[Federal Register Volume 80, Number 64 (Friday, April 3, 2015)]
[Rules and Regulations]
[Pages 18099-18114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-07772]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[Docket No. OAG 140; AG Order No. 3517-2015]
RIN 1105-AB27


Revision of Department's Freedom of Information Act Regulations

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the Department's regulations under the 
Freedom of Information Act (``FOIA''). The regulations have been 
revised to update and streamline the language of several procedural 
provisions and to incorporate changes brought about by the amendments 
to the FOIA under the OPEN Government Act of 2007. Additionally, the 
regulations have been updated to reflect developments in the case law 
and to include current cost figures to be used in calculating and 
charging fees.

DATES: Effective May 4, 2015.

FOR FURTHER INFORMATION CONTACT: Lindsay Roberts, Attorney-Advisor, 
Office of Information Policy, (202) 514-3642.

SUPPLEMENTARY INFORMATION:

Background Information

    On March 21, 2011, the Department of Justice published a proposed 
rule to revise its existing regulations under the FOIA. See 76 FR 
15236. On September 19, 2011, the Department reopened the comment 
period for another thirty days in order to consider additional public 
comments. See 76 FR 57940.

Comments

    Interested persons were afforded the opportunity to participate in 
the

[[Page 18100]]

rulemaking process through submission of written comments to the 
proposed rule during the two open comment periods. In total, the 
Department received fifteen public submissions in response to its 
proposed rule, including comments from another agency as well as 
internal comments from components of the Department. Due consideration 
has been given to each of the comments received and, in response, the 
Department has made several modifications to the rule. These 
modifications include clarifying, revising, or expanding various 
provisions, withdrawing a provision, retaining existing language for 
certain other provisions, and making technical edits, such as 
correcting Web site links.

General Provisions

    As an initial matter, the Department has decided that the final 
regulations will reference the Department's policy to encourage 
discretionary releases of information whenever disclosure would not 
foreseeably harm an interest protected by a FOIA exemption.
    Some commenters suggested the inclusion of provisions that would 
merely duplicate certain statutory requirements, such as adding 
provisions describing the FOIA's standards for tolling of requests or 
delineating the statutory duties of FOIA Public Liaisons. Other than 
those instances where the Department believed it was important for 
emphasis, in order to streamline these regulations the Department has 
intentionally not simply repeated statutory provisions. These 
regulations implement the FOIA as well as the Office of Management and 
Budget's Uniform Freedom of Information Act Fee Schedule and 
Guidelines, 52 FR 10012 (Mar. 27, 1987) (``OMB Guidelines''), and 
should be read in conjunction with those authorities. The regulations 
are not meant to duplicate or to serve as a substitute for these 
sources.

Fee-Related Provisions

    Several public submissions contained comments regarding the 
Department's assessment of fees. As a general matter, the Department 
notes that the fee provisions are written to conform with the OMB 
Guidelines, which establish uniform standards for fee matters. 
Conformity with the OMB Guidelines is required by the FOIA. See 5 
U.S.C. 552(a)(4)(A)(i).
    One commenter questioned the specific dollar amount that he had 
been charged by one Department component for producing records on 
compact discs (``CDs'') as well as the volume of material that was 
loaded onto each CD. In accordance with the OMB Guidelines, see 52 FR 
at 10018, the Department's current regulations provide (without 
specifying a dollar amount) for the assessment of ``direct costs,'' 
meaning the actual cost of producing the media, incurred by the 
component when producing records in a format other than paper. The 
direct costs of producing records on CD may include scanning paper 
records into an electronic format and conducting requisite security 
scans in addition to the cost associated with the blank CD. Section 
16.10(c)(2) of the final rule, which allows components to charge 
``direct costs'' for non-paper media, gives components flexibility to 
adjust fees as the costs of providing records in a specified format 
change over time. This same flexibility allows components to adjust the 
volume of material loaded onto each CD to ensure that requesters 
receive material as efficiently as possible. The expectation is that 
with technological advances, components will pass along the reduced 
costs to requesters contemporaneously, without first necessitating a 
change in the regulation. Accordingly, this regulation is not the 
proper venue for determining the specific dollar amount that components 
should charge or the volume of material that should be loaded onto each 
CD.
    Several commenters expressed concerns about the increase in search 
fees. In contrast to the use of ``direct costs'' for responding to a 
request for non-paper media, search fees are assessed on a uniform 
basis throughout the Department in accordance with the OMB Guidelines 
and are largely salary-based. See 52 FR at 10018. The Department has 
reexamined the rates using a formula for search and review fees that 
takes into account current pay rates for different levels of staff 
involved in processing FOIA requests. The revised rule changes the 
``administrative'' staff category to ``clerical/administrative'' to 
account for work performed by either clerical or administrative staff 
who may assist FOIA professionals in searching for responsive records. 
As a result of these adjustments, while there is a small increase in 
the rates from our existing regulations, we were able to reduce the 
rates from those originally proposed. Updating these costs is 
consistent with the OMB Guidelines, which provide that ``[a]gencies 
should charge fees that recoup the full allowable direct costs they 
incur.'' Id. While certain costs are now higher than when last 
calculated 13 years ago, the revised fee schedule includes a decrease 
in duplication fees due to advances in technology. The Department 
includes in the revised regulations a directive that components 
``ensure that searches, review, and duplication are conducted in the 
most efficient and the least expensive manner.'' Sec.  16.10(a). For 
greater emphasis, the Department moves that directive in the final rule 
from the definition paragraph in proposed Sec.  16.10 to the 
introductory paragraph in the final rule.
    One commenter recommended that proposed Sec.  16.10(b)(3) contain 
the statement, included in the existing version of that paragraph, 28 
CFR 16.11(b)(3), that ``[c]omponents shall honor a requester's 
specified preference of form or format.'' The requirement to honor a 
requester's specified form or format preference is now located in Sec.  
16.10(c)(2), concerning charging duplication fees, which is a more 
appropriate location.
    Some commenters expressed concern regarding the provisions that 
govern fees for educational institutions. The FOIA provides in relevant 
part that ``fees shall be limited to reasonable standard charges for 
document duplication when records are not sought for commercial use and 
the request is made by an educational or noncommercial scientific 
institution, whose purpose is scholarly or scientific research.'' 5 
U.S.C. 552(a)(4)(A)(ii)(II). In other words, such a requester may not 
be charged fees for searches or review.
    One commenter took issue with proposed Sec.  16.10(b)(4), 
concerning the definition of the term educational institution. 
Specifically, the commenter objected to the phrase indicating that the 
educational institution must ``operate[] a program of scholarly 
research'' and argued that this requirement would effectively exclude 
various types of schools other than universities. The commenter 
mistakenly asserted that the provision would be new; in fact, not only 
is it not new, but the requirement that an educational institution have 
as its purpose ``scholarly'' research derives from the FOIA itself, see 
5 U.S.C. 552(a)(4)(A)(ii)(II), and the specific language was taken 
directly from the OMB Guidelines. 52 FR at 10018; see also id. at 10014 
(addressing rationale for this requirement). As the OMB Guidelines 
note, whether a school qualifies must be determined on a case-by-case 
basis:

As a practical matter, it is unlikely that a preschool or elementary 
or secondary school would be able to qualify for treatment as an 
``educational'' institution since few preschools, for example, could 
be said to conduct programs of scholarly research. But,

[[Page 18101]]

agencies should be prepared to evaluate requests on an individual 
basis when requesters can demonstrate that the request is from an 
institution that is within the category, that the institution has a 
program of scholarly research, and that the documents sought are in 
furtherance of the institution's program of scholarly research and 
not for a commercial use.

52 FR at 10014.
    Two commenters objected to the provision in proposed Sec.  
16.10(b)(4) stating that ``[r]ecords requested for the intention of 
fulfilling credit requirements are not considered to be sought for a 
scholarly purpose.'' This requirement is also taken from the OMB 
Guidelines, which distinguish individual research goals from an 
institution's research goals. The addition of this language was 
intended to reflect longstanding Department practice and to alleviate 
any confusion among student requesters. The statute indicates that the 
relevant question is whether the request is made ``by an educational or 
noncommercial scientific institution.'' 5 U.S.C. 552(a)(4)(A)(ii)(II). 
The OMB Guidelines address how that inquiry is to be made:

Agencies should ensure that it is apparent from the nature of the 
request that it serves a scholarly research goal of the institution, 
rather than an individual goal. Thus, for example, a request from a 
professor of geology at a State university for records relating to 
soil erosion, written on letterhead of the Department of Geology, 
could be presumed to be from an educational institution. A request 
from the same person for drug information from the Food and Drug 
Administration in furtherance of a murder mystery he is writing 
would not be presumed to be an institutional request, regardless of 
whether it was written on institutional stationary [sic] . . . .
    The institutional versus individual test would apply to student 
requests as well. A student who makes a request in furtherance of 
the completion of a course of instruction is carrying out an 
individual research goal and the request would not qualify, although 
the student in this case would certainly have the opportunity to 
apply to the agency for a reduction or waiver of fees.

52 FR at 10014.
    The final rule clarifies this provision by replacing the sentence 
that commenters flagged with a series of examples based on the OMB 
Guidelines discussion quoted above, thereby making clear that this 
inquiry applies to professors as well. Students and professors who do 
not qualify for reduced fees under this provision, and who do not seek 
the records for a commercial use, will, of course, be afforded the 
benefits of the two free hours of search time and one hundred pages of 
duplication without cost that are afforded to any other non-commercial 
use requester. See Sec.  16.10(d)(4) of the final rule. And like all 
requesters, they may apply for a fee waiver under the fee waiver 
provision of the FOIA, pursuant to Sec.  16.10(k) of the final rule.
    One commenter suggested that the provision in proposed Sec.  
16.10(b)(6) stating that ``[a] component's decision to grant a 
requester media status will be made on a case-by-case basis based upon 
the requester's intended use'' should be deleted. The Department agrees 
and believes that the language is better placed under the definition of 
a ``commercial use'' requester. In the OMB Guidelines, the requester's 
intended use of the requested records determines whether the requester 
will fall within the ``commercial use'' fee category, or one of the 
other categories. See 52 FR at 10013, 10017-18. As the OMB Guidelines 
explain, ``it is possible to envision a commercial enterprise making a 
request that is not for a commercial use'' and ``[i]t is also possible 
that a non-profit organization could make a request that is for a 
commercial use.'' Id. at 10013. To make this point clearer, the 
Department moves the reference to case-by-case determinations to the 
``commercial use'' definition. Within the definition of 
``representative of the news media,'' the Department retains the 
statement from its existing regulations that ``a request for records 
supporting the news-dissemination function of the requester shall not 
be considered to be for a commercial use.''
    This commenter also suggested including a reference to news 
organizations that operate solely on the Internet in the list of 
examples of ``representatives of the news media.'' The Department 
concurs and adds such an example.
    Another commenter suggested that the definition of ``representative 
of the news media'' in proposed Sec.  16.10(b)(6) should not require 
that the person or entity be ``organized and operated to publish or 
broadcast news.'' This requirement is being retained because it comes 
directly from the definition of ``representative of the news media'' in 
the OMB Guidelines, see 52 FR at 10018, which is in turn based on the 
statute's inclusion of the term ``news'' in this fee category, see id. 
at 10015.
    One commenter suggested that proposed Sec.  16.10(c)(1)(iii), 
regarding the direct costs associated with creating computer programs 
to extract information, require that requesters be notified of any such 
costs before the costs are incurred. The Department agrees and revises 
this provision accordingly. Another commenter suggested that the 
regulations address the provision of the OPEN Government Act of 2007, 
codified at 5 U.S.C. 552(a)(4)(A)(viii), that limits the charging of 
fees in certain instances where time limits are not met. This statutory 
provision, in fact, has been expressly addressed in proposed Sec.  
16.10(d)(2), which sets forth restrictions on charging fees.
    One commenter suggested that under proposed Sec.  16.10(e), when 
components notify requesters of anticipated fees in excess of $25.00, 
they provide non-commercial use requesters with their statutory 
entitlements of one hundred free pages and, when search fees are 
assessed, their two hours of free search time or the cost equivalent. 
The Department believes that requesters should be apprised of the 
option to receive their statutory entitlements regardless of whether 
estimated fees exceed $25.00 and has revised the provision to account 
for that. However, the Department believes it is preferable not to 
require components to perform the statutorily entitled free search and 
duplication before the requester responds to the notice because it 
would not be an efficient use of limited FOIA resources, inasmuch as 
the requester might choose to revise the request after receipt of the 
notice. The Department also adds a provision to permit requesters to 
designate a specific amount of fees that they are willing to pay. If it 
turns out that the total cost of processing the request is higher, the 
component must still process the request up to the amount of fees the 
requester agreed to pay, unless the requester withdraws the request. 
Finally, the Department adds language to clarify that when a requester 
has indicated a willingness to pay some amount of fees, the time to 
respond is tolled when the Department informs the requester that the 
total cost of processing the request is higher than the amount the 
requester indicated a willingness to pay. Once the agency receives the 
requester's response to the notice, the time to respond to the request 
will resume from where it was at the date of the notification.
    One commenter suggested that Department components should make fee 
waiver determinations based ``on the face of the request'' under 
proposed Sec.  16.10(k) and not defer such decisions ``until after 
search costs are incurred.'' The commenter misinterprets the effect of 
the six factors contained in proposed Sec.  16.10(k). The regulations 
do not provide for the assessment of fees as part of the process of 
making a fee waiver determination. Rather, the six factors set out in 
the regulations guide

[[Page 18102]]

Department components in applying the statutory standard for waiving 
fees. Requesters do not incur any charge as a result of this process.
    Another commenter suggested that the Department delete the word 
``ordinarily'' from proposed Sec.  16.10(k)(2)(iii), concerning the 
third fee waiver factor, which discusses whether disclosure will 
contribute to public understanding of the subject. The Department 
accepts this comment and reinstates the original language: ``It shall 
be presumed that a representative of the news media will satisfy this 
consideration.''
    This commenter also suggested reinstatement of language in the 
existing regulations regarding presumptions about disclosures made to 
data brokers. The Department agrees and reinstates that language in 
Sec.  16.10(k)(3)(ii) as well as the related language about 
presumptions regarding disclosure to the news media.
    One commenter suggested adding a provision containing a statement 
that components may waive fees as a matter of discretion. The FOIA 
establishes a standard for waiver or reduction of fees. The 
Department's regulations are intended to define the manner in which 
this standard is to be applied. In some cases, components may need to 
make discretionary judgments, but they must do so within the confines 
of the statutory standard.
    An agency commenter suggested that proposed Sec.  16.10(e) be 
revised to include a provision that when components notify requesters 
of the actual or estimated amount of fees that they include in that 
estimate a breakdown of the fees for search, review, or duplication. 
The Department agrees and makes that revision.

Exclusion Provision

    A number of commenters raised concerns regarding proposed Sec.  
16.6(f)(2), which pertained to responses to requests involving records 
excluded from the requirements of the FOIA by 5 U.S.C. 552(c). Section 
552(c), enacted as an amendment to the FOIA in 1986, see Public Law 99-
570, secs. 1801-04, 100 Stat. 3207, provides special protection for 
three categories of particularly sensitive law enforcement records. The 
first exclusion protects against disclosure of a pending criminal law 
enforcement investigation where there is reason to believe that the 
target is unaware of the investigation and disclosure of its existence 
could reasonably be expected to interfere with enforcement proceedings. 
The second exclusion, which applies only to records maintained by 
criminal law enforcement agencies, protects against disclosure of 
unacknowledged, confidential informants. The third exclusion, which 
applies only to the Federal Bureau of Investigation, protects against 
disclosure of foreign intelligence or counterintelligence, or 
international terrorism records, when the existence of those records is 
classified.
    Proposed Sec.  16.6(f)(2) provided as follows: ``When a component 
applies an exclusion to exclude records from the requirements of the 
FOIA pursuant to 5 U.S.C. 552(c), the component utilizing the exclusion 
will respond to the request as if the excluded records did not exist. 
This response should not differ in wording from any other response 
given by the component.'' Commenters suggested that this language would 
impede governmental transparency and accountability.
    Proposed Sec.  16.6(f)(2) was intended to incorporate guidance 
issued more than 20 years ago by Attorney General Edwin Meese. See 
Attorney General's Memorandum on the 1986 Amendments to the Freedom of 
Information Act 18-30 (December 1987), available at http://www.justice.gov/oip/86agmemo.htm (``Meese Guidance''). The Meese 
Guidance provided, among other things, that where the only records 
responsive to a request were excluded from the FOIA by statute, that 
``a requester can properly be advised in such a situation that `there 
exist no records responsive to your FOIA request.' '' Id. at 27. The 
Meese Guidance also advised agencies that they must ensure that their 
FOIA responses are consistently worded so that a requester is not able 
to determine from the wording of a response that an exclusion was 
invoked. See id.
    In September 2012, in order to bring greater awareness to the 
public about the existence and effect of these statutory provisions, 
the Office of Information Policy (``OIP'') issued guidance outlining 
the steps all agencies should take to ensure proper implementation of 
exclusions and setting forth the new requirements for their use. See 
Office of Information Policy, ``Implementing FOIA's Statutory Exclusion 
Provisions'' (September 14, 2012), available at http://www.justice.gov/oip/foiapost/2012foiapost9.html (``OIP Exclusion Guidance'').
    The OIP Exclusion Guidance establishes a new approach for all 
agencies to take when responding to requests, in lieu of the approach 
that had been set forth in proposed Sec.  16.6(f)(2). Specifically, all 
agency components that maintain criminal law enforcement records now 
include a notification in their FOIA response letters advising 
requesters that Congress excluded certain records from the requirements 
of the FOIA and that the agency's response addresses those records that 
are subject to the requirements of the FOIA. The Department instructed 
these law enforcement components to include the following language in 
response to all FOIA requests:

For your information, Congress excluded three discrete categories of 
law enforcement and national security records from the requirements 
of the FOIA. See 5 U.S.C. 552(c) (2006 & Supp. IV 2010). This 
response is limited to those records that are subject to the 
requirements of the FOIA. This is a standard notification that is 
given to all our requesters and should not be taken as an indication 
that excluded records do, or do not, exist.

See OIP Exclusion Guidance.
    As explained in greater length in the OIP Exclusion Guidance, the 
Department believes that the use of this language addresses the 
concerns raised by the commenters who had criticized proposed Sec.  
16.6(f)(2), while preserving the integrity of the sensitive law 
enforcement records at stake.
    The final rule retains two provisions in the proposed rule aimed at 
ensuring proper use of exclusions. Before applying an exclusion, the 
component must first obtain approval from OIP. See Sec.  16.6(g)(1). 
Furthermore, any component invoking an exclusion must maintain records 
of its use and approval. See Sec.  16.6(g)(2). These provisions are 
intended to enhance accountability in the use of exclusions.
    One commenter suggested that the last sentence of proposed Sec.  
16.4(a), which provides that ``[a] record that is excluded from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), shall not be 
considered responsive to a request'' should be changed to say that the 
records ``may not be considered responsive.'' This sentence was 
designed to provide notice that records determined by a component to be 
properly subject to an exclusion are not considered to be responsive to 
the FOIA request. The FOIA provides that agencies ``may,'' under 
certain defined circumstances, treat records ``as not subject to the 
requirements of [the FOIA],'' 5 U.S.C. 552(c). As a result, components 
may choose not to apply an exclusion even if the FOIA would allow them 
to do so. This provision addresses those situations where a component 
does decide to lawfully apply an exclusion. The provision makes clear 
that in those cases the excluded records are not responsive to the 
request. For clarity, we have changed the wording in the final rule to 
replace the word

[[Page 18103]]

``shall'' with ``is'' so that the regulation more clearly conveys that 
it is addressing the consequence of those situations where a component 
has decided to apply an exclusion.
    An agency commenter suggested that requiring components to obtain 
OIP approval before applying an exclusion would conflict with OIP's 
role as the adjudicator of any subsequent administrative appeal. The 
commenter questioned whether, if OIP approved the use of an exclusion 
beforehand, it could review impartially its own decision on appeal. The 
commenter therefore recommended that components be required only to 
consult with OIP, rather than obtain its approval, before applying an 
exclusion. The Department declines to make this change. OIP is both a 
guidance office and an appeal authority, and aims to assist components 
as early as possible in the process to ensure that requests are 
processed properly and to obviate the need for appeals where possible. 
In light of the importance of invoking exclusions properly, the 
Department believes it is critical that OIP approve their use 
beforehand, given that only a subset of requesters file administrative 
appeals.

Other Provisions

Section 16.2 (Proactive Disclosure of Department Records)

    One commenter expressed concern that the proposed rule removes a 
reference to the requirement that records required to be made available 
for public inspection be indexed as well. In fact, the rule does not 
remove this requirement; rather, it states that each component is 
responsible for posting and indexing such records, and for updating 
posted records and indices on an ongoing basis.
    The same commenter suggested that proposed Sec.  16.2 should be 
modified to require that Department components post online the 
responses to all FOIA requests that do not involve individuals seeking 
access to their own records. The Department encourages the posting of 
all records, particularly records likely to be of interest to the 
public. However, given that resources are needed to properly code 
records for posting, it is important that Department components retain 
flexibility to decide how best to use those resources, including 
flexibility to use other options such as posting logs of FOIA 
responses.

Section 16.3 (Requirements for Making a Request)

    One commenter expressed concern that proposed Sec.  16.3(a) ``will 
allow the agency to summarily deny requests when the requester fails to 
write to the correct `FOIA office of the Department component.''' This 
scenario was not the intention of that provision, nor will it be a 
consequence of the provision. Indeed, as noted in Sec.  16.5(a) of the 
proposed regulations and as is contemplated in the FOIA itself, 
components are expected to re-route misdirected requests to the proper 
component. See 5 U.S.C. 552(a)(6)(A)(ii). For emphasis, the Department 
adds a new Sec.  16.4(c) that expressly states the obligation to re-
route misdirected requests.
    In addition, the Department adds language to the provision to 
explain that the requester will receive the quickest response if the 
request is directed to the component that maintains the records. 
Requesters have another option as well. For any requester who is 
uncertain as to which Department component may maintain responsive 
records, or who simply chooses to do so, proposed Sec.  16.3(a)(2) 
provides the requester with the option of submitting the request to the 
FOIA/PA Mail Referral Unit, which will then direct the request to the 
component(s) that it determines is most appropriate. The Mail Referral 
Unit is a long-standing service the Department provides to assist 
requesters who are uncertain as to where to direct their requests.
    The same commenter asserted that proposed Sec.  16.3(a)(3), which 
requires the submission of a certification of identity for first-party 
requesters and references the Department's Privacy Act regulation in 
subpart D on that point, should be clarified as only applying to U.S. 
citizens or lawful alien residents. This provision of the regulations 
is intended to apply to all first-party requesters, regardless of their 
country of origin and is intended to protect the privacy of 
individuals. The reference to subpart D of the regulations is merely 
meant to inform requesters as to the location of the requirements for 
verifying their identities when making requests for their own records. 
As a matter of policy, the Department requires verification of identity 
for all first-party requesters, not just requesters who are covered by 
the Privacy Act, to appropriately protect the privacy of all 
individuals and ensure that an individual's private records are not 
improperly disclosed to a third party. This is not a new requirement 
and is in the existing regulations.
    One commenter expressed concern that the change in language 
proposed for Sec.  16.3(c), (redesignated as Sec.  16.3(b) in the final 
rule), which addresses the requirement to reasonably describe the 
records sought, would ``establish new barriers to access.'' That was 
not the Department's intention. We revise this section to conform to 
the existing regulations and add further resources for requesters to 
assist them in reasonably describing the records they seek. The section 
now provides that requesters may discuss their requests with the 
component's FOIA contact or its FOIA Public Liaison in advance of 
making a request, as well as to clarify a request already made. 
Further, requesters may also contact a representative of OIP for 
assistance. All these officials will be available to assist requesters 
in reasonably describing the records sought.

Section 16.4 (Responsibility for Responding to Requests)

    One commenter noted that the proposed rule deleted existing Sec.  
16.7 concerning classified information. This commenter also indicated 
that it was unclear whether the citation to part 17 in proposed Sec.  
16.4(d) (redesignated as Sec.  16.4(e) in the final rule) reflects the 
Department's obligations with respect to such material. The Department 
further clarifies this provision to make clear that, in responding to 
requests for classified information, the component must determine 
whether the information remains currently and properly classified.
    With respect to proposed Sec.  16.4(e) (now incorporated into Sec.  
16.4(d) in the final rule), regarding notice of referrals, one 
commenter was concerned with the reference to protecting the identities 
of recipients of document referrals when disclosure of the recipient 
would itself disclose a sensitive, exempt fact. In the intervening 
period since the close of the second comment period, the Department has 
issued new guidance on consultations and referrals that requires 
agencies to use coordination procedures, rather than making a referral, 
if the recipient cannot be identified due to law enforcement or 
national security concerns. As a result, this provision, as well as 
proposed Sec.  16.4(c) (now incorporated into Sec.  16.4(d) in the 
final rule), is being revised to reflect that new Department guidance. 
See Office of Information Policy, ``Referrals, Consultations, and 
Coordination: Procedures for Processing Records When Another Agency or 
Entity Has an Interest in Them,'' (December 2011), available at 
www.justice.gov/oip/foiapost/2011foiapost42.html (explaining exceptions 
to standard procedures for making referrals and procedures for 
coordinating responses).
    One commenter suggested that any agreements between Department

[[Page 18104]]

components as to the processing of certain records, which was discussed 
in proposed Sec.  16.4(g), should be made publicly available. This 
provision is intended to hasten processing by eliminating certain 
consults or referrals for components that share or encounter the same 
types of records on a regular basis. There is no requirement, however, 
that components create formal agreements appropriate for posting with 
respect to these records. In the interests of maintaining flexibility 
and enhancing efficiency, which are the goals of this section, no 
changes are being made to the provision.

Section 16.5 (Timing of Responses to Requests)

    One commenter contended that the portion of proposed Sec.  16.5(a) 
concerning the commencement of response time for misdirected requests 
should be deleted. The commenter is referred to 5 U.S.C. 
552(a)(6)(A)(ii) of the FOIA, which is the statutory provision 
establishing the time period to route misdirected requests.
    Another commenter recommended that proposed Sec.  16.5(a) require 
components to forward any misdirected requests to the Justice 
Management Division's Mail Referral Unit, rather than to the Department 
component that the receiving component deems most appropriate. While 
components are free to do so when they are uncertain as to the proper 
component, imposing a requirement to route all misdirected requests 
through the Mail Referral Unit rather than directly to the proper 
component would unnecessarily delay the receipt of the request by the 
appropriate Department component. The Department has issued guidance on 
the handling of misdirected requests, see Office of Information Policy, 
``OIP Guidance: New Requirement to Route Misdirected FOIA Requests,'' 
(November 11, 2008), available at http://www.justice.gov/oip/foiapost/2008foiapost31.htm.
    One commenter took issue with the use of the term ``unusual 
circumstances'' contained in proposed Sec.  16.5(c) and suggested 
instead using the term ``unforeseen circumstances.'' However, ``unusual 
circumstances'' is a term of art that is taken directly from, and 
defined by, the FOIA. See 5 U.S.C. 552(a)(6)(B)(i).
    One commenter asserted that the language from the existing 
regulation stating that information dissemination ``need not be a 
[requester's] sole occupation,'' 28 CFR 16.5(d)(3) should be restored 
in proposed Sec.  16.5(e)(3), which pertains to expedited processing. 
It was not the Department's intention to narrow this standard--indeed, 
the example provided in the provision references a requester who is not 
a full-time member of the news media. To provide even greater clarity, 
the final rule provides that information dissemination ``need not be 
the requester's sole occupation.''
    The commenter also suggested deletion of a sentence from proposed 
Sec.  16.5(e)(3) regarding the provision of news articles. The 
commenter noted that requesters frequently make use of news articles to 
demonstrate a need for expedited processing. While acknowledging that 
provision of news articles does not ``necessarily require[] the grant 
of expedited processing'' in all instances, the commenter objected to 
the proposed sentence as not recognizing the usefulness of providing 
articles. The Department modifies this sentence to make it clear that 
provision of news articles on a topic ``can be helpful'' to 
establishing that the standard is met. This language conveys more 
appropriately the impact of providing numerous news articles. Finally, 
the Department revises the final sentence of proposed Sec.  16.5(e)(4), 
regarding administrative appeal of any component denial of expedited 
processing, to maintain the language used in the existing regulations.

Section 16.6 (Responses to Requests)

    One commenter suggested adding a sentence to proposed Sec.  16.6(d) 
(redesignated as Sec.  16.6(e) in the final rule), which concerns 
estimating the volume of information withheld, to require a listing of 
any documents withheld in full. Another commenter suggested that a 
brief description of the withheld information be provided if doing so 
would not reveal exempt information. While the Department understands 
the desire for such further detail, and encourages components to use 
their judgment to provide additional helpful information when 
practical, the Department must balance the time involved with imposing 
such a requirement against the heavy demands faced by many components 
to process thousands or tens of thousands of requests each year. In 
light of those demands, imposing such a requirement would be 
counterproductive. Contrary to the first commenter's assertion, a 
listing is not required at the administrative stage of processing a 
FOIA request. See Bangoura v. U.S. Dep't of the Army, 607 F. Supp. 2d 
134, 143 n.8 (D.D.C. 2009) (holding that list of withheld documents is 
not required at administrative stage of processing FOIA requests and 
appeals).
    One commenter mistakenly thought that proposed Sec.  16.6(e) had 
eliminated the requirement that a denial be signed by the head of the 
component or a designee. The first line of Sec.  16.6(e) in the final 
rule continues to contain this requirement.
    An agency commenter recommended that acknowledgments of requests 
include a brief description of the subject of the request in order to 
help requesters keep track of multiple pending requests. The Department 
agrees and has included such language in Sec.  16.6(b) of the final 
rule.
    The same commenter recommended that the rule reference the 
statutory requirement that agencies indicate, if technically feasible, 
the amount of information deleted and the exemption under which each 
deletion is made unless doing so would harm an interest protected by an 
applicable exemption. The Department adds such language in Sec.  16.6 
of the final rule.

Section 16.7 (Confidential Commercial Information)

    One commenter approved of the change to proposed Sec.  16.7(b) 
which states that ``[a] submitter of confidential commercial 
information must use good faith efforts to designate by appropriate 
markings . . . any portion of its submission that it considers to be 
protected from disclosure under Exemption 4.'' A similar requirement is 
also contained in proposed Sec.  16.7(e) for submitters relying on 
Exemption 4 as a basis for nondisclosure after receipt of submitter 
notice. However, the commenter objected to the language of proposed 
Sec.  16.7(e) that also states that a submitter should provide the 
component with detailed reasons for withholding under any FOIA 
exemption. The commenter suggested the use of the word ``must'' instead 
of ``should.''
    The difference in the requirements is based on the nature of the 
information at issue. Submitters are in the best position to explain 
why information should be considered confidential commercial 
information pursuant to Exemption 4, but would not have any specialized 
insight into the application of other FOIA exemptions. Accordingly, 
although a submitter's opinion on the applicability of other FOIA 
exemptions is solicited, the Department does not require it because the 
components are best suited to make such disclosure determinations.

Section 16.8 (Administrative Appeals)

    Two commenters took issue with the timing associated with 
submitting an administrative appeal set forth in

[[Page 18105]]

proposed Sec.  16.8(a). In response, the Department increases the time 
period from 45 days to 60 days. The Department notes that the use of 
the postmark or transmission date, rather than a ``received'' date, 
will provide a date certain for requesters to ensure, and components to 
ascertain, the timeliness of an appeal.
    The Department also adds language in Sec.  16.8(c) of the final 
rule to indicate that, when issuing a decision on appeal, it will 
inform the requester of the mediation services offered by the Office of 
Government Information Services (``OGIS'') of the National Archives and 
Records Administration as a non-exclusive alternative to litigation.

Section 16.9 (Preservation of Records)

    One commenter objected to the language in proposed Sec.  16.9 
concerning document preservation. The purpose of proposed Sec.  16.9 is 
to ensure that components appropriately preserve all records that are 
subject to a pending request, appeal, or lawsuit under the FOIA. It was 
not the Department's intention to narrow the scope of the obligation 
and so the Department is revising the language to state: ``Records will 
not be disposed of or destroyed while they are the subject of a pending 
request, appeal, or lawsuit under the FOIA.''

Miscellaneous

    One commenter recommended that the regulations restate various 
provisions included in the 2009 President's Memorandum on the FOIA, 
Presidential Memorandum for Heads of Executive Departments and Agencies 
Concerning the Freedom of Information Act, 74 FR 4683 (Jan. 21, 2009), 
and the 2009 Attorney General FOIA Guidelines, Attorney General 
Holder's Memorandum for Heads of Executive Departments and Agencies 
Concerning the Freedom of Information Act, 74 FR 51879 (Oct. 8, 2009). 
For example, the commenter requested that the rule restate the 
provision in the Attorney General's FOIA Guidelines that the Department 
will defend in litigation a denial of a FOIA request only if the 
disclosure is prohibited by law or if the agency reasonably foresees 
that disclosure would harm an interest protected by a statutory 
exemption. Because this rule addresses the procedures for making and 
responding to FOIA requests, rather than the conduct of FOIA 
litigation, the Department declines to make this change. The commenter 
also requested that the rule restore the provision in Sec.  16.1(a) of 
the existing regulations with regard to the Department's policy on 
making discretionary disclosures. The Department has decided to do so.
    In response to the public comments and feedback from Department 
components with respect to the phrasing of certain provisions, the 
Department is revising for clarity the following provisions: Sec.  16.1 
(General provisions), Sec.  16.3 (Requirements for making requests), 
Sec.  16.4 (Responsibility for responding to requests), Sec.  16.6 
(Responses to requests), Sec.  16.8 (Administrative appeals), and Sec.  
16.10 (Fees). The new wording more precisely states the Department's 
obligations with respect to consultations and referrals of documents, 
classified information, acknowledging receipt of requests, marking 
documents before release, and determining fee status.
    In recognition of the greater efficiency of electronic 
communication, the final rule makes clear that requesters may submit 
requests and appeals electronically, and instructs components to 
communicate electronically with requesters to the extent practicable. 
This language is being added in Sec.  16.3(a) (Requirements for making 
requests) (General information), Sec.  16.6(a) (Responses to requests) 
(In general), and Sec.  16.8(a) (Administrative appeals) (Requirements 
for making an appeal).

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that it will not have a significant economic impact on a 
substantial number of small entities. Under the FOIA, agencies may 
recover only the direct costs of searching for, reviewing, and 
duplicating the records processed for requesters. Thus, fees assessed 
by the Department are nominal. Further, the ``small entities'' that 
make FOIA requests, as compared with individual requesters and other 
requesters, are relatively few in number.

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866 (``Regulatory Planning and Review''), section 
1(b) (``The Principles of Regulation''), and in accordance with 
Executive Order 13563 (``Improving Regulation and Regulatory Review''), 
section 1 (``General Principles of Regulation'').
    The Department of Justice has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and, accordingly, this rule has been reviewed by the Office of 
Management and Budget.
    Further, both Executive Orders 12866 and 13563 direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. The Department has assessed the costs and 
benefits of this regulation and believes that the regulatory approach 
selected maximizes net benefits.
    The rule benefits the public by updating and streamlining the 
language in the Department's existing FOIA regulation. For example, the 
rule simplifies the assessment of fees in two ways: (1) By eliminating 
the presumption that requesters will pay fees up to $25 and instead 
providing that no fees will be assessed if the fees are under $25; and 
(2) by collapsing three categories of personnel into two for purposes 
of calculating search fees.
    The rule also benefits the public by incorporating references to 
procedures reflecting Department guidance issued subsequent to the 
existing version of the regulations, such as guidance on conducting 
consultations, referrals, and coordination, use of exclusions, 
assigning tracking numbers, notifying requesters of mediation services, 
and routing of misdirected requests. Updating the regulation to reflect 
existing procedures enhances transparency and reduces the risk of 
confusion for requesters. There are only de minimis costs associated 
with incorporating the guidance changes into the rule. Many of the 
provisions addressed in the guidance are implemented simply by 
inserting standard language into correspondence, such as the language 
advising requesters of the mediation services offered by OGIS. Other 
provisions, such as those requiring assignment of tracking numbers, 
routing of misdirected requests, and provision of status estimates, 
reference procedures that components were already doing to varying 
degrees and so incur no meaningful new costs, and to the extent those 
procedures are now standardized, the time expended to comply is 
minimal.
    The Department does not have statistics as to how many requests 
fall within the $15 to $25 range. Based on our experience, the 
Department does not

[[Page 18106]]

expect that raising the fee threshold to $25 will have a significant 
effect on the number of FOIA submissions. Further, for the subset of 
requests where the fees are more than $14, but less than $25, the 
public benefits by receiving the additional value of $11 of services 
without charge. While the Department will incur the cost for those 
additional services, the cost is minimal since it is only a difference 
of $11 per request, and it is counterbalanced by the time savings 
incurred by having the rule simplified. As a result, the Department 
believes that the effect of the threshold change will be de minimis. It 
simplifies matters for Department personnel as now there is a clear 
line between what requesters get for free--services under $25--and when 
components start assessing fees--at $25. That simplification for 
Department personnel is a benefit. The fees that the Department 
currently collects from requesters represent only 0.17% of the 
Department's processing costs and so the slight change in the threshold 
for assessing fees simply does not have a measurable cost impact on the 
Department.
    The rule further benefits requesters by changing the way in which 
timeliness is determined for filing administrative appeals. The rule 
replaces the difficult-to-determine ``received'' date with a date 
certain (a postmark), which provides requesters with clarity as to 
timeliness while imposing no cost on the Department.
    Lastly, the rule promotes understanding of requesters' statutory 
fee entitlements by requiring Department components to advise non-
commercial-use requesters of their right to obtain 100 pages and two 
hours of search time for free. This will impose few if any costs on the 
Department; some components already follow this procedure, and the 
remainder can implement it easily.
    In sum, the Department is confident that the rule provides multiple 
benefits to the public while imposing minimal costs.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

List of Subjects in 28 CFR Part 16

    Administrative practice and procedure, Freedom of information, 
Privacy.

    For the reasons stated in the preamble, the Department of Justice 
amends 28 CFR chapter I, part 16, as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

0
1. Revise the authority citation for part 16 to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 
534; 31 U.S.C. 3717.


0
2. Revise subpart A of part 16 to read as follows:
Subpart A--Procedures for Disclosure of Records Under the Freedom of 
Information Act
Sec.
16.1 General provisions.
16.2 Proactive disclosure of Department records.
16.3 Requirements for making requests.
16.4 Responsibility for responding to requests.
16.5 Timing of responses to requests.
16.6 Responses to requests.
16.7 Confidential commercial information.
16.8 Administrative appeals.
16.9 Preservation of records.
16.10 Fees.
16.11 Other rights and services.

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


Sec.  16.1  General provisions.

    (a) This subpart contains the rules that the Department of Justice 
follows in processing requests for records under the Freedom of 
Information Act (``FOIA''), 5 U.S.C. 552. The rules in this subpart 
should be read in conjunction with the text of the FOIA and the Uniform 
Freedom of Information Fee Schedule and Guidelines published by the 
Office of Management and Budget (``OMB Guidelines''). Additionally, the 
Department's ``FOIA Reference Guide'' and its attachments contain 
information about the specific procedures particular to the Department 
with respect to making FOIA requests and descriptions of the types of 
records maintained by different Department components. This resource is 
available at http://www.justice.gov/oip/04_3.html. Requests made by 
individuals for records about themselves under the Privacy Act of 1974, 
5 U.S.C. 552a, are processed under subpart D of part 16 as well as 
under this subpart. As a matter of policy, the Department makes 
discretionary disclosures of records or information exempt from 
disclosure under the FOIA whenever disclosure would not foreseeably 
harm an interest protected by a FOIA exemption, but this policy does 
not create any right enforceable in court.
    (b) As referenced in this subpart, component means each separate 
bureau, office, division, commission, service, center, or 
administration that is designated by the Department as a primary 
organizational entity.
    (c) The Department has a decentralized system for processing 
requests, with each component handling requests for its records.


Sec.  16.2  Proactive disclosure of Department records.

    Records that are required by the FOIA to be made available for 
public inspection and copying may be accessed through the Department's 
Web site at http://www.justice.gov/oip/04_2.html. Each component is 
responsible for determining which of its records are required to be 
made publicly available, as well as identifying additional records of 
interest to the public that are appropriate for public disclosure, and 
for posting and indexing such records. Each component shall ensure that 
its Web site of posted records and indices is reviewed and updated on 
an ongoing basis. Each component has a FOIA Public Liaison who can 
assist individuals in locating records particular to a component. A 
list of the Department's FOIA Public Liaisons is available at http://www.justice.gov/oip/foiacontact/index-list.html.


Sec.  16.3  Requirements for making requests.

    (a) General information. (1) The Department has a decentralized 
system for responding to FOIA requests, with each component designating 
a FOIA office to process records from that component. All components 
have the capability to receive requests electronically either through 
email or a web portal. To make a request for

[[Page 18107]]

records of the Department, a requester should write directly to the 
FOIA office of the component that maintains the records being sought. A 
request will receive the quickest possible response if it is addressed 
to the FOIA office of the component that maintains the records sought. 
The Department's FOIA Reference Guide, which may be accessed as 
described in Sec.  16.1(a), contains descriptions of the functions of 
each component and provides other information that is helpful in 
determining where to make a request. Each component's FOIA office and 
any additional requirements for submitting a request to a given 
component are listed in Appendix I to this part. Part 0 of this chapter 
also summarizes the functions of each component. These references can 
all be used by requesters to determine where to send their requests 
within the Department.
    (2) A requester may also send requests to the FOIA/PA Mail Referral 
Unit, Justice Management Division, Department of Justice, 950 
Pennsylvania Avenue NW., Washington, DC 20530-0001, or via email to 
[email protected], or via fax to (202) 616-6695. The Mail 
Referral Unit will forward the request to the component(s) that it 
determines to be most likely to maintain the records that are sought.
    (3) A requester who is making a request for records about himself 
or herself must comply with the verification of identity provision set 
forth in subpart D of this part.
    (4) Where a request for records pertains to a third party, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or 
by submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary). As an exercise of administrative 
discretion, each component can require a requester to supply additional 
information if necessary in order to verify that a particular 
individual has consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable Department personnel to 
locate them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may assist a 
component in identifying the requested records, such as the date, title 
or name, author, recipient, subject matter of the record, case number, 
file designation, or reference number. Requesters should refer to 
Appendix I to this part for additional, component-specific 
requirements. In general, requesters should include as much detail as 
possible about the specific records or the types of records that they 
are seeking. Before submitting their requests, requesters may contact 
the component's FOIA contact or FOIA Public Liaison to discuss the 
records they are seeking and to receive assistance in describing the 
records. If after receiving a request a component determines that it 
does not reasonably describe the records sought, the component shall 
inform the requester what additional information is needed or why the 
request is otherwise insufficient. Requesters who are attempting to 
reformulate or modify such a request may discuss their request with the 
component's designated FOIA contact, its FOIA Public Liaison, or a 
representative of the Office of Information Policy (``OIP''), each of 
whom is available to assist the requester in reasonably describing the 
records sought. If a request does not reasonably describe the records 
sought, the agency's response to the request may be delayed.


Sec.  16.4  Responsibility for responding to requests.

    (a) In general. Except in the instances described in paragraphs (c) 
and (d) of this section, the component that first receives a request 
for a record and maintains that record is the component responsible for 
responding to the request. In determining which records are responsive 
to a request, a component ordinarily will include only records in its 
possession as of the date that it begins its search. If any other date 
is used, the component shall inform the requester of that date. A 
record that is excluded from the requirements of the FOIA pursuant to 5 
U.S.C. 552(c), is not considered responsive to a request.
    (b) Authority to grant or deny requests. The head of a component, 
or designee, is authorized to grant or to deny any requests for records 
that are maintained by that component.
    (c) Re-routing of misdirected requests. Where a component's FOIA 
office determines that a request was misdirected within the Department, 
the receiving component's FOIA office shall route the request to the 
FOIA office of the proper component(s).
    (d) Consultation, referral, and coordination. When reviewing 
records located by a component in response to a request, the component 
shall determine whether another component or another agency of the 
Federal Government is better able to determine whether the record is 
exempt from disclosure under the FOIA and, if so, whether it should be 
released as a matter of discretion. As to any such record, the 
component shall proceed in one of the following ways:
    (1) Consultation. When records originated with the component 
processing the request, but contain within them information of interest 
to another component, agency, or other Federal Government office, the 
component processing the request should typically consult with that 
other component or agency prior to making a release determination.
    (2) Referral. (i) When the component processing the request 
believes that a different component, agency, or other Federal 
Government office is best able to determine whether to disclose the 
record, the component typically should refer the responsibility for 
responding to the request regarding that record, as long as the 
referral is to a component or agency that is subject to the FOIA. 
Ordinarily, the component or agency that originated the record will be 
presumed to be best able to make the disclosure determination. However, 
if the component processing the request and the originating component 
or agency jointly agree that the former is in the best position to 
respond regarding the record, then the record may be handled as a 
consultation.
    (ii) Whenever a component refers any part of the responsibility for 
responding to a request to another component or agency, it shall 
document the referral, maintain a copy of the record that it refers, 
and notify the requester of the referral and inform the requester of 
the name(s) of the component or agency to which the record was 
referred, including that component's or agency's FOIA contact 
information,
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the component or agency 
to which the referral would be made could harm an interest protected by 
an applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. For example, if a non-law 
enforcement component responding to a request for records on a living 
third party locates within its files records originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party was not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion of 
the personal privacy of the third party. Similarly, if a component 
locates within its files material originating with an

[[Page 18108]]

Intelligence Community agency, and the involvement of that agency in 
the matter is classified and not publicly acknowledged, then to 
disclose or give attribution to the involvement of that Intelligence 
Community agency could cause national security harms. In such 
instances, in order to avoid harm to an interest protected by an 
applicable exemption, the component that received the request should 
coordinate with the originating component or agency to seek its views 
on the disclosability of the record. The release determination for the 
record that is the subject of the coordination should then be conveyed 
to the requester by the component that originally received the request.
    (e) Classified information. On receipt of any request involving 
classified information, the component shall determine whether the 
information is currently and properly classified and take appropriate 
action to ensure compliance with part 17 of this title. Whenever a 
request involves a record containing information that has been 
classified or may be appropriate for classification by another 
component or agency under any applicable executive order concerning the 
classification of records, the receiving component shall refer the 
responsibility for responding to the request regarding that information 
to the component or agency that classified the information, or that 
should consider the information for classification. Whenever a 
component's record contains information that has been derivatively 
classified (for example, when it contains information classified by 
another component or agency), the component shall refer the 
responsibility for responding to that portion of the request to the 
component or agency that classified the underlying information.
    (f) Timing of responses to consultations and referrals. All 
consultations and referrals received by the Department will be handled 
according to the date that the FOIA request initially was received by 
the first component or agency.
    (g) Agreements regarding consultations and referrals. Components 
may establish agreements with other components or agencies to eliminate 
the need for consultations or referrals with respect to particular 
types of records.


Sec.  16.5  Timing of responses to requests.

    (a) In general. Components ordinarily will respond to requests 
according to their order of receipt. Appendix I to this part contains 
the list of the Department components that are designated to accept 
requests. In instances involving misdirected requests that are re-
routed pursuant to Sec.  16.4(c), the response time will commence on 
the date that the request is received by the proper component's office 
that is designated to receive requests, but in any event not later than 
10 working days after the request is first received by any component's 
office that is designated by these regulations to receive requests.
    (b) Multitrack processing. All components must designate a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (e) of this section. A 
component may also designate additional processing tracks that 
distinguish between simple and more complex requests based on the 
estimated amount of work or time needed to process the request. Among 
the factors a component may consider are the number of pages involved 
in processing the request and the need for consultations or referrals. 
Components shall advise requesters of the track into which their 
request falls and, when appropriate, shall offer the requesters an 
opportunity to narrow their request so that it can be placed in a 
different processing track.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and the component extends the 
time limit on that basis, the component shall, before expiration of the 
20-day period to respond, notify the requester in writing of the 
unusual circumstances involved and of the date by which processing of 
the request can be expected to be completed. Where the extension 
exceeds 10 working days, the component shall, as described by the FOIA, 
provide the requester with an opportunity to modify the request or 
arrange an alternative time period for processing. The component shall 
make available its designated FOIA contact and its FOIA Public Liaison 
for this purpose.
    (d) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, components may aggregate requests in 
cases where it reasonably appears that multiple requests, submitted 
either by a requester or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances. Components shall not aggregate multiple requests that 
involve unrelated matters.
    (e) Expedited processing. (1) Requests and appeals shall be 
processed on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity that 
affect public confidence.
    (2) A request for expedited processing may be made at any time. 
Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section 
must be submitted to the component that maintains the records 
requested. When making a request for expedited processing of an 
administrative appeal, the request should be submitted to OIP. Requests 
for expedited processing that are based on paragraph (e)(1)(iv) of this 
section must be submitted to the Director of Public Affairs at the 
Office of Public Affairs, Department of Justice, 950 Pennsylvania 
Avenue NW., Washington, DC 20530-0001. A component that receives a 
misdirected request for expedited processing under the standard set 
forth in paragraph (e)(1)(iv) of this section shall forward it 
immediately to the Office of Public Affairs for its determination. The 
time period for making the determination on the request for expedited 
processing under paragraph (e)(1)(iv) of this section shall commence on 
the date that the Office of Public Affairs receives the request, 
provided that it is routed within 10 working days.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (e)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public about the government activity involved in the 
request--one that extends beyond the public's right to know about 
government activity generally. The existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on the 
topic. As a matter of administrative discretion, a component

[[Page 18109]]

may waive the formal certification requirement.
    (4) A component shall notify the requester within 10 calendar days 
of the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request shall be given priority, placed in the 
processing track for expedited requests, and shall be processed as soon 
as practicable. If a request for expedited processing is denied, any 
appeal of that decision shall be acted on expeditiously.


Sec.  16.6  Responses to requests.

    (a) In general. Components should, to the extent practicable, 
communicate with requesters having access to the Internet using 
electronic means, such as email or web portal.
    (b) Acknowledgments of requests. A component shall acknowledge the 
request and assign it an individualized tracking number if it will take 
longer than 10 working days to process. Components shall include in the 
acknowledgment a brief description of the records sought to allow 
requesters to more easily keep track of their requests.
    (c) Grants of requests. Once a component makes a determination to 
grant a request in full or in part, it shall notify the requester in 
writing. The component also shall inform the requester of any fees 
charged under Sec.  16.10 and shall disclose the requested records to 
the requester promptly upon payment of any applicable fees.
    (d) Adverse determinations of requests. A component making an 
adverse determination denying a request in any respect shall notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include decisions that: the requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject 
to the FOIA; the requested record does not exist, cannot be located, or 
has been destroyed; or the requested record is not readily reproducible 
in the form or format sought by the requester. Adverse determinations 
also include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (e) Content of denial. The denial shall be signed by the head of 
the component, or designee, and shall include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the component in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part or if providing an estimate would harm an interest protected by 
an applicable exemption; and
    (4) A statement that the denial may be appealed under Sec.  
16.8(a), and a description of the requirements set forth therein.
    (f) Markings on released documents. Markings on released documents 
must be clearly visible to the requester. Records disclosed in part 
shall be marked to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted shall also be indicated on the record, if 
technically feasible.
    (g) Use of record exclusions. (1) In the event that a component 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component 
must confer with OIP to obtain approval to apply the exclusion.
    (2) Any component invoking an exclusion shall maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.


Sec.  16.7  Confidential commercial information.

    (a) Definitions. (1) Confidential commercial information means 
commercial or financial information obtained by the Department from a 
submitter that may be protected from disclosure under Exemption 4 of 
the FOIA, 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides information, either directly or 
indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, either at the time of submission or 
within a reasonable time thereafter, any portion of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations shall expire 10 years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (c) When notice to submitters is required. (1) A component shall 
promptly provide written notice to a submitter of confidential 
commercial information whenever records containing such information are 
requested under the FOIA if, after reviewing the request, the 
responsive records, and any appeal by the requester, the component 
determines that it may be required to disclose the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The component has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4, but has 
not yet determined whether the information is protected from disclosure 
under that exemption or any other applicable exemption.
    (2) The notice shall either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, notice may be made by posting or publishing the 
notice in a place or manner reasonably likely to accomplish it.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section shall not apply if:
    (1) The component determines that the information is exempt under 
the FOIA;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous, except that, in such a case, 
the component shall give the submitter written notice of any final 
decision to disclose the information and must provide that notice 
within a reasonable number of days prior to a specified disclosure 
date.
    (e) Opportunity to object to disclosure. (1) A component shall 
specify a reasonable time period within which the submitter must 
respond to the notice referenced above. If a submitter has any 
objections to disclosure, it should provide the component a detailed 
written statement that specifies all grounds for withholding the 
particular

[[Page 18110]]

information under any exemption of the FOIA. In order to rely on 
Exemption 4 as basis for nondisclosure, the submitter must explain why 
the information constitutes a trade secret or commercial or financial 
information that is privileged or confidential.
    (2) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. Information received by the component 
after the date of any disclosure decision shall not be considered by 
the component. Any information provided by a submitter under this 
subpart may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. A component shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the requested information.
    (g) Notice of intent to disclose. Whenever a component decides to 
disclose information over the objection of a submitter, the component 
shall provide the submitter written notice, which shall include:
    (1) A statement of the reasons 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.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the component shall promptly notify the submitter.
    (i) Requester notification. The component shall notify a requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.


Sec.  16.8  Administrative appeals.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determinations to OIP. The contact information for OIP is 
contained in the FOIA Reference Guide, which is available at http://www.justice.gov/oip/04_3.html. Appeals can be submitted through the web 
portal accessible on OIP's Web site. Examples of adverse determinations 
are provided in Sec.  16.6(d). The requester must make the appeal in 
writing and to be considered timely it must be postmarked, or in the 
case of electronic submissions, transmitted, within 60 calendar days 
after the date of the response. The appeal should clearly identify the 
component's determination that is being appealed and the assigned 
request number. To facilitate handling, the requester should mark both 
the appeal letter and envelope, or subject line of the electronic 
transmission, ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. (1) The Director of OIP or designee 
will act on behalf of the Attorney General on all appeals under this 
section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (3) On receipt of any appeal involving classified information, OIP 
shall take appropriate action to ensure compliance with part 17 of this 
title.
    (c) Decisions on appeals. A decision on an appeal must be made in 
writing. A decision that upholds a component's determination will 
contain a statement that identifies the reasons for the affirmance, 
including any FOIA exemptions applied. The decision will provide the 
requester with notification of the statutory right to file a lawsuit 
and will inform the requester of the mediation services offered by the 
Office of Government Information Services of the National Archives and 
Records Administration as a non-exclusive alternative to litigation. If 
a component's decision is remanded or modified on appeal, the requester 
will be notified of that determination in writing. The component will 
thereafter further process the request in accordance with that appeal 
determination and respond directly to the requester.
    (d) When appeal is required. Before seeking review by a court of a 
component's adverse determination, a requester generally must first 
submit a timely administrative appeal.


Sec.  16.9  Preservation of records.

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


Sec.  16.10  Fees.

    (a) In general. Components shall charge for processing requests 
under the FOIA in accordance with the provisions of this section and 
with the OMB Guidelines. In order to resolve any fee issues that arise 
under this section, a component may contact a requester for additional 
information. Components shall ensure that searches, review, and 
duplication are conducted in the most efficient and the least expensive 
manner. A component ordinarily will collect all applicable fees before 
sending copies of 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 is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. A component's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information.
    (2) Direct costs are those expenses that an agency incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. For 
example, direct costs include the salary of the employee performing the 
work (i.e., the basic rate of pay for the employee, plus 16 percent of 
that rate to cover benefits) and the cost of operating computers and 
other electronic equipment, such as photocopiers and scanners. Direct 
costs do not include overhead expenses such as the costs of space, and 
of heating or lighting a facility.
    (3) Duplication is reproducing 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, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is authorized by, and is made under the auspices of, an 
educational institution and that the records are not sought for a 
commercial use, but rather are sought to further scholarly research. To 
fall within this fee category, the request must serve the scholarly 
research goals of the institution rather than an individual research 
goal.
    Example 1. A request from a professor of geology at a university 
for records relating to soil erosion, written on letterhead of the 
Department of Geology, would be presumed to be from an educational 
institution.
    Example 2. A request from the same professor of geology seeking 
drug information from the Food and Drug Administration in furtherance 
of a

[[Page 18111]]

murder mystery he is writing would not be presumed to be an 
institutional request, regardless of whether it was written on 
institutional stationery.
    Example 3. A student who makes a request in furtherance of the 
completion of a course of instruction would be presumed to be carrying 
out an individual research goal, rather than a scholarly research goal 
of the institution and would not qualify as part of this fee category.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this section and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. A requester in this 
category must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use.
    (6) Representative of the news media is any person or entity 
organized and operated to publish or broadcast news to the public that 
actively gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. 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 that broadcast ``news'' to the 
public at large and publishers of periodicals that disseminate ``news'' 
and make their products available through a variety of means to the 
general public, including news organizations that disseminate solely on 
the Internet. A request for records supporting the news-dissemination 
function of the requester shall not be considered to be for a 
commercial use. ``Freelance'' journalists who demonstrate a solid basis 
for expecting publication through a news media entity shall be 
considered as a representative of the news media. A publishing contract 
would provide the clearest evidence that publication is expected; 
however, components shall also consider a requester's past publication 
record in making this determination.
    (7) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential commercial information submitter under Sec.  
16.7, but it does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, components shall 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, components should not add any additional costs to 
charges calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. Search fees shall be charged for 
all other requesters, subject to the restrictions of paragraph (d) of 
this section. Components may properly charge for time spent searching 
even if they do not locate any responsive records or if they determine 
that the records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees shall be as follows: professional--$10.00; 
and clerical/administrative--$4.75.
    (iii) Requesters shall be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. Requesters shall be notified 
of the costs associated with creating such a program and must agree to 
pay the associated costs before the costs may be incurred.
    (iv) For requests that require the retrieval of records stored by 
an agency at a Federal records center operated by the National Archives 
and Records Administration (NARA), additional costs shall be charged in 
accordance with the Transactional Billing Rate Schedule established by 
NARA.
    (2) Duplication. Duplication fees shall be charged to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. A component shall honor a requester's preference for receiving 
a record in a particular form or format where it is readily 
reproducible by the component in the form or format requested. Where 
photocopies are supplied, the component shall provide one copy per 
request at a cost of five cents per page. For copies of records 
produced on tapes, disks, or other media, components shall charge the 
direct costs of producing the copy, including operator time. Where 
paper documents must be scanned in order to comply with a requester's 
preference to receive the records in an electronic format, the 
requester shall pay the direct costs associated with scanning those 
materials. For other forms of duplication, components shall charge the 
direct costs.
    (3) Review. Review fees shall be charged to requesters who make 
commercial use requests. Review fees shall be assessed in connection 
with the initial review of the record, i.e., the review conducted by a 
component to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with a component's re-review of the records in 
order to consider the use of other exemptions may be assessed as review 
fees. Review fees shall be charged at the same rates as those charged 
for a search under paragraph (c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) No search fees will be 
charged for requests by educational institutions (unless the records 
are sought for a commercial use), noncommercial scientific 
institutions, or representatives of the news media.
    (2) If a component fails to comply with the time limits in which to 
respond to a request, and if no unusual or exceptional circumstances, 
as those terms are defined by the FOIA, apply to the processing of the 
request, it may not charge search fees, or, in the instances of 
requests from requesters described in paragraph (d)(1) of this section, 
may not charge duplication fees.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, 
components shall provide without charge:

[[Page 18112]]

    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under paragraph (c) of this section is $25.00 or less for any request, 
no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. (1) When a 
component determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the component shall 
notify the requester of the actual or estimated amount of the fees, 
including a breakdown of the fees for search, review or duplication, 
unless the requester has indicated a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the component shall advise the requester accordingly. If the 
requester is a noncommercial use requester, the notice shall specify 
that the requester is entitled to the statutory entitlements of 100 
pages of duplication at no charge and, if the requester is charged 
search fees, two hours of search time at no charge, and shall advise 
the requester whether those entitlements have been provided.
    (2) In cases in which a requester has been notified that the actual 
or estimated fees are in excess of $25.00, the request shall not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees the requester is willing to pay, or 
in the case of a noncommercial use requester who has not yet been 
provided with the requester's statutory entitlements, designates that 
the requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. Components are not required to accept 
payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the component estimates that the total 
fee will exceed that amount, the component shall toll the processing of 
the request when it notifies the requester of the estimated fees in 
excess of the amount the requester has indicated a willingness to pay. 
The component shall inquire whether the requester wishes to revise the 
amount of fees the requester is willing to pay or modify the request. 
Once the requester responds, the time to respond will resume from where 
it was at the date of the notification.
    (4) Components shall make available their FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if a component chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
shall be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (g) Charging interest. Components may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges shall be assessed at the rate provided in 
31 U.S.C. 3717 and will accrue from the billing date until payment is 
received by the component. Components shall follow the provisions of 
the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as 
amended, and its administrative procedures, including the use of 
consumer reporting agencies, collection agencies, and offset.
    (h) Aggregating requests. When a component reasonably believes that 
a requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, the component may aggregate those requests and charge 
accordingly. Components may presume that multiple requests of this type 
made within a 30-day period have been made in order to avoid fees. For 
requests separated by a longer period, components will aggregate them 
only where there is a reasonable basis for determining that aggregation 
is warranted in view of all the circumstances involved. Multiple 
requests involving unrelated matters shall not be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) or (i)(3) of this section, a component shall not 
require the requester to make an advance payment before work is 
commenced or continued on a request. Payment owed for work already 
completed (i.e., payment before copies are sent to a requester) is not 
an advance payment.
    (2) When a component determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. A component 
may elect to process the request prior to collecting fees when it 
receives a satisfactory assurance of full payment from a requester with 
a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any component or agency within 30 calendar days of 
the billing date, a component may require that the requester pay the 
full amount due, plus any applicable interest on that prior request, 
and the component may require that the requester make an advance 
payment of the full amount of any anticipated fee before the component 
begins to process a new request or continues to process a pending 
request or any pending appeal. Where a component has a reasonable basis 
to believe that a requester has misrepresented the requester's identity 
in order to avoid paying outstanding fees, it may require that the 
requester provide proof of identity.
    (4) In cases in which a component requires advance payment, the 
request shall not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the component's fee determination, the request will be closed.
    (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. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
the component shall inform the requester of the contact information for 
that program.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request shall be furnished without charge or at a 
reduced rate below the rate established under paragraph (c) of this 
section, where a component 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) In deciding whether disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of operations or activities

[[Page 18113]]

of the government, components shall consider all four of the following 
factors:
    (i) The subject of the request must concern identifiable operations 
or activities of the Federal Government, with a connection that is 
direct and clear, not remote or attenuated.
    (ii) Disclosure 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 the same or a substantially identical 
form, would not contribute to such understanding where nothing new 
would be added to the public's understanding.
    (iii) 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 as well as the requester's ability and 
intention to effectively convey information to the public shall be 
considered. It shall be presumed that a representative of the news 
media will satisfy this consideration.
    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent. However, components 
shall not make value judgments about whether the information at issue 
is ``important'' enough to be made public.
    (3) To determine whether disclosure of the requested information is 
primarily in the commercial interest of the requester, components shall 
consider the following factors:
    (i) Components shall identify any commercial interest of the 
requester, as defined in paragraph (b)(1) of this section, that would 
be furthered by the requested disclosure. Requesters shall be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (ii) A waiver or reduction of fees is justified where the public 
interest is greater than any identified commercial interest in 
disclosure. Components ordinarily shall presume that where a news media 
requester has satisfied the public interest standard, the public 
interest will be the interest primarily served by disclosure to that 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return shall not be 
presumed to primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the component and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay 
fees subsequently asks for a waiver of those fees and that waiver is 
denied, the requester shall be required to pay any costs incurred up to 
the date the fee waiver request was received.


Sec.  16.11  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, 
as of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.

0
3. Revise Appendix I to part 16 to read as follows:

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

    Please consult Attachment B of the Department of Justice FOIA 
Reference Guide for the contact information and a detailed 
description of the types of records maintained by each Department 
component. The FOIA Reference Guide is available at http://www.justice.gov/oip/04_3.html or upon request to the Office of 
Information Policy.
    The FOIA offices of Department components and any component-
specific requirements for making a FOIA request are listed below. 
The Certification of Identity form, available at http://www.justice.gov/oip/forms/cert_ind.pdf, may be used by individuals 
who are making requests for records pertaining to themselves. For 
each of the six components marked with an asterisk, FOIA and Privacy 
Act (PA) access requests must be sent to OIP, which handles initial 
requests for those six components.

Antitrust Division, FOIA/PA Unit
Bureau of Alcohol, Tobacco, Firearms, and Explosives, Disclosure 
Division
Civil Division, FOIA/PA Officer
    Requests for records from case files must include a case caption 
or name, civil court case number, and judicial district.
Civil Rights Division, FOIA/PA Branch
Community Relations Service, FOIA/PA Coordinator
Criminal Division, FOIA/PA Unit
Drug Enforcement Administration, Freedom of Information Operations 
Unit, FOI/Records Management Section
Environment and Natural Resources Division, FOIA Coordinator, Law 
and Policy Section
    Requests for records from case files must include a case caption 
or name, civil or criminal court case number, and judicial district.
Executive Office for Immigration Review, Office of the General 
Counsel
    When seeking access to records concerning a named alien 
individual, requesters must include an alien registration number 
(``A'' number). If the ``A'' number is not known or the case 
occurred before 1988, the date of an Order to Show Cause, country of 
origin, and location of the immigration hearing must be provided.
Executive Office for United States Attorneys, FOIA/Privacy Unit
Executive Office for Organized Crime Drug Enforcement Task Forces
    Requests for records from case files must include the judicial 
district in which the investigation/prosecution or other litigation 
occurred.
Executive Office for United States Trustees, FOIA/PA Counsel, Office 
of the General Counsel
    Requests for records from bankruptcy case files must include a 
case caption or name, case number, and judicial district.
Federal Bureau of Investigation, Record/Information Dissemination 
Section, Records Management Division
Federal Bureau of Prisons, FOIA/PA Section
Foreign Claims Settlement Commission
INTERPOL-U.S. National Central Bureau, FOIA/PA Specialist, Office of 
General Counsel
Justice Management Division, FOIA Contact
National Security Division, FOIA Initiatives Coordinator
Office of the Associate Attorney General*
Office of the Attorney General*
Office of Community Oriented Policing Services, FOIA Officer, Legal 
Division
Office of the Deputy Attorney General*
Office of Information Policy
Office of the Inspector General, Office of the General Counsel
Office of Justice Programs, Office of the General Counsel
Office of Legal Counsel
Office of Legal Policy*
Office of Legislative Affairs*
Office of the Pardon Attorney, FOIA Officer
Office of Professional Responsibility, Special Counsel for Freedom 
of Information and Privacy Acts
Office of Public Affairs*
Office of the Solicitor General
    Requests for records from case files must include a case name, 
docket number, or citation to case.
Office on Violence Against Women
Professional Responsibility Advisory Office, Information Management 
Specialist
Tax Division, Division Counsel for FOIA and PA Matters
    Requests for records from case files must include a case caption 
or name, civil or criminal court case number, and judicial district.
United States Marshals Service, Office of the General Counsel
    Requests for records concerning seized property must specify the 
judicial district of the seizure, civil court case number, asset 
identification number, and an accurate description of the property.
United States Parole Commission, FOIA/PA Specialist


[[Page 18114]]


    Dated: March 27, 2015.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2015-07772 Filed 4-2-15; 8:45 am]
 BILLING CODE 4110-BE-P