[Federal Register Volume 69, Number 212 (Wednesday, November 3, 2004)]
[Rules and Regulations]
[Pages 63934-63946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24581]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 171

[Public Notice 4841]
RIN 1400-AB85


Availability of Information to the Public

AGENCY: State Department.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule makes final the Department's proposed rule published 
on March 31, 2004. The rule revises the Department's regulations 
governing access by the public to information that is under the control 
of the Department in order to reflect changes in the provisions of 
basic underlying laws and executive orders pertaining to access to 
information (i.e., the Freedom of Information Act, the Privacy Act, 
Executive Order 12958 on National Security Information, the Ethics in 
Government Act) and in the Department's procedures since the last 
revision of the Department's regulations on this subject. The 
Department received one non-substantive comment, and proposes no 
changes to the proposed rule. The proposed rule is therefore issued as 
final.

EFFECTIVE DATE: This rule is effective on November 3, 2004.

ADDRESSES: Persons wishing to make requests for information under these 
regulations should address such requests to: Margaret P. Grafeld, 
Director, Office of Information Programs and Services, U.S. Department 
of State, SA-2, 515 22nd St., NW., Washington, DC 20522-6001. Tel: 202-
261-8300; FAX: 202-261-8590.
    Persons with access to the Internet may also view this notice by 
going to the regulations.gov Web site at http://www.regulations.gov/index.cfm.

FOR FURTHER INFORMATION CONTACT: Margaret P. Grafeld, Director, Office 
of Information Programs and Services, U.S. Department of State, SA-2, 
515 22nd St., NW., Washington, DC 20522-6001. Tel: 202-261-8300; FAX: 
202-261-8590.

SUPPLEMENTARY INFORMATION: The Department's proposed rule was published 
as Public Notice 4653 at 69 FR 16841-16853 on March 31, 2004, with a 
90-day public comment period. The Department received one non-
substantive comment regarding Reading Room hours of operation, which 
was satisfied by the availability of the Department's FOIA Web site 24 
hours a day. Additionally, while the Department does not accept FOIA 
requests via e-mail, we are beginning to accept requests via our Web 
site.
    The Freedom of Information Act (FOIA), the Privacy Act (PA), and 
certain portions of the Ethics in Government Act and Executive Order 
12958, as amended, provide for access by the public to records of 
executive branch agencies, subject to certain restrictions and 
exemptions. 22 CFR part 171 sets forth the Department's regulations 
implementing the access provisions of those statutes and the Executive 
Order. Since the last publication of the regulations in the 1980's, 
there have been significant changes in the law governing access to 
government information by the public, particularly with respect to the 
FOIA and the Executive Order. In addition, certain court decisions have 
been rendered that affect such access provisions.
    A major revision of the Freedom of Information Act was enacted in 
1996, the so-called Electronic Freedom of Information Act. The changes 
effected by the Electronic Freedom of Information Act amendments of 
1996 included provisions with respect to the form in which agencies are 
required to

[[Page 63935]]

provide requested information, circumstances that warrant exceptions to 
time limits on responding to requests, situations in which expedited 
processing of requests is warranted, and certain reporting 
requirements. In the case of the requests by the public for 
declassification of national security information, several executive 
orders have been promulgated since the Department regulations were last 
amended. Executive Order 12958, issued in 1995 and most recently and 
most substantially amended by Executive Order 13292 of March 28, 2003, 
effected changes in the provisions governing mandatory declassification 
review as well as access to agency records by historical researchers 
and certain former government personnel. The final regulations take 
account of these changes and other changes in the law, principally by 
way of court decisions, as well as changes in the Department's 
procedures designed to implement them.

List of Subjects in 22 CFR Part 171

    Administrative practice and procedure, Confidential business 
information, Freedom of information, Privacy.


0
Chapter 1 of Title 22 of the Code of Federal Regulations is amended by 
revising part 171 to read as follows:

PART 171--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC

Subpart A--General Policy and Procedures
Sec.
171.1 Availability of information.
171.2 Types of records maintained.
171.3 Public reading room.
171.4 Electronic reading room.
171.5 Requests for information--types and how made.
171.6 Archival records.
Subpart B--Freedom of Information Act Provisions
171.10 Purpose and scope.
171.11 Definitions.
171.12 Processing requests.
171.13 Business information.
171.14 Fees to be charged--general.
171.15 Fees to be charged--categories of requesters.
171.16 Miscellaneous fee provisions.
171.17 Waiver or reduction of fees.
Subpart C--Executive Order 12958 Provisions
171.20 Definitions.
171.21 Declassification review.
171.22 Appeals.
171.23 Declassification in the public interest.
171.24 Access by historical researchers and certain former 
government personnel.
171.25 Applicability of other laws.
Subpart D--Privacy Act Provisions
171.30 Purpose and scope.
171.31 Definitions.
171.32 Request for access to records.
171.33 Request to amend or correct records.
171.34 Request for an accounting of record disclosures.
171.35 Denials of requests; appeals.
171.36 Exemptions.
Subpart E--Ethics in Government Provisions
171.40 Purpose and scope.
171.41 Covered employees.
171.42 Requests and identifying information.
171.43 Time limits and fees.
171.44 Improper use of reports.
Subpart F--Appeals Procedures
171.50 Appeals of denials of expedited processing.
171.51 Appeals of denials of fee waivers or reductions.
171.52 Appeals of denials of access to, declassification of, 
amendment of, or accounting of disclosures of records.

    Authority: 22 U.S.C. 552, 552a; Ethics in Government Act of 
1978, Pub. L. 95-521, 92 Stat. 1824, as amended; E.O. 12958, as 
amended, 60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 12600, 52 FR 
23781, 3 CFR, 1987 Comp., p. 235.

Subpart A--General Policy and Procedures


Sec.  171.1  Availability of information.

    Records of the Department of State shall be made available to the 
public upon request made in compliance with the access procedures 
established in this part, except for any records exempt by law from 
disclosure. Any request for records must describe the information 
sought in such a way (see Sec.  171.5(c)) that an employee of the 
Department of State who is familiar with the subject area of the 
request can locate the records with a reasonable amount of effort. The 
sections that follow govern the response of the Department to requests 
for information under the Freedom of Information Act, the Privacy Act, 
Executive Order 12958, and the Ethics in Government Act. Regulations at 
22 CFR 172.1-9 govern the response of the Department to subpoenas, 
court orders, and certain other requests for testimony of Department 
officials or disclosure of Department records in litigation to which 
the Department is not a party.


Sec.  171.2  Types of records maintained.

    Most of the records maintained by the Department pertain to the 
formulation and execution of U.S. foreign policy. Certain records that 
pertain to individuals are also maintained such as applications for 
U.S. passports, applications for visas to enter the U.S., records on 
consular assistance given abroad by U.S. Foreign Service posts to U.S 
citizens, and records on Department employees. Further information on 
the types of records maintained by the Department may be obtained by 
reviewing the records disposition schedules which are available through 
the Department's Web site: http://www.state.gov or directly at the FOIA 
home page: http://foia.state.gov.


Sec.  171.3  Public reading room.

    A reading room providing public access to certain Department of 
State material is located in the Department of State, SA-2, 515 22nd 
Street, NW., Washington, DC. The reading room contains material 
pertaining to access to information under the Freedom of Information 
Act, Privacy Act, E.O. 12958 and includes those statutes, regulations, 
guidelines, and other items required to be made available to the public 
under 5 U.S.C. 552(a)(2). Also available in the reading room are 
microfiches of records released by the Department pursuant to requests 
under the Freedom of Information Act and compilations of documents 
reviewed and released in certain special projects. The reading room is 
open during normal Department weekday working hours, 8:15 a.m. to 5 
p.m. There are no fees for access by the public to this room or the 
material contained therein, but fees shall be assessed for the 
duplication of materials maintained in the reading room at the rate of 
15 cents per page and $2.00 per microfiche card. Fees for copies made 
by other methods of reproduction or duplication, such as tapes, 
printouts, or CD-ROM, shall be the actual cost of producing the copies, 
including operator time. Persons wishing to use their own copying 
equipment must request approval in advance from the Department's 
Information and Privacy Coordinator, U.S. Department of State, SA-2, 
515 22nd Street, NW., Washington, DC 20522-6001. The use of such 
equipment must be consistent with security regulations of the 
Department and is subject to the availability of personnel to monitor 
such copying.


Sec.  171.4  Electronic reading room.

    The Department has established a site on the Internet with most of 
the same records and reference materials that are available in the 
public reading room. This site also contains information on accessing 
records under the FOIA and the Privacy Act. The site is a valuable 
source that is easily accessed by the public by clicking on ``FOIA'' at 
the Department's Web site at http://www.state.gov or directly at the 
FOIA home page at http://foia.state.gov.

[[Page 63936]]

Included on the FOIA home page are links to other sites where 
Department information may be available. The Department's Privacy Act 
systems of records and the various records disposition schedules may be 
found on the Department's FOIA home page under ``Reference Materials.''


Sec.  171.5  Requests for information--types and how made.

    (a) Requests for records in accordance with this chapter may be 
made by mail addressed to the Information and Privacy Coordinator, U.S. 
Department of State, SA-2, 515 22nd Street, NW., Washington, DC 20522-
6001. Facsimile requests under the FOIA only may be sent to: (202) 261-
8579. E-mail requests cannot be accepted at this time. Requesters are 
urged to indicate clearly on their requests the provision of law under 
which they are requesting information. This will facilitate the 
processing of the request by the Department. In any case, the 
Department will process the request under the provision of law that 
provides the greatest access to the requested records.
    (b) Requests may also be made by the public in person from 8:15 
a.m. to 5 p.m. at the Department of State, SA-2, 515 22nd Street, NW., 
Washington, DC.
    (c) Although no particular request format is required, it is 
essential that a request reasonably describe the Department records 
that are sought. The burden of adequately identifying the record 
requested lies with the requester. Requests should be specific and 
include all pertinent details about the request. For FOIA requests, the 
request should include the subject, timeframe, any individuals 
involved, and reasons why the Department is believed to have records on 
the subject of the request. For Privacy Act requests, the request 
should state the type of records sought, the complete name and date and 
place of birth of the subject of the request, and the timeframe for the 
records. An original signature is required. See Sec.  171.12(b) for 
guidance regarding third party requests. Individuals may seek 
assistance regarding any aspect of their requests from the Chief, 
Requester Liaison Division, (202) 261-8484.
    (d) While every effort is made to guarantee the greatest possible 
access to all requesters regardless of the specific statute under which 
the information is requested, the following guidance is provided for 
individuals in requesting records:
    (1) Freedom of Information Act. Requests for documents concerning 
the general activities of government and of the Department of State in 
particular (see subpart B of this part).
    (2) E.O. 12958. Requests for mandatory review and declassification 
of specific Department records and requests for access to such records 
by historical researchers and certain former government officials (see 
subpart C of this part).
    (3) Privacy Act. Requests from U.S. citizens or legal permanent 
resident aliens for records that pertain to them and that are 
maintained by the Department under the individual's name or personal 
identifier (see subpart D of this part).
    (4) Ethics in Government Act. Requests for the financial Disclosure 
Statements of Department Employees covered by this Act (see subpart E 
of this part).
    (e) First-in/first-out processing. As a general matter, information 
access requests are processed in the order in which they are received. 
However, if the request is specific and the search can be narrowed, it 
may be processed more quickly.
    (f) Cut-off date. In determining which records are responsive to a 
request, the Department ordinarily will include only records in its 
possession as of the date the search for responsive documents is 
initiated, unless the requester has specified an earlier time frame.
    (g) Records previously withheld or in litigation. Requests shall 
not be processed for records that have been reviewed and withheld 
within the past two years or whose withholding is the subject of 
litigation.


Sec.  171.6  Archival records.

    The Department ordinarily transfers records to the National 
Archives when they are 25 years old. Accordingly, requests for records 
25 years old or older should be addressed to: Archives II, 8601 Adelphi 
Road, National Archives at College Park, MD 20470-6001.

Subpart B--Freedom of Information Act Provisions


Sec.  171.10  Purpose and scope.

    This subpart contains the rules that the Department follows under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552. The rules should 
be read together with the FOIA which provides additional information 
about access to records and contains the specific exemptions that are 
applicable to withholding information. Privacy Act records determined 
to be exempt from disclosure under the Privacy Act are processed as 
well under the FOIA and are subject to this subpart.


Sec.  171.11  Definitions.

    As used in this subpart, the following definitions shall apply:
    (a) Freedom of Information Act or FOIA means the statute codified 
at 5 U.S.C. 552, as amended.
    (b) Department means the United States Department of State, 
including its field offices and Foreign Service posts abroad;
    (c) Agency means any executive department, military department, 
Government corporation, Government controlled corporation, or other 
establishment in the executive branch of the government (including the 
Executive Office of the President), or any independent regulatory 
agency;
    (d) Information and Privacy Coordinator means the Director of the 
Department's Office of Information Programs and Services (IPS) who is 
responsible for processing requests for access to information under the 
FOIA, the Privacy Act, E.O. 12958, and the Ethics in Government Act;
    (e) Record means all information under the control of the 
Department, including information created, stored, and retrievable by 
electronic means, regardless of physical form or characteristics, made 
in or received by the Department and preserved as evidence of the 
organization, functions, policies, decisions, procedures, operations or 
other activities of the Department or because of the informational 
value of the data contained therein. It includes records of other 
Government agencies that have been expressly placed under the control 
of the Department upon termination of those agencies. It does not 
include personal records created primarily for the personal convenience 
of an individual and not used to conduct Department business and not 
integrated into the Department's record keeping system or files. It 
does not include records that are not already in existence and that 
would have to be created specifically to meet a request. However, 
information available in electronic form shall be searched and compiled 
in response to a request unless such search and compilation would 
significantly interfere with the operation of the Department's 
automated information systems.
    (f) Control means the Department's legal authority over a record, 
taking into account the ability of the Department to use and dispose of 
the record as it sees fit, to legally determine the disposition of a 
record, the intent of the record's creator to retain or relinquish 
control over the record, the extent to which Department personnel have 
read or relied upon the record, and the degree

[[Page 63937]]

to which the record has been integrated into the Department's record 
keeping system or files.
    (g) Direct costs means those costs the Department incurs in 
searching for, duplicating, and, in the case of commercial requests, 
reviewing documents in response to a FOIA request. The term does not 
include overhead expenses.
    (h) Search costs means those costs the Department incurs in looking 
for, identifying, and retrieving material, in paper or electronic form, 
that is responsive to a request, including page-by-page or line-by-line 
identification of material within documents. The Department shall 
attempt to ensure that searching for material is done in the most 
efficient and least expensive manner so as to minimize costs for both 
the Department and the requester.
    (i) Duplication costs means those costs the Department incurs in 
copying a requested record in a form appropriate for release in 
response to a FOIA request. Such copies may take the form of paper 
copy, microfiche, audio-visual materials, or machine-readable 
electronic documentation (e.g., disk or CD-ROM), among others.
    (j) Review costs means costs the Department incurs in examining a 
record to determine whether and to what extent the record is responsive 
to the FOIA request and the extent to which it may be disclosed to the 
requester. It does not include costs of resolving general legal or 
policy issues that may be raised by a request.
    (k) Unusual circumstances. As used herein, but only to the extent 
reasonably necessary to the proper processing of the particular 
request, the term ``unusual circumstances'' means:
    (1) The need to search for and collect the requested records from 
Foreign Service posts or other separate and distinct Department 
offices;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are demanded in 
a single request; or
    (3) The need for consultation with another agency having a 
substantial interest in the determination of the request or among two 
or more components of the Department that have a substantial subject 
matter interest therein. Such consultation shall be conducted with all 
practicable speed.
    (l) Commercial use request means a request from or on behalf of one 
who requests information for a use or purpose that furthers the 
commercial, trade, or profit interest of the requester or the person on 
whose behalf the request is made. In determining whether a requester 
belongs within this category, the Department will look at the use to 
which the requester will put the information requested.
    (m) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate or 
graduate higher education, an institution of professional education, or 
an institution of vocational education, that operates a program or 
programs of scholarly research.
    (n) Non-commercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is used in 
paragraph (l) 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.
    (o) Representative of the news media 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. News media include television or radio stations broadcasting to 
the public at large and publishers of periodicals (but only in those 
instances when they can qualify as disseminators of ``news'') who make 
their products available for purchase by the general public. Freelance 
journalists may be regarded as working for a news organization if they 
can demonstrate, such as by past publication, a likelihood of 
publication through a representative of the news media, even though not 
actually employed by it.
    (p) All other means an individual or organization not covered by a 
definition in paragraphs (l), (m), (n), or (o) of this section.


Sec.  171.12  Processing requests.

    The Information and Privacy Coordinator is responsible for acting 
on all initial requests except for requests for records coming under 
the jurisdiction of the Bureau of Consular Affairs, the Bureau of 
Diplomatic Security, the Bureau of Human Resources, the Office of 
Medical Services, and the Office of the Inspector General.
    (a) Third party requests. Except for requests under the Privacy Act 
by a parent of a minor or by a legal guardian (Sec.  171.32(c)), 
requests for records pertaining to another individual shall be 
processed under the FOIA and must be accompanied by a written 
authorization for access by the individual, notarized or made under 
penalty of perjury, or by proof that the individual is deceased (e.g., 
death certificate or obituary).
    (b) Expedited processing. Requests and appeals shall be taken out 
of order and given expedited treatment whenever a requester has 
demonstrated that a ``compelling need'' for the information exists. A 
request for expedited processing may be made at the time of the initial 
request for records or at any later time. The request for expedited 
processing shall set forth with specificity the facts on which the 
request is based. A notice of the determination whether to grant 
expedited processing shall be provided to the requester within 10 days 
of the date of the receipt of the request. A ``compelling need'' is 
deemed to exist where the requester can demonstrate one of the 
following:
    (1) Failure to obtain requested information on an expedited basis 
could reasonably be expected to: Pose an imminent threat to the life or 
physical safety of an individual; impair substantial due process 
rights; or harm substantial humanitarian interests.
    (2) The information is urgently needed by an individual primarily 
engaged in disseminating information in order to inform the public 
concerning actual or alleged Federal Government activity. News media 
requesters would normally qualify; however, other persons must 
demonstrate that their primary activity involves publishing or 
otherwise disseminating information to the public, not just a 
particular segment or group.
    (i) Urgently needed. The information has a particular value that 
will be lost if not disseminated quickly. Ordinarily this means a 
breaking news story of general public interest. Information of 
historical interest only, or information sought for litigation or 
commercial activities would not qualify, nor would a news media 
publication or broadcast deadline unrelated to the breaking nature of 
the story.
    (ii) Actual or alleged Federal Government activity. The information 
concerns some actions taken, contemplated, or alleged by or about the 
government of the United States, or one of its components or agencies, 
including the Congress.
    (c) Appeal of denial of expedited processing. Any denial of a 
request for expedited processing may be appealed in accordance with the 
appeal procedure set forth in Sec.  171.50.
    (d) Time limits. The statutory time limit for responding to a FOIA 
request or to an appeal from a denial of a FOIA request is 20 days. In 
unusual circumstances, as defined in Sec.  171.11(k), the time limits 
may be extended by the

[[Page 63938]]

Information and Privacy Coordinator for not more than 10 days, 
excepting Saturdays, Sundays, or legal public holidays.
    (e) Multitrack processing. The Department 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. The Department may provide requesters in a slower track an 
opportunity to limit the scope of their request in order to qualify for 
faster processing.
    (f) Form or format of response. The Department shall provide 
requested records in any form or format sought by the requester if the 
record is readily reproducible in that form or format through 
reasonable efforts.


Sec.  171.13  Business information.

    (a) Business information obtained by the Department from a 
submitter will be disclosed under the FOIA only in compliance with this 
section.
    (b) Definitions. For purposes of this section:
    (1) Business information means information obtained by the 
Department from a submitter that arguably may be exempt from disclosure 
as privileged or confidential under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from which the Department 
obtains business information. The term includes corporations, 
partnerships, sole proprietorships; State, local, and tribal 
governments; and foreign governments.
    (c) Designation of business information. A submitter of 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 exempt 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. The Department shall provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
of a denial of such a request that seeks its information whenever 
required under paragraph (e) of this section, except as provided in 
paragraph (f) of this section, in order to give the submitter an 
opportunity to object to disclosure of any specified portion of that 
information. The notice shall either describe the information requested 
or include copies of the requested records or record portions 
containing the information.
    (e) When notice is required. Notice shall be given to a submitter 
whenever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) The Department has reason to believe that the information may 
not be protected from disclosure under Exemption 4.
    (f) When notice is not required. The notice requirements of 
paragraphs (d) and (e) of this section shall not apply if:
    (1) The Department 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; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
the Department shall, within a reasonable time prior to a specified 
disclosure date, give the submitter written notice of any final 
decision to disclose the information.
    (g) Opportunity to object to disclosure. The Department will allow 
a submitter a reasonable time to respond to the notice described in 
paragraph (d) of this section and will specify that time period in the 
notice. If a submitter has any objection to disclosure, a detailed 
written statement in support of the objection must be submitted. 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.
    (h) Notice of intent to disclose. The Department shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever the 
Department decides to disclose business information over the objection 
of a submitter, it shall give the submitter written notice, which shall 
include:
    (1) A statement of the reason why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (i) Notice of lawsuit. Whenever a requester files a lawsuit seeking 
to compel the disclosure of information, the Department shall promptly 
notify the submitter.
    (j) Notice to requester. Whenever the Department provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, the Department shall also notify the 
requester. Whenever the Department notifies a submitter of its intent 
to disclose requested information under paragraph (h) of this section, 
the Department shall also notify the requester. Whenever a submitter 
files a lawsuit seeking to prevent the disclosure of business 
information, the Department shall notify the requester.


Sec.  171.14  Fees to be charged--general.

    The Department shall seek to charge fees that recoup the full 
allowable direct costs it incurs in processing a FOIA request. It shall 
use the most efficient and least costly methods to comply with requests 
for documents made under the FOIA. The Department will not charge fees 
to any requester, including commercial use requesters, if the cost of 
collecting a fee would be equal to or greater than the fee itself. With 
the exception of requesters seeking documents for a commercial use, the 
Department will provide the first two hours of search time and the 
first 100 pages of duplication without charge. By making a FOIA 
request, the requester shall be considered to have agreed to pay all 
applicable fees up to $25.00 unless a fee waiver has been granted.
    (a) Searches for responsive records. If the Department estimates 
that the search costs will exceed $25.00, the requester shall be so 
notified. Such notice shall offer the requester the opportunity to 
confer with Department personnel with the object of reformulating the 
request to meet the requester's needs at a lower cost. The request 
shall not be processed further unless the requester agrees to pay the 
estimated fees.
    (1) Manual searches. The Department will charge at the salary rate 
(i.e., basic pay plus 16 percent of basic pay) of the employee making 
the search.
    (2) Computer searches. The Department will charge at the actual 
direct cost of providing the service. This

[[Page 63939]]

will include the cost of operating the central processing unit (CPU) 
for that portion of operating time that is directly attributable to 
searching for records responsive to a FOIA request and operator/
programmer salary attributable to the search.
    (b) Review of records. Only requesters who are seeking documents 
for commercial use may be charged for time spent reviewing records to 
determine whether they are releasable. Charges may be assessed for the 
initial review only; i.e., the review undertaken the first time the 
Department analyzes the applicability of a specific exemption to a 
particular record or portion of a record.
    (c) Duplication of records. Records shall be duplicated at a rate 
of $.15 per page. For copies prepared by computer, such as tapes or 
printouts, the Department shall charge the actual cost, including 
operator time, of production of the tape or printout. For other methods 
of reproduction or duplication, the Department shall charge the actual 
direct costs of producing the document. If the Department estimates 
that the duplication costs will exceed $25.00, the requester shall be 
so informed. The request shall not be processed further unless the 
requester agrees to pay the estimated fees.
    (d) Other charges. The Department shall recover the full costs of 
providing services such as those enumerated below:
    (1) Certifying that records are true copies (see part 22 of this 
chapter);
    (2) Sending records by special methods such as express mail, 
overnight courier, etc.
    (f) Payment shall be in the form either of a personal check or bank 
draft drawn on a bank in the United States, or a postal money order. 
Remittances shall be made payable to the order of the Treasury of the 
United States and mailed to the Information and Privacy Coordinator.
    (g) A receipt for fees paid will be given upon request. Refund of 
fees paid for services actually rendered will not be made.


Sec.  171.15  Fees to be charged--categories of requesters.

    Under the FOIA, there are four categories of requesters: Commercial 
use requesters, educational and non-commercial scientific institutions, 
representatives of the news media, and all other requesters. The fees 
for each of these categories are:
    (a) Commercial use requesters. When the Department receives a 
request for documents for commercial use as defined in Sec.  171.11(l), 
it will assess charges that recover the full direct costs of searching 
for, reviewing for release, and duplicating the record sought. 
Commercial use requesters are not entitled to two hours of free search 
time or 100 free pages of reproduction of documents. The Department may 
recover the cost of searching for and reviewing records even if there 
is ultimately no disclosure of records (see Sec.  171.16(b)).
    (b) Educational and non-commercial scientific institution 
requesters. The Department shall provide documents to requesters in 
this category for the cost of reproduction alone, excluding charges for 
the first 100 pages. To be eligible for inclusion in this category, a 
requester must show that the request is being made as authorized by and 
under the auspices of a qualifying institution, as defined in Sec.  
171.11(m) and (n), and that the records are not sought for a commercial 
use, but are sought in furtherance of scholarly (if the request is from 
an educational institution) or scientific (if the request is from a 
non-commercial scientific institution) research.
    (c) Representatives of the news media. The Department shall provide 
documents to requesters in this category for the cost of reproduction 
alone, excluding charges for the first 100 pages. To be eligible for 
inclusion in this category, a requester must meet the criteria in Sec.  
171.11(o), and the request must not be made for a commercial use. A 
request for records supporting the news dissemination function of the 
requester shall not be considered to be a commercial use request.
    (d) All other requesters. The Department shall charge requesters 
who do not fit into any of the categories above fees that recover the 
full reasonable direct cost of searching for and reproducing records 
that are responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of search time shall be furnished 
without charge.


Sec.  171.16  Miscellaneous fee provisions.

    (a) Charging interest. The Department shall begin assessing 
interest charges on an unpaid bill starting on the 31st day following 
the day on which the bill was sent. The fact that the fee has been 
received by the Department within the thirty-day grace period, even if 
not processed, shall stay the accrual of interest. Interest will be at 
the rate prescribed in 31 U.S.C. 3717 and shall accrue from the date of 
the billing.
    (b) Charges for unsuccessful search or if records are withheld. The 
Department may assess charges for time spent searching, even if it 
fails to locate the records or if the records located are determined to 
be exempt from disclosure.
    (c) Advance payment. The Department may not require a requester to 
make an advance payment, i.e., payment before work is commenced or 
continued on a request, unless:
    (1) It estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250. In such a 
case, the Department shall notify the requester of the likely cost and 
obtain satisfactory assurance of full payment where the requester has a 
history of prompt payment of FOIA fees, or shall require an advance 
payment of an amount up to the full estimated charges in the case of 
requesters with no history of payment; or
    (2) A requester has previously failed to pay within 30 days of the 
date of the billing a fee charged. In such a case, the Department shall 
require the requester to pay the full amount previously owed plus any 
applicable interest and to make an advance payment of the full amount 
of the estimated fee before the Department begins to process a new or 
pending request from that requester. If a requester has failed to pay a 
fee charged by another U.S. Government agency in an information access 
case, the Department may require proof that such fee has been paid 
before processing a new or pending request from that requester.
    (3) When the Department acts under paragraph (c)(1) or (2) of this 
section, the administrative time limits prescribed in the FOIA, 5 
U.S.C. 552(a)(6) (i.e., 20 working days from receipt of initial 
requests and 20 working days from receipt of appeals from initial 
denial, plus permissible extensions of these time limits), will begin 
only after the Department has received fee payments described in 
paragraphs (c)(1) and (2) of this section.
    (d) Aggregating requests. When the Department reasonably believes 
that a requester, or a group of requesters acting in concert, has 
submitted multiple requests involving related matters solely to avoid 
payment of fees, the Department may aggregate those requests for 
purposes of assessing processing fees.
    (e) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). The 
Department shall comply with provisions of the Debt Collection Act, 
including disclosure to consumer reporting agencies and use of 
collection agencies, where appropriate, to effect repayment.


Sec.  171.17  Waiver or reduction of fees.

    (a) Fees otherwise chargeable in connection with a request for 
disclosure

[[Page 63940]]

of a record shall be waived or reduced where it is determined that 
disclosure 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.
    (1) In order to determine whether disclosure of the information is 
in the public interest because it is likely to contribute significantly 
to public understanding of the operations or activities of the 
government, the Department will consider the following four factors:
    (i) The subject of the request, i.e., whether the subject of the 
requested records concerns the operations or activities of the 
government;
    (ii) The informative value of the information to be disclosed, 
i.e., whether the disclosure is likely to contribute to an 
understanding of government operations or activities;
    (iii) The contribution to an understanding of the subject by the 
general public likely to result from disclosure, i.e., whether 
disclosure of the requested information will contribute to public 
understanding, including whether the requester has expertise in the 
subject area as well as the intention and ability to disseminate the 
information to the public; and
    (iv) The significance of the contribution to public understanding, 
i.e., whether the disclosure is likely to contribute significantly to 
public understanding of government operations or activities.
    (2) In order to determine whether disclosure of the information is 
not primarily in the commercial interest of the requester, the 
Department will consider the following two factors:
    (i) The existence and magnitude of a commercial interest, i.e., 
whether the requester has a commercial interest that would be furthered 
by the requested disclosure; and, if so,
    (ii) The primary interest in disclosure, i.e., whether the 
magnitude of the 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.
    (b) The Department may refuse to consider waiver or reduction of 
fees for requesters (persons or organizations) from whom unpaid fees 
remain owed to the Department for another information access request.
    (c) Where only some of the records to be released satisfy the 
requirements for a waiver or reduction of fees, a waiver or reduction 
shall be granted for only those records.
    (d) The Department's decision to refuse to waive or reduce fees may 
be appealed in accordance with Sec.  171.51.

Subpart C--Executive Order 12958 Provisions


Sec.  171.20  Definitions.

    As used in this subpart, the following definitions shall apply:
    (a) Agency means any executive branch agency, as defined in 5 
U.S.C. 105, any military department, as defined by 5 U.S.C. 102, and 
any other entity within the executive branch that comes into possession 
of classified information.
    (b) Classified information means information that has been 
determined pursuant to E.O. 12958 or any predecessor order on national 
security information to require protection against unauthorized 
disclosure and is marked to indicate its classified status when in 
documentary form.
    (c) Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    (d) Department means the U.S. Department of State, including its 
field offices and Foreign Service posts abroad.
    (e) FOIA means the Freedom of Information Act, 5 U.S.C. 552.
    (f) Foreign government information means:
    (1) Information provided to the United States Government by a 
foreign government or governments, an international organization of 
governments, or any element thereof, with the expectation that the 
information, the source of the information, or both, are to be held in 
confidence;
    (2) Information produced by the United States pursuant to or as a 
result of a joint arrangement with a foreign government or governments, 
or an international organization of governments, or any element 
thereof, requiring that the information, the arrangement, or both, are 
to be held in confidence; or
    (3) Information received and treated as foreign government 
information under the terms of a predecessor executive order.
    (g) Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form or 
characteristics that is owned by, produced by or for, or is under the 
control of the United States Government.
    (h) Mandatory declassification review means the process by which 
specific classified information is reviewed for declassification 
pursuant to a request under Sec.  171.21.
    (i) National Security means the national defense or foreign 
relations of the United States.
    (j) Certain former government personnel includes former officials 
of the Department of State or other U.S. Government agencies who 
previously have occupied policy-making positions to which they were 
appointed by the President under 3 U.S.C. 105(a)(2)(A) or by the Vice 
President under 3 U.S.C. 106(a)(1)(A). It does not include former 
Foreign Service Officers as a class or persons who merely received 
assignment commissions as Foreign Service Officers, Foreign Service 
Reserve Officers, Foreign Service Staff Officers and employees.
    (k) Senior Agency Official means the Under Secretary of State for 
Management.


Sec.  171.21  Declassification review.

    (a) Scope. All information classified under E.O. 12958 or 
predecessor orders shall be subject to declassification review upon 
request by a member of the public or a U.S. government employee or 
agency with the following exceptions:
    (1) Information originated by the incumbent President or, in the 
performance of executive duties, the incumbent Vice President; the 
incumbent President's White House staff or, in the performance of 
executive duties, the incumbent Vice President's staff; committees, 
commissions, or boards appointed by the incumbent President; other 
entities within the Executive Office of the President that solely 
advise and assist the incumbent President;
    (2) Information that is the subject of litigation;
    (3) Information that has been reviewed for declassification within 
the past two years; and
    (4) Information exempted from search and review under the Central 
Intelligence Agency Information Act.
    (b) Requests. Requests for mandatory declassification review should 
be addressed to the Information and Privacy Coordinator at the address 
given in Sec. 171.5. E-mail requests are not accepted at this time.
    (c) Mandatory declassification review and the FOIA. A mandatory 
declassification review request is separate and distinct from a request 
for records under the FOIA. When a requester submits a request under 
both mandatory declassification review and the FOIA, the Department 
shall require the requester to elect review under one process or the 
other. If the requester

[[Page 63941]]

fails to make such election, the request will be under the process that 
would result in the greatest disclosure unless the information 
requested is subject to only mandatory declassification review.
    (d) Description of information sought. In order to be processed, a 
request for declassification review must describe the document or the 
material containing the information sought with sufficient specificity 
to enable the Department to locate the document or material with a 
reasonable amount of effort. Whenever a request does not sufficiently 
describe the material, the Department shall notify the requester that 
no further action will be taken unless additional description of the 
information sought is provided.
    (e) Refusal to confirm or deny existence of information. The 
Department may refuse to confirm or deny the existence or nonexistence 
of requested information whenever the fact of existence or nonexistence 
is itself classified.
    (f) Processing. In responding to mandatory declassification review 
requests, the Department shall make a review determination as promptly 
as possible and notify the requester accordingly. When the requested 
information cannot be declassified in its entirety, the Department 
shall release all meaningful portions that can be declassified and that 
are not exempt from disclosure on other grounds (see Sec.  171.25).
    (g) Other agency information. When the Department receives a 
request for information in its possession that was originally 
classified by another agency, it shall refer the request and the 
pertinent information to the other agency for processing unless that 
agency has agreed that the Department may review such information for 
declassification on behalf of that agency. The Department may, after 
consultation with the other agency, inform the requester of the 
referral unless association of the other agency with the information is 
itself classified.
    (h) Foreign government information. In the case of a request for 
material containing foreign government information, the Department, if 
it is also the agency that initially received the foreign government 
information, shall determine whether the information may be 
declassified and may, if appropriate, consult with the relevant foreign 
government on that issue. If the Department is not the agency that 
initially received the foreign government information, it shall refer 
the request to the original receiving agency for direct response to the 
requester.
    (i) Cryptologic and intelligence information. Mandatory 
declassification review requests for cryptologic information shall be 
processed in accordance with special procedures established by the 
Secretary of Defense, and such requests for information concerning 
intelligence activities or intelligence sources and methods shall be 
processed in accordance with special procedures established by the 
Director of Central Intelligence.


Sec.  171.22  Appeals.

    Any denial of a mandatory declassification review request may be 
appealed to the Department's Appeals Review Panel in accordance with 
Sec.  171.52. A denial by the Appeals Review Panel of a mandatory 
declassification review appeal may be further appealed to the 
Interagency Security Classification Appeals Panel.


Sec.  171.23  Declassification in the public interest.

    It is presumed that information that continues to meet 
classification requirements requires continued protection. In 
exceptional cases, however, the need to protect such information may be 
outweighed by the public interest in disclosure of the information, and 
in these cases the information should be declassified. When such 
questions arise, they shall be referred to the senior Department 
official with Top Secret authority having primary jurisdiction over the 
information in question. That official, after consultation with the 
Assistant Secretary for Public Affairs, will determine whether the 
public interest in disclosure outweighs the damage to national security 
that reasonably could be expected from disclosure. If the determination 
is made that the information should be declassified and disclosed, that 
official will make such a recommendation to the Secretary or the senior 
agency official who shall make the decision on declassification and 
disclosure. This provision does not amplify or modify the substantive 
criteria or procedures for classification or create any substantive or 
procedural right subject to judicial review.


Sec.  171.24  Access by historical researchers and certain former 
government personnel.

    (a) The restriction in E.O. 12958 and predecessor orders on 
limiting access to classified information to individuals who have a 
need-to-know the information may be waived, under the conditions set 
forth below, for persons who:
    (1) Are engaged in historical research projects;
    (2) Have served as Presidential or Vice Presidential appointees as 
defined in Sec.  171.20(j), or
    (3) Served as President or Vice President.
    (b) Requests by such persons must be submitted in writing to the 
Information and Privacy Coordinator at the address set forth in Sec.  
171.5 and must include a general description of the records sought, the 
time period covered by the request, and an explanation why access is 
sought. Requests for access by such requesters may be granted if:
    (1) The Secretary or the Senior Agency Official determines in 
writing that access is consistent with the interests of national 
security;
    (2) The requester agrees in writing to safeguard the information 
from unauthorized disclosure or compromise;
    (3) The requester submits a statement in writing authorizing the 
Department to review any notes and manuscripts created as a result of 
access;
    (4) The requester submits a statement in writing that any 
information obtained from review of the records will not be 
disseminated without the express written permission of the Department;
    (c) If a requester uses a research assistant, the requester and the 
research assistant must both submit a statement in writing 
acknowledging that the same access conditions set forth in paragraph 
(b)(4) of this section apply to the research assistant. Such a research 
assistant must be working for the applicant and not gathering 
information for publication on his or her own behalf.
    (d) Access granted under this section shall be limited to items the 
appointee originated, reviewed, signed, or received while serving as a 
Presidential or Vice Presidential appointee or as President or Vice 
President.
    (e) Such requesters may seek declassification and release of 
material to which they have been granted access under this section 
through either the FOIA or the mandatory declassification review 
provisions of E.O. 12958. Such requests shall be processed in the order 
received, along with other FOIA and mandatory declassification review 
requests, and shall be subject to the fees applicable to FOIA requests.


Sec.  171.25  Applicability of other laws.

    Exemptions from disclosure set forth in the Freedom of Information 
Act, the Privacy Act, and other statutes or privileges protecting 
information from disclosure recognized in discovery or other such 
litigation-related procedures may be applied to withhold information 
declassified under the provisions of this subpart.

[[Page 63942]]

Subpart D--Privacy Act Provisions


Sec.  171.30  Purpose and scope.

    This subpart contains the rules that the Department follows under 
the Privacy Act of 1974, 5 U.S.C. 552a. These rules should be read 
together with the Privacy Act, which provides additional information 
about records maintained on individuals. 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. If any records retrieved pursuant to an access request 
under the Privacy Act are found to be exempt from disclosure under that 
Act, they will be processed for possible disclosure under the Freedom 
of Information Act (FOIA), 5 U.S.C. 552. No fees shall be charged for 
access to or amendment of Privacy Act records.


Sec.  171.31  Definitions.

    As used in this subpart, the following definitions shall apply:
    (a) Department means the United States Department of State, 
including its field offices and Foreign Service posts abroad.
    (b) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (c) Maintain includes maintain, collect, use, or disseminate.
    (d) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Department, including, 
but not limited to education, financial transactions, medical history, 
and criminal or employment history, that contains the individual's name 
or the identifying number, symbol, or other identifying particular 
assigned to the individual, such as a finger or voice print or 
photograph.
    (e) System of Records means a group of any records under the 
control of the Department from which information is retrieved by the 
name of the individual or by some identifying number, symbol, or other 
identifying particular assigned to an individual.
    (f) Control has the meaning set forth in Sec.  171.11(f)
    (g) Information and Privacy Coordinator has the meaning set forth 
in Sec.  171.11(d).
    (h) DS is the abbreviation for the Bureau of Diplomatic Security of 
the U.S. Department of State.
    (i) OIG is the abbreviation for the Office of the Inspector General 
of the U.S. Department of State.


Sec.  171.32  Request for access to records.

    (a) Description of records sought. All requests for access to a 
record must reasonably describe the System of Records and the 
individual's record within the system in sufficient detail to permit 
identification of the requested record. At a minimum, requests should 
include the individual's full name (including maiden name, if 
appropriate) and any other names used, present mailing address and ZIP 
Code, date and place of birth, and any other information that might 
help in identifying the record. Helpful data includes the approximate 
time period of the record and the circumstances that give the 
individual reason to believe that the Department of State maintains a 
record under the individual's name or personal identifier. In certain 
instances, it may be necessary for the Department to request additional 
information from the requester, either to ensure a full search, or to 
ensure that a record retrieved does in fact pertain to the individual.
    (b) Verification of personal identity. The Department will require 
reasonable identification of individuals requesting records under the 
Privacy Act to ensure that records are disclosed only to the proper 
persons. Requesters must state their full name, current address, date 
and place of birth, and, at the requester's option, social security 
number. The request must be signed, and the requester's signature must 
be either notarized or submitted under penalty of perjury (28 U.S.C. 
1746) as a substitute for notarization. If the requester seeks records 
under another name the requester has used, a statement, under penalty 
of perjury, that the requester has also used the other name must be 
included.
    (c) Third party access. The Department shall allow third party 
access to records under certain conditions:
    (1) Parents. Upon presentation of documentation of the parental 
relationship, a parent of a minor (an unmarried person under the age of 
18) may, on behalf of the minor, request records pertaining to the 
minor and the Department may, in its discretion, disclose such records 
to the parent to the extent determined by the Department to be 
appropriate in the circumstances of the case. In any case, minors may 
request such records on their own behalf.
    (2) Guardians. A guardian of a minor or of an individual who has 
been declared by a court to be incompetent may act for and on behalf of 
the minor or the incompetent individual upon presentation of 
appropriate documentation of the guardian relationship.
    (3) Authorized representatives or designees. When an individual 
wishes to authorize another person or persons access to his or her 
records, the individual shall submit, in addition to the identifying 
information described in paragraph (b) of this section, a signed 
statement, either notarized or made under penalty of perjury, 
authorizing and consenting to access by a designated person or persons. 
Such requests shall be processed under the FOIA (see Sec.  171.12).
    (d) Records relating to civil actions. Nothing in this subpart 
entitles an individual to access to any information compiled in 
reasonable anticipation of a civil action or proceeding.
    (e) Time limits. The Department will acknowledge the request 
promptly and furnish the requested information as soon as possible 
thereafter.
    (f) Information on amending records. At the time the Department 
grants access to a record, it will also furnish guidelines for 
requesting amendment of a record. These guidelines may also be obtained 
by writing to the Information and Privacy Coordinator at the address 
given in Sec.  171.5. The guidelines are also available in the reading 
room described in Sec.  171.3 and in the electronic reading room 
described in Sec.  171.4.


Sec.  171.33  Request to amend or correct records.

    (a) An individual has the right to request that the Department 
amend a record pertaining to the individual that the individual 
believes is not accurate, relevant, timely, or complete.
    (b) Requests to amend records must be in writing and mailed or 
delivered to the Information and Privacy Coordinator, at the address 
given in Sec.  171.5, who will coordinate the review of the request 
with the appropriate offices of the Department. The Department will 
require verification of personal identity as provided in Sec.  
171.32(b) before it will initiate action to amend a record. Amendment 
requests should contain, as a minimum, identifying information needed 
to locate the record in question, a description of the specific 
correction requested, and an explanation of why the existing record is 
not accurate, relevant, timely, or complete. The requester should 
submit as much pertinent documentation, other information, and 
explanation as possible to support the request for amendment.

[[Page 63943]]

    (c) All requests for amendments to records will be acknowledged 
within 10 days (excluding Saturdays, Sundays, and legal public 
holidays).
    (d) In reviewing a record in response to a request to amend, the 
Department shall review the record to determine if it is accurate, 
relevant, timely, and complete.
    (e) If the Department agrees with an individual's request to amend 
a record, it shall:
    (1) Advise the individual in writing of its decision;
    (2) Amend the record accordingly; and
    (3) If an accounting of disclosure has been made, advise all 
previous recipients of the record of the amendment and its substance.
    (f) If the Department denies, in whole or in part, the individual's 
amendment request, it shall advise the individual in writing of its 
decision, of the reason therefore, and of the individual's right to 
appeal the denial in accordance with Sec.  171.52.


Sec.  171.34  Request for an accounting of record disclosures.

    (a) How made. Except where accountings of disclosures are not 
required to be kept, as set forth in paragraph (b) of this section, an 
individual has a right to request an accounting of any disclosure that 
the Department has made to another person, organization, or agency of 
any record about an individual. This accounting shall contain the date, 
nature, and purpose of each disclosure as well as the name and address 
of the recipient of the disclosure. Any request for accounting should 
identify each particular record in question and may be made by writing 
directly to the Information and Privacy Coordinator at the address 
given in Sec.  171.5.
    (b) Where accountings not required. The Department is not required 
to keep an accounting of disclosures in the case of:
    (1) Disclosures made to employees within the Department who have a 
need for the record in the performance of their duties;
    (2) Disclosures required under the FOIA;
    (3) Disclosures made to another agency or to an instrumentality of 
any governmental jurisdiction under the control of or within the United 
States for authorized civil or criminal law enforcement activities 
pursuant to a written request from such agency or instrumentality 
specifying the activities for which the disclosures are sought and the 
portions of the records sought.


Sec.  171.35  Denials of requests; appeals.

    If the Department denies a request for access to Privacy Act 
records, for amendment of such records, or for an accounting of 
disclosure of such records, the requester shall be informed of the 
reason for the denial and of the right to appeal the denial to the 
Appeals Review Panel in accordance with Sec.  171.52.


Sec.  171.36  Exemptions.

    Systems of records maintained by the Department are authorized to 
be exempted from certain provisions of the Privacy Act under both 
general and specific exemptions set forth in the Act. In utilizing 
these exemptions, the Department is exempting only those portions of 
systems that are necessary for the proper functioning of the Department 
and that are consistent with the Privacy Act. Where compliance would 
not appear to interfere with or adversely affect the law enforcement 
process, and/or where it may be appropriate to permit individuals to 
contest the accuracy of the information collected, e.g., public source 
materials, the applicable exemption may be waived, either partially or 
totally, by the Department or the OIG, in the sole discretion of the 
Department or the OIG, as appropriate.
    (a) General exemptions. (1) Individuals may not have access to 
records maintained by the Department that were provided by another 
agency that has determined by regulation that such information is 
subject to general exemption under 5 U.S.C. 552a(j)(1). If such exempt 
records are the subject of an access request, the Department will 
advise the requester of their existence and of the name and address of 
the source agency, unless that information is itself exempt from 
disclosure.
    (2) The systems of records maintained by the Bureau of Diplomatic 
Security (STATE-36), the Office of the Inspector General (STATE-53), 
and the Information Access Program Records system (STATE-35) are 
subject to general exemption under 5 U.S.C. 552a(j)(2). All records 
contained in record system STATE-36, Security Records, are exempt from 
all provisions of the Privacy Act except sections (b), (c)(1) and (2), 
(e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) to the 
extent to which they meet the criteria of section (j)(2). These 
exemptions are necessary to ensure the effectiveness of the 
investigative, judicial, and protective processes. All records 
contained in STATE-53, records of the Inspector General and Automated 
Individual Cross-Reference System, are exempt from all of the 
provisions of the Privacy Act except sections (b), (c)(1) and (2), 
(e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) to the 
extent to which they meet the criteria of section (j)(2). These 
exemptions are necessary to ensure the proper functions of the law 
enforcement activity, to protect confidential sources of information, 
to fulfill promises of confidentiality, to prevent interference with 
the enforcement of criminal laws, to avoid the disclosure of 
investigative techniques, to avoid the endangering of the life and 
safety of any individual, to avoid premature disclosure of the 
knowledge of potential criminal activity and the evidentiary bases of 
possible enforcement actions, and to maintain the integrity of the law 
enforcement process. All records contained in the Information Access 
Program Records system (STATE-35) are exempt from all of the provisions 
of the Privacy Act except sections (b), (c)(1) and (2), (e)(4)(A) 
through (F), (e)(6), (7), (9), (10), and (11), and (i) to the extent to 
which they meet the criteria of section (j)(2). These exemptions are 
necessary to ensure the protection of law enforcement information 
retrieved from various sources in response to information access 
requests.
    (b) Specific exemptions. Portions of the following systems of 
records are exempted from 5 U.S.C. 552a (c)(3), (d), (e)(1), and (4), 
(G), (H), and (I), and (f). The names of the systems correspond to 
those published in the Federal Register by the Department.
    (1) Exempt under 5 U.S.C. 552a(k)(1). The reason for invoking this 
exemption is to protect material required to be kept secret in the 
interest of national defense and foreign policy.
    Board of Appellate Review Records. STATE-02.
    Congressional Correspondence. STATE-43.
    Congressional Travel Records. STATE-44.
    Coordinator for the Combating of Terrorism Records. STATE-06.
    External Research Records. STATE-10.
    Extradition Records. STATE-11.
    Foreign Assistance Inspection Records. STATE-48.
    Human Resources Records. STATE-31.
    Information Access Programs Records. STATE-35.
    Intelligence and Research Records. STATE-15.
    International Organizations Records. STATE-17.
    Law of the Sea Records. STATE-19.
    Legal Case Management Records. STATE-21.
    Munitions Control Records. STATE-42.

[[Page 63944]]

    Overseas Citizens Services Records. STATE-05.
    Overseas Records. STATE-25.
    Passport Records. STATE-26.
    Personality Cross-Reference Index to the Secretariat Automated Data 
Index Records. STATE-28.
    Personality Index to the Central Foreign Policy Records. STATE-29.
    Personnel Payroll Records. STATE-30.
    Records of the Inspector General and Automated Individual Cross-
Reference System. STATE-53.
    Records of the Office of the Assistant Legal Adviser for 
International Claims and Investment Disputes. STATE-54.
    Rover Records. STATE-41.
    Records of Domestic Accounts Receivable. STATE-23.
    Records of the Office of White House Liaison. STATE-34.
    Board of Appellate Review Records. STATE-02.
    Refugee Records. STATE-59.
    Refugee Data Center Processing Records. STATE-60.
    Security Records. STATE-36.
    Visa Records. STATE-39.
    (2) Exempt under 5 U.S.C. 552(a)(k)(2). The reasons for invoking 
this exemption are to prevent individuals that are the subject of 
investigation from frustrating the investigatory process, to ensure the 
proper functioning and integrity of law enforcement activities, to 
prevent disclosure of investigative techniques, to maintain the 
confidence of foreign governments in the integrity of the procedures 
under which privileged or confidential information may be provided, and 
to fulfill commitments made to sources to protect their identities and 
the confidentiality of information and to avoid endangering these 
sources and law enforcement personnel.
    Board of Appellate Review Records. STATE-02.
    Coordinator for the Combating of Terrorism Records. STATE-06.
    Extradition Records. STATE-11.
    Foreign Assistance Inspection Records. STATE-48.
    Garnishment of Wages Records. STATE-61.
    Information Access Program Records. STATE-35.
    Intelligence and Research Records. STATE-15.
    Munitions Control Records. STATE-42.
    Overseas Citizens Services Records. STATE-05.
    Overseas Records. STATE-25.
    Passport Records. STATE-26.
    Personality Cross Reference Index to the Secretariat Automated Data 
Index. STATE-28.
    Personality Index to the Central Foreign Policy Records. STATE-29.
    Records of the Inspector General and Automated Individual Cross-
Reference System. STATE-53.
    Security Records. STATE-36.
    Visa Records. STATE-39.
    (3) Exempt under 5 U.S.C. 552(a)(k)(3). The reason for invoking 
this exemption is to preclude impairment of the Department's effective 
performance in carrying out its lawful protective responsibilities 
under 18 U.S.C. 3056 and 22 U.S.C. 4802.
    Extradition Records. STATE-11.
    Information Access Programs Records. STATE-35.
    Intelligence and Research Records. STATE-15.
    Overseas Citizens Services Records. STATE-05.
    Overseas Records. STATE-25.
    Passport Records. STATE-26.
    Personality Cross-Reference Index to the Secretariat Automated Data 
Index. STATE-28.
    Personality Index to the Central Foreign Policy Records. STATE-29.
    Security Records. STATE-36.
    Visa Records. STATE-39.
    (4) Exempt under 5 U.S.C. 552a(k)(4). The reason for invoking this 
exemption is to avoid needless review of records that are used solely 
for statistical purposes and from which no individual determinations 
are made.
    Foreign Service Institute Records. STATE-14.
    Human Resources Records. STATE-31.
    Information Access Programs Records. STATE-35.
    Personnel Payroll Records. STATE-30.
    Security Records. STATE-36.
    (5) Exempt under 5 U.S.C. 552a(k)(5). The reasons for invoking this 
exemption are to ensure the proper functioning of the investigatory 
process, to ensure effective determination of suitability, eligibility, 
and qualification for employment and to protect the confidentiality of 
sources of information.
    Equal Employment Opportunity Records. STATE-09.
    Foreign Assistance Inspection Records. STATE-48.
    Foreign Service Grievance Board Records. STATE-13.
    Human Resources Records. STATE-31.
    Information Access Programs Records. STATE-35.
    Legal Adviser Attorney Employment Application Records. STATE-20.
    Overseas Records. STATE-25.
    Personality Cross-Reference Index to the Secretariat Automated Data 
Index Records. STATE-28.
    Records of the Inspector General and Automated Individual Cross-
Reference System. STATE-53.
    Records of the Office of White House Liaison. STATE-34.
    Rover Records. STATE-41.
    Security Records. STATE-36.
    Senior Personnel Appointments Records. STATE-47.
    (6) Exempt under 5 U.S.C. 552(k)(6). The reasons for invoking this 
exemption are to prevent the compromise of testing or evaluation 
material used solely to determine individual qualifications for 
employment or promotion and to avoid giving unfair advantage to 
individuals by virtue of their having access to such material.
    Foreign Service Institute Records. STATE-14.
    Human Resources Records. STATE-31.
    Information Access Programs Records. STATE-35.
    Security Records. STATE-36.
    (7) Exempt under 5 U.S.C. 552a(k)(7). The reason for invoking this 
exemption is to prevent access to material maintained from time to time 
by the Department in connection with various military personnel 
exchange programs.
    Overseas Records. STATE-25.
    Human Resources Records. STATE-31.
    Information Access Programs Records. STATE-35.
    Personality Cross-Reference Index to the Secretariat Automated Data 
Index Records. STATE-28.
    Personality Index to the Central Foreign Policy Records. STATE-29.

Subpart E--Ethics in Government Act Provisions


Sec.  171.40  Purpose and scope.

    This subpart sets forth the regulations under which persons may 
request access to the public financial disclosure reports of employees 
of the Department as well as limits to such requests and use of such 
information. The Ethics in Government Act 1978, as amended, and the 
Office of Government Ethics implementing regulations, 5 CFR part 2634, 
require that high-level Federal officials disclose publicly their 
personal financial interests.


Sec.  171.41  Covered employees.

    (a) Officers and employees (including special Government employees 
as defined in 18 U.S.C. 202) whose positions are classified at grades 
GS-16 and above of the General Schedule, or the rate of basic pay for 
which is fixed, other than under the General Schedule, at a rate equal 
to or greater than the 120% of the minimum rate of basic pay for GS-15 
of the General Schedule;

[[Page 63945]]

    (b) Officers or employees in any other positions determined by the 
Director of the Office of Government Ethics to be of equal 
classification to GS-16;
    (c) Employees in the excepted service in positions that are of a 
confidential or policy-making character, unless by regulation their 
positions have been excluded by the Director of the Office of 
Government Ethics;
    (d) The designated agency official who acts as the Department's 
Ethics Officer;
    (e) Incumbent officials holding positions referred to above if they 
have served 61 days or more in the position during the preceding 
calendar year.
    (f) Officials who have terminated employment from a position 
referred to above and who have not accepted another such position 
within 30 days of such termination.


Sec.  171.42  Requests and identifying information.

    Requests for access to public financial disclosure reports of 
covered employees should be made in writing to the Information and 
Privacy Coordinator at the address given in Sec.  171.5 setting forth:
    (a) The name and/or position title of the Department of State 
official who is the subject of the request,
    (b) The time period covered by the report requested,
    (c) A completed Office of Government Ethics request form, OGE Form 
201, October, 1999. This form may be obtained by writing to the 
Information and Privacy Coordinator or by visiting the Public Reading 
Room described in Sec.  171.3 or http://www.usoge.gov.


Sec.  171.43  Time limits and fees.

    (a) Reports shall be made available within thirty (30) days from 
receipt of a request by the Department. The Department does not charge 
a fee for a single copy of a public financial report. However, the 
Department will charge for additional copies of a report at a rate of 
15 cents per page plus the actual direct cost of mailing the reports. 
However, the Department will not charge for individual requests if the 
total charge would be $10.00 or less.
    (b) A report shall be retained by the Department and made available 
to the public for a period of six (6) years after receipt of such 
report. After such a six year period, the report shall be destroyed, 
unless needed in an ongoing investigation, except that those reports 
filed by individuals who are nominated for office by the President to a 
position that requires the advice and consent of the Senate, and who 
subsequently are not confirmed by the Senate, will be retained and made 
available for a one-year period, and then destroyed, unless needed in 
an ongoing investigation.


Sec.  171.44  Improper use of reports.

    (a) The Attorney General may bring a civil action against any 
person who obtains or uses a financial disclosure report:
    (1) For any unlawful purpose;
    (2) For any commercial purpose, other than for news or community 
dissemination to the general public;
    (3) For determining or establishing the credit rating of any 
individual;
    (4) For use, directly or indirectly, in the solicitation of money 
for any political, charitable, or other purpose.
    (b) The court in which such action is brought may assess a civil 
penalty not to exceed $10,000 against any person who obtains or uses 
the reports for these prohibited purposes. Such remedy shall be in 
addition to any other remedy available under statutory or common law.

Subpart F--Appeal Procedures


Sec.  171.50  Appeal of denials of expedited processing.

    (a) A denial of a request for expedited processing may be appealed 
to the Chief of the Requester Liaison Division of the office of the 
Information and Privacy Coordinator at the address given in Sec.  171.5 
within 30 days of receipt of the denial. Appeals should contain as much 
information and documentation as possible to support the request for 
expedited processing in accordance with the criteria set forth in Sec.  
171.12(b)
    (b) The Requester Liaison Division Chief will issue a final 
decision in writing within ten (10) days from the date on which the 
office of the Information and Privacy Coordinator receives the appeal.


Sec.  171.51  Appeals of denials of fee waivers or reductions.

    (a) A denial of a request for a waiver or reductions of fees may be 
appealed to the Chief of the Requester of Liaison Division of the 
Office of the Information and Privacy Coordinator at the address given 
in Sec.  171.5 within 30 days of receipt of the denial. Appeals should 
contain as much information and documentation as possible to support 
the request for fee waiver or reduction in accordance with the criteria 
set forth in Sec.  171.17.
    (b) The Requester Liaison Division Chief will issue a final 
decision in writing within 30 days from the date on which the office of 
the Information and Privacy Coordinator receives the appeal.


Sec.  171.52  Appeal of denial of access to, declassification of, 
amendment of, accounting of disclosures of, or challenge to 
classification of records.

    (a) Right of administrative appeal. Except for records that have 
been reviewed and withheld within the past two years or are the subject 
of litigation, any requester whose request for access to records, 
declassification of records, amendment of records, accounting of 
disclosures of records, or any authorized holder of classified 
information whose classification challenge has been denied, has a right 
to appeal the denial to the Department's Appeals Review Panel. This 
appeal right includes the right to appeal the determination by the 
Department that no records responsive to an access request exist in 
Department files. Privacy Act appeals may be made only by the 
individual to whom the records pertain.
    (b) Form of appeal. There is no required form for an appeal. 
However, it is essential that the appeal contain a clear statement of 
the decision or determination by the Department being appealed. When 
possible, the appeal should include argumentation and documentation to 
support the appeal and to contest the bases for denial cited by the 
Department. The appeal should be sent to: Chairman, Appeals Review 
Panel, c/o Information and Privacy Coordinator/Appeals Officer, at the 
address given in Sec.  171.5.
    (c) Time limits. The appeal should be received within 60 days of 
the date of receipt by the requester of the Department's denial. The 
time limit for response to an appeal begins to run on the day that the 
appeal is received. The time limit (excluding Saturdays, Sundays, and 
legal public holidays) for agency decision on an administrative appeal 
is 20 days under the FOIA (which may be extended for up to an 
additional 10 days in unusual circumstances) and 30 days under the 
Privacy Act (which the Panel may extend an additional 30 days for good 
cause shown). The Panel shall decide mandatory declassification review 
appeals as promptly as possible.
    (d) Notification to appellant. The Chairman of the Appeals Review 
Panel shall notify the appellant in writing of the Panel's decision on 
the appeal. When the decision is to uphold the denial, the Chairman 
shall include in his notification the reasons therefore. The appellant 
shall be advised that the decision of the Panel represents the final 
decision of the Department and of the right to seek judicial review of 
the Panel's decision, when applicable. In mandatory declassification 
review appeals, the Panel shall advise the

[[Page 63946]]

requester of the right to appeal the decision to the Interagency 
Security Classification Appeals Panel under Sec.  3.5(d) of E.O. 12958.
    (e) Procedures in Privacy Act amendment cases. (1) If the Panel's 
decision is that a record shall be amended in accordance with the 
appellant's request, the Chairman shall direct the office responsible 
for the record to amend the record, advise all previous recipients of 
the record of the amendment and its substance if an accounting of 
disclosure has been made, and so advise the individual in writing.
    (2) If the Panel's decision is that the request of the appellant to 
amend the record is denied, in addition to the notification required by 
paragraph (d) of this section, the Chairman shall advise the appellant:
    (i) Of the right to file a concise statement of the reasons for 
disagreeing with the decision of the Department;
    (ii) Of the procedures for filing the statement of disagreement;
    (iii) That any statement of disagreement that is filed will be made 
available to anyone to whom the record is subsequently disclosed, 
together with, at the discretion of the Department, a brief statement 
by the Department summarizing its reasons for refusing to amend the 
record;
    (iv) That prior recipients of the disputed record will be provided 
a copy of any statement of disagreement, to the extent that an 
accounting of disclosures was maintained.
    (3) If the appellant files a statement under paragraph (e)(2) of 
this section, the Department will clearly annotate the record so that 
the fact that the record is disputed is apparent to anyone who may 
subsequently have access to the record. When information that is the 
subject of a statement of dispute filed by an individual is 
subsequently disclosed, the Department will note that the information 
is disputed and provide a copy of the individual's statement. The 
Department may also include a brief summary of reasons for not amending 
the record when disclosing disputed information. Copies of the 
Department's statement shall be treated as part of the individual's 
record for granting access; however, it will not be subject to 
amendment by an individual under these regulations.

    Dated: October 29, 2004.
Lee R. Lohman,
Deputy Assistant Secretary for Records and Publishing Services, Bureau 
of Administration, Department of State.
[FR Doc. 04-24581 Filed 11-2-04; 8:45 am]
BILLING CODE 4710-24-P