[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR2]
[Page 12-24]
TITLE 43--PUBLIC LANDS: INTERIOR
PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT--Table of Contents
Subpart C--Requests for Records under the FOIA
Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.
Sec. 2.7 What do I need to know before filing a FOIA request?
(a) If the records you are seeking are not routinely available as
described in Subpart B of this part, you must submit a FOIA request to
the FOIA Contact at the bureau office where you believe the records are
maintained (see Appendix A to this part). FOIA requests must be
submitted in writing (this includes fax and e-mail)--DOI does not accept
oral FOIA requests. Before submitting a request, you may find it useful
to contact the appropriate bureau FOIA Contact or the Departmental FOIA
Officer for additional information concerning DOI's FOIA Program. You
may find the Department's Reference Guide, which is available
electronically through the FOIA home page and in paper form as well,
helpful in making your request.
(b) The FOIA requires that we release records unless they are
protected by one of nine exemptions (see Appendix E to this part).
(c) The Act does not require a bureau to answer questions that may
be asked in a FOIA request.
(d)(1) In order for a record to be considered subject to your FOIA
request, it must be in the bureau's possession and control at the time
the bureau begins its search for responsive records. There is no
obligation for the bureau to create or compile a record to satisfy a
FOIA request (for example, by combining or compiling selected items from
manual files, preparing a new computer program, calculating proportions,
percentages, frequency distributions, trends and comparisons, or
creating maps). Normally if a bureau is extracting information from an
existing computer database, this would not constitute the creation of a
new record. However, a bureau has the option of creating a new record
if--
(i) Doing so will provide a more useful response to the requester,
(ii) It is less burdensome than providing the existing records, and
(iii) The newly created record is fully responsive to the request.
(2) The fee in this case will not be more than the fee for the
individual records. Fees will be charged consistent with the schedule in
Appendix C to this part.
Sec. 2.8 What information do I include in my request?
(a) Description of records.
(1) You must describe the requested records in enough detail to
enable an employee familiar with the subject area of the request to
locate the record(s) with a reasonable amount of effort. Be as specific
as possible in describing the records you are seeking. For example,
whenever possible:
(i) Identify the date, title or name, author, recipient, and the
subject of the record; the office that created it, the present custodian
of the record and the geographical location (e.g., headquarters or a
regional/field office); the timeframe for which you are seeking records;
and any other information
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that will assist the bureau in locating the material.
(ii) If the request involves a matter in litigation, state the case
name and docket number as well as the court in which the case was filed.
(2) The bureau will not begin processing your request until any
issues regarding the scope or nature of your request are resolved. When
a request is overly broad, unclear, involves an extremely voluminous
amount of records, or a burdensome search, the bureau will contact you
to identify and clarify the records you are seeking. It will work with
you to define the subject matter, clarify terms that are used, or narrow
the scope of your request.
(3) The time limit for responding to your request will not start
until the bureau receives a request reasonably describing the records or
clarifying the initial request. If the bureau asks you for additional
clarification and does not hear from you within 20 workdays, it will
assume that you are no longer interested in pursuing your request and
will close the file on your request.
(b) Fee information.
(1) Unless you request a fee waiver (see paragraph (b)(2) of this
section), you should state that you are willing to pay all fees
associated with processing your request or that you are willing to pay
up to a specified amount. The bureau will not begin processing your
request until this written assurance has been received. If the bureau
anticipates that the fees for processing your request exceed the amount
you have indicated you are willing to pay, the bureau will notify you
that it needs your assurance of payment of fees as high as are
anticipated, or an advance payment (see Sec. 2.18(b) and (c)). If the
bureau does not hear from you within 20 workdays, it will assume that
you are no longer interested in this matter and will close the file on
your request.
(2) You may request a fee waiver. If you are seeking a fee waiver,
you must provide sufficient justification to support your fee waiver
request (see the criteria in Sec. 2.19 and in Appendix D to this part).
Failure to provide adequate justification will result in a denial of
your fee waiver request. Remember that if you are requesting a fee
waiver, the burden is on you to demonstrate in your request that you are
entitled to it. The bureau will not begin processing your request until
the fee issues are resolved. As an option, at the same time you request
a fee waiver you may state your willingness to pay regardless of whether
a fee waiver is granted. This will permit the bureau to process your
request for records at the same time it is considering the fee waiver
request. If you are required to pay a fee, and it is later determined on
appeal that you are entitled to a full or partial fee waiver, an
appropriate refund will be made.
(3) You should indicate what fee category you are in, i.e., if you
are a commercial-use requester, news media, educational institution/
noncommercial scientific institution, or other requester (see Secs. 2.3
and 2.17(a)). If you submit a FOIA request on behalf of another person
or organization (for example, if you are an attorney submitting a
request on behalf of a client), it is the underlying requester's
identity and intended use that determines the fee category. If your fee
category is unclear to the bureau, the 20-workday statutory time limit
for processing your request will not begin to run (see Sec. 2.12(b))
until this matter has been resolved. If the bureau requests additional
clarification and does not hear from you within 20 workdays, it will
assume that you are no longer interested in this matter and will close
the file on your request.
(c) Mailing address information: Your postal address is required for
the bureau to mail any responsive documents to you.
(d) The following information will assist the bureau in processing
your request:
(1) The words ``FOIA REQUEST'' (prominently displayed) on the
request letter and the envelope, or subject line of a request sent via
e-mail or fax, or ``PRIVACY ACT REQUEST'' when requesting records
pertaining to yourself that you believe are covered by the Privacy Act,
as well as citing the appropriate act in your letter;
(2) Your telephone number (where you can be reached during normal
business hours), e-mail address and fax
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number, if available, in case the bureau, or the Department needs to
communicate with you about your request. This information is very
important.
(3) A list of all the bureau FOIA Contacts to which you are sending
your request. For the quickest possible handling, you should address a
separate copy of your request to each bureau FOIA Contact where you
believe the records are maintained.
(4) When making a request for personal records about another
individual, a written authorization from that individual and any other
information required by the Privacy Act system of records notice; or
proof that the individual is deceased (for example, a copy of a death
certificate or an obituary) as the Privacy Act does not apply to a
deceased individual. (Note: Information about a deceased individual may
be subject to protection under exemption (6) of the FOIA if the release
of the information could result in an invasion of the privacy of a
living individual.)
Sec. 2.9 May I specify the form or format of disclosure?
Generally, you may choose the form or format of disclosure for
records that you request under the FOIA (5 U.S.C. 552(a)(3)(B)). Bureaus
must provide the record in the requested form/format if the office
responding to the request can readily reproduce the record in that form/
format with reasonable efforts. However, if the process of providing the
information in the requested format would damage or destroy an original
document, it may not be possible to honor your format request. Bureaus
must make reasonable efforts to maintain their records in forms or
formats that are reproducible. You may be charged the direct costs
involved in converting information to the requested format if the bureau
normally does not maintain the information in that format.
Sec. 2.10 Where do I send my request?
(a) DOI does not have a central location where you may submit your
FOIA request nor does it maintain a central index or database of
documents in its possession. DOI's files are decentralized and are
maintained by various bureau offices throughout the country.
(b) Submit your request in writing to the FOIA Contact at the bureau
office where you believe the records are maintained. If it is unclear
where to send your request, seek assistance from the FOIA Contact of the
bureau that manages the programs whose records you are requesting or the
Departmental FOIA Officer. You may have to do a little research to find
the proper office to handle your inquiry, but you will save time in the
long run if you send your request directly to the FOIA Contact at the
appropriate bureau office. The bureau will process your request as
follows:
(1) A request to a bureau headquarters office may be presumed to
seek only records from the headquarters office, unless the request
specifies otherwise.
(2) A request to a regional/field office of a bureau may be presumed
to seek only records at that office, unless the request specifies
otherwise.
(3) If a request to a bureau states that it seeks records located at
another specific office of the same bureau, the appropriate FOIA Contact
will refer the request to the other office. If the request states that
it seeks records from other unspecified offices within the same bureau,
the FOIA Contact will send the request to the Bureau FOIA Officer who
will refer it to those offices that, to the best of his/her knowledge,
have or are likely to have responsive records.
(4) If a request to a bureau states that it seeks records of another
specified bureau, the bureau will refer the request to the appropriate
bureau for response. If the request states that it seeks records from
other unspecified bureaus, the FOIA Contact will send the request to the
Bureau FOIA Officer who will ensure that the request is referred to
those bureaus which, to the best of his/her knowledge, have or are
likely to have responsive records. In either case, the Bureau FOIA
Officer will notify you of the referral in writing and provide the name
of a contact in the other bureau(s) to which the referral was made.
[[Page 15]]
Sec. 2.11 Why is it important to send my request to the right office?
The bureau and office FOIA Contacts listed in Appendix A to this
part have primary responsibility for responding to FOIA requests.
Failure to send your request to the FOIA Contact at the appropriate
bureau office may delay processing, because the time limit for the
bureau to respond will not begin to run until a request complying with
Secs. 2.8 and 2.10 is received by the bureau office where the records
are maintained. The processing of your request may be delayed if you
send it to the Secretary of the Interior (or other high-level
officials), the Office of Public Affairs/Communications, the DOI FOIA
Officer, or the Department/bureau's webmaster.
Sec. 2.12 When can I expect the response?
(a) Basic time limit. Ordinarily, a bureau has 20 workdays from the
date of receipt to determine whether to grant or deny your FOIA request
(see paragraph (b) of this section). The bureau will notify you
immediately upon reaching its decision. If you have not received a
response within 20 workdays, or 30 workdays if an extension has been
taken (see Sec. 2.13) (be sure to allow for mailing time), you may
contact the bureau to ask about the delay (see Appendix A to this part).
You also have the right to consider any nonresponse within these time
limits as a denial of records and file a formal appeal (see
Sec. 2.28(a)(3)) or lawsuit. These time limits do not apply to requests
for expedited processing (see Sec. 2.14).
(b) Running of basic time limit. The 20 workday time limit begins to
run when a request complying with the procedures in Secs. 2.8 and 2.10
is received by the FOIA contact at the bureau office that has the
records you are seeking. This means that all issues regarding fees and
the scope of your request must be resolved before the bureau will begin
processing your request.
Sec. 2.13 When may the bureau take a time extension to respond to my
request?
(a) The bureau may extend the 20-workday time limit for 10 more
workdays when it needs to:
(1) Search for and collect the requested records from multiple
offices; or
(2) Search for, collect, and examine a voluminous amount of separate
and distinct records sought in a single request; or
(3) Consult with another agency having a substantial interest in the
determination of the request or with one or more bureaus of the
Department having substantial subject-matter interest in the request.
(b) If the bureau intends to take an extension under this
subsection, it will notify you in writing and provide the reason for the
extension and the date it expects to make a determination on your
request.
(c) If an extension is necessary and the bureau is unable to respond
to your request within 30 workdays, it will notify you in writing when
you may expect a final response and advise you of your appeal rights. If
an extension is taken and you have not received a response in 30
workdays, you may consider the request denied and file an appeal under
Sec. 2.28(a)(3) or file a lawsuit.
(d) A bureau may not take an extension of time to decide whether to
grant a request for a fee waiver.
Sec. 2.14 When can I get expedited processing?
(a) When requested, a bureau will provide expedited processing if
you demonstrate to the satisfaction of the bureau that the request
involves:
(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) An urgency 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. In most situations, a person
primarily engaged in disseminating information will be a representative
of the news media. The requested information must be the type of
information which has particular value that will be lost if not
disseminated quickly, and ordinarily
[[Page 16]]
refers to a breaking news story of general public interest. However,
information of historical interest only, or information sought for
litigation or commercial activities would not qualify, nor would a news
media deadline unrelated to breaking news; or
(3) The loss of substantial due process rights.
(b) A request for expedited processing should be submitted with your
FOIA request. For a prompt determination, you must submit a request
complying with the requirements of Secs. 2.8 and 2.10 to the FOIA
Contact at the bureau office that maintains the records you are seeking.
(c) If you are seeking expedited processing, you must submit a
statement explaining in detail the basis for your request. You must
certify in your letter that your need for expedited processing is true
and correct to the best of your knowledge and belief. For example, a
requester within the category of paragraph (a)(2) of this section, if
not a full time member of the news media, must establish that he or she
is a person whose main professional activity or occupation is
information dissemination, though it need not be his/her sole
occupation.
(d) Within 10 calendar days of receipt of your request, the bureau
will notify you whether it will grant expedited processing. If expedited
processing is granted, the bureau will give priority to that FOIA
request and process the request as soon as practicable. If expedited
processing is denied, the bureau will notify you of your right to appeal
the decision on expedited processing. Appeals of denials of requests for
expedited processing will be processed ahead of other appeals (see
Sec. 2.32(b)). If the bureau has not responded to your request for
expedited processing within 10 calendar days, you have a right to file
an appeal for nonresponse (see Sec. 2.28(a)(7)).
Sec. 2.15 Will I be charged fees?
Bureaus will charge fees consistent with the provisions in
Secs. 2.16 and 2.17. The fee schedule in Appendix C to this part applies
to all bureaus of the Department.
Sec. 2.16 How are fees determined?
(a) Authority. Bureaus are authorized to charge fees to recover the
direct costs of searching for, reviewing (commercial-use requesters
only) and duplicating documents to respond to a FOIA request. However,
nothing in this subsection will supersede any statutory authority which
requires the bureau to charge specific fees for certain types of
records.
(b) Policy. (1) Unless waived under the criteria in Secs. 2.19 or
2.20, bureaus will charge fees for responding to FOIA requests
consistent with the provisions of this section and the fee schedule in
Appendix C.
(2) A bureau normally will not charge a fee where the fee would be
$30 or less. However, if the bureau has a reasonable basis to conclude
that a requester or group of requesters has divided a request into a
series of requests on a single subject or related subjects to avoid
fees, the requests may be aggregated and fees charged accordingly.
Bureaus may presume that multiple requests of this type that are made
within a 30-day period have been made in order to avoid fees. Where
requests are separated by a longer period, bureaus will aggregate them
only where there exists a solid basis for determining that aggregation
is warranted under all the circumstances involved. Multiple requests
involving unrelated matters will not be aggregated.
(3) Where a bureau responds to a request on behalf of more than one
bureau, the fees that would be chargeable by all bureaus involved will
be considered in determining whether the total FOIA processing fee is
$30 or less. If a bureau is responding on behalf of more than one
bureau, and you fall under one of the fee categories in Sec. 2.17(a)(2)
or (a)(3), you will be entitled to receive up to a total of 100 pages of
duplication without charge (there is no charge for searching for
responsive records). If a bureau is responding on behalf of more than
one bureau, and you fall under the fee category in Sec. 2.17(a)(4), you
will be entitled to receive up to a total of 100 pages of duplication
and two hours of search time without charge.
(4) If a bureau obtains research data solely in response to your
FOIA request, it may charge you a reasonable
[[Page 17]]
fee equaling the full cost of obtaining the research data from the
recipient.
(c) Searches. Searches will be conducted in the most efficient and
least expensive manner, so as to minimize costs for both you and the
bureau. Except where provided in Secs. 2.17(a)(2) and (a)(3), bureaus
will charge for time spent in the following search activities:
(1) Time spent in trying to locate records which come within the
scope of the request, whether or not documents responsive to the request
are located or the records located are exempt from disclosure; and
(2) Direct costs involving the use of computer time to locate
requested records.
(d) Reviews (Commercial-use requests only). (1) Bureaus will charge
commercial-use requesters (see Sec. 2.17(a)(1)) for time spent by bureau
staff and attorneys in reviewing requested records for releasability.
(See Sec. 2.3(e).)
(2) Review costs will be assessed even if a record ultimately is not
disclosed.
(e) Duplication. Bureaus will charge duplication fees according to
the fee schedule in Appendix C to this part.
(f) Categories of requesters. There are four categories of
requesters for the purposes of determining fees--commercial-use,
educational and noncommercial scientific institutions, news media, and
all others. (See Secs. 2.3 and 2.17.)
Sec. 2.17 How will my requester category affect the fees that I am
charged?
(a) When you submit a FOIA request, you must specify your fee
category. Based on the information you provide, the bureau office
processing your request will decide your fee category and charge as
follows:
(1) Commercial-use requesters are charged fees for costs incurred in
document search, review, and duplication.
(2) Educational/noncommercial scientific institutions are charged
for document duplication, except that the first 100 pages of paper
copies (or the equivalent cost thereof if the records are in some other
form) will be provided without charge. The bureau will not charge such
requesters for document search and review.
(3) News media requesters are charged for document duplication,
except that the first 100 pages of paper copies (or the equivalent cost
thereof if the records are in some other form) will be provided without
charge. The bureau will not charge such requesters for document search
and review.
(4) Requesters not covered by paragraphs (a)(1) through (a)(3) of
this section--``other requesters'' are charged fees for document search
and duplication, except that they are entitled to the first two hours of
search time and the first 100 pages of paper copies without charge (or
the equivalent cost thereof if the records are in some other form). The
bureau will not charge such requesters for document review.
(b) If you do not submit sufficient information in your FOIA request
for the bureau to determine your fee category (see paragraphs (a)(1)
through (a)(4) of this section), the bureau may ask you to provide
additional clarification. This applies to all requesters. The bureau
will notify you promptly when additional information is needed. In these
circumstances, the 20-workday statutory time limit for responding to
your request will not begin to run until you provide sufficient
information. If the bureau requests additional clarification and does
not hear from you within 20 workdays, it will assume that you are no
longer interested in this matter and will close the file on your
request.
(c) The following table summarizes the chargeable fees for each
category of requester.
----------------------------------------------------------------------------------------------------------------
Category Search fees Review fees Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial Use.................. Yes..................... Yes..................... Yes
Educational Institution.........
Non-Commercial Scientific No...................... No...................... Yes
Institution. (100 pages free)
News Media......................
All Other....................... Yes..................... No...................... Yes
(2 hours free).......... (100 pages free)
----------------------------------------------------------------------------------------------------------------
[[Page 18]]
Sec. 2.18 How are fees assessed and collected?
(a) Threshold for charging fees. Except in those situations covered
by Sec. 2.16(b)(2), the bureau will not charge you if the fee is $30 or
less.
(b) Notice of anticipated fees. (1) Unless you have been granted a
fee waiver or have previously agreed to pay all the fees associated with
your request, or the anticipated fee is $30 or less, the bureau will:
(i) Promptly notify you of the estimated costs and ask you to
provide written assurance of payment of all fees or fees up to a
designated amount; and
(ii) Give you an opportunity to modify your request at that time to
reduce the fee.
(2) After the bureau begins processing your request, if it finds
that the actual cost will exceed the amount you previously agreed to
pay, the bureau will:
(i) Stop processing your request;
(ii) Promptly notify you of the higher amount and ask you to provide
written assurance of payment; and
(iii) Give you an opportunity to modify your request to reduce the
fee.
(c) Advance payment. (1) The bureau will require advance payment
when the estimated fee is over $250 and--
(i) You have never made a FOIA request to DOI requiring you to pay
fees; or
(ii) You did not pay a previous FOIA fee promptly.
(2) If you have previously failed to pay a fee within 30 calendar
days of the date of billing, the bureau will require you to:
(i) Pay the full amount owed plus any applicable interest penalties
(see paragraph (g) of this section) and to make an advance payment of
the full amount of the estimated fee of the new request; or
(ii) Demonstrate that you have, in fact, paid the prior fee.
(3) At the same time the bureau notifies you that an advance payment
is due, it will give you an opportunity to modify your request to reduce
the fee.
(d) Resolving the fee issue. The bureau will not start processing
your request until the fee issue has been resolved (see Secs. 2.8(b) and
2.12(b)). If the bureau seeks clarification from you about a fee issue
and does not hear from you within 20 workdays, it will assume that you
are no longer interested in this matter and will close the file on your
request.
(e) Billing procedures. If you are required to pay a fee associated
with your request, the bureau that processes your request will send you
a bill for collection.
(f) Form of payment. You should submit a check or money order made
payable to the ``Department of the Interior'' or the bureau furnishing
the information. The term United States or the initials ``U.S.'' should
not be included on the check or money order. Where appropriate, the
official responsible for handling a request may require that payment by
check be made in the form of a certified check. Some bureaus accept
payment by credit card. Contact the bureau to determine what forms of
payment it accepts.
(g) Failure to pay fees. The bill for collection or the response
letter will include a statement that interest will be charged in
accordance with the Debt Collection Act of 1982, as amended (31 U.S.C.
3717) and implementing regulations, if the fees are not paid within 30
calendar days of the date of the bill. This requirement does not apply
if the requester is a state, local, or tribal government.
Sec. 2.19 When will bureaus waive fees?
(a) Fees for processing your request may be waived if you meet the
criteria listed in paragraph (b) of this section and Appendix D to this
part. The burden is on you to justify entitlement to a fee waiver.
Requests for fee waivers are decided on a case-by-case basis. The fact
that you have received a fee waiver in the past does not mean you are
automatically entitled to a fee waiver for every request you may submit,
because the essential element of any fee waiver determination is whether
the release of the particular documents sought in the request will
likely contribute significantly to public understanding of the
operations or activities of the Government. The bureau will rely on the
fee waiver justification you have submitted in your request letter. If
you do not submit sufficient justification, your fee waiver request
[[Page 19]]
will be denied. The bureau may, at its discretion, communicate with you
to request additional information if necessary. However the bureau must
make a determination on the fee waiver request within the statutory time
limit, even if the agency has not received such additional information.
In certain circumstances, a partial fee waiver may be appropriate, if
some, but not all, of the requested records are likely to contribute
significantly to public understanding of the operations and activities
of the Government.
(b) Bureaus will waive fees (in whole or part) if disclosure of all
or part of the information is in the public interest because its
release--
(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.
(c) If a bureau denies your request for a fee waiver, it will notify
you, in writing, of the following:
(1) The basis for the denial, including a full explanation of why
your fee waiver request did not meet DOI's fee waiver criteria (see
paragraph (b) of this section and Appendix D to this part);
(2) The name(s) and title(s) or position(s) of each person
responsible for the denial;
(3) The name and title of the Office of the Solicitor attorney
consulted; and
(4) A statement that the denial may be appealed within 30 workdays
after the date of the denial letter to the FOIA Appeals Officer (see
Appendix A to this part) under the procedures in Sec. 2.30.
Sec. 2.20 When will bureaus grant discretionary fee waivers?
(a) A bureau may waive fees at its discretion if a request involves:
(1) Furnishing a copy of a document that the bureau has reproduced
for free distribution;
(2) Furnishing one copy of a personal document (e.g., a birth
certificate) to a person who has been required to furnish it for
retention by the Department;
(3) Furnishing one copy of the transcript of a hearing before a
hearing officer in a grievance or similar proceeding to the employee for
whom the hearing was held;
(4) Furnishing records to donors with respect to their gifts;
(5) Furnishing records to individuals or private nonprofit
organizations having an official, voluntary or cooperative relationship
with the Department to assist the individual or organization in working
with the Department;
(6) Furnishing a reasonable number records to members of the U.S.
Congress, state, local, and foreign governments, public international
organizations, and Indian tribes, when to do so without charge is an
appropriate courtesy, or when the recipient is carrying on a function
related to that of the Department and to do so will help to accomplish
the work of the Department;
(7) Furnishing records when to do so is in conformance with
generally established business custom (e.g., furnishing personal
reference data to prospective employers of former Department employees);
or
(8) Furnishing one copy of a single record in order to assist the
requester in obtaining financial benefits to which he or she may be
entitled (e.g., veterans or their dependents, employees with Government
employee compensation claims).
(b) You cannot appeal the denial of a discretionary fee waiver.
Sec. 2.21 How will the bureau respond to my request?
(a) After all the criteria in Secs. 2.8 and 2.10 have been met, the
bureau will make a reasonable effort to search for records responsive to
your request. In determining which records are responsive to your
request, the bureau will include any records in its possession and
control as of the date it begins its search. This will include searching
for records in an electronic form/format, except where it would
interfere significantly with the bureau's automated information systems.
(b) In response to your request, the bureau will do one of two
things:
(1) Include the requested records with the response letter or notify
you of how, when, and where the records will be made available; or
[[Page 20]]
(2) Deny part or all of your request, except that the bureau may,
consistent with Departmental policy, determine that a discretionary
release is appropriate under the particular circumstances. Your request
will be denied or partially denied only if one of the nine statutory
exemptions listed in Appendix E to this part applies to all or part of
the records you have requested.
(c) Where a document contains both exempt and nonexempt material,
the bureau will generally separate and release the nonexempt
information. When disclosing a record in part, the bureau will indicate
on the released portion of the record how much information was deleted,
unless doing so would harm an interest protected by the exemption used
to withhold the information. Further, if technically feasible, the
amount of information deleted and the exemption used to withhold the
information will be indicated where the deletion is made. If the
nonexempt material is so intertwined with the exempt material that
disclosure of it would leave only meaningless words and phrases, the
entire portion may be withheld.
(d) If a bureau denies your request for records in whole or in part,
the bureau's response will include:
(1) A reference to the specific exemption or exemptions authorizing
the withholding;
(2) An explanation of the reason(s) for the denial;
(3) An estimate of the volume of information being withheld. The
bureau will make a reasonable effort to estimate the volume of any
records denied, or portions of records (e.g., 100 pages, 4 Federal
Record Center boxes, 1,000 kilobytes, etc.), unless such an estimate
would harm an interest protected by the exemption used to withhold the
information.
(4) The name(s) and title(s) of the person(s) responsible for the
denial;
(5) The name and title of the Office of the Solicitor attorney
consulted; and
(6) A statement that the denial may be appealed to the FOIA Appeals
Officer (see Appendix A to this part), within 30 workdays of the date of
the denial letter or 30 workdays after the records have been released
under the procedures in Sec. 2.30.
(e) If records do not exist within DOI, cannot be located, are not
reasonably described, or if a procedural issue remains unresolved (e.g.,
a fee issue), the bureau will respond to you in writing, including the
following information, as applicable:
(1) An explanation of the basis of the decision;
(2) The name(s) and title(s) of the person(s) responsible for the
decision; and
(3) A statement that the matter may be appealed within 30 workdays
of the date of the response, to the FOIA Appeals Officer under the
procedures in Sec. 2.30.
(f) The bureau must consult with the Office of the Solicitor if it
is considering withholding a requested record or denying a fee waiver.
(g) If any fees are due, the bureau will notify you in writing of
the amount.
(h) All bureau responses will include the name and telephone number
of a contact person in case you have questions concerning the response.
(i) Requests for information concerning coal under the Mineral
Leasing Act or the Mineral Leasing Act for Acquired Lands are subject to
special rules (see Appendix F to this part).
Sec. 2.22 What happens if a bureau receives a request for records it
does not have or did not create?
(a) Consultations/referrals within DOI. (1) If a bureau receives a
request for records not in its possession, but which it knows another
bureau has or is likely to have, it will refer the request to that
bureau(s) for response. It also will notify you of the referral in
writing and provide the name of a contact in the other bureau(s) to
which the referral was made. The time limit for responding to your
request starts when the request reaches the bureau office that has the
records.
(2) If a bureau (other than the Office of Inspector General)
receives a request for records in its possession that another bureau
created or is substantially concerned with, it will consult with the
other bureau before deciding whether to release or withhold the
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records. As an alternative, the bureau may refer the request along with
the records to that bureau for direct response. It will notify you of
the referral in writing and provide the name of a contact in the other
bureau(s) to which the referral was made. Such a referral does not
restart the statutory time limit for responding to your request.
(b) Consultations/referrals with agencies outside DOI. (1) If a
bureau receives a request for records not in its possession, but which
the bureau believes may be in the possession of another Federal agency,
the bureau will return your request and advise you to submit it directly
to the other agency. If you still believe that the records exist within
DOI, you should notify the bureau FOIA contact of any additional
information which leads you to believe the records exist and where they
might be found. Alternatively, you may treat such a response as a denial
of records and file an appeal.
(2) If, in response to a request, a bureau locates documents that
originated with another Federal agency, it will refer the request, along
with any responsive document(s), to that agency for a release
determination and direct response. If the bureau refers the documents to
another agency, it will notify you of the referral in writing and
provide the name of a contact at the other agency. However, in the
following situations, the bureau will make the release determination,
after consulting with the originating agency:
(i) When the record is of primary interest to DOI (a record is of
primary interest to DOI if it was developed or prepared according to DOI
regulations or directives, or in response to a DOI request);
(ii) If DOI is in a better position than the originating agency to
assess whether the record is exempt from disclosure;
(iii) If the originating agency is not subject to the FOIA; or
(iv) When it is more efficient or practical depending on the
circumstances.
(3) If a bureau receives a request for records which have been
classified by another agency under Executive Order 12958, Classified
National Security Information, or superseding Executive order, it must
refer the request to that agency for response.
Sec. 2.23 How will a bureau handle a request for commercial or
financial information that it has obtained from a person or
entity outside the Federal Government?
(a) If a bureau receives a FOIA request for records containing
commercial or financial information submitted by a person or entity
outside the Federal Government, under Executive Order 12600,
Predisclosure Notification Procedures for Confidential Commercial
Information, or superseding Executive order, the bureau must provide the
submitter with prompt written notice of the request, except as provided
in paragraph (h) of this section, whenever:
(1) The submitter has designated the information as confidential
commercial or financial information, or
(2) The bureau has reason to believe that the information may be
protected under exemption (4).
(b) The notice to the submitter will--
(1) Include a copy of the FOIA request.
(2) Describe the information requested or include copies of the
pertinent records.
(3) Advise the submitter of the procedures for objecting to the
release of the requested material and specify the time limit for
responding.
(4) Give the submitter no less than 10 workdays, from receipt (or
publication as set forth in paragraph (c) of this section) of the
bureau's notice, to object to the release and to explain the basis for
the objection, if any.
(5) Advise the submitter that:
(i) Information contained in his/her objections may be subject to
disclosure under the FOIA if the bureau receives a FOIA request for it;
and
(ii) If the submitter's objections contain commercial or financial
information and a requester asks for the objections under the FOIA, the
notification procedures of this subsection will apply.
(6) Advise the submitter that it is the bureau, rather than the
submitter, that is responsible for deciding whether the information will
be released or withheld.
(7) If the submitter designated the material as confidential
commercial or
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financial information 10 or more years before the request, request the
submitter's views on whether he/she still considers the information to
be confidential.
(c) Where a large number of submitters is involved, the bureau may,
rather than providing written notice to each submitter, publish a notice
in a manner reasonably calculated to reach the attention of the
submitters (e.g., in newspapers/newsletters, the bureau's Web site, or
the Federal Register).
(d) Whenever a bureau notifies a submitter that he/she may be
required to disclose information in response to a FOIA request, it also
will notify you that it is giving the submitter an opportunity to review
and comment on the material.
(e) If the submitter has any objection to disclosure he/she must
submit a detailed written statement including the following:
(1) The justification for withholding any portion of the information
under any exemption of the FOIA. In the case of exemption (4), there
must be a specific and detailed discussion of:
(i) Whether the Government required the information in question to
be submitted, and if so, how substantial competitive or other business
harm would likely result from release; or
(ii) Whether the submitter provided the information voluntarily and,
if so, how the information in question fits into a category of
information that the submitter customarily does not release to the
public.
(2) A certification that the information is confidential, has not
been disclosed to the public by the submitter, and is essentially non-
public because it is not routinely available to the public from other
sources.
(3) If not already provided, a telephone number (where the submitter
can be reached during normal business hours, an e-mail address and a fax
number (if available). This information is very important to help the
bureau or Department communicate with the submitter.
(f) The bureau will review and consider all objections to release
that are received within the time specified in the notice to the
submitter. However, it is the bureau, rather than the submitter, that is
responsible for deciding whether the information should be released or
withheld. If a submitter fails to respond to the bureau within the time
limits specified in the notice, the bureau will presume that the
submitter has no objection to disclosure of the information.
(g) If the bureau decides to release records over the submitter's
objections, it will inform the submitter and you in writing. The notice
to the submitter will be sent by certified mail, return receipt
requested, to the submitter's last known address and will include copies
of the records the bureau intends to release and the bureau's reasons
for deciding to release them. The notice also will inform the submitter
that it intends to release the records 10 workdays after receipt of the
notice by the submitter.
(h) The bureau will not consult with the submitter if:
(1) The bureau responsible for the decision determines that the
information is exempt from disclosure;
(2) The information has been lawfully published or otherwise made
available to the public, such as in response to an earlier FOIA request
or if the submitter has made the information public;
(3) Disclosure of the information is required by statute (other than
the FOIA) or regulation (other than this subpart);
(4) Disclosure of the information is prohibited by statute; or
(5) The designation of confidentiality made by the submitter appears
obviously frivolous. However, the bureau will notify the submitter of
any final decision to disclose the information 15 workdays prior to
releasing it.
(i) The bureau will inform the submitter within 10 workdays of the
Department's receipt of a court complaint if you file a lawsuit for
access to any of the withheld records. Similarly, the bureau will notify
you within 10 workdays of the Department's receipt of a court complaint
if the submitter files a lawsuit to prohibit the bureau from disclosing
the records.
(j) If the bureau determines that the requested information is
protected from release by exemption (4) of the FOIA, the bureau has no
discretion to
[[Page 23]]
release the information as doing so would violate the Trade Secrets Act,
a criminal provision found at 18 U.S.C. 1905.
Sec. 2.24 Is a submitter required to designate information that is
commercially or financially sensitive?
No. If in the course of responding to a FOIA request, a bureau
cannot readily determine whether the information obtained from a person
is commercially or financially sensitive information, the bureau will
obtain and consider the views of the submitter of the information and
provide the submitter an opportunity to object to any decision to
disclose the information.
Sec. 2.25 How will a bureau handle a request for Federally-funded
research data in the possession of a private entity?
When published research findings are produced under a grant or other
Federal assistance, and the findings are used by a bureau in developing
an agency action, e.g., a policy or regulation, research data related to
such findings are considered agency records even if they are in the
possession of the recipient of the Federal financial assistance
(recipient).
(a) If you submit a FOIA request for such research data, the bureau
will require the recipient to provide the information to it within a
reasonable amount of time, so the bureau can consider the data for
release to the public under the FOIA.
(b) The bureau will notify you that it may charge you for any
additional fees incurred as a result of obtaining the research data from
the recipient. This fee is in addition to any fees the bureau may charge
to process your request under the FOIA.
(c) The bureau will forward a copy of the request to the recipient,
who is responsible for searching for and reviewing the requested
information in accordance with DOI's FOIA regulations (43 CFR part 2).
The recipient will forward a copy of any responsive records that are
located, along with his/her recommendations concerning the releasability
of the data, and the total cost incurred in searching for, reviewing,
and providing the data to the appropriate bureau FOIA contact.
(d) The bureau will review and consider the recommendations of the
recipient regarding the releasability of the requested data. However, it
is the bureau, rather than the recipient, that is responsible for
deciding whether the information will be released or withheld.
Sec. 2.26 Does the bureau provide multitrack processing of FOIA
requests?
(a) A bureau may use two or more processing tracks to distinguish
between simple and complex requests based on the amount of work and/or
time needed to process the request, including the number of pages
involved.
(b) If a bureau uses multitrack processing, it will advise
requesters in its slower track(s) of the criteria of its faster
track(s). For example, a bureau using multitrack processing may provide
requesters in its slower track(s) with an opportunity to limit the scope
of their requests in order to qualify for faster processing within the
specified limits of the bureau's faster track(s). A bureau doing so will
contact the requester by telephone or in writing, whichever is more
efficient in each case.
Sec. 2.27 How will a bureau handle a request for information that is
contained in a Privacy Act system of records? (See DOI's
Privacy Act regulations (Subpart G of this part) for
additional information.)
(a) When you request information pertaining to yourself that is
contained in a Privacy Act system of records applicable to you (i.e.,
the information contained in the system of records is retrieved by the
bureau using your name or other personal identifier), the request will
be processed under both the FOIA and the Privacy Act. If you request
information about yourself, you must submit certain identifying
information, usually an original signature (see the appropriate Privacy
Act system notice and, Subpart G of this part) before the bureau will
process your request. (Note: If you request information about yourself
that is not covered by the Privacy Act, e.g., the information may be
filed under another
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subject, such as an organization, activity, event, or an investigation
not retrievable by a name or personal identifier, the request will be
treated only as a FOIA request.)
(b) The Privacy Act never prohibits disclosure of material that the
FOIA requires to be released. Both a Privacy Act and a FOIA exemption
must apply to withhold information from you if the information you seek
is contained in a Privacy Act system of records applicable to you.
(c) Sometimes a request for Privacy Act information is submitted by
a ``third party'' (an individual other than the person who is the
subject of the Privacy Act record). If you request Privacy Act
information about another individual, the material will not be disclosed
without prior written approval by that individual unless--
(1) The release is provided for under one of the Privacy Act
conditions of disclosure (5 U.S.C. 552a(b)), one of which is that
Privacy Act information is releasable if it is required to be released
under the FOIA, or
(2) In most circumstances, if the individual is deceased. See
Sec. 2.8(d)(4).
(d) In handling a request covered by paragraph (a) of this section,
the fee provisions and time limits under the FOIA will apply, except
that with regard to information that is subject to the Privacy Act, the
bureau will charge only for duplication and not for search and review
time (see Appendix C to this part). There will be no charge if the fee
for processing the request is $30 or less.
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