[Federal Register Volume 72, Number 142 (Wednesday, July 25, 2007)]
[Rules and Regulations]
[Pages 40711-40716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14234]



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  Federal Register / Vol. 72, No. 142 / Wednesday, July 25, 2007 / 
Rules and Regulations  

[[Page 40711]]



OFFICE OF SPECIAL COUNSEL

5 CFR Part 1820


Freedom of Information Act; Implementation

AGENCY: U.S. Office of Special Counsel.

ACTION: Final rule.

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

SUMMARY: The U.S. Office of Special Counsel (OSC) is publishing notice 
of the final rule revising its regulations dealing primarily with the 
agency's implementation of the Freedom of Information Act (FOIA). The 
regulation, as revised, will implement provisions of the FOIA, at 5 
U.S.C. 552, as amended, update information in the current regulation, 
and contain new and expanded information about the agency's processing 
of FOIA requests and appeals.

DATES: This rule is effective on August 24, 2007.

FOR FURTHER INFORMATION CONTACT: Christopher Kurt, FOIA Officer, in 
writing at: U.S. Office of Special Counsel, Legal Counsel and Policy 
Division, 1730 M Street, NW., (Suite 218), Washington, DC 20036-4505; 
by telephone, at (202) 254-3690; or by facsimile, at (202) 653-5151.

SUPPLEMENTARY INFORMATION: OSC published notice of proposed revisions 
to its regulations dealing primarily with the agency's implementation 
of the Freedom of Information Act (FOIA), with a request for comments 
and a description of the proposed revisions, in the Federal Register on 
April 12, 2007 (72 FR 18406). The regulation, as revised, will 
implement provisions of the FOIA as amended, update information in the 
current regulation, and contain new and expanded information about the 
agency's processing of FOIA requests and appeals. Included in the 
revised regulation are provisions containing updated, revised, or new 
information about: publicly available records and information; 
requirements for making FOIA requests, including updated contact 
information; consultations with and referrals to other agencies; 
responses to requests, including information about multitrack and 
expedited processing; requirements for appealing initial decisions on 
requests, including updated contact information; fees, including new 
and revised cost information; and business information. Finally, the 
regulation will address responses to demands by courts or other 
authorities to an OSC employee for production of official records or 
testimony in legal proceedings.

Comments

    OSC received comments in response to the notice from one 
respondent, a non-governmental organization. After considering those 
comments, OSC is publishing this final rule, modified as described 
below, pursuant to 5 U.S.C. 1212(e).
    The respondent's comments addressed two aspects of OSC's proposed 
FOIA regulation. First, the respondent stated that the section 1820.4 
(``Timing of responses to requests'') does not set a time limit within 
which OSC will respond to a FOIA request, and recommended that OSC 
revise its proposed regulation to include the statutory timeframe for 
deciding standard FOIA requests. OSC conceived of the proposed 
regulation primarily as a means by which to implement provisions of the 
FOIA rather than repeat them. For that reason, section 1820.1 
(``General Provisions'') states that the regulation should be read 
together with the FOIA, and provides the address for the FOIA page on 
OSC's web site, for additional information about access to agency 
records, including the statutory timeframe for deciding requests. 
Nevertheless, OSC is adding the statutory timeframe to the regulation 
for additional clarity, although in a different section. Section 1820.4 
of the regulation describes the order in which OSC processes requests. 
Section 1820.5 (``Responses to requests'') appears to be the more 
appropriate section in which to add a description of the statutory 
timeframe for deciding standard FOIA requests not involving unusual 
circumstances, and OSC has done so.
    Second, the respondent noted that the proposed regulation specified 
that FOIA requests would be accepted by mail or by fax, but recommended 
that OSC consider establishing a mechanism to receive FOIA requests 
electronically. The respondent acknowledged that the FOIA does not 
require that agencies receive requests by any particular means, but 
stated that other agencies accept FOIA requests electronically, and 
cited considerations favoring receipt of FOIA requests by such means. 
This is not a comment on the proposed regulation, but a recommended 
change in OSC procedures. In any case, OSC has accepted FOIA requests 
by fax, a form of electronic receipt, for several years, a practice 
formally recognized by the proposed regulation. Other mechanisms for 
electronic receipt may be implemented at some point in the future. If 
so, notice will be provided to the public on OSC's web site and by 
further revision of the agency's FOIA regulation.
    OSC is submitting a report on this final rule to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act.

Procedural Determinations

    Procedural determinations were published in the notice of proposed 
rulemaking for the Congressional Review Act, Regulatory Flexibility 
Act, Unfunded Mandates Reform Act, Paperwork Reduction Act, Executive 
Order 12866 (Regulatory Planning and Review), Executive Order 13132 
(Federalism), and Executive Order 12988 (Civil Justice Reform). There 
have been no changes in these procedural determinations.

List of Subjects in 5 CFR Part 1820

    Administrative practice and procedure, Freedom of Information, 
Government employees.

0
For the reasons stated in the preamble, OSC is revising 5 CFR part 1820 
as follows:

PART 1820--FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF 
RECORDS OR TESTIMONY

    Sec.
    1820.1 General provisions.
    1820.2 Requirements for making FOIA requests.

[[Page 40712]]

    1820.3 Consultations and referrals.
    1820.4 Timing of responses to requests.
    1820.5 Responses to requests.
    1820.6 Appeals.
    1820.7 Fees.
    1820.8 Business information.
    1820.9 Other rights and services.
    1820.10 Production of official records or testimony in legal 
proceedings.

    Authority: 5 U.S.C. 552 and 1212(e); Executive Order No. 12600, 
52 FR 23781, 3 CFR, 1987 Comp., p. 235.


Sec.  1820.1  General provisions.

    This part contains rules and procedures followed by the Office of 
Special Counsel (OSC) in processing requests for records under the 
Freedom of Information Act (FOIA), as amended, at 5 U.S.C. 552. These 
rules and procedures should be read together with the FOIA, which 
provides additional information about access to agency records. Further 
information about the FOIA and access to OSC records is available on 
the FOIA page of OSC's Web site (http://www.osc.gov/foia.htm). 
Information routinely provided to the public as part of a regular OSC 
activity--for example, forms, press releases issued by the public 
affairs officer, records published on the agency's Web site (http://www.osc.gov), or public lists maintained at OSC headquarters offices 
pursuant to 5 U.S.C. 1219--may be requested and provided to the public 
without following this part. This part also addresses responses to 
demands by a court or other authority to an employee for production of 
official records or testimony in legal proceedings.


Sec.  1820.2  Requirements for making FOIA requests.

    (a) How made and addressed. A request for OSC records under the 
FOIA should be made by writing to the agency. The request should be 
sent by regular mail addressed to: FOIA Officer, U.S. Office of Special 
Counsel, 1730 M Street, N.W. (Suite 218), Washington, DC 20036-4505. 
Such requests may also be faxed to the FOIA Officer at the number 
provided on the FOIA page of OSC's web site (see Sec.  1820.1). For the 
quickest handling, both the request letter and envelope or any fax 
cover sheet should be clearly marked ``FOIA Request.'' Whether sent by 
mail or by fax, a FOIA request will not be considered to have been 
received by OSC until it reaches the FOIA Officer.
    (b) Description of records sought. Requesters must describe the 
records sought in enough detail for them to be located with a 
reasonable amount of effort. When requesting records about an OSC case 
file, the case file number, name, and type (for example, prohibited 
personnel practice, Hatch Act, USERRA or other complaint; Hatch Act 
advisory opinion; or whistleblower disclosure) should be provided, if 
known. Whenever possible, requests should describe any particular 
record sought, such as the date, title or name, author, recipient, and 
subject matter.
    (c) Agreement to pay fees. Making a FOIA request shall be 
considered an agreement by the requester to pay all applicable fees 
chargeable under Sec.  1820.7, up to and including the amount of 
$25.00, unless the requester asks for a waiver of fees. When making a 
request, a requester may specify a willingness to pay a greater or 
lesser amount.


Sec.  1820.3  Consultations and referrals.

    When OSC receives a FOIA request for a record in the agency's 
possession, it may determine that another Federal agency is better able 
to decide whether or not the record is exempt from disclosure under the 
FOIA. If so, OSC will either:
    (a) Respond to the request for the record after consulting with the 
other agency and with any other agency that has a substantial interest 
in the record; or
    (b) Refer the responsibility for responding to the request to the 
other agency deemed better able to determine whether to disclose it. 
Consultations and referrals will be handled according to the date that 
the FOIA request was initially received by the first agency.


Sec.  1820.4  Timing of responses to requests.

    (a) In general.OSC ordinarily will respond to FOIA requests 
according to their order of receipt. In determining which records are 
responsive to a request, OSC ordinarily will include only records in 
its possession as of the date on which it begins its search for them. 
If any other date is used, OSC will inform the requester of that date.
    (b) Multitrack processing. (1) OSC 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.
    (2) When using multitrack processing, OSC 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 faster track(s).
    (c) Expedited processing. (1) Requests and appeals will be taken 
out of order and given expedited treatment whenever OSC has established 
to its satisfaction that:
    (i) Failure to obtain requested records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) With respect to a request made by a person primarily engaged 
in disseminating information, an urgency exists to inform the public 
about an actual or alleged federal government activity; or
    (iii) Records requested relate to an appeal that is pending before, 
or that the requester faces an imminent deadline for filing with, the 
Merit Systems Protection Board or other administrative tribunal or a 
court of law, seeking personal relief pursuant to a complaint filed by 
the requester with OSC, or referred to OSC pursuant to title 38 of the 
U.S. Code.
    (2) A request for expedited processing must be made in writing and 
sent to OSC's FOIA Officer. Such a request will not be considered to 
have been received until it reaches the FOIA Officer.
    (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 described in paragraph (c)(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. The 
formality of certification may be waived as a matter of OSC's 
administrative discretion.
    (4) OSC shall decide whether to grant a request for expedited 
processing and notify the requester of its decision within 10 calendar 
days of the FOIA Officer's receipt of the request. If the request for 
expedited processing is granted, the request for records shall be 
processed as soon as practicable. If a request for expedited processing 
is denied, any administrative appeal of that decision shall be acted on 
expeditiously.
    (d) Aggregated requests. OSC may aggregate multiple requests by the 
same requester, or by a group of requesters acting in concert, if it 
reasonably believes that such requests actually constitute a single 
request involving unusual circumstances, as defined by the FOIA, 
supporting an extension of time to respond, and the requests involve 
clearly related matters.


Sec.  1820.5  Responses to requests.

    (a) General. Ordinarily, OSC shall have 20 business days from when 
a request is received to determine

[[Page 40713]]

whether to grant or deny the request. Once OSC makes a determination to 
grant a FOIA request for records, or makes an adverse determination 
denying a request in any respect, it will notify the requester 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 a record is not readily reproducible in 
the form or format sought by the requester; a determination that what 
has been requested is not a record subject to the FOIA; 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.
    (b) Adverse determinations. A notification to a requester of an 
adverse determination on a request shall include:
    (1) A brief statement of the reason(s) for the denial of the 
request, including any FOIA exemption applied by OSC in denying the 
request; and
    (2) A statement that the denial may be appealed under section 
1820.6(a), with a description of the requirements of that subsection.


Sec.  1820.6  Appeals.

    (a) Appeals of adverse determinations. A requester may appeal an 
adverse determination denying a FOIA request in any respect to the 
Legal Counsel and Policy Division, U.S. Office of Special Counsel, 1730 
M Street, NW., (Suite 218), Washington, DC 20036-4505. The appeal must 
be in writing, and sent by regular mail or by fax. The appeal must be 
received by the Legal Counsel and Policy Division within 45 days of the 
date of the letter denying the request. For the quickest possible 
handling, the appeal letter and envelope or any fax cover sheet should 
be clearly marked ``FOIA Appeal.'' The appeal letter may include as 
much or as little related information as the requester wishes, as long 
as it clearly identifies the OSC determination (including the assigned 
FOIA request number, if known) being appealed. An appeal ordinarily 
will not be acted on if the request becomes a matter of FOIA 
litigation.
    (b) Responses to appeals. The agency decision on an appeal will be 
made in writing. A decision affirming an adverse determination in whole 
or in part shall inform the requester of the provisions for judicial 
review of that decision. If the adverse determination is reversed or 
modified on appeal, in whole or in part, the requester will be notified 
in a written decision and the request will be reprocessed in accordance 
with that appeal decision.


Sec.  1820.7  Fees.

    (a) In general. OSC 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. 
OSC may collect all applicable fees before sending copies of requested 
records to a requester. Requesters must 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. OSC 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 OSC has reasonable cause to doubt a 
requester's stated use, OSC shall provide the requester with a 
reasonable opportunity to submit further clarification.
    (2) ``Direct costs'' means those expenses that OSC 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 duplicating equipment. Direct 
costs do not include overhead expenses such as the costs of space, and 
heating or lighting the facility in which the records are kept.
    (3) ``Duplication'' means the process of 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, on digital 
data storage discs), among others.
    (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, 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) ``Non-commercial scientific institution'' means an institution 
that is not operated on a ``commercial'' basis, as that term is 
referenced 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 OSC may 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 records supporting the news-
dissemination function of the requester shall not be considered to be 
for a commercial use.
    (7) ``Review'' means the process of examining a record located in 
response to a request in order to determine whether any portion of the 
record is exempt from disclosure. It includes processing any record for 
disclosure--for example, doing all that is necessary to redact it and 
otherwise prepare it for disclosure. Review time also includes time 
spent obtaining and considering any formal objection to disclosure made 
by a business submitter under Sec.  1820.8(f). It does not include time 
spent resolving general legal or policy issues about the application of

[[Page 40714]]

exemptions. Review costs are properly charged in connection with 
commercial use requests even if a record ultimately is not disclosed.
    (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 when 
undertaken, and reasonable efforts to locate and retrieve information 
from records maintained in electronic form or format, to the extent 
that such efforts would not significantly interfere with the operation 
of an automatic information system.
    (c) Fees. In responding to FOIA requests, OSC 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 will 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. OSC may charge for 
time spent searching even if it fails to locate responsive records, or 
records located after a search are determined to be exempt from 
disclosure.
    (ii) For each quarter hour spent by clerical personnel in searching 
for and retrieving a requested record, the fee will be $5.50. 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 
$9.00 for each quarter hour of search time spent by professional 
personnel. Where the time of managerial personnel is required, the fee 
will be $17.50 for each quarter hour of time spent by those personnel.
    (iii) For electronic searches of records, requesters will be 
charged the direct costs of conducting the search, including the costs 
of operator/programmer staff time apportionable to the search.
    (iv) For requests requiring the retrieval of records from any 
Federal Records Center, additional costs may be charged in accordance 
with the applicable billing schedule established by the National 
Archives and Records Administration.
    (2) Duplication. Duplication fees will be charged to all 
requesters, subject to the limitations of paragraph (d) of this 
section. For a standard paper photocopy of a record (no more than one 
copy of which need be supplied), the fee will be 25 cents per page. For 
copies produced by computer, such as discs or printouts, OSC will 
charge the direct costs, including staff time, of producing the copy. 
For other forms of duplication, OSC 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 for only initial 
record review - in other words, the review done when OSC analyzes 
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 such 
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, OSC 
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 $20.00 or less for any request, no fee will be charged.
    (5) The provisions of paragraphs (d)(3) and (d)(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 $20.00.
    (e) Notice of anticipated fees in excess of $25.00. When OSC 
determines or estimates that the fees to be charged under this section 
will amount to more than $25.00, OSC 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, OSC will 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 will not be done on it until the 
requester agrees to pay the anticipated total fee. A notice under this 
paragraph will offer the requester an opportunity to discuss the matter 
with OSC 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 OSC chooses as a matter of administrative discretion 
to provide a special service-such as sending records by other than 
ordinary mail-the direct costs of providing the service ordinarily will 
be charged.
    (g) Charging interest. OSC may charge interest on any unpaid fee 
starting on the 31st day after the date of on which the billing was 
sent to the requester. Interest charges will be assessed at the rate 
provided in 31 U.S.C. 3717 and will accrue from the date of billing 
until payment is received by OSC. OSC will follow the provisions of the 
Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as 
amended by the Debt Collection Act of 1996 (Public Law 104-134, 110 
Stat. 1321-358), and its administrative procedures, including the use 
of consumer reporting agencies, collection agencies, and offset.
    (h) Aggregating requests. Where OSC reasonably believes that a 
requester or a group of requesters acting together is attempting to 
divide a request into a series of requests that otherwise could have 
been submitted as a single request, for the purpose of avoiding fees, 
OSC may aggregate those requests and charge accordingly. OSC 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, OSC will aggregate them only where a reasonable basis 
exists for determining that aggregation is warranted under all of 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 (i)(3) of this section, OSC will not require 
the requester to make an advance payment before work is begun or 
continued on a request. Payment owed for work already completed (that 
is, pre-payment after processing a request but before copies are sent 
to the requester) is not an advance payment.
    (2) Where OSC determines or estimates that a total fee to be 
charged under this section will be more than

[[Page 40715]]

$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 who has a history of prompt 
payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any agency within 30 days of the date of billing, 
OSC 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 OSC begins to process a new request or 
continues to process a pending request from that requester.
    (4) In cases in which OSC 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 the request 
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, OSC will provide contact information for 
use by requesters in obtaining records from those sources.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request shall be furnished without charge or at a 
charge reduced below that established under paragraph (c) of this 
section where OSC determines, based on all available information, that 
the requester has demonstrated that:
    (i) 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
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
OSC 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 satisfies 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. OSC 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, 
OSC 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. OSC 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 to provide 
explanatory information about 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. OSC 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 records to be released 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. OSC will exercise its discretion to 
consider the cost-effectiveness of its investment of administrative 
resources in this decision making process, however, in deciding to 
grant waivers or reductions of fees.


Sec.  1820.8  Business information.

    (a) In general. Business information obtained by OSC 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 OSC 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 OSC 
obtains business information, directly or indirectly. The term includes 
corporations, and state, local, tribal 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 portion of its submission that it considers to be 
protected from disclosure under exemption 4. These designations will 
expire 10 years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.

[[Page 40716]]

    (d) Notice to submitters. OSC 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) When 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) OSC has reason to believe that the information may be protected 
from disclosure under exemption 4.
    (f) Opportunity to object to disclosure. OSC 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 within the notice. 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. If 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 the submitter that is not received by OSC until 
after its disclosure decision has been made shall not be considered by 
OSC. Information provided by a submitter under this paragraph may 
itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. OSC shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose business information. Whenever OSC decides to disclose 
business information over the objection of a submitter, OSC 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) OSC 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, 
OSC 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, OSC shall 
promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever OSC provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, OSC shall also notify the requester(s). 
Whenever OSC notifies a submitter of its intent to disclose requested 
information under paragraph (g) of this section, OSC shall also notify 
the requester(s). Whenever a submitter files a lawsuit seeking to 
prevent the disclosure of business information, OSC shall notify the 
requester(s).


Sec.  1820.9  Other rights and services.

    Nothing in this part 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.


Sec.  1820.10  Production of official records or testimony in legal 
proceedings.

    No employee or former employee of the Office of Special Counsel 
shall, in response to a demand of a court or other authority, produce 
or disclose any information or records acquired as part of the 
performance of his official duties or because of his official status 
without the prior approval of the Special Counsel or the Special 
Counsel's duly authorized designee.

    Dated: July 17, 2007.
Scott J. Bloch,
Special Counsel.
[FR Doc. E7-14234 Filed 7-24-07; 8:45 am]
BILLING CODE 7405-01-S