[Federal Register Volume 60, Number 169 (Thursday, August 31, 1995)]
[Rules and Regulations]
[Pages 45338-45343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21523]
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ASSASSINATION RECORDS REVIEW BOARD
36 CFR Part 1410
Rules Implementing the Freedom of Information Act
AGENCY: Assassination Records Review Board.
ACTION: Final rulemaking.
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SUMMARY: The Assassination Records Review Board (Review Board) issues
the following set of regulations to discharge its responsibilities
under the Freedom of Information Act (FOIA). The FOIA law establishes
basic procedures for public access to agency records and guidelines for
waiver or reduction of fees the agency would otherwise assess for the
response to the records request; categories of records that are exempt
for various reasons from public disclosure; and basic requirements for
federal agencies regarding their processing of and response to requests
for agency records.
EFFECTIVE DATE: These regulations are effective October 2, 1995.
FOR FURTHER INFORMATION CONTACT:
T. Jeremy Gunn, Acting General Counsel, Assassination Records Review
Board, 600 E Street, NW, 2nd Floor, Washington, D.C. 20530, (202) 724-
0088.
SUPPLEMENTARY INFORMATION:
Background and Statutory Authority
This final rule complies with the requirements of the Freedom of
Information Act, 5 U.S.C. 552, as amended by the Freedom of Information
Reform Act of 1986, Pub. L. 99-570, title I, sections 1802, 1803, 100
Stat. 3207-48, 3207-49 (FOIA), to issue implementing regulations. In
particular, Sec. 1410.30 and Sec. 1410.35 implement the Reform Act of
1986 and the Office of Management and Budget's Uniform Freedom of
Information Act Fee Schedules and Guidelines, 52 FR 10012. This rule
also incorporates the presidential memorandum on the administration of
the Freedom of Information Act, issued on October 4, 1993, which calls
upon agencies to comply with the letter and spirit of the FOIA's
commitment to openness and to its proper administration.
Further, this rule incorporates the presumption of openness that
was a driving force behind enactment of the Review Board's enabling
legislation, the President John F. Kennedy Assassination Records
Collection Act of 1992, 44 U.S.C. 2107 (1992) (JFK Act). In the JFK
Act, Congress prescribed the establishment of a collection of records
to be known as the President John F. Kennedy Assassination Records
Collection, to be housed at the National Archives and Records
Administration (NARA) and currently located at NARA's facility in
College Park, Maryland. Congress also mandated that the Review Board
have an initial term of two years, with an option for the Review Board
to extend its tenure for one additional year if its work is not
completed within the initial two year period. Id. at Section 7(o)(1).
Congress also required that ``[u]pon termination and winding up, the
Review Board shall transfer all of its records to the Archivist for
inclusion in the Collection, and no record of the Review Board shall be
destroyed.'' Id. at Section 7(o)(3). Thus, while the public may file
FOIA requests with the Review Board during the term of its existence,
the public should also be aware of the opportunity to examine and
obtain copies of the Review Board's records as a part of the JFK
Records Collection at the National Archives and Records Administration.
Other key aspects of this rule include the following:
(1) The Review Board would establish, consistent with 5 U.S.C. 552,
two categories of Review Board records: records available through the
Public
[[Page 45339]]
Reading Room (Sec. 1410.15(b)) and records not available through the
Public Reading Room (Sec. 1410.25).
(2) Procedures for requesting or examining Public Reading Room
records (Sec. 1410.15).
(3) Procedures for filing a FOIA request (Sec. 1410.20).
(4) Procedures for processing FOIA requests, including prescribed
response times (Sec. 1410.40).
(5) Procedures for administrative appeal of denials of FOIA record
requests or of requests for fee waivers or reductions (Sec. 1410.45).
(6) Procedures for handling requests for classified information
(Sec. 1410.50).
(7) Fee schedule for services performed in response to FOIA
requests (Sec. 1410.35(b)(6)).
It is the Review Board's intention to implement these regulations
so as to avoid any unnecessary barriers to public access to information
and to ensure that the principle of openness in government is applied
in each and every decision made under the FOIA. It is also the Review
Board's hope that persons seeking information or records from the
Review Board will consult with the Designated FOIA Officer or other
Review Board staff member before invoking the procedures in the
regulations. To the extent permitted by law, the Review Board may make
available Review Board records which it is otherwise authorized to
withhold under 5 U.S.C. 552.
Notice and Comment Process
The proposed FOIA regulations were issued for comment in the
Federal Register on June 30, 1995 with a closing date of July 31, 1995.
In addition to being published in the Federal Register, the proposed
regulations were sent to five federal agencies with an interest in the
Review Board's work (the Central Intelligence Agency, the Federal
Bureau of Investigation, the Department of Justice, the National
Archives, and the Office of Management and Budget). The staff also sent
copies of the regulations directly to fifteen individuals who have
shown a particular interest in the work of the Review Board. Several of
the individuals are closely connected with public interest groups that
also had the opportunity to distribute the copies more widely to their
membership.
Response to Comments
The Review board received four comments, including those of NARA,
the Coalition on Political Assassinations (COPA), and two individual
members of the public.
NARA sought clarification on whether the Review Board intended to
exclude research materials from FOIA requests at Sec. 1410.10(a)(1).
The text has been amended to clarify that it was the Review Board's
intent to exempt such material. NARA also suggested that members of the
public be informed that, even though Federal records under review are
not subject to FOIA at the Review Board, requests may still be made to
the originating agencies. This suggestion has been adopted at
Sec. 1410.10(a)(2). NARA also made a suggestion for a technical change
to substitute ``agency'' for ``Review Board'' in Sec. 1410.20(e) in
order to track more closely the language of the statute. NARA's
suggestion is adopted at Sec. 1410.20(e). NARA also proposed that the
regulations clarify that they are not designed to exclude pre-existing
statistical data from being subject to FOIA in Sec. 1410.25(e). Changes
were made in the wording to reflect this suggestion.
NARA and COPA requested that the regulations be clarified to note
that the Review Board has the discretion to release records in the
public interest even when the Board might otherwise raise a valid FOIA
exemption. This proposal has been adopted at Sec. 1410.20.
A member of the public proposed certain changes that would add
newer forms of news media into the definition of ``Representative of
the news media'' in Sec. 1410.35. The suggestions have been adopted in
part. The definition has been broadened to include cable casters and
disseminators of on-line computer newsletters, provided that the
services that publish information in this way genuinely are ``organized
and operated'' to do so Sec. 1410.35(b)(1).
The Review Board staff proposed a new Sec. 1410.10(a)(3) to clarify
that those records that the Review Board receives as donations from the
public to be added to the JFK Collection at NARA are not ``agency
records'' subject to FOIA. This amendment is designed to clarify that
such records are donated to the United States and will be transferred
promptly to the JFK Collection and should not be subject to FOIA. The
Review Board accepted the staff recommendation and agrees that it is in
the best interest in openness in government and public access to
records that this provision be adopted. The purpose and goals of FOIA
would be best served by making the records fully available to the
public rather than by delaying transfer in order to respond to FOIA
requests.
On August 3, 1995, the Review Board voted unanimously to adopt the
NPRM, as amended.
Paperwork Reduction Act Statement
The rule is not subject to the provisions of the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501 et seq.) because it does not
contain any information collection requirements within the meaning of
44 U.S.C. 3502(4).
Regulatory Flexibility Act Certification
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
601-612, the Review Board certifies that this rule will not have a
significant economic impact on a substantial number of small entities
and that a regulatory flexibility analysis need not be prepared. 5
U.S.C. 605(b). Whatever economic impacts may result to small entities
were already considered by Congress in enacting and amending the FOIA
or by the Office of Management and Budget in Promulgating the Uniform
Fee Schedules and Guidelines.
Review by the Office of Management and Budget
This regulation has been reviewed by the Office of Management and
Budget under Executive Order 12866.
List of Subjects in 36 CFR Part 1410
Freedom of Information Act.
The Regulations
Accordingly, the Review board amends chapter XIV in title 36 of the
Code of Federal Regulations by adding a new part 1410 to read as
follows:
PART 1410--RULES IMPLEMENTING THE FREEDOM OF INFORMATION ACT
Sec.
1410.5 Scope.
1410.10 Definitions.
1410.15 Requests for Review Board records available through the
Public Reading Room.
1410.20 Review Board records exempt from public disclosure.
1410.25 Requests for Review Board records not available through the
Public Reading Room (FOIA requests).
1410.30 Requests for waiver or reduction of fees.
1410.35 Fees for Review Board record requests.
1410.40 Processing of FOIA requests.
1410.45 Procedure for appeal of denial of requests for Review Board
records and denial of requests for fee waiver or reduction.
1410.50 Requests for classified agency records.
Authority: 5 U.S.C. 552; 44 U.S.C. 2107.
Sec. 1410.5 Scope.
This part contains the Review Board's regulations implementing the
Freedom of Information Act, 5 U.S.C. 552.
[[Page 45340]]
Sec. 1410.10 Definitions.
(a) Review Board record is a record in the possession and control
of the Review Board that is associated with Review Board business.
Review Board records do not include:
(1) Publicly available books, periodicals, films, sound or video
recordings, photographs, or other publications that are owned or
copyrighted by nonfederal sources that the Review Board acquires and
uses for reference and research purposes;
(2) Records owned by another Federal agency that the Review Board
temporarily holds for the purpose of conducting its review under the
President John F. Kennedy Assassination Records Collection Act of 1992
(JFK Act) (FOIA requests for such documents should be directed to the
originating agency);
(3) Records delivered to the Review Board for transfer to the JFK
Collection at the National Archives and Records Administration (NARA).
(b) Designated FOIA Officer means the person designated by the
Executive Director to administer the Review Board's activities pursuant
to the regulations in this part. The Designated FOIA Officer shall also
be the Review Board officer having custody of or responsibility for
Review Board records and shall be the Review Board's officer
responsible for authorizing or denying production of Review Board
records upon request filed pursuant to Sec. 1410.25.
(c) Executive Director means the principal staff official appointed
by the Review Board pursuant to 44 U.S.C. 2107.8(a).
(d) Review Board means the Assassination Records Review Board
created pursuant to 44 U.S.C. 2107.7.
Sec. 1410.15 Requests for Review Board records available through the
Public Reading Room.
(a) A Public Reading Room will be maintained at the Review Board
headquarters and will be open between 10 a.m. and 4:30 p.m., Monday
through Friday, except on Federal holidays. Documents may be obtained
in person from the Public Reading Room.
(b) The Public Reading Room records will include the following (if
and when such records are created):
(1) The Review Board's rules and regulations;
(2) Statements of policy adopted by the Review Board;
(3) Transcripts of public hearings;
(4) Review Board orders, decisions, notices, and other formal
actions;
(5) Copies of all unclassified filings, certifications, pleadings,
Review Board records, briefs, orders, judgments, decrees, and mandates
in court proceedings to which the Review Board is a party and the
correspondence with the courts or clerks of court;
(6) Unclassified reports to Congress in which the Review Board's
operations during a past fiscal year are described;
(7) Administrative staff manuals and instructions to staff to the
extent that such manuals or instructions affect a member of the public;
and
(8) Indices of the documents identified in this section, but not
including drafts thereof.
Sec. 1410.20 Review Board records exempt from public disclosure.
The Review Board will make all Review Board records available for
inspection and copying, except that it may exempt from release those
portions of:
(a) Review Board records specifically authorized under criteria
established by an Executive Order to be kept secret in the interest of
national defense or foreign policy, and that are in fact properly
classified pursuant to such Executive Order;
(b) Review Board records related solely to the internal personnel
rules and practices of the Review Board;
(c) Review Board records specifically exempted from disclosure by
statute (other than 5 U.S.C. 552), provided that such statute:
(1) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(2) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(d) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(e) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(f) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(g) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(1) Could reasonably be expected to interfere with enforcement
proceedings;
(2) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(3) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(4) Could reasonably be expected to disclose the identify of a
confidential source, including a state, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record of information
compiled by a criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source;
(5) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(6) Could reasonably be expected to endanger the life or physical
safety of any individual
(h) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(i) Geological and geophysical information and data, including
maps, concerning wells.
Sec. 1410.25 Requests for Review Board records not available through
the Public Reading Room (FOIA Requests).
(a) Upon the request of any person, the Review Board shall make
available for public inspection and copying any reasonably described
Review Board record in the possession and control of the Review Board,
but not available through the Public Reading Room, subject to the
provisions of this part.
(b) A person may request access to Review Board records that are
not available through the Public Reading Room by using the following
procedures:
(1) The request must be in writing and must reasonably describe the
Review Board records requested to enable Review Board personnel to
locate them with a reasonable amount of effort. A request for all
Review Board records falling within a reasonably specific and well-
defined category shall be regarded as conforming to the statutory
requirement that Review Board records be reasonably described. Where
possible, specific information such as dates or titles that may help
identify the Review Board records should be supplied by the requester,
including the names and titles of Review Board personnel who may have
been contacted regarding the request prior to the submission of the
written request.
(2) The request should be addressed to the Designated FOIA Officer,
and clearly marked ``Freedom of Information
[[Page 45341]]
Act Request.'' The address for such requests is: Designated FOIA
Officer, Assassination Records Review Board, 600 E Street, N.W., 2nd
Floor, Washington, D.C. 20530. Requests must be either mailed or hand-
delivered to the above address. Hand-delivered requests will be
received between 8:30 a.m. and 5 p.m., Monday through Friday, except on
Federal holidays. For purposes of calculating the time for response to
the request under Sec. 1410.40, the request shall not be deemed to have
been received until it is in the possession of the Designated FOIA
Officer or such other person who may be responsible for receiving such
requests.
(3) The request must include:
(i) A statement by the requester of a willingness to pay the fee
applicable under Sec. 1410.35(b), or to pay that fee not to exceed a
specific amount, or
(ii) A request for waiver or reduction of fees.
No request shall be deemed to have been received until the Review Board
has received a statement of willingness to pay, as indicated in
paragraph (b)(3)(i), of this section or has received and approved a
request for waiver or reduction of fees.
(c) Requests for Review Board records containing information
received from another agency, or records prepared jointly by the Review
Board and other agencies, and that do not fall under category
Sec. 1410.10(a)(2) above, shall be treated as requests for Review Board
records. The Designated FOIA Officer shall, however, coordinate with
the appropriate official of the other agency. The notice of
determination to the requester, in the event part or all of the record
is recommended for denial by the other agency, shall cite the other
agency denying officials as well as the Designated FOIA Officer if a
denial by the Review Board is also involved.
(d) If a request does not reasonably describe the Review Board
records sought, as provided in paragraph (b) of this section, the
Review Board response shall specify the reasons why the request failed
to meet those requirements and shall offer the requester the
opportunity to confer with knowledgeable Review Board personnel in an
attempt to restate the request. If additional information is needed
from the requester to render the agency records reasonably described,
any restated request submitted by the requester shall be treated as an
initial request for purpose of calculating the time for response under
Sec. 1410.40.
(e) The Review Board will not be required to create new agency
records, compile lists of selected items from its files, or create new
statistical or other data.
(f) The Review Board staff may also respond to oral, unmarked, or
generally stated requests for information and documents even though
those requests do not comply with the provisions of this rule.
Sec. 1410.30 Request for waiver or reduction of fees.
(a) The Review Board shall collect fees for record requests made
under Sec. 1410.25 as provided in Sec. 1410.35(b), unless the Review
Board grants a written request for a waiver or reduction of fees. The
Designated FOIA Officer shall make a determination on a fee waiver or
reduction request within five working days of the request coming into
his or her possession. If the determination is made that the written
request for a waiver or reduction of fees does not meet the
requirements of this section, the Designated FOIA Officer shall inform
the requester that the request for waiver or reduction of fees is being
denied and set forth the appeal rights under Sec. 1410.45.
(b) A person requesting the Review Board to waive or reduce search,
review, or duplication fees shall:
(1) Describe the purpose for which the requester intends to use the
requested information;
(2) Explain the extent to which the requester will extract and
analyze the substantive content of the Review Board record;
(3) Describe the nature of the specific activity or research in
which the Review Board records will be used and the specific
qualification the requester possesses to utilize information for the
intended use in such a way that it will contribute to public
understanding of the operations or activities of the Government;
(4) Describe the likely impact of disclosure of the requested
records on the public's understanding of the subject as compared to the
level of understanding of the subject existing prior to disclosure;
(5) Describe the size and nature public to whose understanding a
contribution will be made;
(6) Describe the intended means of dissemination to the general
public;
(7) Indicate if public access to information will be provided free
of charge or provided for an access or publication fee; and
(8) Describe any commercial or private interest the requester or
any other party has in the Review Board records sought.
(c) The Review Board shall waive or reduce fees, without further
specific information from the requester if, from information provided
with the request for Review Board records made under Sec. 1410.25, it
can determine that it is likely to contribute significantly to public
understanding of the operations or activities of the Government and is
not primarily in the commercial interest of the requester.
(d) In making a determination regarding a request for a waiver or
reduction of fees, the Review Board shall consider the following
factors:
(1) Whether disclosure is likely to contribute significantly to
public understanding of Government operations or activities, and
(2) Whether the requester has a commercial interest and, if so, the
extent of any interests and how they would be furthered by the
disclosure of the requested Review Board records.
Sec. 1410.35 Fees for Review Board record requests.
(a) Fees for Review Board records available through the Public
Reading Room. Duplication fees charged shall be limited to the costs of
duplication of the requested Review Board records or the cost to have
them duplicated. A schedule of fees for this duplication service is set
forth at paragraph (b)(6) of this section. A person may also obtain a
copy of the schedule of fees in person or by mail from the Public
Reading Room.
(b) Fees for Review Board records not available through the Public
Reading Room (FOIA) requests).
(1) Definitions. For the purpose of paragraph (b) of this section:
Commercial use request means a request from or on behalf of one who
seeks information for a use or purpose that furthers the commercial,
trade, or profit interests of the requester or the person on whose
behalf the request is made. In determining whether a requester properly
belongs in this category, the Review Board must determine the use to
which a requester will put the documents requested. Moreover, where the
Review Board has reasonable cause to doubt the use to which a requester
will put the records sought, or where that use is not clear from the
request itself, the Review Board will seek additional clarification
from the Office of Management and Budget before assigning the request
to a specific category.
Direct costs means those expenditures which the Review Board incurs
in search, review, and duplication, to respond to requests under
Sec. 1410.25. Direct costs include, for example, the salary and
benefits cost of Review Board employees applied to time spent in
[[Page 45342]]
responding to the request and the cost of operating duplicating
machinery. Not included in direct costs are overhead expenses such as
cost of space, and heating or lighting the facility in which the Review
Board records are stored.
Educational institution refers to a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, and an institution of vocational education,
which operates a program or programs of scholarly research.
Noncommercial scientific institution refers to an institution that
is not operated on a commercial basis and which is operated solely for
the purpose of conducting scientific research the results of which are
not intended to promote any particular product or industry.
Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public, and may include cable casting or
computer on-line dissemination if offered as a service that is
organized and operated to disseminate news to the public. The term
``news'' means information that is about current events or that would
be of current interest to the public. Examples of news media entities
include television or radio stations broadcasting to the public at
large, and publishers of periodicals (but only in those instances when
the periodicals can qualify as disseminations of ``news'') who make
their products available for free and or for purchase or subscription
by the general public. These examples are not intended to be all-
inclusive. A ``freelance'' journalist may be regarded as working for a
news organization if the journalist can demonstrate a solid basis for
expecting publication through that organization, even though the
journalist is not actually employed by the news organization. A
publication contract is the best proof, but the Review Board may also
look to the past publication record of a requester in making this
determination.
(2) Fees.
(i) If the Review Board determines that the documents are requested
for commercial use, it shall charge the average salary rate, including
benefits, for Review Board employees, for document search time and for
document review time, in addition to the costs of duplication as
established in the schedule of fees in paragraph (b)(6) of this
section.
(ii) If documents are not sought for commercial use and the request
is made by an educational or noncommercial scientific institution,
whose purpose is scholarly or scientific research, or a representative
of the news media, the Review Board's charges shall be limited to the
direct costs of duplication as established in the schedule of fees in
paragraph (b)(6) of this section. There shall be no charge for the
first 100 pages of duplication.
(iii) For a request not described in paragraphs (b)(2)(i) or
(b)(2)(ii) of this section the Review Board shall charge the average
salary rate for Review Board employees (including benefits), for
document search time, and the direct costs of duplication as
established in the schedule of fees in paragraph (b)(6) of this
section. There shall be no charge for document review time and the
first 100 pages of reproduction and the first two hours of search time
will be furnished without charge.
(iv) If the Review Board is asked by a requester to send Review
Board records by special methods such as express mail, it may do so,
provided that the requester pays for the express delivery service.
(v) The Review Board may assess charges for time spent searching,
even if it fails to locate the records, or if Review Board records
located are determined to be exempt from disclosure.
(vi) Whenever the Review Board estimates that fees are likely to
exceed $25, it shall notify the requester of the estimated costs,
unless the requester has indicated in advance a willingness to pay fees
as high as those anticipated. Such a notice shall offer the requester
an opportunity to confer with the Review Board personnel to reformulate
the request to meet the requester's needs at a lower cost.
(3) Limitations on Fees. The Review Board, or its designate, may
establish minimum fees below which no charges will be collected, if it
determines that the costs of routine collection and processing of the
fees are likely to equal or exceed the amount of the fees. If total
fees determined by the Review Board for a FOIA request would be less
than the appropriate threshold, the Review Board shall not charge the
requesters.
(4) Payment of fees.
(i) Payment of fees must be by check or money order made payable to
the Assassination Records Review Board.
(ii) Advance Payments.
(A) If the Review Board estimates or determines that allowable
charges that a requester may be required to pay are likely to exceed
$250, the Review Board shall notify such requester of the estimated
cost and either require satisfactory assurance of full payment where
the requester has a history of prompt payment of fees, or require
advance payment of the charges if a requester has no payment history.
(B) If a requester has previously failed to pay a fee in a timely
fashion, the Review Board shall require the requester to pay the full
amount owed plus any applicable interest, and to make an advance
payment of the full amount of the estimated fee before the Review Board
will begin to process a new request or pending request from that
requester.
(C) When the Review Board requires advance payment under this
paragraph, the administrative time limits prescribed in Sec. 1410.40(b)
will begin only after the Review Board has received the fee payments.
(5) Aggregation of Requests. Requesters may not file multiple
requests, each seeking portions of a document or documents, solely in
order to avoid payment of fees. When the Review Board reasonably
believes that a requester, or a group of requesters acting in concert,
is attempting to divide a request into a series of requests for the
purpose of evading assessment of fees, the Review Board may aggregate
any such requests and charge the requester accordingly. The Review
Board shall not, however, aggregate multiple requests on unrelated
subjects from a requester.
(6) Fee Schedule. Fees will be charged as provided below:
(i) Duplication of Review Board records. Review Board records will
be duplicated at a rate of $.10 per page, provided the Review Board
staff duplicates the records. If the Review Board determines that the
duplication is so time-consuming that it must be sent to an outside
duplication service, the requester will be charged the actual
commercial rate.
(ii) Duplication of large documents. Large documents (e.g., maps,
diagrams) will be duplicated at actual commercial rates.
(iii) Review. Review fees shall be assessed with respect to only
those requesters who seek Review Board records for a commercial use, as
defined in (b)(2)(i) of this section. For each hour spent by agency
personnel in reviewing a requested Review Board record for possible
disclosure, the fee shall be $20.15 except that where the time of
managerial personnel is required, the fee shall be $47.40 for each hour
of time spent by such managerial personnel.
(iv) Search. For each hour spent by administrative personnel in
searching for and retrieving a requested Review Board record, the fee
shall be $14.75.
[[Page 45343]]
Where a search and retrieval cannot be performed entirely by clerical
personnel--for example, where the identification of Review Board
records within the scope of a request requires the use of professional
personnel--the fee shall be $20.15 for each hour of search time spent
by such professional personnel. Where the time of managerial personnel
is required, the fee shall be $47.40 for each hour of time spent by
such managerial personnel.
Sec. 1410.40 Processing of FOIA requests.
(a) Where a request complies with Sec. 1410.25 as to specificity
and statement of willingness to pay or request for fee waiver or
reduction, the Designated FOIA Officer shall acknowledge receipt of the
request and commence processing of the request. The Designated FOIA
Officer shall prepare a written response:
(1) Granting the request;
(2) Denying the request;
(3) Granting or denying it in part;
(4) Stating that the request has been referred to another agency
under Sec. 1410.25; or
(5) Informing the requester that responsive Review Board records
cannot be located or do not exist.
(b) Action pursuant to this section to provide access to requested
Review Board records shall be taken within 10 working days of receipt
of a request for Review Board records, as defined in Sec. 1410.25,
except that where unusual circumstances require an extension of time
before a decision on a request can be reached and the person requesting
Review Board records is promptly informed in writing by the Designated
FOIA Officer of the reason for such extension and the date on which a
determination is expected to be made, the Designated FOIA Officer may
take an extension not to exceed 10 working days.
(c) For purposes of this section and Sec. 1410.45, the term
``unusual circumstances'' may include but is not limited to the
following:
(1) The need to search, collect, and appropriately examine a
voluminous amount of separate and distinct Review Board records that
are demanded in a single request; or
(2) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
Sec. 1410.45 Procedure for appeal of denial of requests for Review
Board records and denial of requests for fee waiver or reduction.
(a)(1) A person whose request for access to Review Board records or
request for fee waiver or reduction is denied in whole or in part may
appeal that determination to the Executive Director within 30 days of
the determination. Appeals filed pursuant to this section must be in
writing, directed to the Executive Director at the address stated
above, and clearly marked ``Freedom of Information Act Appeal.'' Such
an appeal received by the Review Board that is not properly addressed
and marked will be so addressed and marked by Review Board personnel as
soon as it is properly identified and then will be forwarded to the
Executive Director. Appeals taken pursuant to this paragraph will be
considered to be received upon actual receipt by the Executive
Director.
(2) The Executive Director shall make a determination with respect
to any appeal within 20 working days after the receipt of such appeal.
If, on appeal, the denial of the request for Review Board records or
fee reduction is in whole or in part upheld, the Executive Director
shall notify the person making such request of the provisions for
judicial review of that determination.
(b) In unusual circumstances, as defined in Sec. 1410.40(c), the
time limits prescribed for deciding an appeal pursuant to this section
may be extended by up to 10 working days by the Executive Director, who
will send written notice to the requester setting forth the reasons for
such extension and the date on which a determination or appeal is
expected to be dispatched.
Sec. 1410.50 Requests for classified agency records.
The Review Board may at any time be in possession of classified
records received from other Federal agencies. Except with respect to
those documents identified in Sec. 1410.10(a)(2), the Review Board
shall refer requests under Sec. 1410.25 for such records or information
to the other agency without making an independent determination as to
the releasability of such documents. The Review Board shall refer
requests for classified records in a manner consistent with Executive
Order 12958 of April 17, 1995, or other such law as may apply.
Dated: August 25, 1995.
T. Jeremy Gunn,
Acting General Counsel, Assassination Records Review Board.
[FR Doc. 95-21523 Filed 8-30-95; 8:45 am]
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