[Federal Register Volume 81, Number 230 (Wednesday, November 30, 2016)]
[Rules and Regulations]
[Pages 86270-86287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28430]


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POSTAL SERVICE

39 CFR Part 265


Production or Disclosure of Material or Information

AGENCY: Postal Service.

ACTION: Final rule.

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SUMMARY: The Postal Service is amending its regulations concerning 
compliance with the Freedom of Information Act (FOIA) to implement the 
changes to the procedures for the disclosure of records and for 
engaging in dispute resolution required by the FOIA Improvement Act of 
2016. As part of this process, the Postal Service is also restructuring 
the regulations setting forth its FOIA procedures, without substantive 
change, to make them easier for members of the public to understand and 
use.

DATES: These regulations are effective December 27, 2016.

ADDRESSES: Questions or comments on this action are welcome. Mail or 
deliver written comments to: Michael Elston, Associate General Counsel 
and Chief Ethics & Compliance Officer, 475 L'Enfant Plaza SW., Room 
6000, Washington, DC 20260-1135.

FOR FURTHER INFORMATION CONTACT: Natalie A. Bonanno, Chief Counsel, 
Federal Compliance, [email protected], (202) 268-2944.

SUPPLEMENTARY INFORMATION: The Postal Service is amending 39 CFR part 
265 to implement changes to the procedures for the disclosure of 
records and for engaging in dispute resolution under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552, as required by the FOIA 
Improvement Act of 2016 (FOIAIA), Public Law 114-185 (June 30, 2016), 
130 Stat. 538. Under section 3 of the FOIA Improvement Act (130 Stat. 
544) agencies are required to make such changes not later than 180 days 
after its date of enactment.
    The Postal Service has accordingly prepared a revision of 39 CFR 
part 265 to implement the amendments to the FOIA contained in section 2 
of the FOIAIA. These amendments relate to such matters as the 
availability of certain records for public inspection in an electronic 
format; the assessment of fees related to voluminous record requests; 
modifications to the exemptions from disclosure for certain records 
described in 5 U.S.C. 552(b); and addressing the role of the Office of 
Government Information Services (OGIS).
    In addition, the Postal Service is restructuring its FOIA response 
procedures, without substantive change to their underlying policy, with 
the objective of enhancing their usefulness and comprehensibility. In 
this regard, 39 CFR part 265 has been retitled and subdivided into 
three subparts, dealing separately with (1) the generally applicable 
procedures for the disclosure of records under FOIA; (2) special rules 
applicable to the disclosure of records in compliance with subpoenas 
and other court orders, in response to requests for records or 
testimony in other legal proceedings, or pursuant to requests directed 
to the Postal Inspection Service; and (3) the rules concerning the 
availability of specific categories of records that are not subject to 
mandatory disclosure in whole or in part.
    As reorganized and amended, 39 CFR part 265 is structured as 
follows:

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

    This subpart sets forth the procedural rules applicable to the 
submission and processing of FOIA requests, including how and to whom a 
request should be submitted, the responsibility for and the timing of a 
response, the nature and content of the response, the treatment of 
confidential commercial information obtained from a submitter outside 
the Postal Service that may be protected from disclosure, the procedure 
for making an administrative appeal of the Postal Service's response to 
a request, and the fees that may apply to processing a request. This 
subpart is designed to carry forward the substantive content of former 
Sec. Sec.  265.1-265.5 and Sec. Sec.  265.7-265.9 in a more accessible 
and useful format.

265.1 General Provisions

    This section has been retitled and revised to present a concise and 
accessible overview of the policies and functions implemented by this 
subpart.

265.2 Proactive Disclosure of Postal Service Records

    This section has been retitled and revised to ensure the continued 
availability of those records that must be made publicly available, or 
are appropriate for public disclosure, and to provide for the posting 
and indexing of records in an electronic format as required under the 
FOIAIA.

265.3 Procedure for Submitting a FOIA Request

    This section has been retitled and revised to explain the 
organization and functions of the Postal Service's FOIA Requester 
Service Centers (RSCs), as well as the procedures to be followed in 
submitting a FOIA request.

265.4 Responsibility for Responding to Requests

    This section has been retitled and revised to clarify the 
functional responsibilities of the RSCs in responding to FOIA requests.

265.5 Timing of Responses to Requests

    This section has been retitled and revised to set out the timeframe 
applicable to the processing of requests, including special provisions 
for the multitrack processing of simple or complex requests, expedited 
processing where appropriate, the extension of time in unusual 
circumstances, and aggregation of requests.

[[Page 86271]]

265.6 Responses to Requests

    This section has been retitled and revised to specify the 
procedures for grants of requests, adverse determinations of requests, 
denials of requests, and any redaction of documents released.

265.7 Confidential Commercial Information Obtained From Submitters

    This section, the successor to former Sec.  265.8, has been 
retitled and revised to specify the procedures for processing requests 
for information that may be protected from disclosure under FOIA 
Exemption 4 (5 U.S.C. 552(b)(4)) because it contains confidential 
commercial or financial information obtained by the Postal Service from 
a submitter outside the Postal Service.

265.8 Administrative Appeals

    This section has been retitled and revised to set forth the 
requirements for making an appeal of a FOIA decision, and the process 
for its adjudication.

265.9 Fees

    This section has been retitled and revised to specify the fee 
structure for processing FOIA requests, including special provisions 
concerning requests from educational institutions, noncommercial 
scientific institutions, and representatives of the news media.

Subpart B--Production or Disclosure in Federal and State Proceedings

    This subpart retains current Sec. Sec.  265.11-265.13 with no 
substantive change. Where necessary, cross-references to other postal 
regulations have been updated.

265.11 Compliance With Subpoenas Duces Tecum, Court Orders, and 
Summonses

    No substantive changes have been made in this section.

265.12 Demands for Testimony or Records in Certain Legal Proceedings

    No substantive changes have been made in this section.

265.13 Compliance With Subpoenas, Summonses, and Court Orders by Postal 
Employees Within the Postal Inspection Service Where the Postal 
Service, the United States, or Any Other Federal Agency Is Not a Party

    No substantive changes have been made in this section.

Subpart C--Availability of Records

    The provisions of former Sec.  265.6 have been redesignated as 
Sec.  265.14, and relocated to a separate subpart. This action is 
intended to enhance the usefulness of these regulations, and add 
clarity to the distinction between those records that are available to 
the public on request, and those records that are not subject to 
mandatory public disclosure, or available only with certain 
restrictions.

265.14 Rules Concerning Specific Categories of Records

    This section retitles, relocates, and revises for clarity the rules 
concerning records that are not subject to mandatory public disclosure, 
as well as those that are available with certain restrictions, 
including records compiled for law enforcement purposes, the names and 
addresses of postal customers, and records the disclosure of which 
would constitute a clearly unwarranted invasion of personal privacy.

List of Subjects in 39 CFR Part 265

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

    For the reasons stated in the preamble, the Postal Service amends 
39 CFR chapter I by revising part 265 to read as follows:

PART 265--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

Subpart A--Procedures for Disclosure of Records Under the Freedom of 
Information Act
Sec.
265.1 General provisions.
265.2 Proactive disclosure of Postal Service records.
265.3 Procedure for submitting a FOIA request.
265.4 Responsibility for responding to requests.
265.5 Timing of responses to requests.
265.6 Responses to requests.
265.7 Confidential commercial information obtained from submitters.
265.8 Administrative appeals.
265.9 Fees.
Subpart B--Production or Disclosure in Federal and State Proceedings
265.11 Compliance with subpoenas duces tecum, court orders, and 
summonses.
265.12 Demands for testimony or records in certain legal 
proceedings.
265.13 Compliance with subpoenas, summonses, and court orders by 
postal employees within the Postal Inspection Service where the 
Postal Service, the United States, or any other Federal agency is 
not a party.
Subpart C--Availability of Records
265.14 Rules concerning specific categories of records.

    Authority: 5 U.S.C. 552; 5 U.S.C. App. 3; 39 U.S.C. 401, 403, 
410, 1001, 2601; Pub. L. 114-185.


Sec.  265.1  General provisions.

    (a) This subpart contains the regulations that implement the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, insofar as the Act 
applies to the Postal Service. These rules 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), 52 FR 10012 (Mar. 27, 1987). 
The Postal Service FOIA Requester's Guide, an easy-to-read guide for 
making Postal Service FOIA requests, is available at http://about.usps.com/who-we-are/foia/welcome.htm.
    (b) Requests made by individuals for records about themselves under 
the Privacy Act of 1974, 5 U.S.C. 552a, are processed under Part 266 as 
well as under this subpart.
    (c) It is the policy of the Postal Service to make its official 
records available to the public to the maximum extent consistent with 
the public interest. This policy requires a practice of full disclosure 
of those records that are covered by the requirements of the FOIA, 
subject only to the specific exemptions required or authorized by law. 
The exemptions from mandatory disclosure for various types of records 
provided by 5 U.S.C. 552(b) and 39 U.S.C. 410(c) reflect the fact that 
under some circumstances, the public interest may be better served by 
leaving the disclosure of particular records to the discretion of the 
Postal Service rather than by requiring their disclosure. This Postal 
Service policy does not create any right enforceable in court.
    (d) As referenced in this subpart, component means any department 
or facility within the Postal Service that maintains records; the 
Office of Inspector General; and the Postal Inspection Service. Postal 
Service refers to all such components collectively.
    (e) 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.


Sec.  265.2  Proactive disclosure of Postal Service records.

    (a) In general. The Postal Service is responsible for determining 
which of its records must be made publicly available, for identifying 
additional records of interest to the public that are appropriate for 
public disclosure, and for posting and indexing such records. The 
Postal Service's FOIA Requester Service Centers (RSCs) and FOIA Public 
Liaisons can assist individuals in locating Postal Service records.

[[Page 86272]]

Descriptions of, and contact information for, the various FOIA RSCs can 
be found at http://about.usps.com/who-we-are/foia/welcome.htm.
    (b) Records available in an electronic format. Records that the 
FOIA requires the Postal Service to make available for public 
inspection in an electronic format pursuant to 5 U.S.C. 552(a)(2) and 
that are exempt from the requirements of 5 U.S.C. 552(a)(3), may be 
accessed through the Postal Service's Web site at http://about.usps.com/who-we-are/foia/welcome.htm. The Postal Service must 
ensure that its Web site of posted records and indices is reviewed and 
updated on an ongoing basis. Such records available for public 
inspection in an electronic format include the following:
    (1) Opinions. All final opinions and orders made in the 
adjudication of cases by the Judicial Officer and Administrative Law 
Judges, all final determinations pursuant to section 404(b) of title 
39, United States Code, to close or consolidate a post office, or to 
disapprove a proposed closing or consolidation, all advisory opinions 
concerning the private express statutes issued pursuant to 39 CFR 
310.6, and all supplier disagreement decisions are on file and 
available for inspection and copying at the Headquarters Library and, 
if created on or after November 1, 1996, also at the Postal Service's 
Web site at http://about.usps.com/who-we-are/foia/welcome.htm.
    (2) Administrative manuals and instructions. The manuals, 
instructions, and other publications of the Postal Service that affect 
members of the public are available through the Headquarters Library 
and at many post offices and other postal facilities. Those which are 
available to the public but are not listed for sale may be inspected in 
the Headquarters Library, at any postal facility which maintains a 
copy, or, if created on or after November 1, 1996, through the Postal 
Service's Web site at http://about.usps.com/who-we-are/foia/welcome.htm. Copies of publications which are not listed as for sale or 
as available free of charge may be requested on an individual basis in 
accordance with the procedures provided in Sec.  265.3.
    (3) Previously released records. Copies of all records, regardless 
of form or format, that have been released to any person pursuant to 
the FOIA; and that because of the nature of their subject matter, the 
Postal Service determines have become or are likely to become the 
subject of subsequent requests for substantially the same records; or 
that have been requested 3 or more times, as well as a general index of 
such records. Records processed and disclosed after March 31, 1997, are 
available for inspection and copying at the Headquarters Library. Any 
such records created by the Postal Service on or after November 1, 
1996, also will be available at the Postal Service's Web site 
identified at Sec.  265.2(b). Records described in this paragraph that 
were not created by, or on behalf of, the Postal Service generally will 
not be available at the Web site. Records will be available in the form 
in which they were originally disclosed, except to the extent that they 
contain information that is not appropriate for public disclosure and 
may be withheld pursuant to this section. Any deleted material will be 
marked and the applicable exemptions indicated in accordance with Sec.  
265.6(d).
    (4) Public index. (i) A public index is maintained in the 
Headquarters Library and at the Web site of all final opinions and 
orders made by the Postal Service in the adjudication of cases, Postal 
Service policy statements which may be relied on as precedents in the 
disposition of cases, administrative staff manuals and instructions 
that affect the public, and other materials which the Postal Service 
elects to index and make available to the public on request in the 
manner set forth in paragraph (b) of this section.
    (ii) The index contains references to matters issued after July 4, 
1967, and may reference matters issued prior to that date.
    (iii) Any person may arrange for the inspection of any matter in 
the public index in accordance with the procedures of Sec.  265.3.
    (iv) Copies of the public index and of matters listed in the public 
index may be requested through the procedures described in Sec.  265.3, 
with payment of any applicable fees.
    (v) Materials listed in the public index that were created on or 
after November 1, 1996, will also be available in electronic format at 
the Postal Service's Web site at http://about.usps.com/who-we-are/foia/welcome.htm.


Sec.  265.3   Procedure for submitting a FOIA request.

    (a) To whom submitted. A request must be submitted to the 
appropriate FOIA Requester Service Center (RSC). Descriptions of, and 
contact information for, the various FOIA RSCs can be found at http://about.usps.com/who-we-are/foia/welcome.htm. For assistance in 
determining the appropriate FOIA RSC, requesters may contact the USPS 
HQ FOIA Requester Service Center, Privacy and Records Office, U.S. 
Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260, telephone 
(202) 268-2608. Requests for listings of postal employee names should 
also be sent to the USPS HQ FOIA Requester Service Center.
    (b) Form of request. A request to inspect or to obtain a copy of an 
identifiable Postal Service record must be in writing and bear the 
caption ``Freedom of Information Act Request'' or otherwise be clearly 
and prominently identified as a request for records pursuant to the 
Freedom of Information Act, both on the letter and on the envelope or 
other cover. Requests for records that are labeled incorrectly may be 
delayed in reaching the appropriate FOIA RSC. A requester must provide 
his or her full name and mailing address. A requester may also provide 
a daytime telephone number or email address to facilitate communication 
regarding his or her request.
    (c) Content of request. Requesters must describe the records sought 
in sufficient detail to enable Postal Service personnel to locate them 
with a reasonable amount of effort. Whenever possible, requesters 
should include specific information about each record sought, such as 
the type of record (e.g., contract, report, memorandum, etc.); the 
title or case number of a specific document or report; the topic or 
subject matter; the name of the office, facility, functional unit or 
employees most likely to possess the record; the geographical location, 
such as a city and state, where the records are thought to exist; the 
date or general timeframe of the record's creation; and any details 
related to the purpose of the record. Requests for email records should 
specify the likely senders and recipients, keywords, and a range of 
dates. If seeking information about a company, requesters should 
provide the exact name and address of the company (many companies use 
similar names). Before submitting requests, requesters may contact the 
relevant Postal Service FOIA Requester Service Center to discuss the 
records they are seeking and to receive assistance in describing the 
records. The request may state the maximum amount of fees for which the 
requester is willing to accept liability without prior notice. If no 
amount is stated, the requester will be deemed willing to accept 
liability for fees not to exceed $25.00. See paragraph (e)(2) of Sec.  
265.9.The request may also specify the preferred form or format 
(including electronic formats) of the requested records.
    (d) First-party requests. A requester who is making a request for 
records about himself must provide verification of identity sufficient 
to satisfy the component as to his identity prior to release of the 
record. For Privacy Act-protected records, the requester must

[[Page 86273]]

further comply with the procedures set forth in 39 CFR 266.6.
    (e) Third-party requests. Where a FOIA request seeks disclosure of 
records that pertain to a third party, a requester may receive greater 
access by submitting a written authorization signed 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 a 
notarized authorization, a declaration, or other additional information 
if necessary in order to verify that a particular individual has 
consented to disclosure.
    (f) Improper requests. A request that does not reasonably describe 
the records sought, or does not comply with the published rules 
regarding the procedures to be followed for submitting a request, will 
be deemed to be an improper FOIA request. If after receiving a request, 
the Postal Service determines that it is improper, the Postal Service 
will inform the requester as to why the request is improper. If the 
requester fails to respond to the Postal Service's request for 
clarification or additional information within 30 calendar days, the 
Postal Service will assume the requester is no longer interested in 
pursuing the request and close its file. The FOIA Requester Service 
Centers and the FOIA Public Liaisons are available to assist requesters 
in correcting a request that does not reasonably describe the records 
sought.


Sec.  265.4   Responsibility for responding to requests.

    (a) In general. When a request is received, the FOIA RSC will 
either respond to the request, or refer the request to the appropriate 
FOIA RSC or records custodians. The FOIA RSC will advise the requester 
of any such referral. The Postal Service, the Office of Inspector 
General of the Postal Service, and the Postal Inspection Service, 
respectively, are responsible for responding to requests they receive 
for records they maintain. Records responsive to a request ordinarily 
will include only records in the Postal Service's possession as of the 
date of the search. If any other date is used, the Postal Service 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) or 39 U.S.C. 
410(c) is not considered responsive to the request.
    (b) Authority to grant or deny requests. The records custodian of 
the requested record, or his designee, is authorized to grant or to 
deny the request. FOIA RSC staff may also grant or deny requests.
    (c) Receipt and tracking of requests. FOIA RSCs are responsible for 
the initial receipt and tracking of FOIA requests.
    (d) Acknowledgments of requests. FOIA RSCs must acknowledge the 
request in writing and assign it an individualized tracking number if 
it will take longer than 10 working days to process. The 
acknowledgement of the request must include a brief description of the 
records sought to allow requesters to more easily keep track of their 
requests.


Sec.  265.5   Timing of responses to requests.

    (a) In general. Requests will ordinarily be responded to according 
to their order of receipt. A request that is not initially submitted to 
the appropriate FOIA RSC will be deemed to have been received by the 
Postal Service at the time that it is actually received by the 
appropriate FOIA RSC or at the time the request is referred to the 
appropriate records custodian by a FOIA RSC, but in any case a request 
will be deemed to have been received no later than 10 business days 
after the request is first received by a FOIA RSC.
    (b) Multitrack processing. (1) Unless expedited processing has been 
granted, the Postal Service places each request in simple or complex 
tracks based on the amount of work and time involved in processing the 
request. Factors considered in assigning a request into the complex 
track may include one or more of the following factors:
    (i) The request involves voluminous documents;
    (ii) The complexity of the material;
    (iii) The request involves record searches at multiple facilities 
or locations;
    (iv) The request requires consultation among components or other 
agencies;
    (v) The number of open requests submitted by the same requester.
    (2) Within each track, the Postal Service processes requests in the 
order in which they are received. When appropriate, the FOIA RSC or the 
component will notify the requester if it has placed the request in the 
``Complex'' track, and provide the requester with an opportunity to 
limit the scope of the request. If the requester limits the scope of 
the request, it may result in faster processing.
    (c) 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.
    (2) 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 may waive 
the formal certification requirement.
    (3) 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
    (d) 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 the 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 and alert the 
requester to the availability of the Office of Government Information 
Services to provide dispute

[[Page 86274]]

resolution services. The component shall make available its designated 
FOIA contact and its FOIA Public Liaison for this purpose.
    (e) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, the Postal Service may aggregate requests 
in cases where it reasonably appears that multiple requests, submitted 
either by a single requester or by a group of requesters acting in 
concert, constitute a single request that would otherwise involve 
unusual circumstances. Multiple requests that involve unrelated matters 
shall not be aggregated.


Sec.  265.6   Responses to requests.

    (a) Grants of requests. Once a component makes a determination to 
grant a request in whole or in part, it shall notify the requester in 
writing and include a statement alerting the requester of his or her 
right to seek assistance from the FOIA Public Liaison. The component 
also shall inform the requester of any fees charged under Sec.  265.9 
and shall disclose the requested records to the requester promptly upon 
payment of any applicable fees.
    (b) 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.
    (c) Content of denial. The denial shall include, to the extent 
applicable:
    (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.  265.8, 
and a description of the requirements set forth therein.
    (5) A statement notifying the requester of his or her right to seek 
dispute resolution services from the FOIA Public Liaison or the Office 
of Government Information Services.
    (d) 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.
    (e) 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 Department of Justice, Office of Information Policy 
(OIP), to obtain approval to apply the exclusion.


Sec.  265.7   Confidential commercial information obtained from 
submitters.

    (a) Definitions. (1) Confidential commercial information means 
commercial or financial information obtained by the Postal Service 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 Postal Service.
    (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. The 
Postal Service will not determine the validity of any request for 
confidential treatment until a request for disclosure of the 
information is received. 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) The Postal Service 
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 Postal Service 
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 Postal Service 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 Postal Service determines that the information is exempt 
under the FOIA or 39 U.S.C. 410(c);
    (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 Postal Service regulation; if disclosure is 
required by a Postal Service regulation and the submitter provided 
written justification for protection of the information under Exemption 
4 at the time of submission or a reasonable time thereafter, advanced 
written notice of the disclosure must be provided to the submitter; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous or overly broad, except that, 
in such cases, 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) The Postal Service 
shall specify a reasonable time period within which the submitter must 
respond to the notice referenced above. If a submitter has any

[[Page 86275]]

objections to disclosure, it should provide the Postal Service a 
detailed written statement that specifies all grounds for withholding 
the particular 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. Whenever 
possible, the submitter's claim of confidentiality should be supported 
by a statement or certification by an officer or authorized 
representative of the submitter that the information in question is in 
fact confidential, has not been disclosed to the public by the 
submitter, and is not routinely available to the public from other 
sources.
    (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 Postal 
Service after the date of any disclosure decision shall not be 
considered by the Postal Service. Any information provided by a 
submitter under this subpart may itself be subject to disclosure under 
the FOIA. The Postal Service must consider a submitter's objections and 
specific grounds for nondisclosure in deciding whether to disclose the 
requested information.
    (f) Determination that confidential treatment is warranted. If the 
Postal Service determines that confidential treatment is warranted for 
any part of the requested records and that the records will therefore 
be redacted or withheld, it must inform the requester in writing, and 
must advise the requester of the right to appeal. A copy of the letter 
of denial must also be provided to the submitter of the records in any 
case in which the submitter had been notified of the request.
    (g) Notice of intent to disclose. If the Postal Service decides to 
disclose information over the objection of a submitter, the Postal 
Service 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 or copy 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. 
Whenever a submitter files a lawsuit to prevent disclosure of 
confidential commercial information, the component shall promptly 
notify the requester.
    (i) Requester notification. The Postal Service shall notify a 
requester whenever it notifies the submitter of its intent to disclose 
the requested information.


Sec.  265.8   Administrative appeals.

    (a) Requirements for making an appeal. Requesters may appeal 
adverse decisions rendered by the Postal Inspection Service or any 
Postal Service component by mail to the General Counsel, U.S. Postal 
Service, 475 L'Enfant Plaza SW., Washington, DC 20260; or by email to 
[email protected]. 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 90 calendar days after the 
date of the response; or within a reasonable time if the appeal is from 
a failure of the custodian to act. The General Counsel may, in his or 
her discretion, consider late appeals. In the event of the denial of a 
request or of other action or failure to act on the part of a custodian 
from which no appeal is taken, the General Counsel may, if he or she 
considers that there is doubt as to the correctness of the custodian's 
action or failure to act, review the action or failure to act as though 
an appeal pursuant to this section had been taken. A letter of appeal 
should include, as applicable:
    (1) A copy of the request, of any notification of denial or other 
action, and of any other related correspondence;
    (2) The FOIA tracking number assigned to the request;
    (3) A statement of the action, or failure to act, from which the 
appeal is taken;
    (4) A statement identifying the specific redactions to responsive 
records that the requester is challenging;
    (5) A statement of the relief sought; and
    (6) A statement of the reasons why the requester believes the 
action or failure to act is erroneous.
    (b) Adjudication of appeals. (1) The decision of the General 
Counsel or his or her designee constitutes the final decision of the 
Postal Service on the issue being appealed. The General Counsel will 
give prompt consideration to an appeal for expedited processing of a 
request. All other decisions normally will be made within 20 working 
days from the time of the receipt by the General Counsel. The 20-day 
response period may be extended by the General Counsel, or his or her 
designee, for a period not to exceed an additional 10 working days when 
reasonably necessary to permit the proper consideration of an appeal, 
under one or more of the unusual circumstances set forth in paragraph 
(a)(5) of this section. The aggregate number of additional working days 
utilized, however, may not exceed 10 working days.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (3) On receipt of any appeal, the General Counsel, or his or her 
designee, must take appropriate action to ensure compliance with 
applicable classification rules.
    (c) Decisions on appeals. A decision on an appeal must be made in 
writing. A decision that upholds a component's determination in whole 
or in part 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 custodian's decision is remanded or 
modified on appeal, the requester will be notified of that 
determination in writing. The component will further process the 
request in accordance with that appeal determination and respond 
directly to the requester. If not prohibited by or under law, the 
General Counsel, or his designee may direct the disclosure of a record 
even though its disclosure is not required by law or regulation.
    (d) When appeal is required. Before seeking judicial review of a 
component's adverse determination, a requester generally must first 
submit a timely administrative appeal.
    (e) Appeal procedures for the Office of the Inspector General. The 
appeal procedures for the Office of the Inspector General are described 
in 39 CFR 230.5.


Sec.  265.9   Fees.

    (a) In general. The Postal Service 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. The Postal Service will conduct searches, 
review, and duplication in the most efficient and the least expensive 
manner. The Postal Service ordinarily will collect all applicable fees 
before sending copies of

[[Page 86276]]

records to a requester. Requesters must pay fees by check or money 
order made payable to ``U.S. Postal Service.''
    (b) Definitions. For purposes of this section:
    (1) Commercial-use requester is a requester who 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. The Postal Service'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 the Postal Service incurs 
in searching for and duplicating records in order to respond to a FOIA 
request. In the case of commercial-use requesters, direct costs include 
reviewing and taking all other measures needed to prepare the records 
for disclosure.
    (3) 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.
    (4) 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.
    (5) 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.  
265.6, but it does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (6) 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.
    (7) 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.
    (8) 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, the Postal Service shall also consider a requester's past 
publication record in making this determination.
    (c) Charging fees. In responding to FOIA requests, the Postal 
Service 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. The Postal Service may charge for time spent searching 
even if no responsive records are located or if it determines that the 
records are entirely exempt from disclosure.
    (ii) For each half hour spent by personnel searching for requested 
records, including electronic searches that do not require new 
programming, the fee shall be $21.00.
    (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 at a 
Federal records center operated by the National Archives and Records 
Administration (NARA), or other storage facility, additional costs may 
be charged for their retrieval.
    (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. Commercial-use requesters shall be charged review fees. 
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.

[[Page 86277]]

    (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)(i) If a component fails to comply with the time limits in which 
to respond to a 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.
    (ii) If a component has determined that unusual circumstances as 
defined by the FOIA apply and the component provided timely written 
notice to the requester in accordance with the FOIA, the component has 
an additional 10 days to respond to the request.
    (iii) If a component has determined that unusual circumstances as 
defined by the FOIA apply and more than 5,000 pages are necessary to 
respond to the request, the component may charge search fees, or, in 
the case of requesters described in paragraph (d)(1) of this section, 
may charge duplication fees if the following steps are taken:
    (A) The component provides timely written notice of unusual 
circumstances to the requester; and
    (B) The component discussed or made three good faith attempts to 
discuss via mail, email, or telephone how the requester could 
effectively limit the scope of the request in accordance with 5 U.S.C. 
552(a)(6)(B)(ii).
    (iv) If a court has determined that exceptional circumstances 
exist, a failure to comply with the time limits shall be excused for 
the length of time provided by the court order.
    (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:
    (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 agrees 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. 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 contact 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 
requested by the requester shall be charged. Examples of such services 
include providing multiple copies of the same document, or sending 
records by means other than first class mail.
    (g) Aggregating requests. In instances where the Postal Service 
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, or that a requester or group 
of requesters acting in concert makes multiple requests for the same 
records maintained at multiple facilities or components, the Postal 
Service may aggregate those requests and charge accordingly. Multiple 
FOIA requests by a single requester related to the same issue will be 
aggregated for the purpose of assessing fees. Multiple requests 
involving unrelated matters shall not be aggregated.
    (h) Advance payments. (1) For requests other than those described 
in paragraphs (h)(2) or (3) of this section, a component shall not 
require the requester to submit 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 within 30 calendar days of the billing date, a 
component may require that the requester pay the full amount due 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 administratively 
closed.
    (i) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires the Postal Service

[[Page 86278]]

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.
    (j) 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 Postal Service, 
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 of the Postal 
Service, components shall consider all four of the following factors:
    (i) The subject of the request must concern identifiable operations 
or activities of the Postal Service, 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. A representative of the news media does not automatically 
satisfy this consideration.
    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent.
    (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) 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.

Subpart B--Production or Disclosure in Federal and State 
Proceedings


Sec.  [thinsp]265.11   Compliance with subpoena duces tecum, court 
orders, and summonses.

    (a) Compliance with subpoena duces tecum. (1) Except as required by 
Part 262, produce other records of the Postal Service only in 
compliance with a subpoena duces tecum or appropriate court order.
    (2) Time, leave, and payroll records of postal employees are 
subject to production when a subpoena duces tecum or appropriate court 
order has been properly served. The custodian of the records may 
designate a postal employee to present the records. The presentation by 
a designee rather than the employee named in the subpoena or court 
order must meet with the approval of the attorneys for each side. In 
addition, such records may be released if authorized in writing by the 
employee.
    (3) If the subpoena involves a job-connected injury, the records 
are under the exclusive jurisdiction of the Office of Workers' 
Compensation Programs, Department of Labor. Requests for authorization 
to produce these records shall be addressed to: Office of Workers' 
Compensation Programs, U.S. Department of Labor, Washington, DC 20210-
0001. Also notify the attorney responsible for the issuance of the 
subpoena or court order.
    (4) Employee medical records are primarily under the exclusive 
jurisdiction of the U.S. Civil Service Commission. The Commission has 
delegated authority to the Postal Service and to the Commission's 
Regional Directors to release medical information, in response to 
proper requests and upon competent medical advice, in accordance with 
the following criteria:
    (i) Except in response to a subpoena or court order, do not release 
any medical information about an employee to any non-Federal entity or 
individual without authorization from the employee.
    (ii) With authorization from the employee, the Area, Information 
Systems Service Center, or Chief Field Counsel will respond as follows 
to a request from a non-Federal source for medical information:
    (A) If, in the opinion of a Federal medical officer, the medical 
information indicates the existence of a malignancy, a mental 
condition, or other condition about which a prudent physician would 
hesitate to inform a person suffering from such a condition as to its 
exact nature and probable outcome, do not release the medical 
information to the employee or to any individual designated by him, 
except to a physician, designated by the employee in writing. If a 
subpoena or court order was issued, the responding official shall 
caution the moving party as to the possible dangers involved if the 
medical information is divulged.
    (B) If, in the opinion of a Federal medical officer, the medical 
information does not indicate the presence of any condition which would 
cause a prudent physician to hesitate to inform a person of the exact 
nature and probable outcome of his condition, release it in response to 
a subpoena or court order, or to the employee or to any person, firm, 
or organization he authorizes in writing.
    (C) If a Federal medical officer is not available, refer the 
request to the Civil Service Commission regional office with the 
medical certificates or other medical reports concerned.
    (5) Do not release any records containing information as to the 
employee's security or loyalty.
    (6) Honor subpoenas or court orders only when disclosure is 
authorized.
    (7) When authorized to comply with a subpoena duces tecum, do not 
leave the original records with the court.
    (b) [Reserved]

[[Page 86279]]

Sec.  [thinsp]265.12   Demands for testimony or records in certain 
legal proceedings.

    (a) Scope and applicability of this section. (1) This section 
establishes procedures to be followed if the Postal Service or any 
Postal Service employee receives a demand for testimony concerning or 
disclosure of:
    (i) Records contained in the files of the Postal Service;
    (ii) Information relating to records contained in the files of the 
Postal Service; or
    (iii) Information or records acquired or produced by the employee 
in the course of his or her official duties or because of the 
employee's official status.
    (2) This section does not create any right or benefit, substantive 
or procedural, enforceable by any person against the Postal Service.
    (3) This section does not apply to any of the following:
    (i) Any legal proceeding in which the United States is a party;
    (ii) A demand for testimony or records made by either House of 
Congress or, to the extent of matter within its jurisdiction, any 
committee or subcommittee of Congress;
    (iii) An appearance by an employee in his or her private capacity 
in a legal proceeding in which the employee's testimony does not relate 
to the employee's official duties or the functions of the Postal 
Service; or
    (iv) A demand for testimony or records submitted to the Postal 
Inspection Service (a demand for Inspection Service records or 
testimony will be handled in accordance with rules in Sec.  265.13).
    (4) This section does not exempt a request from applicable 
confidentiality requirements, including the requirements of the Privacy 
Act, 5 U.S.C. 552a.
    (b) Definitions. The following definitions apply to this section:
    (1) Adjudicative authority includes, but is not limited to, the 
following:
    (i) A court of law or other judicial forums, whether local, state, 
or federal; and
    (ii) Mediation, arbitration, or other forums for dispute 
resolution.
    (2) Demand includes a subpoena, subpoena duces tecum, request, 
order, or other notice for testimony or records arising in a legal 
proceeding.
    (3) Employee means a current employee or official of the Postal 
Service.
    (4) General Counsel means the General Counsel of the United States 
Postal Service, the Chief Field Counsels, or an employee of the Postal 
Service acting for the General Counsel under a delegation of authority.
    (5) Legal proceeding means:
    (i) A proceeding before an adjudicative authority;
    (ii) A legislative proceeding, except for a proceeding before 
either House of Congress or before any committee or subcommittee of 
Congress; or
    (iii) An administrative proceeding.
    (6) Private litigation means a legal proceeding to which the United 
States is not a party.
    (7) Records custodian means the employee who maintains a requested 
record. For assistance in identifying the custodian of a specific 
record, contact the Manager, Records Office, U.S. Postal Service, 475 
L'Enfant Plaza SW., Washington, DC 20260, telephone (202) 268-2608.
    (8) Testimony means statements made in connection with a legal 
proceeding, including but not limited to statements in court or other 
forums, depositions, declarations, affidavits, or responses to 
interrogatories.
    (9) United States means the federal government of the United States 
and any of its agencies, establishments, or instrumentalities, 
including the United States Postal Service.
    (c) Requirements for submitting a demand for testimony or records. 
(1) Ordinarily, a party seeking to obtain records from the Postal 
Service should submit a request in accordance with the provisions of 
the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Postal 
Service's regulations implementing the FOIA at 39 CFR 265.1 through 
265.9, 265.14; or the Privacy Act, 5 U.S.C. 552a and the Postal 
Service's regulations implementing the Privacy Act at 39 CFR 266.1 
through 266.10.
    (2) A demand for testimony or records issued pursuant to the rules 
governing the legal proceeding in which the demand arises must:
    (i) Be in writing;
    (ii) Identify the requested record and/or state the nature of the 
requested testimony, describe the relevance of the record or testimony 
to the proceeding, and why the information sought is unavailable by any 
other means; and
    (iii) If testimony is requested, contain a summary of the requested 
testimony and a showing that no document could be provided and used in 
lieu of testimony.
    (3) Procedures for service of demand are made as follows:
    (i) Service of a demand for testimony or records (including, but 
not limited to, personnel or payroll information) relating to a current 
or former employee must be made in accordance with the applicable rules 
of civil procedure on the employee whose testimony is requested or the 
records custodian. The requester also shall deliver a copy of the 
demand to the District Manager, Customer Services and Sales, for all 
current employees whose work location is within the geographic 
boundaries of the manager's district, and any former employee whose 
last position was within the geographic boundaries of the manager's 
district. A demand for testimony or records must be received by the 
employee whose testimony is requested and the appropriate District 
Manager, Customer Services and Sales, at least ten (10) working days 
before the date the testimony or records are needed.
    (ii) Service of a demand for testimony or records other than those 
described in paragraph (c)(3)(i) of this section must be made in 
accordance with the applicable rules of civil procedure on the employee 
whose testimony is requested or the records custodian. The requester 
also shall deliver a copy of the demand to the General Counsel, United 
States Postal Service, 475 L'Enfant Plaza SW., Washington DC 20260-
1100, or the Chief Field Counsel. A demand for testimony or records 
must be received by the employee and the General Counsel or Chief Field 
Counsel at least ten (10) working days before the date testimony or 
records are needed.
    (d) Procedures followed in response to a demand for testimony or 
records. (1) After an employee receives a demand for testimony or 
records, the employee shall immediately notify the General Counsel or 
Chief Field Counsel and request instructions.
    (2) An employee may not give testimony or produce records without 
the prior authorization of the General Counsel.
    (3)(i) The General Counsel may allow an employee to testify or 
produce records if the General Counsel determines that granting 
permission:
    (A) Would be appropriate under the rules of procedure governing the 
matter in which the demand arises and other applicable laws, 
privileges, rules, authority, and regulations; and
    (B) Would not be contrary to the interest of the United States. The 
interest of the United States includes, but is not limited to, 
furthering a public interest of the Postal Service and protecting the 
human and financial resources of the United States.
    (ii) An employee's testimony shall be limited to the information 
set forth in the statement described at paragraph (c)(2) of this 
section or to such portions thereof as the General Counsel determines 
are not subject to objection. An employee's testimony shall be limited 
to facts within the personal

[[Page 86280]]

knowledge of the employee. A Postal Service employee authorized to give 
testimony under this rule is prohibited from giving expert or opinion 
testimony, answering hypothetical or speculative questions, or giving 
testimony with respect to privileged subject matter. The General 
Counsel may waive the prohibition of expert testimony under this 
paragraph only upon application and showing of exceptional 
circumstances and the request substantially meets the requirements of 
this section.
    (4) The General Counsel may establish conditions under which the 
employee may testify. If the General Counsel authorizes the testimony 
of an employee, the party seeking testimony shall make arrangements for 
the taking of testimony by those methods that, in the General Counsel's 
view, will least disrupt the employee's official duties. For example, 
at the General Counsel's discretion, testimony may be provided by 
affidavits, answers to interrogatories, written depositions, or 
depositions transcribed, recorded, or preserved by any other means 
allowable by law.
    (5) If a response to a demand for testimony or records is required 
before the General Counsel determines whether to allow an employee to 
testify, the employee or counsel for the employee shall do the 
following:
    (i) Inform the court or other authority of the regulations in this 
section; and
    (ii) Request that the demand be stayed pending the employee's 
receipt of the General Counsel's instructions.
    (6) If the court or other authority declines the request for a 
stay, or rules that the employee must comply with the demand regardless 
of the General Counsel's instructions, the employee or counsel for the 
employee shall respectfully decline to comply with the demand, citing 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the 
regulations in this section.
    (7) The General Counsel may request the assistance of the 
Department of Justice or a U.S. Attorney where necessary to represent 
the interests of the Postal Service and the employee.
    (8) At his or her discretion, the General Counsel may grant a 
waiver of any procedure described by this section, where waiver is 
considered necessary to promote a significant interest of the United 
States or for other good cause.
    (9) If it otherwise is permissible, the records custodian may 
authenticate, upon the request of the party seeking disclosure, copies 
of the records. No employee of the Postal Service shall respond in 
strict compliance with the terms of a subpoena duces tecum unless 
specifically authorized by the General Counsel.
    (e) Postal Service employees as expert witnesses. No Postal Service 
employee may testify as an expert or opinion witness, with regard to 
any matter arising out of the employee's official duties or the 
functions of the Postal Service, for any party other than the United 
States, except that in extraordinary circumstances, the General Counsel 
may approve such expert testimony in private litigation. A Postal 
Service employee may not testify as such an expert witness without the 
express authorization of the General Counsel. A litigant must obtain 
authorization of the General Counsel before designating a Postal 
Service employee as an expert witness.
    (f) Substitution of Postal Service employees. Although a demand for 
testimony may be directed to a named Postal Service employee, the 
General Counsel, where appropriate, may designate another Postal 
Service employee to give testimony. Upon request and for good cause 
shown (for example, when a particular Postal Service employee has 
direct knowledge of a material fact not known to the substitute 
employee designated by the Postal Service), the General Counsel may 
permit testimony by a named Postal Service employee.
    (g) Fees and costs. (1) The Postal Service may charge fees, not to 
exceed actual costs, to private litigants seeking testimony or records 
by request or demand. The fees, which are to be calculated to reimburse 
fully the Postal Service for processing the demand and providing the 
witness or records, may include, among others:
    (i) Costs of time spent by employees, including attorneys, of the 
Postal Service to process and respond to the demand;
    (ii) Costs of attendance of the employee and agency attorney at any 
deposition, hearing, or trial;
    (iii) Travel costs of the employee and agency attorney;
    (iv) Costs of materials and equipment used to search for, process, 
and make available information.
    (2) All costs for employee time shall be calculated on the hourly 
pay of the employee (including all pay, allowance, and benefits) and 
shall include the hourly fee for each hour, or portion of each hour, 
when the employee is in travel, in attendance at a deposition, hearing, 
or trial, or is processing or responding to a request or demand.
    (3) At the discretion of the Postal Service, where appropriate, 
costs may be estimated and collected before testimony is given.
    (h) Acceptance of service. This section does not in any way 
abrogate or modify the requirements of the Federal Rules of Civil 
Procedure (28 U.S.C. Appendix) regarding service of process.


Sec.  265.13   Compliance with subpoenas, summonses, and court orders 
by postal employees within the Postal Inspection Service where the 
Postal Service, the United States, or any other Federal agency is not a 
party.

    (a) Applicability of this section. The rules in this section apply 
to all federal, state, and local court proceedings, as well as 
administrative and legislative proceedings, other than:
    (1) Proceedings where the United States, the Postal Service, or any 
other Federal agency is a party;
    (2) Congressional requests or subpoenas for testimony or documents;
    (3) Consultative services and technical assistance rendered by the 
Inspection Service in executing its normal functions;
    (4) Employees serving as expert witnesses in connection with 
professional and consultative services under 5 CFR part 7001, provided 
that employees acting in this capacity must state for the record that 
their testimony reflects their personal opinions and should not be 
viewed as the official position of the Postal Service;
    (5) Employees making appearances in their private capacities in 
proceedings that do not relate to the Postal Service (e.g., cases 
arising from traffic accidents, domestic relations) and do not involve 
professional or consultative services; and
    (6) When in the opinion of the Counsel or the Counsel's designee, 
Office of the Chief Postal Inspector, it has been determined that it is 
in the best interest of the Inspection Service or in the public 
interest.
    (b) Purpose and scope. The provisions in this section limit the 
participation of postal employees within or assigned to the Inspection 
Service, in private litigation, and other proceedings in which the 
Postal Service, the United States, or any other federal agency is not a 
party. The rules are intended to promote the careful supervision of 
Inspection Service resources and to reduce the risk of inappropriate 
disclosures that might affect postal operations.
    (c) Definitions. For the purposes of this section:
    (1) Authorizing official is the person responsible for giving the 
authorization for release of documents or permission to testify.
    (2) Case or matter means any civil proceeding before a court of 
law,

[[Page 86281]]

administrative board, hearing officer, or other body conducting a 
judicial or administrative proceeding in which the United States, the 
Postal Service, or another federal agency is not a named party.
    (3) Demand includes any request, order, or subpoena for testimony 
or the production of documents.
    (4) Document means all records, papers, or official files, 
including, but not limited to, official letters, telegrams, memoranda, 
reports, studies, calendar and diary entries, graphs, notes, charts, 
tabulations, data analyses, statistical or information accumulations, 
records of meetings and conversations, film impressions, magnetic 
tapes, computer discs, and sound or mechanical reproductions;
    (5) Employee or Inspection Service employee, for the purpose of 
this section only, refers to a Postal Service employee currently or 
formerly assigned to the Postal Inspection Service, student interns, 
contractors and employees of contractors who have access to Inspection 
Service information and records.
    (6) Inspection Service means the organizational unit within the 
Postal Service that performs the functions specified in part 233 of 
this chapter.
    (7) Inspection Service Legal Counsel is an attorney authorized by 
the Chief Postal Inspector to give legal advice to members of the 
Inspection Service.
    (8) Inspection Service Manual is the directive containing the 
standard operating procedures for Postal Inspectors and certain 
Inspection Service employees.
    (9) Nonpublic includes any material or information not subject to 
mandatory public disclosure under Sec.  [thinsp]265.14(b).
    (10) Official case file means official documents that relate to a 
particular case or investigation. These documents may be kept at any 
location and do not necessarily have to be in the same location in 
order to constitute the file.
    (11) Postal Inspector reports include all written reports, letters, 
recordings, or other memorializations made in conjunction with the 
duties of a Postal Inspector.
    (12) Testify or testimony includes both in-person oral statements 
before any body conducting a judicial or administrative proceeding and 
statements made in depositions, answers to interrogatories, 
declarations, affidavits, or other similar documents.
    (13) Third-party action means an action, judicial or 
administrative, in which the United States, the Postal Service, or any 
other federal agency is not a named party.
    (d) Policy. (1) No current or former employee within the Inspection 
Service may testify or produce documents concerning information 
acquired in the course of employment or as a result of his or her 
relationship with the Postal Service in any proceeding to which this 
section applies (see paragraph (a) of this section), unless authorized 
to do so. Authorization will be provided by:
    (i) The Postal Inspector in Charge of the affected field Division, 
or designee, for Division personnel and records, after that official 
has determined through consultation with Inspection Service legal 
counsel that no legal objection, privilege, or exemption applies to 
such testimony or production of documents.
    (ii) The Chief Postal Inspector or designee for Headquarters 
employees and records, after that official has determined through 
consultation with Inspection Service legal counsel, that no legal 
objection, privilege, or exemption applies to such testimony or 
production of documents.
    (2) Consideration shall be given to:
    (i) Statutory restrictions, as well as any legal objection, 
exemption, or privilege that may apply;
    (ii) Relevant legal standards for disclosure of nonpublic 
information and documents;
    (iii) Inspection Service rules and regulations and the public 
interest;
    (iv) Conservation of employee time; and
    (v) Prevention of the expenditure of Postal Service resources for 
private purposes.
    (3) If additional information is necessary before a determination 
can be made, the authorizing official may, in coordination with 
Inspection Service legal counsel, request assistance from the 
Department of Justice.
    (e) Compliance with subpoena duces tecum. (1) Except as required by 
part 262 of this chapter, produce any other record of the Postal 
Service only in compliance with a subpoena duces tecum or appropriate 
court order.
    (2) Do not release any record containing information relating to an 
employee's security or loyalty.
    (3) Honor subpoenas and court orders only when disclosure is 
authorized.
    (4) When authorized to comply with a subpoena duces tecum or court 
order, do not leave the originals with the court.
    (5) Postal Inspector reports are considered to be confidential 
internal documents and shall not be released unless there is specific 
authorization by the Chief Postal Inspector or the Inspector in Charge 
of the affected field Division, after consulting with Inspection 
Service legal counsel.
    (6) The Inspection Service Manual and other operating instructions 
issued to Inspection Service employees are considered to be 
confidential and shall not be released unless there is specific 
authorization, after consultation with Inspection Service legal 
counsel. If the requested information relates to confidential 
investigative techniques, or release of the information would adversely 
affect the law enforcement mission of the Inspection Service, the 
subpoenaed official, through Inspection Service legal counsel, may 
request an in camera, ex parte conference to determine the necessity 
for the release of the information. The entire Manual should not be 
given to any party.
    (7) Notes, memoranda, reports, transcriptions, whether written or 
recorded and made pursuant to an official investigation conducted by a 
member of the Inspection Service, are the property of the Inspection 
Service and are part of the official case file, whether stored with the 
official file.
    (f) Compliance with summonses and subpoenas ad testificandum. (1) 
If an Inspection Service employee is served with a third-party summons 
or a subpoena requiring an appearance in court, contact should be made 
with Inspection Service legal counsel to determine whether and which 
exemptions or restrictions apply to proposed testimony. Inspection 
Service employees are directed to comply with summonses, subpoenas, and 
court orders, as to appearance, but may not testify without 
authorization.
    (2) Postal Inspector reports or records will not be presented 
during testimony, in either state or federal courts in which the United 
States, the Postal Service, or another federal agency is not a party in 
interest, unless authorized by the Chief Postal Inspector or the Postal 
Inspector in Charge of the affected field Division, who will make the 
decision after consulting with Inspection Service legal counsel. If an 
attempt is made to compel production, through testimony, the employee 
is directed to decline to produce the information or matter and to 
state that it may be exempted and may not be disclosed or produced 
without the specific approval of the Chief Postal Inspector or the 
Postal Inspector in Charge of the affected field Division. The Postal 
Service will offer all possible assistance to the courts, but the 
question of disclosing information for which an exemption may be 
claimed is a matter of discretion that rests with the appropriate 
official. Paragraph (e) of this section covers the release of 
Inspection Service documents in cases where the Postal Service or the 
United States is not a party.

[[Page 86282]]

    (g) General procedures for obtaining Inspection Service documents 
and testimony from Inspection Service employees. (1) To facilitate the 
orderly response to demands for the testimony of Inspection Service 
employees and production of documents in cases where the United States, 
the Postal Service, or another federal agency is not a party, all 
demands for the production of nonpublic documents or testimony of 
Inspection Service employees concerning matters relating to their 
official duties and not subject to the exemptions set forth in 
paragraph (a) of this section shall be in writing and conform to the 
requirements outlined in paragraphs (g)(2) and (g)(3) of this section.
    (2) Before or simultaneously with service of a demand described in 
paragraph (g)(1) of this section, the requesting party shall serve on 
the Counsel, Office of the Chief Postal Inspector, 475 L'Enfant Plaza 
SW., Washington, DC 20260-2101, an affidavit or declaration containing 
the following information:
    (i) The title of the case and the forum where it will be heard;
    (ii) The party's interest in the case;
    (iii) The reasons for the demand;
    (iv) A showing that the requested information is available, by law, 
to a party outside the Postal Service;
    (v) If testimony is sought, a summary of the anticipated testimony;
    (vi) If testimony is sought, a showing that Inspection Service 
records could not be provided and used in place of the requested 
testimony;
    (vii) The intended use of the documents or testimony; and
    (viii) An affirmative statement that the documents or testimony is 
necessary for defending or prosecuting the case at issue.
    (3) The Counsel, Office of the Chief Postal Inspector, shall act as 
agent for the receipt of legal process for demands for production of 
records or testimony of Inspection Service employees where the United 
States, the Postal Service, or any other federal agency is not a party. 
A subpoena for testimony or for the production of documents from an 
Inspection Service employee concerning official matters shall be served 
in accordance with the applicable rules of civil procedure. A copy of 
the subpoena and affidavit or declaration, if not previously furnished, 
shall also be sent to the Chief Postal Inspector or the appropriate 
Postal Inspector in Charge.
    (4) Any Inspection Service employee who is served with a demand 
shall promptly inform the Chief Postal Inspector, or the appropriate 
Postal Inspector in Charge, of the nature of the documents or testimony 
sought and all relevant facts and circumstances.
    (h) Authorization of testimony or production of documents. (1) The 
Chief Postal Inspector or the Postal Inspector in Charge of the 
affected field Division, after consulting with Inspection Service legal 
counsel, shall determine whether testimony or the production of 
documents will be authorized.
    (2) Before authorizing the requested testimony or the production of 
documents, the Chief Postal Inspector or the Postal Inspector in Charge 
of the affected field Division shall consider the following factors:
    (i) Statutory restrictions, as well as any legal objection, 
exemption, or privilege that may apply;
    (ii) Relevant legal standards for disclosure of nonpublic 
information and documents;
    (iii) Inspection Service rules and regulations and the public 
interest;
    (iv) Conservation of employee time; and
    (v) Prevention of expenditures of government time and resources 
solely for private purposes.
    (3) If, in the opinion of the authorizing official, the documents 
should not be released or testimony should not be furnished, that 
official's decision is final.
    (4) Inspection Service legal counsel may consult or negotiate with 
the party or the party's counsel seeking testimony or documents to 
refine and limit the demand, so that compliance is less burdensome, or 
obtain information necessary to make the determination whether the 
documents or testimony will be authorized. If the party or party's 
counsel seeking the documents or testimony fails to cooperate in good 
faith, preventing Inspection Service legal counsel from making an 
informed recommendation to the authorizing official, that failure may 
be presented to the court or other body conducting the proceeding as a 
basis for objection.
    (5) Permission to testify or to release documents in all cases will 
be limited to matters outlined in the affidavit or declaration 
described in paragraph (g)(2) of this section or to such parts as 
deemed appropriate by the authorizing official.
    (6) If the authorizing official allows the release of documents or 
testimony to be given by an employee, arrangements shall be made for 
the taking of testimony or receipt of documents by the least disruptive 
methods to the employee's official duties. Testimony may, for example, 
be provided by affidavits, answers to interrogatories, written 
depositions, or depositions transcribed, recorded, or preserved by any 
other means allowable by law.
    (i) While giving a deposition, the employee may, at the option of 
the authorizing official, be represented by Inspection Service legal 
counsel.
    (ii) While completing affidavits, or other written reports or at 
any time during the process of preparing for testimony or releasing 
documents, the employee may seek the assistance of Inspection Service 
legal counsel.
    (7) Absent written authorization from the authorizing official, the 
employee shall respectfully decline to produce the requested documents, 
testify, or, otherwise, disclose the requested information.
    (8) If the authorization is denied or not received by the return 
date, the employee, together with counsel, where appropriate, shall 
appear at the stated time and place, produce a copy of this section, 
and respectfully decline to testify or produce any document on the 
basis of the regulations in this section.
    (9) The employee shall appear as ordered by the subpoena, summons, 
or other appropriate court order, unless:
    (i) Legal counsel has advised the employee that an appearance is 
inappropriate, as in cases where the subpoena, summons, or other court 
order was not properly issued or served, has been withdrawn, discovery 
has been stayed; or
    (ii) Where the Postal Service will present a legal objection to 
furnishing the requested information or testimony.
    (i) Inspection Service employees as expert or opinion witnesses. No 
Inspection Service employee may testify as an expert or opinion 
witness, with regard to any matter arising out of the employee's duties 
or functions at the Postal Service, for any party other than the United 
States, except that in extraordinary circumstances, the Counsel, Office 
of the Chief Postal Inspector, may approve such testimony in private 
litigation. An Inspection Service employee may not testify as such an 
expert or opinion witness without the express authorization of the 
Counsel, Office of the Chief Postal Inspector. A litigant must first 
obtain authorization of the Counsel, Office of the Chief Postal 
Inspector, before designating an Inspection Service employee as an 
expert or opinion witness.
    (j) Postal liability. This section is intended to provide 
instructions to Inspection Service employees and does not create any 
right or benefit, substantive or procedural, enforceable by any party 
against the Postal Service.
    (k) Fees. (1) Unless determined by 28 U.S.C. 1821 or other 
applicable statute,

[[Page 86283]]

the costs of providing testimony, including transcripts, shall be borne 
by the requesting party.
    (2) Unless limited by statute, such costs shall also include 
reimbursement to the Postal Service for the usual and ordinary expenses 
attendant upon the employee's absence from his or her official duties 
in connection with the case or matter, including the employee's salary 
and applicable overhead charges, and any necessary travel expenses as 
follows:
    (i) The Inspection Service is authorized to charge reasonable fees 
to parties demanding documents or information. Such fees, calculated to 
reimburse the Postal Service for the cost of responding to a demand, 
may include the costs of time expended by Inspection Service employees, 
including attorneys, to process and respond to the demand; attorney 
time for reviewing the demand and for legal work in connection with the 
demand; expenses generated by equipment used to search for, produce, 
and copy the requested information; travel costs of the employee and 
the agency attorney, including lodging and per diem where appropriate. 
Such fees shall be assessed at the rates and in the manner specified in 
Sec.  [thinsp]265.9.
    (ii) At the discretion of the Inspection Service where appropriate, 
fees and costs may be estimated and collected before testimony is 
given.
    (iii) The provisions in this section do not affect rights and 
procedures governing public access to official documents pursuant to 
the Freedom of Information Act, 5 U.S.C 552.
    (l) Acceptance of service. The rules in this section in no way 
modify the requirements of the Federal Rules of Civil Procedure (28 
U.S.C. Appendix) regarding service of process.

Subpart C--Availability of Records


Sec.  265.14   Rules concerning specific categories of records.

    (a) Records available to the public on request. Except as otherwise 
proscribed by law or regulations, including but not limited to 
paragraphs (b) and (c) of this section, Sec.  265.2 and Sec.  265.11-
Sec.  265.13, Postal Service records will be made available to any 
person in accordance with the procedures provided in Sec.  265.3.
    (b) Records not subject to mandatory public disclosure. Certain 
classes of records are exempt from mandatory disclosure under 
exemptions contained in the Freedom of Information Act and in 39 U.S.C. 
410(c). The Postal Service will exercise its discretion, in accordance 
with the policy stated in Sec.  265.1(c), as implemented by 
instructions issued by the Records Office with the approval of the 
General Counsel in determining whether the public interest is served by 
the inspection or copying of records that are:
    (1) Related solely to the internal personnel rules and practices of 
the Postal Service.
    (2) Trade secrets, or privileged or confidential commercial or 
financial information, obtained from any person.
    (3) Information of a commercial nature, including trade secrets, 
whether or not obtained from a person outside the Postal Service, which 
under good business practice would not be publicly disclosed. This 
class includes, but is not limited to:
    (i) Information pertaining to methods of handling valuable 
registered mail.
    (ii) Records of money orders, except as provided in R900 of the 
Domestic Mail Manual (DMM).
    (iii) Technical information concerning postage meters and 
prototypes submitted for Postal Service approval prior to leasing to 
mailers.
    (iv) Reports of market surveys conducted by or under contract in 
behalf of the Postal Service.
    (v) Records indicating rural carrier lines of travel.
    (vi) Records compiled within the Postal Service which would be of 
potential benefit to persons or firms in economic competition with the 
Postal Service.
    (vii) Information which, if publicly disclosed, could materially 
increase procurement costs.
    (viii) Information which, if publicly disclosed, could compromise 
testing or examination materials.
    (4) Interagency or internal memoranda or letters that would not be 
available by law to a private party in litigation with the Postal 
Service.
    (5) Reports and memoranda of consultants or independent 
contractors, except to the extent they would be required to be 
disclosed if prepared within the Postal Service.
    (6) Files personal in nature, including medical and personnel 
files, the disclosure of which would constitute a clearly unwarranted 
invasion of personal privacy.
    (7) Information prepared for use in connection with proceedings 
under chapter 36 of title 39, U.S. Code, relating to rate, 
classification, and service changes.
    (8) Information prepared for use in connection with the negotiation 
of collective bargaining agreements under chapter 12 of title 39, U.S. 
Code, or minutes of, or notes kept during, negotiating sessions 
conducted under such chapter.
    (9) Other matter specifically exempted from disclosure by statute.
    (c) Records or information compiled for law enforcement purposes. 
(1) Investigatory files compiled for law enforcement purposes, whether 
or not considered closed, are exempt by statute from mandatory 
disclosure except to the extent otherwise available by law to a party 
other than the Postal Service, 39 U.S.C. 410(c)(6). As a matter of 
policy, however, the Postal Service will normally make records or 
information compiled for law enforcement purposes available upon 
request unless the production of these records:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information 
compiled by a criminal law enforcement authority (such as the Postal 
Inspection Service) in the course of a criminal investigation, or by an 
agency conducting a lawful national security intelligence 
investigation, information furnished by a confidential source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (2) Whenever a request is made which involves access to records 
that could reasonably be expected to interfere with law enforcement 
proceedings, and
    (i) The investigation or proceeding involves a possible violation 
of criminal law; and
    (ii) There is reason to believe that,
    (A) The subject of the investigation or proceeding is not aware of 
its pendency, and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings, the Postal Service 
may, during only such time as that circumstance continues, treat the 
records as not subject to the requirements of the Freedom of 
Information Act.
    (3) Whenever informant records maintained by a criminal law

[[Page 86284]]

enforcement agency (such as the Postal Inspection Service) under an 
informant's name or personal identifier are requested by a third party 
according to the informant's name or personal identifier, the records 
may be treated as not subject to the requirements of the Freedom of 
Information Act unless the informant's status as an informant has been 
officially confirmed.
    (4) Authority to disclose records or information compiled for law 
enforcement purposes to persons outside the Postal Service must be 
obtained from the Chief Postal Inspector, U.S. Postal Service, 
Washington, DC 20260-2100, or designee.
    (d) Disclosure of names and addresses of customers. Upon request, 
the names and addresses of specifically identified Postal Service 
customers will be made available only as follows:
    (1) Change of address. The new address of any specific customer who 
has filed a permanent or temporary change of address order (by 
submitting PS Form 3575, a hand-written order, or an electronically 
communicated order) will be furnished to any person, except that the 
new address of a specific customer who has indicated on the order that 
the address change is for an individual or an entire family will be 
furnished only in those circumstances stated at paragraph (d)(5) of 
this section. Disclosure will be limited to the address of the 
specifically identified individual about whom the information is 
requested (not other family members or individuals whose names may also 
appear on the change of address order). The Postal Service reserves the 
right not to disclose the address of an individual for the protection 
of the individual's personal safety. Other information on PS Form 3575 
or copies of the form will not be furnished except in those 
circumstances stated at paragraphs (d)(5)(i), (d)(5)(iii), or 
(d)(5)(iv) of this section.
    (2) Name and address of permit holder. The name and address of the 
holder of a particular bulk mail permit, permit imprint or similar 
permit (but not including postage meter licenses), and the name of any 
person applying for a permit in behalf of a holder will be furnished to 
any person upon the filing of a proper FOIA request and payment of any 
applicable fees. For the name and address of a postage meter license 
holder, see paragraph (d)(3) of this section. (Lists of permit holders 
may not be disclosed to members of the public. See paragraph (e)(1) of 
this section.)
    (3) Name and address of postage evidencing user. The name and 
address of an authorized user of a postage meter or PC Postage product 
(postage evidencing systems) printing a specified indicium will be 
furnished to any person upon the payment of any fees authorized by 
Sec.  265.9(b), provided the user is using the postage meter or PC 
Postage product for business purposes. The request for this information 
must be sent to the manager of Postage Technology Management, Postal 
Service Headquarters. The request must include the original or a 
photocopy of the envelope or wrapper on which the postage meter or PC 
postage indicium in question is printed, and a copy or description of 
the contents to support that the sender is a business or firm and not 
an individual. (Lists of authorized users of postage meters or PC 
Postage products may not be disclosed to members of the public.)
    (4) Post Office boxholder information. Information from PS Form 
1093, Application for Post Office Box or Caller Service, will be 
provided as follows:
    (i) Except as provided in paragraph (d)(4)(iii) of this section, 
the boxholder applicant name and address from PS Form 1093 will be 
provided only in those circumstances stated in paragraphs (d)(5)(i) 
through (iii) of this section.
    (ii) Except as provided in paragraph (d)(4)(iii) of this section, 
the names of persons listed as receiving mail, other than the boxholder 
applicant, will be furnished from PS Form 1093 only in those 
circumstances stated in paragraphs (d)(5)(i) and (iii) of this section.
    (iii) When a copy of a protective order has been filed with the 
postmaster, information from PS Form 1093 will not be disclosed except 
pursuant to the order of a court of competent jurisdiction.
    (5) Exceptions. Except as otherwise provided in these regulations, 
names or addresses of Postal Service customers will be furnished only 
as follows:
    (i) To a Federal, State or local government agency upon prior 
written certification that the information is required for the 
performance of its duties. The Postal Service requires government 
agencies to use the format appearing at the end of this section when 
requesting the verification of a customer's current address or a 
customer's new mailing address. If the request lacks any of the 
required information or a proper signature, the postmaster will return 
the request to the agency, specifying the deficiency in the space 
marked `OTHER'. A copy of PS Form 1093 may be provided.
    (ii)(A) To a person empowered by law to serve legal process, or the 
attorney for a party in whose behalf service will be made, or a party 
who is acting pro se,\1\ upon receipt of written information that 
specifically includes all of the following:
---------------------------------------------------------------------------

    \1\ The term pro se means that a party is not represented by an 
attorney but by himself or herself.
---------------------------------------------------------------------------

    (1) A certification that the name or address is needed and will be 
used solely for service of legal process in connection with actual or 
prospective litigation;
    (2) A citation to the statute or regulation that empowers the 
requester to serve process, if the requester is other than the attorney 
for a party in whose behalf service will be made, or a party who is 
acting pro se;
    (3) The names of all known parties to the litigation;
    (4) The court in which the case has been or will be commenced;
    (5) The docket or other identifying number, if one has been issued; 
and
    (6) The capacity in which the boxholder is to be served, e.g., 
defendant or witness.
    (B) By submitting such information, the requester certifies that it 
is true. The address of an individual who files with the postmaster a 
copy of a protective court order will not be disclosed except as 
provided under paragraphs (d)(5)(i), (iii), or (iv) of this section. A 
copy of Form 1093 will not be provided. The Postal Service suggests use 
of the standard format appearing at the end of this section when 
requesting information under this paragraph. When using the standard 
format on the submitter's own letterhead, the standard format must be 
used in its entirety. The warning statement and certification 
specifically must be included immediately before the signature block. 
If the request lacks any of the required information or a proper 
signature, the postmaster will return it to the requester specifying 
the deficiency.
    (iii) In compliance with a subpoena or court order, except that 
change of address or boxholder information which is not otherwise 
subject to disclosure under these regulations may be disclosed only 
pursuant to a court order.
    (iv) To a law enforcement agency, for oral requests made through 
the Inspection Service, but only after the Inspection Service has 
confirmed that the information is needed in the course of a criminal 
investigation. (All other requests from law enforcement agencies should 
be submitted in writing to the postmaster as in paragraph (d)(5)(i) of 
this section.)
    (6) Jury service. The mailing address of any customer sought in 
connection with jury service, if known, will be furnished without 
charge upon prior

[[Page 86285]]

written request to a court official, such as a judge, court clerk or 
jury commissioner.
    (7) Address verification. The address of a postal customer will be 
verified at the request of a Federal, State, or local government agency 
upon written certification that the information is required for the 
performance of the agency's duties. ``Verification'' means advising 
such an agency whether or not its address for a postal customer is one 
at which mail for that customer is currently being delivered. 
``Verification'' neither means nor implies knowledge on the part of the 
Postal Service as to the actual residence of the customer or as to the 
actual receipt by the customer of mail delivered to that address. The 
Postal Service requires government agencies to use the format appearing 
at the end of this section when requesting the verification of a 
customer's current address or a customer's new mailing address. If the 
request lacks any of the required information or a proper signature, 
the postmaster will return the request to the agency, specifying the 
deficiency in the space marked ``OTHER''.
    (8) Business/Residence location. If the location of a residence or 
a place of business is known to a Postal Service employee, whether as a 
result of official duties or otherwise, the employee may, but need not, 
disclose the location or give directions to it. No fee is charged for 
such information.
    (9) Private mailbox information. Information from PS Form 1583, 
Application for Delivery of Mail Through Agent, will be provided as 
follows:
    (i) Except as provided in paragraph (d)(9)(iii) of this section, 
information from PS Form 1583 will be provided only in the circumstance 
stated in paragraph (d)(5)(iii) of this section.
    (ii) To the public only for the purpose of identifying a particular 
address as an address of an agent to whom mail is delivered on behalf 
of other persons. No other information, including, but not limited to, 
the identities of persons on whose behalf agents receive mail, may be 
disclosed to the public from PS Form 1583.
    (iii) Information concerning an individual who has filed a 
protective court order with the postmaster will not be disclosed except 
pursuant to the order of a court of competent jurisdiction.
    (e) Information not available for public disclosure. (1) Except as 
provided by paragraph (a)(6) of this section, the Postal Service and 
its officers and employees shall not make available to the public by 
any means or for any purpose any mailing list or other list of names or 
addresses (past or present) of postal patrons or other persons.
    (2) Records or other documents which are classified or otherwise 
specifically authorized by Executive Order 12356 and implementing 
regulations to be kept secret in the interest of the national defense 
or foreign policy are not subject to disclosure pursuant to this part.
    (3) Records consisting of trade secrets or confidential financial 
data, the disclosure of which is prohibited by 18 U.S.C. 1905, are not 
subject to disclosure pursuant to this part.
    (4) Other records, the disclosure of which is prohibited by 
statute, are not subject to disclosure pursuant to this part.
    (f) Protection of the right of privacy. If any record required or 
permitted by this part to be disclosed contains the name of, or other 
identifying details concerning, any person, including an employee of 
the Postal Service, the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy, the name or other identifying 
details shall be deleted before the record is disclosed and the 
requester so informed.
    (g) Disclosure in part of otherwise exempt record. Any reasonably 
segregable portion of a record shall be provided after deleting the 
information which is neither subject to mandatory disclosure nor 
available as a matter of discretion.
BILLING CODE 7710-12-P

[[Page 86286]]

[GRAPHIC] [TIFF OMITTED] TR30NO16.002


[[Page 86287]]


[GRAPHIC] [TIFF OMITTED] TR30NO16.003


Stanley F. Mires,
Attorney, Federal Compliance.
[FR Doc. 2016-28430 Filed 11-29-16; 8:45 am]
BILLING CODE 7710-12-C