[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 24-26]
TITLE 43--PUBLIC LANDS: INTERIOR
PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT--Table of Contents
Subpart D--FOIA Appeals
Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.
Sec. 2.28 When may I file an appeal?
(a) You may file an appeal when:
(1) Records or parts of records have been withheld;
(2) The bureau informs you that you have not adequately described
the records you are seeking, or that it does not possess responsive
records and you have reason to believe it does or you question the
adequacy of the bureau's search for responsive records;
(3) A decision has not been made on your request within the time
limits provided in Sec. 2.12;
(4) The bureau did not address all aspects of your request for
records;
(5) You believe there is a procedural deficiency (e.g., fees are
improperly calculated);
(6) A fee waiver has been denied; or
(7) A request for expedited processing has been denied or not
responded to on time. (Special procedures apply to this type of appeal
(see Secs. 2.14, 2.29(c), and 2.32(b)). An appeal of this type relates
only to the request for expedited processing and does not constitute an
appeal of your underlying request for records.
(b) Before filing an appeal, you may wish to communicate with the
contact person listed in the FOIA response or the bureau's FOIA Officer
to see if the issue can be resolved informally. Informal resolution of
your concerns may be appropriate where the bureau has not responded to
your request or where you believe the search conducted was not adequate.
In this latter instance, you may be able to provide additional
information that may assist the bureau in locating records. However, if
you wish to file an appeal, it must be received by the FOIA Appeals
Officer within the time limits in Sec. 2.29.
Sec. 2.29 How long do I have to file an appeal?
(a) Appeals covered by Secs. 2.28(a)(1), (2), and (4) thru (6). Your
appeal must be received by the FOIA Appeals Officer no later than 30
workdays after the date of the final response or 30 workdays after
receipt of any records that are provided to you.
(b) Appeals covered by Sec. 2.28(a)(3). You may file an appeal any
time after the time limit for responding to your request has passed.
(c) Appeals covered by Sec. 2.28(a)(7). You should file an appeal as
soon as possible.
Sec. 2.30 How do I file an appeal?
(a) You must submit your appeal in writing, i.e., by mail, fax or e-
mail, to the FOIA Appeals Officer, U.S. Department of the Interior (see
Appendix A
[[Page 25]]
for the address). Your appeal must include the information specified in
paragraph (b) of this section. Failure to send your appeal directly to
the FOIA Appeals Officer may result in a delay in processing.
(b) Your appeal must contain copies of all correspondence between
you and the bureau, including your request and the bureau's response (if
there is one). DOI will not begin processing your appeal and the time
limits for responding to your appeal will not begin to run until these
documents are received.
(c) You also should include in as much detail as possible any
reason(s) why you believe the bureau's response was in error.
(d) Include your name and daytime telephone number (or the name and
telephone number of an appropriate contact), e-mail address and fax
number (if available), in case DOI needs additional information or
clarification of your appeal.
(e) If you file an appeal concerning a fee waiver denial or a denial
of expedited processing, you should, in addition to complying with
paragraph (b) of this section, demonstrate fully how the criteria in
Sec. 2.19(b) (see Appendix D) or Sec. 2.14(a) are met. You also should
state in as much detail as possible why you believe the initial decision
was incorrect.
(f) All communications concerning your appeal should be clearly
marked with the words: ``FREEDOM OF INFORMATION APPEAL.''
Sec. 2.31 How will DOI respond to my appeal?
(a) Appeals will be decided by the FOIA Appeals Officer. When
necessary, the FOIA Appeals Officer will consult other appropriate
offices, including the Office of the Solicitor (in the case of all
denials of information and fee waivers, and other technical issues as
necessary).
(b) The final decision on an appeal will be in writing and will
state the basis for DOI's decision as follows:
(1) Decision to release or withhold records. (i) If the FOIA Appeals
Officer decides to release the withheld records or portions thereof, he/
she will make the records available or instruct the appropriate bureau
to make them available as soon as possible.
(ii) If the FOIA Appeals Officer decides to uphold in whole or part
the denial of a request for records, he/she will advise you of your
right to obtain judicial review.
(2) Non-possession of records. If the FOIA Appeals Officer decides
that the requested records exist, the bureau that has the records will
issue a response to you promptly and the FOIA Appeals Officer will close
the file on your appeal. If the FOIA Appeals Officer decides that the
requested records cannot be located or do not exist, he/she will advise
you of your right to treat the decision as a denial and seek judicial
review.
(3) Non-response to a FOIA request. If a bureau has not issued an
appropriate response to your FOIA request within the 20-workday
statutory time limit, the FOIA Appeals Officer will direct the bureau to
issue a response directly to you as soon as possible. If the bureau
responds to your request within 20-workdays after receipt of the appeal,
the FOIA Appeals Officer will close the file on your appeal. Otherwise,
the FOIA Appeals Officer will advise you that you may treat the lack of
a response by the bureau as a denial of your appeal and seek judicial
review.
(4) Incomplete response to a FOIA request. If a bureau has not
issued a complete response to your FOIA request, the FOIA Appeals
Officer will direct the bureau to issue a complete response directly to
you as soon as possible, and provide you with the name and telephone
number of a contact person. The FOIA Appeals Officer will close your
FOIA appeal and advise you that you may treat the incomplete response by
the bureau as a denial of your appeal and seek judicial review.
(5) Procedural deficiencies. If the FOIA Appeals Officer decides
that the bureau was in error, he/she will instruct the bureau to correct
the error and advise you accordingly. If the FOIA Appeals Officer
decides that the bureau acted properly, he/she will deny your appeal and
advise you of your right to seek judicial review.
(6) Fee waiver denials. If the decision is to grant your request for
a fee waiver, the FOIA Appeals Officer will advise
[[Page 26]]
the appropriate bureau of the Department's decision and instruct the
bureau to proceed with processing the request or to refund any monies
you have paid. If the decision is to deny the fee waiver request, the
Department will advise you of your right to seek judicial review. You
also should contact the bureau office to make further arrangements to
process your request if you still wish to obtain the records.
(7) Denial of expedited processing. If the FOIA Appeals Officer
decides to grant expedited processing, he/she will direct the bureau to
process your request as soon as practicable. If your request for
expedited processing is denied on appeal, the FOIA Appeals Officer will
advise you of your right to seek judicial review of the denial of
expedited processing.
Sec. 2.32 How long does DOI have to respond to my appeal?
(a) The statutory time limit for responding to an appeal is 20
workdays after receipt of an appeal meeting the requirements of
Sec. 2.30.
(b) If you request expedited processing of your appeal, you must
demonstrate to the Department's satisfaction that the appeal meets one
of the criteria under Sec. 2.14(a). The FOIA Appeals Officer will advise
you whether the Department will grant expedited processing within 10
calendar days of its receipt of your appeal. If the FOIA Appeals Officer
decides to grant expedited processing, he/she will give your appeal
priority and process it ahead of other pending appeals.
(c) If you have not received a decision on your appeal within 20
workdays, you have the right to seek review in a District Court of the
United States (see 5 U.S.C. 552(a)(4) and (6)). In the event that the
Department is unable to reach a decision within the given time limits,
the FOIA Appeals Officer will notify you of the reason for the delay and
the right to seek judicial review.
Sec. 2.33 How will the Department notify you and the submitter of
commercial or financial information when it makes an appeal
decision concerning such information?
(a) Notice of appeal decision. If the Department decides on appeal
to release records over the objections of a submitter who has advised
DOI that the information is protected from release by exemption (4), the
Department will advise you and the submitter that it intends to release
the records 10 workdays after the notice to the submitter regarding the
appeal decision.
(b) Notice of litigation.
(1) The Department will notify the submitter within 10 workdays of
receipt of the court complaint if you file a lawsuit seeking access to
any records found on appeal to be protected from release by exemption
(4).
(2) The Department will notify you within 10 workdays of receipt of
the court complaint if the submitter files a lawsuit requesting the
court to prohibit the Department from releasing information it alleges
qualifies for protection under exemption (4).
|
