Requester Search fees Review Duplication fees
Commercial use Yes Yes Yes.
Educational and No No Yes (first 100 pages, or
non-commercial equivalent volume, without
Representative No No Yes (first 100 pages, or
of news media equivalent volume, without
All other Yes (first 2 No Yes (first 100 pages, or
requesters hours without equivalent volume, without
Notice of proposed rulemaking.
CFR Part: "14 CFR Part 1206"
RIN Number: "RIN 2700-AE04"
Citation: "79 FR 9430"
Document Number: "Docket No.
DATES: Submit comments on or before
ADDRESSES: Comments must be identified with RIN 2700-AE04 and may be sent to
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION: The FOIA provides that any person has a right, enforceable in court, to obtain access to Federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. The FOIA thus established a statutory right of public access to Executive Branch information in the Federal Government.
Part 1206 establishes the policies, responsibilities, and procedures for the release of Agency records, which are under the jurisdiction of
This rule proposes revisions to the Agency's regulations under the FOIA to update and streamline the language of several procedural provisions and to incorporate certain of the changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007, Public Law 110-175, 121
Executive Order 12866 and Executive Order 13563
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This final rule has been designated a "significant regulatory action," although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, this rule has been reviewed by the
Regulatory Flexibility Act
It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Fees assessed by the Administration are nominal. Further, the "small entities" that make FOIA requests, as compared with individual requesters and other requesters, are relatively few in number.
Paperwork Reduction Act Statement
This rule does not contain an information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by
List of Subjects in 14 CFR Part 1206
Administrative practice and procedure, Freedom of Information Act, Privacy Act.
For the reasons stated in the preamble,
PART 1206--PROCEDURES FOR DISCLOSURE OF RECORDS FREEDOM OF INFORMATION ACT REGULATIONS
Subpart 1--Basic Policy
1206.100 Scope of part.
1206.101 General policy.
Subpart 2--Types of Records To Be Made Available
1206.200 Publishing of records.
1206.201 Proactive disclosure of Agency records.
1206.202 Records that have been published.
1206.203 Incorporation by reference.
1206.300 How to make a request for Agency records.
1206.301 Describing records sought.
1206.302 Fee agreements.
1206.303 Format of records disclosed.
1206.304 Expedited processing.
1206.305 Responding to requests.
1206.306 Granting a request.
1206.307 Denying a request.
1206.308 Referrals and consultations within
Subpart 4--Procedures and Time Limits for Responding to Requests
1206.400 Procedures for processing queues and expedited processing.
1206.401 Procedures and time limits for acknowledgement letters and initial determinations.
1206.402 Suspending the basic time limit.
1206.403 Time extensions.
Subpart 5--Fees Associated With Processing Requests
1206.503 Restrictions on charging fees.
1206.504 Charging fees.
1206.505 Advance payments.
1206.506 Requirements for a waiver or reduction of fees.
1206.507 Categories of requesters.
1206.508 Aggregation of requests.
1206.509 Form of payment.
1206.510 Nonpayment of fees.
1206.511 Other rights and services.
Subpart 6--Commercial Information
1206.600 General policy.
1206.601 Notice to submitters.
1206.602 Opportunity to object to disclosure.
1206.603 Notice of intent to disclose.
1206.700 How to submit an appeal.
1206.701 Actions on appeals.
1206.800 Delegation of authority.
1206.801 Chief FOIA Officer.
1206.802 General Counsel.
1206.803 NASA Headquarters.
1206.804 NASA Centers and Components.
1206.805 Inspector General.
Subpart 9--Location for Inspection and Request of Agency Records
1206.900 FOIA offices and electronic libraries.
Authority: 5 U.S.C. 552, 552a; 51 U.S.C. 20113(a).
Subpart 1--Basic Policy
This Part 1206 establishes the policies, responsibilities, and procedures for the release of Agency records which are under the jurisdiction of the
(a) In compliance with the Freedom of Information Act (FOIA), as amended 5 U.S.C. 552, a positive and continuing obligation exists for
(b) Part 1206 does not entitle any person to any service or to the disclosure of any record that is not required under the FOIA.
Subpart 2--Types of Records To Be Made Available
(a) Records required to be published in the
(1) Description of NASA Headquarters and NASA Centers and the established places at which, the employees from whom, and the methods whereby, the public may secure information, make submittals or requests, or obtain decisions;
(2) Statements of the general course and method by which
(3) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions regarding 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
(5) Each amendment, revision, or repeal of the foregoing.
(b) Agency opinions, orders, statements, and manuals.
(1) Unless they are exempt from disclosure in accordance with the FOIA, or unless they are promptly published and copies offered for sale,
(i) All final opinions (including concurring and dissenting opinions) and all orders made in the adjudication of cases;
(ii) Those statements of
(iii) Administrative staff manuals (or similar issuances) and instructions to staff that affect a member of the public;
(iv) Copies of all records, regardless of form or format, that have been released to any person under Subpart 3 herein and which, because of the nature of their subject matter, the Agency determines have become or are likely to become the subject of subsequent requests for substantially the same records (frequently requested documents).
(2) A general index of records referred to under (b)(1)(iv).
(i) For records created after
(ii) In connection with all records required to be made available or published under this paragraph (b), identifying details shall be deleted to the extent required to prevent a clearly unwarranted invasion of personal privacy. However, in each case the justification for the deletion shall be explained fully in writing. The extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by an exemption in Subpart 3. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion is made.
(1) In addition to the records made available or published under paragraphs (a) and (b) of this section,
(2) Furthermore, at a minimum,
Records that are required by the FOIA to be made available for public inspection and copying are accessible on the Agency's Web site, http://www.nasa.gov. Each
Publication in the
Records reasonably available to the members of the public affected thereby shall be deemed published in the
(a) A requester submitting a request for records must include his/her name and mailing address, a description of the record(s) sought (see
(c) In accordance with the Agency Records Management procedures
(d) A member of the public may request an Agency record by mail, facsimile (FAX), electronic-mail (email), or by submitting a written request in person to the FOIA office having responsibility over the record requested or to the NASA Headquarters (HQ) FOIA Office.
(e) When a requester is unable to determine the proper NASA FOIA Office to direct a request to, the requester may send the request to the NASA HQ FOIA Office,
(1) It is in the interest of the requester to send the request to the office they believe has responsibility over the records being sought. (See Appendix A for NASA FOIA Office locations and addresses.)
(2) A misdirected request may take up to ten (10) additional working days to re-route to the proper FOIA office.
(f) A requester who is making a request for records about himself or herself (a Privacy Act request) must comply with the verification of identity provisions set forth in 14 CFR 1212.202.
(g) Where a request pertains to a third party, a requester may receive greater access by submitting either a notarized authorization signed by the individual who is the subject of the record requested, or a declaration by that individual made in compliance with the requirements set forth in 28 U.S.C. 1746, authorizing disclosure of the records to the requester, or submit proof that the individual is deceased (e.g., a copy of a death certificate or a verifiable obituary).
(h) As an exercise of its administrative discretion, each Center FOIA office may require a requester to supply additional information if necessary, i.e., a notarized statement from the subject of the file, in order to verify that a particular individual has consented to a third party disclosure. Information will only be released on a case-by-case to third party requesters if they have independently provided authorization from the individual who is the subject of the request.
In view of the time limits under 5 U.S.C. 552(a)(6) for an initial determination on a request for an Agency record, a request must meet the following requirements:
(a) The request must be addressed to an appropriate FOIA office or otherwise be clearly identified in the letter as a request for an Agency record under the "Freedom of Information Act."
(b) Requesters must describe the records sought in sufficient detail to enable Agency personnel who are familiar with the subject area of the request to identify and locate the record with a reasonable amount of effort. To the extent possible, requesters should include specific information that may assist a FOIA office in identifying the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. In general, requesters should include as much detail as possible about the specific records or the types of records sought.
(c) If the requester fails to reasonably describe the records sought, the FOIA office shall inform the requester of what additional information is needed or why the request is deficient. The FOIA office will also notify the requester that it will not be able to comply with the FOIA request unless the additional information requested is provided within 20 working days from the date of the letter. If the additional information is not provided within that timeframe, the request will be closed without further notification.
(d) If after being asked to clarify a request, the requester provides additional information to the FOIA office but fails to provide sufficient details or information to allow the FOIA office to ascertain exactly what records are being requested and locate them, or in general to process the request, the FOIA office will notify the requester that the request has not been properly made and the request will be closed. The FOIA office will advise him/her that they may submit a new request for the information; however, they will need to provide more information to allow processing of the request.
(a) A request must explicitly state a willingness to pay all fees associated with processing the request, fees up to a specified amount, or a request for a fee waiver.
(b) If the FOIA office determines that fees for processing the request will exceed the agreed upon amount or the statutory entitlements, the FOIA office will notify the requester that:
(1) He/she must provide assurance of payment for all anticipated fees or provide an advance payment if estimated fees are expected to exceed
(2) The FOIA office will not be able to fully comply with the FOIA request unless an assurance or advance payment as requested has been provided.
(3) He/she may wish to limit the scope of the request to reduce the processing fees.
(c) If the FOIA office does not receive a written response within 20 working days (meaning all days except Saturdays, Sundays and all Federal legal holidays) after requesting the information, it will presume the requester is no longer interested in the records requested and will close the file on the request without further notification.
(d) A commercial-use requester must:
(1) State a willingness to pay all fess associated with processing a request; or
(2) State a willingness to pay fees to cover the costs of conducting an initial search for responsive records to determine a fee estimate.
(e) If a requester is only willing to pay a limited amount for processing a request and it is for more than one document, the requester must state the order in which he/she would like the request for records to be processed.
(f) If a requester is seeking a fee waiver, the request must include sufficient justification to substantiate a waiver. (See Subpart 5 for information on fee waivers.) Failure to provide sufficient justification will result in a denial of the fee waiver request.
(g) If a requester is seeking a fee waiver, he/she may also choose to state a willingness to pay fees in case the fee waiver request is denied in order to allow the FOIA office to begin processing the request while considering the fee waiver.
(h) If a fee is chargeable for search, review, duplication, or other costs incurred in connection with a request for an Agency record, the requester will be billed prior to releasing Agency documents. If the total amount of processing fees is under
(1) If the exact amount of the fee chargeable is not known at the time of the request, the requester will be notified in the initial determination (or in a final determination in the case of an appeal) of the amount of fees chargeable.
(2) For circumstances in which advance payment of fees is required, the requester will be notified after the FOIA office has obtained an estimate of associated fees.
(i) The FOIA office will begin processing a request only after the request has been properly described in accordance with these regulations and fees have been resolved.
(j) If the requester is required to pay a fee and it is later determined on appeal that he/she was entitled to a full or partial fee waiver, a refund will be sent as appropriate.
(a) The FOIA office will provide the records in the requested format if the records can readily be reproduced from the original file to that specific format.
(b) The FOIA office may charge direct costs associated with converting the records or files into the requested format if they are not maintained in that format. If the costs to convert the records exceed the amount the requester has agreed to pay, the FOIA office will notify the requester in writing. If the requester does not agree to pay the additional fees for converting the records, the records may not be provided in the requested format.
A requester may ask for expedited processing of a request. However, information to substantiate the request must be included in accordance with
(a) Except in the instances described in paragraphs (e) and (f) of this section, the FOIA office that first receives a request for a record and maintains that record, is the FOIA office responsible for responding to the request.
(b) In determining what records are responsive to a request, a FOIA office ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the FOIA office shall inform the requester of that date.
(c) A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), shall not be considered responsive to a request.
(d) The Head of a
(e) The FOIA office may refer a request to or consult with another Center FOIA office or Federal agency in accordance with
(f) If a request for an Agency record is received by a FOIA office not having responsibility of the record (for example, when a request is submitted to one NASA Center or Headquarters and another NASA Center has responsibility of the record), the FOIA office receiving the request shall promptly forward it to that FOIA office within 10 working days from the date of receipt. The receiving FOIA office shall acknowledge the request and provide the requester with a tracking number.
(a) The FOIA office will not begin processing a request until all issues regarding scope and fees have been resolved.
(b) If fees are not expected to exceed the minimum threshold of
(c) If the FOIA office contacts the requester regarding fees or clarification and the requester has provided a response, the FOIA office will notify the requester in writing of the decision to either grant or deny the request.
(a) If the FOIA office denies records in response to a request either in full or in part, it will advise the requester in writing that:
(1) The requested record(s) is exempt in full or in part; or
(2) Records do not exist, cannot be located, or are not in the Agency's possession; or
(3) A record is not readily reproducible in the form or format requested; or
(4) Denial is based on a procedural issue only and not access to the underlying records when it makes a decision that:
(i) A fee waiver or another fee-related issue will not be granted; or
(ii) Expedited processing will not be provided.
(b) The denial notification must include:
(1) The name, title, or position of the person(s) responsible for the denial;
(2) A brief statement of the reasons for the denial, including a reference to any FOIA exemption(s) applied by the FOIA office to withhold records in full or in part;
(3) An estimate of the volume of any records or information withheld, i.e., the number of pages or a reasonable form of estimation, unless such an estimate would harm an interest protected by the exemption(s) used to withhold the records or information;
(4) A statement that the denial may be appealed under Subpart 7 of this part and a description of the requirements set forth therein.
(c) If the requested records contain both exempt and non-exempt material, the FOIA office will:
(1) Segregate and release the non-exempt material unless the non-exempt material is so intertwined with the exempt material that disclosure of it would leave only meaningless words and phrases;
(2) Indicate on the released portion(s) of the records the amount of information redacted and the FOIA exemption(s) under which the redaction was made, unless doing so would harm an interest protected by the FOIA exemption used to withhold the information; and
(3) If technically feasible, place the exemption at the place of excision.
(a) Referrals and consultations can occur within the Agency or outside the Agency.
(b) If a FOIA office (other than the
(1) Consult with the other FOIA office before deciding whether to release or withhold the records; or
(2) Refer the request, along with the records, to that FOIA office for direct response.
(c) If the FOIA office that originally received the request refers all or part of the request to another FOIA office within the Agency for further processing, they will notify the requester of the partial referral and provide that FOIA contact information.
(d) If while responding to a request, the FOIA office locates records that originated with another Federal agency, it will generally refer the request and any responsive records to that other agency for a release determination and direct response.
(e) If the FOIA office refers all the records to another agency, it will document the referral and maintain a copy of the records that it refers; notify the requester of the referral in writing, unless that identification will itself disclose a sensitive, exempt fact; and may provide the name of a contact at the other agency.
(f) If the FOIA office locates records that originated with another Federal agency while responding to a request, the office will make the release determination itself (after consulting with the originating agency) when:
(1) The record is of primary interest to
(3) The originating agency is not subject to the FOIA; or
(4) It is more efficient or practical depending on the circumstances.
(g) If the FOIA office receives a request for records that another Federal agency has classified under any applicable executive order concerning record classification, it must refer the request to that agency for response.
(h) If the FOIA office receives a request for records that are under the purview of another Federal agency, the office will return the request to the requester and may advise the requester to submit it directly to another agency. The FOIA office will then close the request.
(i) All consultations and referrals received by the Agency will be handled according to the date that the FOIA request initially was received by the first FOIA office.
Subpart 4--Procedures and Time Limits for Responding to Requests
(a) The FOIA office will normally process requests in the order in which they are received in each of the processing tracks.
(b) FOIA offices use three queues for multi-track processing depending on the complexity of the request. Once it has been determined the request meets the criteria in accordance with Subpart 3 of this regulation, the FOIA office will place the request in one of the following tracks:
(1) Simple--A request that can be processed within 20 working days.
(2) Complex--A request that will take over 20 working days to process. (A complex request will generally require coordination with more than one office and a legal 10 working day extension for unusual circumstances (see
(3) Expedited processing--A request for expedited processing will be processed in this track if the requester can show exceptional need or urgency that their request should be processed out of turn in accordance with
(c) Requests and appeals will be processed on an expedited basis whenever it is determined that they involve one or more of the following:
(1) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(2) Circumstances in which there is an urgency to inform the public about an actual or alleged Federal Government activity if the FOIA request is made by a person primarily engaged in disseminating information; or
(i) In most situations, a person primarily engaged in disseminating information will be a representative of the news media and therefore, will qualify as a person primarily engaged in disseminating information.
(ii) If the requester is not a full-time member of the news media, to qualify for expediting processing with regard to item
(iii) To substantiate
(3) The loss of substantial due process rights.
(d) A request for expedited processing must contain a statement that:
(1) Explains in detail how the request meets one or more of the criteria in paragraph (c) of this section; and
(2) Certifies that the explanation is true and correct to the best of the requester's knowledge and belief.
(3) If the request is made referencing (c)(ii), the requester must substantiate the public interest.
(e) A request for expedited processing may be made at any time. Requests must be submitted to the FOIA office responsible for processing the requested records.
(f) The FOIA office must notify the requester of its decision to grant or deny expedited processing within 10 calendar days from the date of receipt.
(g) If expedited processing is granted, the request will be processed on a first-in, first-out basis in that queue.
(h) If expedited processing is denied, the FOIA office will notify the requester and provide information on appealing this decision in accordance with Subpart 7 of this part and place the request in the appropriate processing queue.
(i) If the FOIA office processing the request does not provide notification of either granting or denying the request for expedited processing within 10 calendar days from the date of receipt, the requester may file an appeal for non-response in accordance with Subpart 7 of this part.
(a) Following receipt of a request submitted under the FOIA, the FOIA staff will send an acknowledgement letter providing the case tracking number and processing track within ten (10) working days from date of receipt to the requester.
(b) An initial determination is a decision by a
(c) An initial determination on a request for an Agency record addressed in accordance with this regulation (to include one made in person at a FOIA office) shall be made, and the requester shall be sent an initial determination letter within 20 working days after receipt of the request, as required by 5 U.S.C. 552(a)(6) (unless unusual circumstances exist as defined in
(d) The basic time limit for a misdirected FOIA request begins on the date on which the request is first received by the appropriate FOIA office within the Agency, but in any event no later than ten (10) working days after the date the request is first received by a FOIA office designated to receive FOIA requests.
(e) Any notification of an initial determination that does not comply fully with the request for an Agency record, including those searches that produce no responsive documents, shall include a statement of the reasons for the adverse determination, include the name and title of the person making the initial determination, and notify the requester of the right to appeal to the Administrator or the Inspector General, as appropriate, pursuant to Subpart 7.
(a) In accordance with 5 U.S.C. 552(a)(6)(A)(ii)(I), the FOIA office may make one request to the requester for information to clarify a request and temporarily suspend (toll) the time (the 20-day period) while it is awaiting such information that it has reasonably requested from the requester. Receipt of the requester's response by the FOIA office to the Agency's request for additional information or clarification ends the temporary time suspension.
(b) In accordance with 5 U.S.C. 552(a)(6)(A)(ii)(II), the FOIA office may temporarily suspend (toll) the 20-day period as many times as is necessary to clarify with the requester issues regarding fees. Receipt of the requester's response by the FOIA office to the Agency's request for information regarding fees ends the temporary time suspension.
(a) In "unusual circumstances" as defined in this section, the time limits for an initial determination and for a final determination may be extended, but not to exceed a total of 10 working days in the aggregate in the processing of any specific request for an Agency record. The extension must be taken before the expiration of the 20 working day time limits. The requester will be notified in writing of:
(1) The unusual circumstances surrounding the extension of the time limit;
(2) The date by which the FOIA office expects to complete the processing of the request.
(b) Unusual circumstances are defined as:
(1) The need to search for and collect the requested records from offices other than the office processing the request;
(2) The need to search for, collect, and appropriately examine a voluminous amount of documents;
(3) The need to coordinate and/or consult with another
(c) If initial processing time will exceed or is expected to exceed 30 working days, the FOIA office will notify the requester of the delay in processing and:
(1) Provide an opportunity to modify or limit the scope of the request to reduce processing time; and
(2) Provide appeal rights, since the FOIA office has exceeded the 30 working day time period.
(3) Shall make available its designated FOIA contact and its FOIA Public Liaison for this purpose.
(d) The requester's refusal to reasonably modify the scope of a request or arrange an alternative timeframe for processing a request after being given the opportunity to do so may be considered a factor when determining whether exceptional circumstances exist. Exceptional circumstances means a delay that does not result from a predictable workload of requests, unless the Agency demonstrates reasonable progress in reducing its backlog of pending requests.
Subpart 5--Fees Associated With Processing Requests
Fees such as search, review, and duplication will be charged in accordance with the requester's fee category as defined in
(a) 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. A search will determine what specific documents, if any, are responsive to a request. A search for Agency records responsive to a request may be accomplished by manual or automated means.
(b) Search charges, as set forth in this part may be billed even when an Agency record, which has been requested, cannot be identified or located after a diligent search and consultation with a professional
(c) In responding to FOIA requests, FOIA offices shall charge the following fees based on the date the request is received in the NASA FOIA Office unless a waiver or reduction of fees has been granted under
(d) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be the average hourly General Schedule (GS) base salary, plus the
(1) Clerical--Based on a GS-6, Step 5 (all employees at a GS-7 and below are classified as clerical for this purpose).
(2) Professional--Based on a GS-11, Step 7 pay (all employees at a GS-8 through GS-12 are classified as professional for this purpose);
(3) Managerial--Based on GS-14, Step 2, pay (all employees at a GS-13 and above are classified as managerial for this purpose).
(e) Requesters will be charged the direct costs associated with conducting any search that requires the creation of a new program to locate the requested records.
(f) For requests that require the retrieval of records stored by an agency at a Federal records center operated by the
(a) Review means the process of examining a document(s) located in response to a request to determine whether the document(s) or any portion thereof is disclosable. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(b) Review fees will be assessed in connection with the initial review of the record, i.e., the review conducted by Agency staff to determine whether an exemption applies to a particular record or portion of a record.
(c) Review fees will be charged to commercial use requesters.
(d) No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, when the appellate authority determines that a particular exemption no longer applies, any costs associated with an additional review of the records in order to consider the use of other exemptions may be assessed as review fees.
(e) Review fees will be charged at the same rates as those charged for a search under
(f) Review fees can be charged even if the record(s) reviewed ultimately is not disclosed.
(g) Review fees will not include costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section.
(a) Duplication is reproducing a copy of a record or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.
(b) FOIA offices shall honor a requester's preference for receiving a record in a particular form or format where it is readily reproducible by the FOIA office in the form or format requested. If the records are not readily reproducible in the requested form or format, the Agency will so inform the requester. The requester may specify an alternative form or format that is available. If in this situation the requester refuses to specify an alternative form or format, the Agency will not process the request any further.
(c) Where standard-sized photocopies or scans are supplied, the FOIA office will provide one copy per request at the regular copy rate per page.
(d) For copies of records produced on tapes, disks, or other electronic media, FOIA offices will charge the direct costs of producing the copy, including the time spent by personnel duplicating the requested records. For each quarter hour spent by personnel duplicating the requested records, the fees will be the same as those charged for a search under this subpart.
(e) If NASA staff must scan paper documents in order to accommodate a requester's preference to receive the records in an electronic format, the requester shall pay the appropriate copy fee charge per page as well as each quarter hour spent by personnel scanning the requested records. Fees will be the same as those charged for search under this subpart for each quarter hour spent by personnel scanning the requested records.
(f) For other forms of duplication, FOIA offices will charge the direct costs as well as any associated personnel costs. For standard-sized copies of documents such as letters, memoranda, statements, reports, contracts, etc.,
(g) If the request for an Agency record required to be made available under this part requires a computerized search or printout, the charge for the time of personnel involved shall be at the rates specified in this part or the direct costs assessed to the Agency. The charge for computer time involved and for any special supplies or materials used shall not exceed the direct cost to
(h) Reasonable standard fees may be charged for additional direct costs incurred in searching for or duplicating an Agency record in response to a request under this part. Charges made under this paragraph include, but are not limited to, the transportation of
(i) Complying with requests for special services such as those listed in (h)(1), (2) and (3) of this section is entirely at the discretion of
(1) Certifying that records are true copies.
(2) Sending records by special methods such as express mail.
(3) Packaging and mailing bulky records that will not fit into the largest envelope carried in the supply inventory.
(a) No search fees will be charged when the FOIA office fails to comply with the statutory time limits in response to a request if no unusual or exceptional circumstances apply to the processing of the request, as those terms are defined in Subpart 4 of this regulation.
(b) In the case of a requester as defined in
(c) Fees will not be charged unless they are over
(d) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required to fulfill processing of the request.
(a) When a FOIA office determines or estimates the fees to be assessed in accordance with this section will exceed
(b) In cases in which a requester has been notified that actual or estimated fees are in excess of
(c) After the FOIA office begins processing a request, if it finds that the actual cost will exceed the amount the requester previously agreed to pay, the FOIA office will: (1) Stop processing the request; and (2) promptly notify the requester of the higher amount. The request will be placed on hold until the fee issue has been resolved. If the issue is not resolved within 20 working days from the date of the notification letter, the request shall be closed without further notification.
(d) Direct costs, meaning those expenditures that
(f) If processing fees are less than
(g) Final billing will be sent when the initial determination has been completed. At that time the case will be closed.
(a) For requests other than those described in paragraphs (b), (c) and (f) of this section, a FOIA office shall not require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment for search, review and/or before records are released to a requester) is not an advance payment.
(b) When a FOIA office determines or estimates that a total fee to be charged under this section will exceed
(c) Where a requester has previously failed to pay a properly charged FOIA fee assessed by any FOIA office in the agency within 30 calendar days of the billing date, a FOIA office may require the requester to pay the full amount due, plus any applicable interest due on the outstanding debt, before the FOIA office begins to process a new request or continues to process a pending request or any pending remand of an appeal. Once the outstanding bill has been paid, the FOIA office may also require the requester to make an advance payment of the full amount of any anticipated fee before processing the new request.
(d) Where a FOIA office has a reasonable basis to believe that a requester has misrepresented his or her identity in order to avoid paying outstanding fees, it may require that the requester provide further proof of identity.
(e) In cases in which a FOIA office requires advance payment, the request shall be placed on hold and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 20 working days after the date of the FOIA office's letter, the request will be closed without further notification.
(f) When advance payment is required in order to initiate processing, after a fee estimate has been determined, the FOIA office will require payment before continuing to process the request.
(g) The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, the FOIA office will inform the requester of the contact information for that source.
(a) The burden is on the requester to justify an entitlement to a fee waiver.
(b) Requests for a waiver or reduction of fees shall be considered on a case-by-case basis using the criteria in this section. These statutory requirements must be satisfied by the requester before properly assessable fees are waived or reduced under the statutory standard.
(c) Records shall be furnished without charge or at a reduced rate if the requester has demonstrated, based on all available information, that disclosure of the information is in the public interest because it:
(1) Is likely to contribute significantly to public understanding of the operations or activities of the Government; and
(2) Is not primarily in the commercial interest of the requester.
(d) In deciding whether a request for a fee waiver meets the requirements in
(1) Does the subject of the request specifically concern identifiable operations or activities of the Agency with a connection that is direct and clear, not remote or attenuated? For example, is the information requested clearly associated to current events?
(2) If the record(s) concern the operations or activities of the Government, is disclosure likely to contribute to an increased public understanding of those operations or activities? For example, are the disclosable contents of the record(s) meaningfully informative in relation to the subject matter of the request?
(3) Is the focus of the requester on contributing to public understanding, rather than on the individual understanding of the requester or a narrow segment of interested persons? The requester must demonstrate how he/she plans to disseminate the information. The dissemination of information must be to the general public or a reasonably broad audience. (Dissemination to a wide audience is not merely posting the documents on a Web site, but providing an informative analysis of the information.)
(4) If there is likely to be a contribution to public understanding, will that contribution be significant? A contribution to public understanding will be significant if the information disclosed is new, clearly supports public oversight of Agency operations, including the quality of Agency activities and the effect of policy and regulations on public health and safety, or otherwise confirms or clarifies data on past or present operations of the Agency.
(e) In deciding whether the fee waiver meets the requirements in
(1) Requesters are encouraged to provide explanatory information regarding this consideration.
(2) A waiver or reduction of fees is justified where the public interest is greater than any identified commercial interest in disclosure.
(3) If the requester is a representative of a news media organization seeking information as part of a news gathering process, the FOIA office will presume that the public interest outweighs the requester's commercial interest.
(4) If the requester represents a business, corporation, or is an attorney representing such an organization, the FOIA office will presume that the commercial interest outweighs the public interest unless otherwise demonstrated.
(f) Where only some of the records to be released satisfy the requirements for a waiver of fees, a partial waiver shall be granted for those records.
(g) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Agency and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal.
(h) When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester will be required to pay any costs incurred up to the date the fee waiver request was received by the office processing the original request.
(i) When deciding whether to waive or reduce fees, the FOIA office will rely on the fee waiver justification submitted in the request letter. If the request letter does not include sufficient justification, the FOIA office will either deny the fee waiver request or at its discretion, ask for additional justification from the requester.
(j) FOIA offices may make available their FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request in an effort to reduce fees; however, the FOIA staff may not assist a requester in composing a request, advising what specific records to request, or how to write a request to qualify for a fee waiver.
(a) A request should indicate the fee category. If the requester does not indicate a fee category, or it is unclear to the FOIA office, they will make a determination of the fee category based on the request. If the requester does not agree with their determination, he/she will be afforded the opportunity to provide information to support a different fee category.
(b) If the request is submitted on behalf of another person or organization (e.g., if an attorney is submitting a request on behalf of a client), the fee category will be determined by considering the underlying requester's identity and intended use of the information.
The following table outlines the basic fee categories and applicable fees:
(c) The FOIA provides for three categories of requesters. However, for clarity purposes,
(1) Commercial use requesters. When
(2) Education and non-commercial scientific institution requesters. To be eligible for inclusion in this category, requesters must show that the request being made is authorized by and under the auspices of a qualifying institution and that the records are not being sought for a commercial use (not operated for commerce, trade or profit), but are being sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a noncommercial scientific institution) research. A request for educational purposes must be sent on the Institution's letterhead and signed by the Dean of the School or Department. Records requested for the intention of fulfilling credit requirements are not considered to be sought for a scholarly purpose.
For the purposes of a non-commercial scientific institution, it must be solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry. Requests must be sent on the letterhead of the scientific institution and signed by the responsible official in charge of the project/program associated with the subject of the documents that are being requested.
(3) Representative of the news media.
(a) The requester's intended dissemination,
(b) Whether the information is current news and/or of public interest, and
(c) Whether the information sought will shed new light on agency statutory operations.
A representative of the news media is any person or entity organized and operated to publish or broadcast news to the public that actively 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. Examples of news media entities include television or radio stations that broadcast "news" to the public at large and publishers of periodicals that disseminate "news" and make their products available through a variety of means to the general public. A request for records that supports the news-dissemination function of the requester shall not be considered to be for a commercial use. "Freelance" journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as working for that entity. A publishing contract would provide the clearest evidence that publication is expected; however,
Requesters seeking this fee category who do not articulate sufficient information to support their request will not be included in this fee category. Additionally, FOIA staff may grant a partial fee waiver if the requester can articulate the information above for some of the documents.
(4) All other requesters.
(a) A requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees.
(b) When NASA has reason to believe that a requester or a group of requesters acting in concert is attempting to divide a request into a series of requests on a single subject or related subjects for the purpose of avoiding the assessment of fees,
Payment shall be made by check or money order payable to the "Treasury of
(a) Requesters are advised that should they fail to pay the fees assessed, they may be charged interest on the amount billed starting on the 31st day following the day on which the billing was sent. Interest will be at the rate prescribed in
(b) Applicability of Debt Collection Act of 1982 (Pub. L. 97-365). Requesters are advised that if full payment is not received within 60 days after the billing was sent, the procedures of the Debt Collection Act may be invoked (14 CFR 1261.407-1261.409). These procedures include three written demand letters at not more than 30-day intervals, disclosure to a consumer reporting agency, and the use of a collection agency, where appropriate.
Nothing in this subpart shall be construed to entitle any person to any service or to the disclosure of any record that is not required under the FOIA.
Subpart 6--Commercial Information
(a) Notice shall be given to a submitter whenever the information requested is commercial information and has been designated by the submitter as information deemed protected from disclosure under Exemption 4 of the Act, or the Agency otherwise has reason to believe that the information may be protected from disclosure under Exemption 4. For the purpose of applying the notice requirements, commercial information is information provided by a submitter and in the possession of
(b) A submitter is a person or entity outside the Federal Government from whom the Agency directly or indirectly obtains commercial or financial information. The term submitter includes, but is not limited to corporations, state governments, individuals, and foreign governments.
(c) The notice requirements of
(1) The information has been lawfully published or officially made available to the public; or
(2) Disclosure of the information is required by a statute (other than this part); or
(3) The submitter has received notice of a previous FOIA request which encompassed information requested in the later request, and the Agency intends to withhold and/or release information in the same manner as in the previous FOIA request.
(d) An additional limited exception to the notice requirements of
(1) The Agency would be required to provide notice to over 10 submitters, in which case, notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.
(2) Absent any response to the published notice, the Agency determines that if it provided notice as is otherwise required by
(3) If the submitter expressed the anticipated objections, the Agency would uphold those objections.
(e) The exception shall be used only with the approval of the Chief Counsel of the
(a) Except as provided in
(b) A notice to a submitter must include:
(1) The exact language of the request or an accurate description of the request;
(2) Access to or a description of the responsive records or portions thereof containing the commercial information to the submitter;
(3) A description of the procedures for objecting to the release of the possibly confidential information under
(4) A time limit for responding to the Agency that shall not exceed 10 working days from receipt or publication of the notice (as set forth in
(5) Notice that the information contained in the submitter's objections may itself be subject to disclosure under the FOIA;
(6) Notice that the Agency, not the submitter, is responsible for deciding whether the information shall be released or withheld;
(7) Notice that failing to respond within the timeframe specified under
(c) Whenever the Agency provides notice pursuant to this section, the Agency shall advise the requester that notice and opportunity to comment are being provided to the submitter.
(a) If a submitter has any objections to the disclosure of commercial information, the submitter must provide a detailed written statement to the FOIA office that specifies all factual and/or legal grounds for withholding the particular information under any FOIA exemptions.
(b) The submitter must include a daytime telephone number, an email and mailing address and a fax number if available on a response to the FOIA office.
(c) A submitter who does not respond within the time period specified under this subpart will be considered to have no objection to disclosure of the information.
(d) Responses received by the FOIA office after this time period will not be considered by the FOIA office unless the submitter provides an explanation justifying additional time to respond, which the FOIA office determines to be reasonable, before the end of the 10 working day notification.
(a) The Agency shall carefully consider any objections of the submitter in the course of determining whether to disclose commercial information. The Agency, not the submitter, is responsible for deciding whether the information will be released or withheld.
(b) Whenever the Agency decides to disclose commercial information over the objection of a submitter, the Agency shall forward to the submitter a written statement which shall include the following:
(1) A brief explanation as to why the Agency did not agree with any objections;
(2) A description of the commercial information to be disclosed, sufficient to identify information to the submitter; and
(3) A date after which disclosure is expected, no less than 10 working days after notification to the submitter.
(c) The FOIA office will provide notification regarding a FOIA lawsuit:
(1) To a submitter, when a requester brings suit seeking to compel disclosure of commercial information; or
(2) To a requester, when a submitter brings suit against the Agency in order to prevent disclosure of commercial information.
(a) A member of the public who has requested an Agency record in accordance with
(b) The Appeal must:
(1) Be in writing;
(2) Be addressed to the Administrator, NASA Headquarters, Executive Secretariat,
(3) Be identified clearly on the envelope and in the letter as an "Appeal under the Freedom of Information Act;"
(4) Include a copy of the initial request for the Agency record and a copy of the adverse initial determination along with any other correspondence with the FOIA office;
(5) To the extent possible, state the reasons the adverse initial determination should be reversed; and
(6) Be sent to the Administrator or the Inspector General, as appropriate, within 30 days of the date of the initial determination.
(c) An official authorized to make a final determination may waive any of the requirements of paragraph (b) of this section, in which case the time limit for the final determination (see
(a) Except as provided in
(b) In "unusual circumstances" as defined in
(c) If processing time will exceed or is expected to exceed 30 working days, the appellant will be notified of the delay in processing and the reason for the delay.
(d) If the final determination reverses in whole or in part the initial determination, the record requested (or portions thereof) shall be made available promptly to the requester, as provided in the final determination.
(e) If a reversal in whole or in part of the initial determination requires additional document search or production, associated fees will be applicable in accordance with fee guidance in this regulation.
(f) If the final determination sustains in whole or in part an adverse initial determination, the notification of the final determination shall:
(1) Explain the basis on which the record (or portions thereof) will not be made available;
(2) Include the name and title of the person making the final determination;
(3) Include a statement that the final determination is subject to judicial review under 5 U.S.C. 552(a)(4); and
(4) Enclose a copy of 5 U.S.C. 552(a)(4).
(g) Before seeking a review by a court of a FOIA office's adverse initial determination, a requester must generally submit a timely administrative appeal in accordance with this regulation.
In any instance in which a requester brings suit concerning a request for an Agency record under this part, the matter shall promptly be referred to the General Counsel with a report on the details and status of the request. In such a case, if a determination with respect to the initial FOIA request has not been made, an initial determination shall be made as soon as possible by the FOIA office processing the request after coordinating a release strategy with the General Counsel in each case.
Authority necessary to carry out the responsibilities specified in this subpart is delegated from the Administrator to the officials named in this subpart.
(a) The Associate Administrator,
(b) The Deputy Associate Administrator for Communications has delegated the overall responsibility for developing and administering the FOIA program within
(1) Developing regulations, guidelines, procedures, and standards for the Agency's FOIA program;
(2) Oversight of all FOIA offices and programs and ensuring they are in compliance with FOIA laws and regulations;
(3) Ensuring implementation of the FOIA Programs throughout the Agency and keeping the Chief FOIA Officer and the Deputy Associate Administrator for Communications informed of the Agency's FOIA performance;
(4) Providing program oversight, technical assistance, and training to employees to ensure compliance with the Act;
(5) Preparing the Agency's FOIA Annual Report to the
(6) Preparing all other reports as required to DOJ/
(7) The Principal Agency FOIA Officer has primary responsibility for developing, conducting and reviewing all internal Agency FOIA training for NASA FOIA staff;
(8) Direct supervision of the Headquarters FOIA Office.
The General Counsel is responsible for the interpretation of 5 U.S.C. 552 and of this part, as well as providing legal guidance with regard to disclosure of Agency records. The General Counsel is also responsible for the handling of appeals and litigation in connection with a request for an Agency record under this part.
Except as otherwise provided under this subpart, the Deputy Associate Administrator for Communications is responsible for the following:
(a) Delegating the authority for direct oversight of the Headquarters FOIA Office to the Principal Agency FOIA Officer.
(b) When denying records in whole or in part, ensuring the Headquarters FOIA Office consults with the General Counsel charged with providing legal advice to Headquarters before releasing an initial determination under
Except as otherwise provided in this subpart, in coordination with the Deputy Associate Administrator for Communications, the Director of each NASA Center or the Official-in-Charge of each
(a) The Director of Public Affairs or the Head of the
(b) This delegated authority has further been delegated to the FOIA Officer at their
(c) When denying records in whole or in part, the FOIA Officer at the
(a) The Inspector General or designee is responsible for making final determinations under
(b) The Assistant Inspectors General or their designees are responsible for making initial determinations under Subpart 4 concerning
(c) The Inspector General or designee is responsible for ensuring that requests for Agency records as specified in paragraphs (a) and (b) of this section are processed and initial determinations are made within the time limits specified in Subpart 4 of this part.
(d) The Inspector General or designee is responsible for determining whether unusual circumstances exist under
(e) Records as specified in paragraphs (a) and (b) of this section include any records located at Regional and field Inspector General Offices, as well as records located at the
Subpart 9--Location for Inspection and Request of Agency Records
(a) NASA Headquarters and each NASA Center have a
(b) In addition a requester may submit a FOIA request electronically. The addresses are located on the NASA FOIA homepage under each
NASA FOIA Requester Service Center Addresses
NASA Goddard Space Flight Center,
NASA Management Office--
NASA Marshall Space Flight Center,
[FR Doc. 2014-03450 Filed 2-18-14;
BILLING CODE P
Requester Search fees Review Duplication fees category fees Commercial use Yes Yes Yes. requester Educational and No No Yes (first 100 pages, or non-commercial equivalent volume, without scientific charge). institutions Representative No No Yes (first 100 pages, or of news media equivalent volume, without requester charge). All other Yes (first 2 No Yes (first 100 pages, or requesters hours without equivalent volume, without charge) charge).