived in all circumstances where the amount of the fee is $10 or less as the cost of collection would be greater than the fee. This minimum shall be applied separately to each Committee response when it is necessary for the Committee to make more than one response to a request for records. [54 FR 15189, Apr. 17, 1989. Redesignated at 56 FR 48983, Sept. 26, 1991, and amended at 59 FR 59345, Nov. 16, 1994] (a) Except when prepayment is required, payments shall be collected to the fullest extent possible at the time the requested materials are furnished. Payments shall be made by requesters within 30 days of the date of the billing. (b) Payments shall be made by check, draft, or money order made payable to the Treasury of the United States. (c) In instances where a requester has previously failed to pay a fee, the Committee may require the requester to pay the full amount owed, plus any applicable interest as provided below, as well as the full estimated fee associated with any new request before it begins to process the new or subsequent request. (d) On requests that result in fees being assessed, interest will be charged on an unpaid bill starting on the 31st day following the day on which the billing was sent. Interest will be at the rate prescribed in section 3717 of Title 31 United States Code, and will accrue from the date of the billing. (e) In attempting to collect fees levied under FOIA, the Committee will abide by the provisions of the Debt Collection Act of 1982 (Pub. L. 97–365) in disclosing information to consumer reporting agencies and in the use of collection agencies, where appropriate, to encourage payment. The Committee shall preserve all correspondence relating to the requests it receives under this part, and all records processed pursuant to such requests, until such time as the destruction of such correspondence and records is authorized pursuant to Title 44 United States Code, and to the General Records Schedule. Records shall not be destroyed while they are the subject of a pending request, appeal, or lawsuit under the Act.
Title 41: Public Contracts and Property Management
PART 51–8—PUBLIC AVAILABILITY OF AGENCY MATERIALS
Section Contents
§ 51-8.1 Purpose.
§ 51-8.2 Scope.
§ 51-8.3 Definitions.
§ 51-8.4 Availability of materials.
§ 51-8.5 Requests for records.
§ 51-8.6 Aggregating requests.
§ 51-8.7 Committee response to requests for records.
§ 51-8.8 Business information.
§ 51-8.9 Records of other agencies.
§ 51-8.10 Appeals.
§ 51-8.11 Extensions of time.
§ 51-8.12 Fee schedule.
§ 51-8.13 Fees charged by category of requester.
§ 51-8.14 Fee waivers and reductions.
§ 51-8.15 Collection of fees and charges.
§ 51-8.16 Preservation of records.
§ 51-8.1 Purpose.
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§ 51-8.2 Scope.
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§ 51-8.3 Definitions.
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§ 51-8.4 Availability of materials.
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§ 51-8.5 Requests for records.
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§ 51-8.6 Aggregating requests.
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§ 51-8.7 Committee response to requests for records.
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§ 51-8.8 Business information.
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§ 51-8.9 Records of other agencies.
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§ 51-8.10 Appeals.
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§ 51-8.11 Extensions of time.
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§ 51-8.12 Fee schedule.
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§ 51-8.13 Fees charged by category of requester.
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§ 51-8.14 Fee waivers and reductions.
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§ 51-8.15 Collection of fees and charges.
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§ 51-8.16 Preservation of records.
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