[Federal Register Volume 62, Number 165 (Tuesday, August 26, 1997)]
[Proposed Rules]
[Pages 45184-45196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22079]


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DEPARTMENT OF JUSTICE

28 CFR Parts 16 and 50

[Attorney General Order No. 2105-97]
RIN 1105-AA20


Revision of Department of Justice Freedom of Information Act and 
Privacy Act Regulations and Implementation of Electronic Freedom of 
Information Act Amendments of 1996

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This document sets forth proposed revisions of the 
Department's regulations under both the Freedom of Information Act 
(FOIA) and the Privacy Act of 1974. The FOIA and Privacy Act 
regulations have been streamlined and condensed, in accordance with the 
principles of the National Performance Review, with more ``user-
friendly'' language wherever possible. These revisions also reflect the 
principles established by President Clinton and Attorney General Reno 
in their FOIA Policy Memoranda of October 4, 1993. The new statement of 
discretionary disclosure policy will supersede the existing regulation 
regarding discretionary access to records of historical interest. 
Additionally, the regulations have been updated to reflect developments 
in the case law and to include updated cost figures to be used in 
calculating and charging fees. These proposed revisions also contain 
new provisions implementing the Electronic Freedom of Information Act 
Amendments of 1996.

DATES: Submit comments on or before September 25, 1997.

ADDRESSES: Address all comments concerning this proposed rule to Janice 
Galli McLeod, Office of Information and Privacy, U.S. Department of 
Justice, Flag Building, Suite 570, Washington, DC 20530-0001.

FOR FURTHER INFORMATION CONTACT: Janice Galli McLeod ((202) 514-3642).

SUPPLEMENTARY INFORMATION: These comprehensive revisions of subparts A 
and D of part 16 incorporate changes to the language and structure of 
the regulations and also add new provisions

[[Page 45185]]

to implement the Electronic Freedom of Information Act Amendments of 
1996 (Public Law 104-231). New provisions implementing the amendments 
are found at Sec. 16.2(c) (electronic reading rooms), Sec. 16.5 (timing 
of responses), Sec. 16.6(b) (deletion marking), Sec. 16.6(c)(3) (volume 
estimation), Sec. 16.11(b)(3) (format of disclosure), and 
Sec. 16.11(b)(8) (electronic searches).
    Proposed revisions of the Department's fee schedule can be found at 
Sec. 16.11(c) and (d). The duplication charge will remain the same at 
ten cents per page, while document search and review charges will 
increase to $4.00, $7.00, and $10.25 per quarter hour for clerical, 
professional, and managerial time, respectively. The amount at or below 
which the Department will not charge a fee will increase from $8.00 to 
$14.00.
    Proposed revisions to the Privacy Act regulations include a second 
method for the verification of identity for persons seeking access to 
their own records in Sec. 16.41(d) and the elimination of existing 
subsection Sec. 16.43(d) regarding limitations on access to medical 
records.
    For specific sections and subsections of the regulations 
implementing the Electronic Freedom of Information Act Amendments of 
1996, the following effective dates apply:
    Sec. 16.2(c)--electronic reading rooms--November 1, 1997;
    Sec. 16.5(b), (c), and (d)--processing requests under multi-track 
systems, under unusual circumstances, and with expedited treatment--
October 2, 1997; and
    Sec. 16.6(c)(3)--volume estimation--October 2, 1997.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 606(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. Under the Freedom of 
Information Act, agencies may recover only the direct costs of 
searching for, reviewing, and duplicating the records processed for 
requesters. Thus, fees assessed by the Department are nominal. Further, 
the ``small entities'' that make FOIA requests, as compared with 
individual requesters and other requesters, are relatively few in 
number.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Office of Management and Budget has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review, and accordingly this rule has 
been reviewed by that Office.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

List of Subjects

28 CFR Part 16

    Administrative practice and procedure, Freedom of information, 
Privacy.

28 CFR Part 50

    Administrative practice and procedure.

    For the reasons stated in the preamble, the Department of Justice 
proposes to amend 28 CFR Chapter I, Parts 16 and 50, as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

    1. The authority citation for part 16 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717.

    2. Subpart A of part 16 is revised to read as follows:
Subpart A--Procedures for Disclosure of Records Under the Freedom of 
Information Act
Sec.
16.1  General provisions.
16.2  Public reading rooms.
16.3  Requirements for making requests.
16.4  Responsibility for responding to requests.
16.5  Timing of responses to requests.
16.6  Responses to requests.
16.7  Classified information.
16.8  Business information.
16.9  Appeals.
16.10  Preservation of records.
16.11  Fees.
16.12  Other rights and services.

Subpart A--Procedures for Disclosure of Records Under the Freedom 
of Information Act


Sec. 16.1  General provisions.

    (a) This subpart contains the rules that the Department of Justice 
follows in processing requests for records under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552. Requests made by individuals for 
records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, 
which are processed under subpart D of this part, are processed under 
this subpart also. Information routinely provided to the public as part 
of a regular Department activity (for example, press releases issued by 
the Office of Public Affairs) may be provided to the public without 
following this subpart. As a matter of policy, the Department makes 
discretionary disclosures of records or information exempt under the 
FOIA whenever disclosure would not foreseeably harm an interest 
protected by a FOIA exemption, but this policy does not create any 
right enforceable in court.
    (b) As used in this subpart, component means each separate bureau, 
office, board, division, commission, service, or administration of the 
Department of Justice.


Sec. 16.2  Public reading rooms.

    (a) The Department maintains public reading rooms that contain the 
records that the FOIA requires to be made regularly available for 
public inspection and copying. Each Department component is responsible 
for determining which of the records it generates are required to be 
made available in this way and for making those records available 
either in its own reading room or in the Department's central reading 
room. Each component shall maintain and make available for public 
inspection and copying a current subject-matter index of its reading 
room records. Each index shall be updated regularly, at least 
quarterly, with respect to newly included records.
    (b) The Department maintains public reading rooms or areas at the 
locations listed below:

[[Page 45186]]

    (1) Bureau of Prisons--on the Seventh Floor, 500 First Street, NW., 
Washington, DC;
    (2) Civil Rights Division--in Room 930, 320 First Street, NW., 
Washington, DC;
    (3) Community Relations Service--in Suite 2000, 600 E Street, NW., 
Washington, DC;
    (4) Drug Enforcement Administration--in Room W-7216, 700 Army Navy 
Drive, Arlington, Virginia;
    (5) Executive Office for Immigration Review (Board of Immigration 
Appeals)--in Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia;
    (6) Federal Bureau of Investigation--at the J. Edgar Hoover 
Building, 935 Pennsylvania Avenue, NW., Washington, DC;
    (7) Foreign Claims Settlement Commission--in Room 6002, 600 E 
Street, NW., Washington, DC;
    (8) Immigration and Naturalization Service--425 I Street, NW., 
Washington, DC;
    (9) Office of Justice Programs--in Room 1245 B, 633 Indiana Avenue, 
NW., Washington, DC;
    (10) Pardon Attorney--on the Fourth Floor, 500 First Street, NW., 
Washington, DC;
    (11) United States Attorneys and United States Marshals--at the 
principal offices of the United States Attorneys and the United States 
Marshals, which are listed in most telephone books; and
    (12) All other components of the Department of Justice--in Room 
6505 at the Main Justice Building, 950 Pennsylvania Avenue, NW., 
Washington, DC.
    (c) Components shall also make reading room records created by the 
Department on or after November 1, 1996, available electronically 
through the Department's World Wide Web site (which can be found at 
http://www.usdoj.gov). This includes each component's index of its 
reading room records, which will indicate which records are available 
electronically.


Sec. 16.3  Requirements for making requests.

    (a) How made and addressed. You may make a request for records of 
the Department of Justice by writing directly to the Department 
component that maintains those records. If you are making a request for 
records about yourself, see Sec. 16.41(d) for additional requirements. 
If you are making a request for records about another individual, 
either a written authorization signed by that individual permitting 
disclosure of those records to you or proof that that individual is 
deceased (for example, a copy of a death certificate or an obituary) 
will help the processing of your request. Your request should be sent 
to the component's FOIA office at the address listed in Appendix I to 
Part 16. In most cases, your FOIA request should be sent to a 
component's central FOIA office. For records held by a field office of 
the Federal Bureau of Investigation (FBI) or the Immigration and 
Naturalization Service (INS), however, you must write directly to that 
FBI or INS field office address, which can be found in most telephone 
books, or by calling the component's central FOIA office. (The 
functions of each component are summarized in Part 0 of this title and 
in the description of the Department and its components in the ``United 
States Government Manual,'' which is issued annually and is available 
in most libraries, as well as for sale from the Government Printing 
Office's Superintendent of Documents. This manual also can be accessed 
electronically at the Government Printing Office's World Wide Web site 
(which can be found at http://www.access.gpo.gov/su__docs).) If you 
cannot determine where within the Department to send your request, you 
may send it to the FOIA/PA Mail Referral Unit, Justice Management 
Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW., 
Washington, DC 20530-0001. That office will forward your request to the 
component(s) it believes most likely to have the records that you want. 
Your request will be considered received as of the date it is received 
by the proper component's FOIA office. For the quickest possible 
handling, you should mark both your request letter and the envelope 
``Freedom of Information Act Request.''
    (b) Description of records sought. You must describe the records 
that you seek in enough detail to enable Department personnel to locate 
them with a reasonable amount of effort. Whenever possible, your 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient, and subject matter 
of the record. In addition, if you want records about a court case, you 
should provide the title of the case, the court in which the case was 
filed, and the nature of the case. If known, you should include any 
file designations or descriptions for the records that you want. As a 
general rule, the more specific you are about the records or type of 
records that you want, the more likely the Department will be able to 
locate those records in response to your request. If a component 
determines that your request does not reasonably describe records, it 
shall tell you either what additional information is needed or why your 
request is otherwise insufficient. The component also shall give you an 
opportunity to discuss your request so that you may modify it to meet 
the requirements of this section.
    (c) Agreement to pay fees. If you make a FOIA request, it shall be 
considered an agreement by you to pay all applicable fees charged under 
Sec. 16.11, up to $25.00, unless you seek a waiver of fees. The 
component responsible for responding to your request ordinarily will 
confirm this agreement in an acknowledgement letter. When making a 
request, you may specify a willingness to pay a greater or lesser 
amount.


Sec. 16.4  Responsibility for responding to requests.

    (a) In general. Except as stated in paragraphs (c), (d), and (e) of 
this section, the component that first receives a request for a record 
and has possession of that record is the component responsible for 
responding to the request. In determining which records are responsive 
to a request, a component ordinarily will include only records in its 
possession as of the date the component begins its search for them. If 
any other date is used, the component shall inform the requester of 
that date.
    (b) Authority to grant or deny requests. The head of a component, 
or the component head's designee, is authorized to grant or deny any 
request for a record of that component.
    (c) Consultations and referrals. When a component receives a 
request for a record in its possession, it shall determine whether 
another component, or another agency of the Federal Government, is 
better able to determine whether the record is exempt from disclosure 
under the FOIA and, if so, whether it should be disclosed as a matter 
of administrative discretion. If the receiving component determines 
that it is best able to process the record in response to the request, 
then it shall do so. If the receiving component determines that it is 
not best able to process the record, then it shall either:
    (1) Respond to the request regarding that record, after consulting 
with the component or agency best able to determine whether to disclose 
it and with any other component or agency that has a substantial 
interest in it; or
    (2) Refer the responsibility for responding to the request 
regarding that record to the component best able to determine whether 
to disclose it, or to another agency that originated the record (but 
only if that agency is subject to the FOIA). Ordinarily, the component 
or agency that originated a record will

[[Page 45187]]

be presumed to be best able to determine whether to disclose it.
    (d) Law enforcement information. Whenever a request is made for a 
record containing information that relates to an investigation of a 
possible violation of law and was originated by another component or 
agency, the receiving component shall either refer the responsibility 
for responding to the request regarding that information to that other 
component or agency or shall consult with that other component or 
agency.
    (e) Classified information. Whenever a request is made for a record 
containing information that has been classified, or may be appropriate 
for classification, by another component or agency under Executive 
Order 12958 or any other executive order concerning the classification 
of records, the receiving component shall refer the responsibility for 
responding to the request regarding that information to the component 
or agency that classified the information, should consider the 
information for classification, or has the primary interest in it, as 
appropriate. Whenever a record contains information that has been 
derivatively classified by a component because it contains information 
classified by another component or agency, the component shall refer 
the responsibility for responding to the request regarding that 
information to the component or agency that classified the underlying 
information.
    (f) Notice of referral. Whenever a component refers all or any part 
of the responsibility for responding to a request to another component 
or agency, it ordinarily shall notify the requester of the referral and 
inform the requester of the name of each component or agency to which 
the request has been referred and of the part of the request that has 
been referred.
    (g) Timing of responses to consultations and referrals. All 
consultations and referrals will be handled according to the date the 
FOIA request initially was received by the first component or agency, 
not any later date.
    (h) Agreements regarding consultations and referrals. Components 
may make agreements with other components or agencies to eliminate the 
need for consultations or referrals for particular types of records.


Sec. 16.5  Timing of responses to requests.

    (a) In general. Components ordinarily shall respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) A component may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request, including through limits based on the number of pages 
involved. If a component does so, it shall advise requesters in its 
slower track(s) of the limits of its faster track(s).
    (2) A component 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 component's faster track(s). A component doing so will 
contact the requester either by telephone or by letter, whichever is 
most efficient in each case.
    (c) Unusual circumstances. (1) Where the time limits for processing 
a request cannot be met because of unusual circumstances and the 
component determines to extend the time limits on that basis, the 
component shall as soon as practicable notify the requester in writing 
of the unusual circumstances and of the date by which processing of the 
request can be expected to be completed. Where the extension is for 
more than ten working days, the component shall provide the requester 
with an opportunity either to modify the request so that it may be 
processed within the time limits or to arrange an alternative time 
period with the component for processing the request or a modified 
request.
    (2) Where a component reasonably believes that multiple requests 
submitted by a requester, or by a group of requesters acting in 
concert, constitute a single request that would otherwise involve 
unusual circumstances, and the requests involve clearly related 
matters, they may be aggregated. Multiple requests involving unrelated 
matters will not be aggregated.
    (d) Expedited processing. (1) Requests and appeals will be taken 
out of order and given expedited treatment whenever it is determined 
that they involve:
    (i) 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;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity which 
affect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing must be received by 
the proper component. Requests based on the categories in paragraphs 
(d)(1)(i), (ii), and (iii) of this section must be submitted to the 
component that maintains the records requested. Requests based on the 
category in paragraph (d)(1)(iv) of this section must be submitted to 
the Director of Public Affairs, whose address is: Office of Public 
Affairs, U.S. Department of Justice, Room 1128, 950 Pennsylvania 
Avenue, NW., Washington, DC 20530-0001.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. For example, a requester within the 
category in paragraph (d)(1)(ii) 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 or her sole occupation. A 
requester within the category in paragraph (d)(1)(ii) of this section 
also must establish a particular urgency to inform the public about the 
government activity involved in the request, beyond the public's right 
to know about government activity generally. The formality of 
certification may be waived as a matter of administrative discretion.
    (4) Within ten calendar days of its receipt of a request for 
expedited processing, the proper component shall decide whether to 
grant it and shall notify the requester of the decision. If a request 
for expedited treatment is granted, the request shall be given priority 
and shall be processed as soon as practicable. If a request for 
expedited processing is denied, any appeal of that decision shall be 
acted on expeditiously.


Sec. 16.6  Responses to requests.

    (a) Acknowledgements of requests. On receipt of a request, a 
component ordinarily shall send an acknowledgement letter to the 
requester which shall confirm the requester's agreement to pay fees 
under Sec. 16.3(c) and provide an assigned request number for further 
reference.
    (b) Grants of requests. Once a component makes a determination to 
grant a request in whole or in part, it shall notify the requester in 
writing. The

[[Page 45188]]

component shall inform the requester in the notice of any fee charged 
under Sec. 16.11 and shall disclose records to the requester promptly 
on payment of any applicable fee. Records disclosed in part shall be 
marked or annotated to show both the amount and the location of the 
information deleted wherever practicable.
    (c) Adverse determinations of requests. A component making an 
adverse determination denying a request in any respect shall notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, consist of: a determination to withhold any 
requested record in whole or in part; a determination that a requested 
record does not exist or cannot be located; a determination that what 
has been requested is not a record subject to the Act; a determination 
on any disputed fee matter, including a denial of a request for a fee 
waiver; and a denial of a request for expedited treatment. The denial 
letter shall be signed by the head of the component, or the component 
head's designee, and shall include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reason(s) for the denial, including 
any FOIA exemption applied by the component in denying the request;
    (3) An estimate of the volume of records or information withheld, 
in number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through deletions on records disclosed in part, or if 
providing an estimate would harm an interest protected by an applicable 
exemption; and
    (4) A statement that the denial may be appealed under Sec. 16.9(a) 
and a description of the requirements of Sec. 16.9(a).


Sec. 16.7  Classified information.

    In processing a request for information that is classified under 
Executive Order 12958 (3 CFR, 1996 Comp., p. 333) or any other 
executive order, the originating component shall review the information 
to determine whether it should remain classified. Information 
determined to no longer require classification shall not be withheld on 
the basis of Exemption 1 of the FOIA. On receipt of any appeal 
involving classified information, the Office of Information and Privacy 
shall take appropriate action to ensure compliance with part 17 of this 
title.


Sec. 16.8  Business information.

    (a) In general. Business information obtained by the Department 
from a submitter will be disclosed under the FOIA only under this 
section.
    (b) Definitions. For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by the Department from a submitter that may be protected from 
disclosure under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom the Department 
obtains business information, directly or indirectly. The term includes 
corporations; state, local, and tribal governments; and foreign 
governments.
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. A component shall provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
that seeks its business information wherever required under paragraph 
(e) of this section, except as provided in paragraph (h) of this 
section, in order to give the submitter an opportunity to object to 
disclosure of any specified portion of that information under paragraph 
(f) of this section. The notice shall either describe the business 
information requested or include copies of the requested records or 
record portions containing the information. When notification of a 
voluminous number of submitters is required, notification may be made 
by posting or publishing the notice in a place reasonably likely to 
accomplish it.
    (e) Where notice is required. Notice shall be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) The component has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. A component will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (d) of this section. If a submitter has any objection to 
disclosure, it is required to submit a detailed written statement. The 
statement must specify all grounds for withholding any portion of the 
information under any exemption of the FOIA and, in the case of 
Exemption 4, it must show why the information is a trade secret or 
commercial or financial information that is privileged or confidential. 
In the event that a submitter fails to respond to the notice within the 
time specified in it, the submitter will be considered to have no 
objection to disclosure of the information. Information provided by a 
submitter under this paragraph may itself be subject to disclosure 
under the FOIA.
    (g) Notice of intent to disclose. A component shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever a component 
decides to disclose business information over the objection of a 
submitter, the component shall give the submitter written notice, which 
shall include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The component determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
the component shall, within a reasonable time prior to a specified 
disclosure date, give the submitter written notice of any final 
decision to disclose the information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the component 
shall promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever a component 
provides a submitter with notice and an opportunity to object to 
disclosure

[[Page 45189]]

under paragraph (d) of this section, the component shall also notify 
the requester(s). Whenever a component notifies a submitter of its 
intent to disclose requested information under paragraph (g) of this 
section, the component shall also notify the requester(s). Whenever a 
submitter files a lawsuit seeking to prevent the disclosure of business 
information, the component shall notify the requester(s).


Sec. 16.9  Appeals.

    (a) Appeals of adverse determinations. If you are dissatisfied with 
a component's response to your request, you may appeal an adverse 
determination denying your request, in any respect, to the Office of 
Information and Privacy, U.S. Department of Justice, Flag Building, 
Suite 570, Washington, DC 20530-0001. You must make your appeal in 
writing and it must be received by the Office of Information and 
Privacy within 60 days of the date of the letter denying your request. 
Your appeal letter may include as much or as little related information 
as you wish, as long as it clearly identifies the component 
determination (including the assigned request number, if known) that 
you are appealing. For the quickest possible handling, you should mark 
your appeal letter and the envelope ``Freedom of Information Act 
Appeal.'' Unless the Attorney General directs otherwise, a Director of 
the Office of Information and Privacy will act on behalf of the 
Attorney General on all appeals under this section, except that:
    (1) In the case of an adverse determination by the Deputy Attorney 
General or the Associate Attorney General, the Attorney General or the 
Attorney General's designee will act on the appeal;
    (2) An adverse determination by the Attorney General will be the 
final action of the Department; and
    (3) An appeal ordinarily will not be acted on if the request 
becomes a matter of FOIA litigation.
    (b) Responses to appeals. The decision on your appeal will be made 
in writing. A decision affirming an adverse determination in whole or 
in part shall contain a statement of the reason(s) for the affirmance, 
including any FOIA exemption(s) applied, and will inform you of the 
FOIA provisions for court review of the decision. If the adverse 
determination is reversed or modified on appeal, in whole or in part, 
you will be notified in a written decision and your request will be 
reprocessed in accordance with that appeal decision.
    (c) When appeal is required. If you wish to seek review by a court 
of any adverse determination, you must first appeal it under this 
section.


Sec. 16.10  Preservation of records.

    Each component shall preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.


Sec. 16.11  Fees.

    (a) In general. Components shall charge for processing requests 
under the FOIA in accordance with paragraph (c) of this section, except 
where fees are limited under paragraph (d) of this section or where a 
waiver or reduction of fees is granted under paragraph (k) of this 
section. A component ordinarily shall collect all applicable fees 
before sending copies of requested records to a requester. Requesters 
will pay fees by check or money order made payable to the Treasury of 
the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include 
furthering those interests through litigation. Components shall 
determine, whenever reasonably possible, the use to which a requester 
will put the requested records. When it appears that the requester will 
put the records to a commercial use, either because of the nature of 
the request itself or because a component has reasonable cause to doubt 
a requester's stated use, the component shall provide the requester a 
reasonable opportunity to submit further clarification.
    (2) Direct costs means those expenses that an agency actually 
incurs in searching for and duplicating (and, in the case of commercial 
use requests, reviewing) records to respond to a FOIA request. Direct 
costs include, for example, the salary of the employee performing the 
work (the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating duplication 
machinery. Not included in direct costs are overhead expenses such as 
the costs of space and heating or lighting of the facility in which the 
records are kept.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk), among others. 
Components shall honor a requester's specified preference of form or 
format of disclosure if the record is readily reproducible with 
reasonable efforts in the requested form or format by the office 
responding to the request.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, or an 
institution of professional education, or an institution of vocational 
education, that operates a program of scholarly research. To be in this 
category, a requester must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scholarly research.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is defined in 
paragraph (b)(1) of this section, and that is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry. To be in this 
category, a requester must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scientific research.
    (6) Representative of the news media, or news media requester, 
means any person actively gathering news for an entity that is 
organized and operated to publish or broadcast 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 where they can qualify as disseminators of ``news'') who make 
their products available for purchase or subscription by the general 
public. For ``freelance'' journalists to be regarded as working for a 
news organization, they must demonstrate a solid basis for expecting 
publication through that organization. A publication contract would be 
the clearest proof, but components shall also look to the past 
publication record of a requester in making this determination. To be 
in this category, a requester must not be seeking the requested records 
for a commercial use. However, a request for

[[Page 45190]]

records supporting the news-dissemination function of the requester 
shall not be considered to be for a commercial use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt 
from disclosure. It also includes processing any record for 
disclosure--for example, doing all that is necessary to redact it and 
prepare it for disclosure. Review costs are recoverable even if a 
record ultimately is not disclosed. Review time includes time spent 
considering any formal objection to disclosure made by a business 
submitter under Sec. 16.8, but does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. Components shall 
ensure that searches are done in the most efficient and least expensive 
manner reasonably possible. For example, components shall not search 
line-by-line where duplicating an entire document would be quicker and 
less expensive.
    (c) Fees. In responding to FOIA requests, components shall charge 
the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section:
    (1) Search. (i) Search fees shall be charged for all requests--
other than requests made by educational institutions, noncommercial 
scientific institutions, or representatives of the news media--subject 
to the limitations of paragraph (d) of this section. Components may 
charge for time spent searching even if they do not locate any 
responsive record or if they withhold the record(s) located as entirely 
exempt from disclosure.
    (ii) For each quarter hour spent by clerical personnel in searching 
for and retrieving a requested record, the fee will be $4.00. Where a 
search and retrieval cannot be performed entirely by clerical 
personnel--for example, where the identification of records within the 
scope of a request requires the use of professional personnel--the fee 
will be $7.00 for each quarter hour of search time spent by 
professional personnel. Where the time of managerial personnel is 
required, the fee will be $10.25 for each quarter hour of time spent by 
those personnel.
    (iii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, although certain requesters 
(as provided in paragraph (d)(1) of this section) will be charged no 
search fee and certain other requesters (as provided in paragraph 
(d)(3) of this section) will be entitled to the cost equivalent of two 
hours of manual search time without charge. These direct costs will 
include the cost of operating a central processing unit for that 
portion of operating time that is directly attributable to searching 
for responsive records, as well as the costs of operator/programmer 
salary apportionable to the search.
    (2) Duplication. Duplication fees will be charged to all 
requesters, subject to the limitations of paragraph (d) of this 
section. For a paper photocopy of a record (no more than one copy of 
which need be supplied), the fee will be ten cents per page. For copies 
produced by computer, such as tapes or printouts, components will 
charge the direct costs, including operator time, of producing the 
copy. For other forms of duplication, components will charge the direct 
costs of that duplication.
    (3) Review. Review fees will be charged to requesters who make a 
commercial use request. Review fees will be charged only for the 
initial record review--in other words, the review done when a component 
determines whether an exemption applies to a particular record or 
record portion at the initial request level. No charge will be made for 
review at the administrative appeal level for an exemption already 
applied. However, records or record portions withheld under an 
exemption that is subsequently determined not to apply may be reviewed 
again to determine whether any other exemption not previously 
considered applies; the costs of that review are chargeable where it is 
made necessary by a change of circumstances. Review fees will be 
charged at the same rates as those charged for a search under paragraph 
(c)(1)(ii) of this section.
    (d) Limitations on charging fees. (1) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.
    (2) No search fee or review fee will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, 
components will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); 
and
    (ii) The first two hours of search (or the cost equivalent).
    (4) Whenever a total fee calculated under paragraph (c) of this 
section is $14.00 or less for any request, no fee will be charged.
    (5) The provisions of paragraphs (d)(3) and (4) of this section 
work together. This means that for requesters other than those seeking 
records for a commercial use, no fee will be charged unless the cost of 
search in excess of two hours plus the cost of duplication in excess of 
100 pages totals more than $14.00.
    (e) Notice of anticipated fees in excess of $25.00. When a 
component determines or estimates that the fees to be charged under 
this section will amount to more than $25.00, the component shall 
notify the requester of the actual or estimated amount of the fees, 
unless the requester has indicated a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the component shall advise the requester that the estimated 
fee may be only a portion of the total fee. In cases in which a 
requester has been notified that actual or estimated fees amount to 
more than $25.00, the request shall not be considered received and 
further work shall not be done on it until the requester agrees to pay 
the anticipated total fee. Any such agreement should be memorialized in 
writing. A notice under this paragraph will offer the requester an 
opportunity to discuss the matter with Department personnel in order to 
reformulate the request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Apart from the other provisions of 
this section, when a component chooses as a matter of administrative 
discretion to provide a special service--such as certifying that 
records are true copies or sending them by other than ordinary mail--
the direct costs of providing the service ordinarily will be charged.
    (g) Charging interest. Components may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the date of the billing until payment 
is received by the component. Components will follow the provisions of 
the Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as 
amended, and its administrative procedures, including the use of 
consumer reporting agencies, collection agencies, and offset.
    (h) Aggregating requests. Where a component reasonably believes 
that a requester or a group of requesters acting

[[Page 45191]]

together is attempting to divide a request into a series of requests 
for the purpose of avoiding fees, the component may aggregate those 
requests and charge accordingly. Components may presume that multiple 
requests of this type made within a 30-day period have been made in 
order to avoid fees. Where requests are separated by a longer period, 
components 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.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i) (2) and (3) of this section, a component shall not 
require the requester to make an advance payment--in other words, a 
payment made before work is begun or continued on a request. Payment 
owed for work already completed (i.e., a prepayment before copies are 
sent to a requester) is not an advance payment.
    (2) Where a component determines or estimates that a total fee to 
be charged under this section will be more than $250.00, it may require 
the requester to make an advance payment of an amount up to the amount 
of the entire anticipated fee before beginning to process the request, 
except where it receives a satisfactory assurance of full payment from 
a requester that has a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any component or agency within 30 days of the date 
of billing, a component may require the requester to pay the full 
amount due, plus any applicable interest, and to make an advance 
payment of the full amount of any anticipated fee, before the component 
begins to process a new request or continues to process a pending 
request from that requester.
    (4) In cases in which a component requires advance payment or 
payment due under paragraph (i) (2) or (3) of this section, the request 
shall not be considered received and further work will not be done on 
it until the required payment is received.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. Where records responsive to requests 
are maintained for distribution by agencies operating such statutorily 
based fee schedule programs, components will inform requesters of the 
steps for obtaining records from those sources so that they may do so 
most economically.
    (k) Waiver or reduction of fees. (1) Records responsive to a 
request will be furnished without charge or at a charge reduced below 
that established under paragraph (c) of this section where a component 
determines, based on all available information, that disclosure of the 
requested information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government and is not primarily in the commercial 
interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
components will consider the following factors:
    (i) The subject of the request: Whether the subject of the 
requested records concerns ``the operations or activities of the 
government.'' The subject of the requested records must concern 
identifiable operations or activities of the federal government, with a 
connection that is direct and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding where nothing new would be 
added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public shall be considered. It shall be presumed 
that a representative of the news media will satisfy this 
consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
enhanced by the disclosure to a significant extent. Components shall 
not make value judgments about whether information that would 
contribute significantly to public understanding of the operations or 
activities of the government is ``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
components will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. Components shall consider any commercial interest 
of the requester (with reference to the definition of ``commercial 
use'' in paragraph (b)(1) of this section), or of any person on whose 
behalf the requester may be acting, that would be furthered by the 
requested disclosure. Requesters shall be given an opportunity in the 
administrative process to provide explanatory information regarding 
this consideration.
    (ii) The primary interest in disclosure: Whether any identified 
commercial interest of the requester is sufficiently large, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. Components ordinarily 
shall presume that where a news media requester has satisfied the 
public interest standard, the public interest will be the interest 
primarily served by disclosure to that requester. Disclosure to data 
brokers or others who merely compile and market government information 
for direct economic return shall not be presumed to primarily serve the 
public interest.
    (4) Where only some of the requested records satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k) (2) and (3) of this section, insofar 
as they apply to each request. Components will exercise their 
discretion to consider the cost-effectiveness of their investment of 
administrative resources in this decisionmaking process, however, in 
deciding to grant waivers or reductions of fees.

[[Page 45192]]

Sec. 16.12  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, 
as of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.
    3. Subpart D of part 16 is revised to read as follows:
Subpart D--Protection of Privacy and Access to Individual Records Under 
the Privacy Act of 1974
Sec.
16.40  General provisions.
16.41  Requests for access to records.
16.42  Responsibility for responding to requests for access to 
records.
16.43  Responses to requests for access to records.
16.44  Classified information.
16.45  Appeals from denials of requests for access to records.
16.46  Requests for amendment or correction of records.
16.47  Requests for an accounting of record disclosures.
16.48  Preservation of records.
16.49  Fees.
16.50  Notice of court-ordered and emergency disclosures.
16.51  Security of systems of records.
16.52  Contracts for the operation of record systems.
16.53  Use and collection of social security numbers.
16.54  Employee standards of conduct.
16.55  Other rights and services.

Subpart D--Protection of Privacy and Access to Individual Records 
Under the Privacy Act of 1974


Sec. 16.40  General provisions.

    (a) Purpose and scope. This subpart contains the rules that the 
Department of Justice follows under the Privacy Act of 1974, 5 U.S.C. 
552a. The rules in this subpart apply to all records in systems of 
records maintained by the Department that are retrieved by an 
individual's name or personal identifier. They describe the procedures 
by which individuals may request access to records about themselves, 
request amendment or correction of those records, and request an 
accounting of disclosures of those records by the Department. In 
addition, the Department processes all Privacy Act requests for access 
to records under the Freedom of Information Act (FOIA), 5 U.S.C. 552, 
following the rules contained in subpart A of this part, which gives 
requesters the benefit of both statutes.
    (b) Definitions. As used in this subpart:
    (1) Component means each separate bureau, office, board, division, 
commission, service, or administration of the Department of Justice.
    (2) Request for access to a record means a request made under 
Privacy Act subsection (d)(1).
    (3) Request for amendment or correction of a record means a request 
made under Privacy Act subsection (d)(2).
    (4) Request for an accounting means a request made under Privacy 
Act subsection (c)(3).
    (5) Requester means an individual who makes a request for access, a 
request for amendment or correction, or a request for an accounting 
under the Privacy Act.
    (c) Authority to request records for a law enforcement purpose. The 
head of a component or a United States Attorney, or either's designee, 
is authorized to make written requests under subsection (b)(7) of the 
Privacy Act for records maintained by other agencies that are necessary 
to carry out an authorized law enforcement activity.


Sec. 16.41  Requests for access to records.

    (a) How made and addressed. You may make a request for access to a 
Department of Justice record about yourself by appearing in person or 
by writing directly to the Department component that maintains the 
record. Your request should be sent or delivered to the component's 
Privacy Act office at the address listed in Appendix I to this part. In 
most cases, a component's central Privacy Act office is the place to 
send a Privacy Act request. For records held by a field office of the 
Federal Bureau of Investigation (FBI) or the Immigration and 
Naturalization Service (INS), however, you must write directly to that 
FBI or INS field office address, which can be found in most telephone 
books, or by calling the component's central Privacy Act office. (The 
functions of each component are summarized in part 0 of this title and 
in the description of the Department and its components in the ``United 
States Government Manual,'' which is issued annually and is available 
in most libraries, as well as for sale from the Government Printing 
Office's Superintendent of Documents. This manual also can be accessed 
electronically at the Government Printing Office's World Wide Web site 
(which can be found at http://www.access.gpo.gov/su__docs). If you 
cannot determine where within the Department to send your request, you 
may send it to the FOIA/PA Mail Referral Unit, Justice Management 
Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW., 
Washington, DC 20530-0001, and that office will forward it to the 
component(s) it believes most likely to have the records that you seek. 
For the quickest possible handling, you should mark both your request 
letter and the envelope ``Privacy Act Request.''
    (b) Description of records sought. You must describe the records 
that you want in enough detail to enable Department personnel to locate 
the system of records containing them with a reasonable amount of 
effort. Whenever possible, your request should describe the records 
sought, the time periods in which you believe they were compiled, and 
the name or identifying number of each system of records in which you 
believe they are kept. The Department publishes notices in the Federal 
Register that describe its components' systems of records. A 
description of the Department's systems of records also may be found as 
part of the ``Privacy Act Compilation'' published by the National 
Archives and Records Administration's Office of the Federal Register. 
This compilation is available in most large reference and university 
libraries. This compilation also can be accessed electronically at the 
Government Printing Office's World Wide Web site (which can be found at 
http://www.access.gpo.gov/su__docs).
    (c) Agreement to pay fees. If you make a Privacy Act request for 
access to records, it shall be considered an agreement by you to pay 
all applicable fees charged under Sec. 16.49, up to $25.00. The 
component responsible for responding to your request ordinarily shall 
confirm this agreement in an acknowledgment letter. When making a 
request, you may specify a willingness to pay a greater or lesser 
amount.
    (d) Verification of identity. When you make a request for access to 
records about yourself, you must verify your identity. You must state 
your full name, current address, and date and place of birth. You must 
sign your request and your signature must either be notarized or 
submitted by you under 28 U.S.C. 1746, a law that permits statements to 
be made under penalty of perjury as a substitute for notarization. 
While no specific form is required, you may obtain forms for this 
purpose from the FOIA/PA Mail Referral Unit, Justice Management 
Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW., 
Washington, DC 20530-0001. In order to help the identification and 
location of requested records, you may also, at your option, include 
your social security number.
    (e) Verification of guardianship. When making a request as the 
parent or guardian of a minor or as the guardian of someone determined 
by a court to be incompetent, for access to records about that 
individual, you must establish:

[[Page 45193]]

    (1) The identity of the individual who is the subject of the 
record, by stating the name, current address, date and place of birth, 
and, at your option, the social security number of the individual;
    (2) Your own identity, as required in paragraph (d) of this 
section;
    (3) That you are the parent or guardian of that individual, which 
you may prove by providing a copy of the individual's birth certificate 
showing your parentage or by providing a court order establishing your 
guardianship; and
    (4) That you are acting on behalf of that individual in making the 
request.


Sec. 16.42  Responsibility for responding to requests for access to 
records.

    (a) In general. Except as stated in paragraphs (c), (d), and (e) of 
this section, the component that first receives a request for access to 
a record, and has possession of that record, is the component 
responsible for responding to the request. In determining which records 
are responsive to a request, a component ordinarily shall include only 
those records in its possession as of the date the component begins its 
search for them. If any other date is used, the component shall inform 
the requester of that date.
    (b) Authority to grant or deny requests. The head of a component, 
or the component head's designee, is authorized to grant or deny any 
request for access to a record of that component.
    (c) Consultations and referrals. When a component receives a 
request for access to a record in its possession, it shall determine 
whether another component, or another agency of the Federal Government, 
is better able to determine whether the record is exempt from access 
under the Privacy Act. If the receiving component determines that it is 
best able to process the record in response to the request, then it 
shall do so. If the receiving component determines that it is not best 
able to process the record, then it shall either:
    (1) Respond to the request regarding that record, after consulting 
with the component or agency best able to determine whether the record 
is exempt from access and with any other component or agency that has a 
substantial interest in it; or
    (2) Refer the responsibility for responding to the request 
regarding that record to the component best able to determine whether 
it is exempt from access, or to another agency that originated the 
record (but only if that agency is subject to the Privacy Act). 
Ordinarily, the component or agency that originated a record will be 
presumed to be best able to determine whether it is exempt from access.
    (d) Law enforcement information. Whenever a request is made for 
access to a record containing information that relates to an 
investigation of a possible violation of law and that was originated by 
another component or agency, the receiving component shall either refer 
the responsibility for responding to the request regarding that 
information to that other component or agency or shall consult with 
that other component or agency.
    (e) Classified information. Whenever a request is made for access 
to a record containing information that has been classified by or may 
be appropriate for classification by another component or agency under 
Executive Order 12958 or any other executive order concerning the 
classification of records, the receiving component shall refer the 
responsibility for responding to the request regarding that information 
to the component or agency that classified the information, should 
consider the information for classification, or has the primary 
interest in it, as appropriate. Whenever a record contains information 
that has been derivatively classified by a component because it 
contains information classified by another component or agency, the 
component shall refer the responsibility for responding to the request 
regarding that information to the component or agency that classified 
the underlying information.
    (f) Notice of referral. Whenever a component refers all or any part 
of the responsibility for responding to a request to another component 
or agency, it ordinarily shall notify the requester of the referral and 
inform the requester of the name of each component or agency to which 
the request has been referred and of the part of the request that has 
been referred.
    (g) Timing of responses to consultations and referrals. All 
consultations and referrals shall be handled according to the date the 
Privacy Act access request was initially received by the first 
component or agency, not any later date.
    (h) Agreements regarding consultations and referrals. Components 
may make agreements with other components or agencies to eliminate the 
need for consultations or referrals for particular types of records.


Sec. 16.43  Responses to requests for access to records.

    (a) Acknowledgements of requests. On receipt of a request, a 
component ordinarily shall send an acknowledgement letter to the 
requester which shall confirm the requester's agreement to pay fees 
under Sec. 16.41(c) and provide an assigned request number for further 
reference.
    (b) Grants of requests for access. Once a component makes a 
determination to grant a request for access in whole or in part, it 
shall notify the requester in writing. The component shall inform the 
requester in the notice of any fee charged under Sec. 16.49 and shall 
disclose records to the requester promptly on payment of any applicable 
fee. If a request is made in person, the component may disclose records 
to the requester directly, in a manner not unreasonably disruptive of 
its operations, on payment of any applicable fee and with a written 
record made of the grant of the request. If a requester is accompanied 
by another person, the requester shall be required to authorize in 
writing any discussion of the records in the presence of the other 
person.
    (c) Adverse determinations of requests for access. A component 
making an adverse determination denying a request for access in any 
respect shall notify the requester of that determination in writing. 
Adverse determinations, or denials of requests, consist of: a 
determination to withhold any requested record in whole or in part; a 
determination that a requested record does not exist or cannot be 
located; a determination that what has been requested is not a record 
subject to the Privacy Act; a determination on any disputed fee matter; 
and a denial of a request for expedited treatment. The notification 
letter shall be signed by the head of the component, or the component 
head's designee, and shall include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reason(s) for the denial, including 
any Privacy Act exemption(s) applied by the component in denying the 
request; and
    (3) A statement that the denial may be appealed under Sec. 16.45(a) 
and a description of the requirements of Sec. 16.45(a).


Sec. 16.44  Classified information.

    In processing a request for access to a record containing 
information that is classified under Executive Order 12958 or any other 
executive order, the originating component shall review the information 
to determine whether it should remain classified. Information 
determined to no longer require classification shall not be withheld 
from a requester on the basis of Exemption (k)(1) of the Privacy Act. 
On receipt of any appeal involving classified

[[Page 45194]]

information, the Office of Information and Privacy shall take 
appropriate action to ensure compliance with part 17 of this title.


Sec. 16.45  Appeals from denials of requests for access to records.

    (a) Appeals. If you are dissatisfied with a component's response to 
your request for access to records, you may appeal an adverse 
determination denying your request in any respect to the Office of 
Information and Privacy, U.S. Department of Justice, Flag Building, 
Suite 570, Washington, DC 20530-0001. You must make your appeal in 
writing and it must be received by the Office of Information and 
Privacy within 60 days of the date of the letter denying your request. 
Your appeal letter may include as much or as little related information 
as you wish, as long as it clearly identifies the component 
determination (including the assigned request number, if known) that 
you are appealing. For the quickest possible handling, you should mark 
both your appeal letter and the envelope ``Privacy Act Appeal.'' Unless 
the Attorney General directs otherwise, a Director of the Office of 
Information and Privacy will act on behalf of the Attorney General on 
all appeals under this section, except that:
    (1) In the case of an adverse determination by the Deputy Attorney 
General or the Associate Attorney General, the Attorney General or the 
Attorney General's designee will act on the appeal;
    (2) An adverse determination by the Attorney General will be the 
final action of the Department; and
    (3) An appeal ordinarily will not be acted on if the request 
becomes a matter of litigation.
    (b) Responses to appeals. The decision on your appeal will be made 
in writing. A decision affirming an adverse determination in whole or 
in part will include a brief statement of the reason(s) for the 
affirmance, including any Privacy Act exemption applied, and will 
inform you of the Privacy Act provisions for court review of the 
decision. If the adverse determination is reversed or modified on 
appeal in whole or in part, you will be notified in a written decision 
and your request will be reprocessed in accordance with that appeal 
decision.
    (c) When appeal is required. If you wish to seek review by a court 
of any adverse determination or denial of a request, you must first 
appeal it under this section.


Sec. 16.46  Requests for amendment or correction of records.

    (a) How made and addressed. Unless the record is not subject to 
amendment or correction as stated in paragraph (f) of this section, you 
may make a request for amendment or correction of a Department of 
Justice record about yourself by writing directly to the Department 
component that maintains the record, following the procedures in 
Sec. 16.41. Your request should identify each particular record in 
question, state the amendment or correction that you want, and state 
why you believe that the record is not accurate, relevant, timely, or 
complete. You may submit any documentation that you think would be 
helpful. If you believe that the same record is in more than one system 
of records, you should state that and address your request to each 
component that maintains a system of records containing the record.
    (b) Component responses. Within ten working days of receiving your 
request for amendment or correction of records, a component shall send 
you a written acknowledgement of its receipt of your request, and it 
shall promptly notify you whether your request is granted or denied. If 
the component grants your request in whole or in part, it shall 
describe the amendment or correction made and shall advise you of your 
right to obtain a copy of the corrected or amended record, in 
disclosable form. If the component denies your request in whole or in 
part, it shall send you a letter signed by the head of the component, 
or the component head's designee, that shall state:
    (1) The reason(s) for the denial; and
    (2) The procedure for appeal of the denial under paragraph (c) of 
this section, including the name and business address of the official 
who will act on your appeal.
    (c) Appeals. You may appeal a denial of a request for amendment or 
correction to the Office of Information and Privacy in the same manner 
as a denial of a request for access to records (see Sec. 16.45) and the 
same procedures shall be followed. If your appeal is denied, you shall 
be advised of your right to file a Statement of Disagreement as 
described in paragraph (d) of this section and of your right under the 
Privacy Act for court review of the decision.
    (d) Statements of Disagreement. If your appeal under this section 
is denied in whole or in part, you have the right to file a Statement 
of Disagreement that states your reason(s) for disagreeing with the 
Department's denial of your request for amendment or correction. 
Statements of Disagreement must be concise, must clearly identify each 
part of any record that is disputed, and should be no longer than one 
typed page for each fact disputed. Your Statement of Disagreement must 
be sent to the component involved, which shall place it in the system 
of records in which the disputed record is maintained and shall mark 
the disputed record to indicate that a Statement of Disagreement has 
been filed and where in the system of records it may be found.
    (e) Notification of amendment/correction or disagreement. Within 30 
working days of the amendment or correction of a record, the component 
that maintains the record shall notify all persons, organizations, or 
agencies to which it previously disclosed the record, if an accounting 
of that disclosure was made, that the record has been amended or 
corrected. If an individual has filed a Statement of Disagreement, the 
component shall append a copy of it to the disputed record whenever the 
record is disclosed and may also append a concise statement of its 
reason(s) for denying the request to amend or correct the record.
    (f) Records not subject to amendment or correction. The following 
records are not subject to amendment or correction:
    (1) Transcripts of testimony given under oath or written statements 
made under oath;
    (2) Transcripts of grand jury proceedings, judicial proceedings, or 
quasi-judicial proceedings, which are the official record of those 
proceedings;
    (3) Presentence records that originated with the courts; and
    (4) Records in systems of records that have been exempted from 
amendment and correction under Privacy Act, 5 U.S.C. 552a(j) or (k) by 
notice published in the Federal Register.


Sec. 16.47  Requests for an accounting of record disclosures.

    (a) How made and addressed. Except where accountings of disclosures 
are not required to be kept (as stated in paragraph (b) of this 
section), you may make a request for an accounting of any disclosure 
that has been made by the Department to another person, organization, 
or agency of any record about you. This accounting contains the date, 
nature, and purpose of each disclosure, as well as the name and address 
of the person, organization, or agency to which the disclosure was 
made. Your request for an accounting should identify each particular 
record in question and should be made by writing directly to the 
Department component that maintains the record, following the 
procedures in Sec. 16.41.

[[Page 45195]]

    (b) Where accountings are not required. Components are not required 
to provide accountings to you where they relate to:
    (1) Disclosures for which accountings are not required to be kept--
in other words, disclosures that are made to employees within the 
agency and disclosures that are made under the FOIA;
    (2) Disclosures made to law enforcement agencies for authorized law 
enforcement activities in response to written requests from those law 
enforcement agencies specifying the law enforcement activities for 
which the disclosures are sought; or
    (3) Disclosures made from law enforcement systems of records that 
have been exempted from accounting requirements.
    (c) Appeals. You may appeal a denial of a request for an accounting 
to the Office of Information and Privacy in the same manner as a denial 
of a request for access to records (see Sec. 16.45) and the same 
procedures will be followed.


Sec. 16.48  Preservation of records.

    Each component will preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the Act.


Sec. 16.49  Fees.

    Components shall charge fees for duplication of records under the 
Privacy Act in the same way in which they charge duplication fees under 
Sec. 16.11. No search or review fee may be charged for any record 
unless the record has been exempted from access under Exemptions (j)(2) 
or (k)(2) of the Privacy Act.


Sec. 16.50  Notice of court-ordered and emergency disclosures.

    (a) Court-ordered disclosures. When a record pertaining to an 
individual is required to be disclosed by a court order, the component 
shall make reasonable efforts to provide notice of this to the 
individual. Notice shall be given within a reasonable time after the 
component's receipt of the order--except that in a case in which the 
order is not a matter of public record, the notice shall be given only 
after the order becomes public. This notice shall be mailed to the 
individual's last known address and shall contain a copy of the order 
and a description of the information disclosed. Notice shall not be 
given if disclosure is made from a criminal law enforcement system of 
records that has been exempted from the notice requirement.
    (b) Emergency disclosures. Upon disclosing a record pertaining to 
an individual made under compelling circumstances affecting health or 
safety, the component shall notify that individual of the disclosure. 
This notice shall be mailed to the individual's last known address and 
shall state the nature of the information disclosed; the person, 
organization, or agency to which it was disclosed; the date of 
disclosure; and the compelling circumstances justifying the disclosure.


Sec. 16.51  Security of systems of records.

    (a) Each component shall establish administrative and physical 
controls to prevent unauthorized access to its systems of records, to 
prevent unauthorized disclosure of records, and to prevent physical 
damage to or destruction of records. The stringency of these controls 
shall correspond to the sensitivity of the records that the controls 
protect. At a minimum, each component's administrative and physical 
controls shall ensure that:
    (1) Records are protected from public view;
    (2) The area in which records are kept is supervised during 
business hours to prevent unauthorized persons from having access to 
them;
    (3) Records are inaccessible to unauthorized persons outside of 
business hours; and
    (4) Records are not disclosed to unauthorized persons or under 
unauthorized circumstances in either verbal or written form.
    (b) Each component shall have procedures that restrict access to 
records to only those individuals within the Department who must have 
access to those records in order to perform their duties and that 
prevent inadvertent disclosure of records.


Sec. 16.52  Contracts for the operation of record systems.

    Any approved contract for the operation of a record system will 
contain the standard contract requirements issued by the General 
Services Administration to ensure compliance with the requirements of 
the Privacy Act for that record system. The contracting component will 
be responsible for ensuring that the contractor complies with these 
contract requirements.


Sec. 16.53  Use and collection of social security numbers.

    Each component shall ensure that employees authorized to collect 
information are aware:
    (a) That individuals may not be denied any right, benefit, or 
privilege as a result of refusing to provide their social security 
numbers, unless the collection is authorized either by a statute or by 
a regulation issued prior to 1975; and
    (b) That individuals requested to provide their social security 
numbers must be informed of:
    (1) Whether providing social security numbers is mandatory or 
voluntary;
    (2) Any statutory or regulatory authority that authorizes the 
collection of social security numbers; and
    (3) The uses that will be made of the numbers.


Sec. 16.54  Employee standards of conduct.

    Each component will inform its employees of the provisions of the 
Privacy Act, including the Act's civil liability and criminal penalty 
provisions. Unless otherwise permitted by law, an employee of the 
Department of Justice shall:
    (a) Collect from individuals only the information that is relevant 
and necessary to discharge the responsibilities of the Department;
    (b) Collect information about an individual directly from that 
individual whenever practicable;
    (c) Inform each individual from whom information is collected of:
    (1) The legal authority to collect the information and whether 
providing it is mandatory or voluntary;
    (2) The principal purpose for which the Department intends to use 
the information;
    (3) The routine uses the Department may make of the information; 
and
    (4) The effects on the individual, if any, of not providing the 
information;
    (d) Ensure that the component maintains no system of records 
without public notice and that it notifies appropriate Department 
officials of the existence or development of any system of records that 
is not the subject of a current or planned public notice;
    (e) Maintain all records that are used by the Department in making 
any determination about an individual with such accuracy, relevance, 
timeliness, and completeness as is reasonably necessary to ensure 
fairness to the individual in the determination;
    (f) Except as to disclosures made to an agency or made under the 
FOIA, make reasonable efforts, prior to disseminating any record about 
an individual, to ensure that the record is accurate, relevant, timely, 
and complete;

[[Page 45196]]

    (g) Maintain no record describing how an individual exercises his 
or her First Amendment rights, unless it is expressly authorized by 
statute or by the individual about whom the record is maintained, or is 
pertinent to and within the scope of an authorized law enforcement 
activity;
    (h) When required by the Act, maintain an accounting in the 
specified form of all disclosures of records by the Department to 
persons, organizations, or agencies;
    (i) Maintain and use records with care to prevent the unauthorized 
or inadvertent disclosure of a record to anyone; and
    (j) Notify the appropriate Department official of any record that 
contains information that the Privacy Act does not permit the 
Department to maintain.


Sec. 16.55  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, 
as of right, to any service or to the disclosure of any record to which 
such person is not entitled under the Privacy Act.
    4. Appendix I of part 16 is revised to read as follows:

Appendix I to Part 16--Components of the Department of Justice

    Unless a separate address is listed below, the address for each 
component is: [component name], U.S. Department of Justice, 950 
Pennsylvania Avenue, NW., Washington, DC 20530-0001. For all 
components marked by an asterisk, FOIA and Privacy Act requests 
should be sent to the Office of Information and Privacy, U.S. 
Department of Justice, Flag Bldg., Suite 570, Washington, DC 20530-
0001. The components are:

A.
    Office of the Attorney General *
    Office of the Deputy Attorney General *
    Office of the Associate Attorney General *
    Office of the Solicitor General
B.
    Office of Information and Privacy *
    Office of the Inspector General
    Office of Intelligence Policy and Review
    Office of Investigative Agency Policies
    Office of Legal Counsel
    Office of Legislative Affairs *
    Office of Policy Development *
    Office of Professional Responsibility
    Office of Public Affairs *
C.
    Antitrust Division, U.S. Department of Justice, LPB Bldg., Suite 
200, Washington, DC 20530-0001
    Civil Division, U.S. Department of Justice, 901E Bldg., Room 
808, Washington, DC 20530-0001
    Civil Rights Division, U.S. Department of Justice, NYAV Bldg., 
Room 8000B, Washington, DC 20530-0001
    Criminal Division, U.S. Department of Justice, WCTR Bldg., Suite 
1075, Washington, DC 20530-0001
    Environment and Natural Resources Division
    Justice Management Division
    Tax Division, U.S. Department of Justice, JCB Bldg., Room 6823, 
Washington, DC 20530-0001
    Bureau of Prisons, U.S. Department of Justice, HOLC Bldg., Room 
714, 320 First Street, NW., Washington, DC 20534-0001
    Community Relations Service, U.S. Department of Justice, BICN 
Bldg., Suite 2000, Washington, DC 20350-0001
    Drug Enforcement Administration, U.S. Department of Justice, 
Washington, DC 20537-0001
    Executive Office for Immigration Review, U.S. Department of 
Justice, Suite 2400, 5107 Leesburg Pike, Falls Church, VA 22041-0001
    Executive Office for United States Attorneys, U.S. Department of 
Justice, BICN Bldg., Room 7100, Washington, DC 20350-0001
    Executive Office for United States Trustees, U.S. Department of 
Justice, 901E Bldg., Room 780, Washington, DC 20530-0001
    Federal Bureau of Investigation, U.S. Department of Justice, 935 
Pennsylvania Avenue, NW., Washington, DC 20535-0001 (for field 
offices, consult your telephone book)
    Foreign Claims Settlement Commission, U.S. Department of 
Justice, BICN Bldg., Room 6002, 600 E Street, NW., Washington, DC 
20579-0001
    Immigration and Naturalization Service, U.S. Department of 
Justice, CAB Bldg., 425 Eye Street, NW., Washington, DC 20536-0001 
(for field offices, consult your telephone book)
    INTERPOL-U.S. National Central Bureau, U.S. Department of 
Justice, BICN Bldg., Washington, DC 20350-0001
    National Drug Intelligence Center, U.S. Department of Justice, 
Fifth Floor, 319 Washington Street, Johnstown, PA 15901-1622
    Office of Community Oriented Policing Services, U.S. Department 
of Justice, VT1 Bldg., Room 1000, Washington, DC 20530-0001
    Office of Justice Programs, U.S. Department of Justice, IND 
Bldg., Room 1245, 633 Indiana Avenue, NW., Washington, DC 20531-0001
    Pardon Attorney, U.S. Department of Justice, FRST Bldg., Fourth 
Floor, Washington, DC 20530-0001
    United States Marshals Service, U.S. Department of Justice, 
Lincoln Place, Room 1250, 600 Army Navy Drive, Arlington, VA 22202-
4210

PART 50--STATEMENTS OF POLICY

    5. The authority citation for part 50 continues to read as follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, and 42 U.S.C. 1921 
et seq., 1973c.

Sec. 50.8  [Removed and reserved]

    6. Section 50.8 is removed and reserved.

    Dated: August 13, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-22079 Filed 8-25-97; 8:45 am]
BILLING CODE 4410-BE-P