[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Rules and Regulations]
[Pages 93806-93819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30413]


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AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 212

RIN 0412-AA89


Freedom of Information Act Regulations

AGENCY: Agency for International Development (USAID).

ACTION: Final rule.

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SUMMARY: This regulation prescribes the procedures and standards USAID 
follows in processing requests for records under the Freedom of 
Information Act (``FOIA''), 5 U.S.C. 552. The Act requires agencies to 
review their FOIA regulations, and no later than 180 days after 
enactment, directed the head of each agency to issue regulations on 
various elements of its FOIA program.

DATES: Effective: December 27, 2016.

FOR FURTHER INFORMATION CONTACT: Lynn P. Winston, Bureau for 
Management, Office of Management Services, Information Records 
Division, U.S. Agency for International Development, Washington, DC 
20523-6601; tel. 202-712-0960, fax: 202-216-3070.

SUPPLEMENTARY INFORMATION: 

[[Page 93807]]

I. Background

    USAID published a proposed rule in the Federal Register on 
September 27, 2016 to amend its Freedom of Information Act Regulations. 
On June 30, 2016, President Obama signed into law the FOIA Improvement 
Act of 2016. The Act requires agencies to review their FOIA 
regulations, and addresses a range of procedural issues that affect 
agency FOIA regulations. Among the issues addressed are requirements 
that agencies establish a minimum of 90 days for requesters to file an 
administrative appeal, and that they provide dispute resolution 
services at various times throughout the FOIA process. The Act also, 
among other things, codifies the Department of Justice's ``foreseeable 
harm'' standard, amends Exemption 5, creates a new ``Chief FOIA Officer 
Council,'' and adds two new elements to agency Annual FOIA Reports.

II. Summary of Comments and Explanation of Revisions

    The proposed rule was published for comment pursuant to the rules 
proscribed by the Federal Register. In total, USAID received comments 
from four (4) entities. All comments were reviewed and addressed by 
USAID in the FOIA Regulations final rule. One commenter recommended a 
minor edit to Sec.  212.19(e)(2). Specifically, that USAID should 
remove the word ``professional'' from the proposed rule on expedited 
processing because it is an extra requirement imposed on the public 
that is not found in the statutory language. This recommendation was 
adopted to eliminate any extra burden on requesters seeking expedited 
processing. The same commenter recommended USAID reduce its proposed 
duplication costs from twenty (20) cents per page to ten (10) cents per 
page. A review of duplication charges across Federal Government FOIA 
Offices was conducted, and the recommendation to lower the cost to ten 
(10) cents was adopted.
    A second commenter suggested USAID address the consultation process 
described in Sec.  212.7(c)(1) to occur only when another agency or 
government office has a ``substantial interest'' in responsive records 
or portions thereof. The recommendation was adopted to raise the 
standard for when a consultation should be initiated. The commenter 
also suggested USAID edit the definition of a representative of the 
news media to be any person or entity that 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. USAID reviewed Congress' statutory definition 
of a ``representative of the news media'' in the OPEN Government Act of 
2007, and approved the comment by applying the more recent definition.
    The third commenter recommended USAID remove Subpart E (Exemptions 
& Exclusions section) because application of exemptions may evolve 
based on case law. USAID agreed and removed Subpart E from the FOIA 
Regulations. The commenter recommended editing Sec.  212.19(b) to note 
that request track placement depends on the amount of time and/or work 
needed to process the request. Specifically highlighting that the 
Agency designates a specific track for requests granted expedited 
processing. USAID approved the recommendation. The commenter suggested 
USAID update Sec.  212.19(c) to add language on the Agency's FOIA 
Public Liaison duties, and update Sec.  212.23 to include information 
on the Office of Government Information Services' (OGIS) mission to 
provide mediation between requesters and agencies, while serving as a 
non-exclusive alternative to litigation. USAID updated the sections to 
clarify that the Agency must make available its FOIA Public Liaison 
when an extension for unusual circumstances exceeds 10 days, and 
detailed OGIS' role in the mediation process. The commenter also 
recommended USAID update the definition of an educational institution 
in Sec.  212.25(b)(4). Based on new case law, USAID revamped the 
language to account for the expanded definition.
    The fourth commenter echoed the recommendations provided by the 
third commenter regarding language needed on the role of the FOIA 
Public Liaison and OGIS mediation, as well as the new definition for an 
educational institution. All comments were approved and applied by 
USAID.

List of Subjects in 22 CFR Part 212

    Freedom of information.

0
For the reasons stated in the preamble, USAID revises 22 CFR part 212 
to read as follows:

PART 212--PUBLIC INFORMATION

Subpart A--General Provisions
212.1 Purpose and scope.
212.2 Policy.
212.3 Records available on the Agency's Web site.
Subpart B--Proactive Disclosures of Agency Records
212.4 Materials available for public inspection and in electronic 
format.
Subpart C--Requirements for Making Requests
212.5 How to make a request for records.
Subpart D--Responsibility for Responding to Requests
212.6 Designation of authorized officials.
212.7 Processing of request.
Subpart E--Timing of Responses to Requests
212.8 Time limits.
Subpart F--Responses to Requests
212.9 Responsibility for responding to requests.
Subpart G--Confidential Commercial Information
212.10 Policy and procedure.
Subpart H--Administrative Appeals
212.11 Appeal procedures.
212.12 Mediation and dispute services.
Subpart I--Preservation of Records
212.13 Policy and procedures.
Subpart J--Fees
212.14 Fees to be charged--general.
212.15 Fees to be charged--requester categories.
Subpart K--FOIA Definitions
212.16 Glossary.
Subpart L--Other Rights and Services
212.17 Rights and services qualified by the FOIA statute.
Subpart M--Privacy Act Provisions
212.18 Purpose and scope.
212.19 Privacy definitions.
212.20 Request for access to records.
212.21 Request to amend or correct records.
212.22 Appeals from denials of PA amendment requests.
212.23 Request for accounting of record disclosures.
212.24 Specific exemptions.

    Authority:  Pub. L. 114-185, 130 Stat. 538.

Subpart A--General Provisions


Sec.  212.1  Purpose and scope.

    This subpart contains the rules that the United States Agency of 
International Development (hereinafter ``USAID'' or ``the Agency'') 
follows in processing requests for records under the Freedom of 
Information Act (``FOIA''), 5 U.S.C. 552. The rules in this subpart 
should be read in conjunction with the text of the FOIA. Requests made 
by individuals for records about themselves under the Privacy Act of 
1974, are processed under Subpart O. Definitions of FOIA terms are 
referenced in Subpart L.


Sec.  212.2  Policy.

    (a) As a general policy, USAID follows a balanced approach in 
administering the FOIA. USAID recognizes the right of the public to 
access information in the

[[Page 93808]]

possession of the Agency. USAID also recognizes the legitimate 
interests of organizations or persons who have submitted records to the 
Agency or who would otherwise be affected by release of records. USAID 
has no discretion to release certain records, such as trade secrets and 
confidential commercial information, prohibited from release by law. 
USAID's policy calls for the fullest responsible disclosure consistent 
with those requirements of administrative necessity and confidentiality 
which are recognized under the FOIA.
    (b) Definitions. For purposes of subparts A through K, M, and O of 
this part, record means information regardless of its physical form or 
characteristics including information created, stored, and retrievable 
by electronic means that is created or obtained by the Agency and under 
the control of the Agency at the time of the request, including 
information maintained for the Agency by an entity under Government 
contract for records management purposes. It does not include records 
that are not already in existence and that would have to be created 
specifically to respond to a request. Information available in 
electronic form shall be searched and compiled in response to a request 
unless such search and compilation would significantly interfere with 
the operation of the Agency's automated information systems.


Sec.  212.3  Records available on the Agency's Web site.

    Information that is required to be published in the Federal 
Register under 5 U.S.C. 552(a)(1) is regularly updated by the Agency 
and found on its public Web site: www.usaid.gov/foia-requests. Records 
that are required by the FOIA to be made available for public 
inspection in an electronic format under 5 U.S.C. 552(a)(2) also are 
available on the Agency's public Web site.

Subpart B--Proactive Disclosures of Agency Records


Sec.  212.4   Materials available for public inspection and in 
electronic format.

    (a) In accordance with this subpart, the Agency shall make the 
following materials available for public inspection in an electronic 
format:
    (1) Operational policy in USAID's Automated Directives System (ADS) 
which have been adopted by the Agency and are not published in the 
Federal Register;
    (2) Administrative staff manuals and instructions to staff that 
affect any member of the public; and
    (3) Copies of all records, regardless of form or format, which have 
been released pursuant to a FOIA request, and which have been requested 
three (3) or more times, or because of the nature of their subject 
matter, have become or are likely to become the subject of subsequent 
requests for substantially the same records. The Agency shall decide on 
a case by case basis whether records fall into this category, based on 
the following factors:
    (i) Previous experience with similar records;
    (ii) The particular characteristics of the records involved, 
including their nature and the type of information contained in them; 
and
    (iii) The identity and number of requesters and whether there is 
widespread media, historical, academic, or commercial interest in the 
records.

Subpart C--Requirements for Making Requests


Sec.  212.5   How to make a request for records.

    (a) General information. USAID has a centralized system for 
responding to FOIA requests. The Bureau for Management, Office of 
Management Services, Information and Records Division (M/MS/IRD) is the 
central processing point for requests for USAID records contained in 
Washington, DC and its overseas missions. All FOIA requests must be 
submitted to this office. To make a request for the Agency's records, a 
requester may send request via one of the following mediums:
    (1) By Email: [email protected]. Please include your mailing address, 
email address and phone number with your request. While our FOIA 
Specialists are happy to answer questions about the FOIA Program and/or 
help you formulate your request over the phone, please be advised that 
FOIA requests cannot accept by phone.
    (2) Online Portal: To submit your request online, please click the 
subsequent link: https://foiarequest.usaid.gov/index.aspx.
    (3) By U.S. Postal Mail: United States Agency of International 
Development Bureau for Management, Office of Management Services 
>Services, Information and Records Division, 1300 Pennsylvania Avenue 
NW., Washington, DC 20523-2701, Room 2.7C RRB, (202) 712-0960.
    (4) By Fax: (202) 216-3070.
    (b) Third party requests. Where a request for records pertains to a 
third party, a requester may receive greater access by submitting 
either a notarized authorization signed by that individual or a 
declaration made in compliance with the requirements set forth in the 
FOIA 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). In addition, 
requesters may demonstrate an overriding public interest in disclosure 
of the information related to official misconduct by producing evidence 
that alleged Government impropriety occurred. As an exercise of 
administrative discretion, the agency can require a requester to supply 
additional information if necessary in order to verify that a 
particular individual has consented to disclosure.
    (c) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable the Agency's personnel to 
locate them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may assist in 
identifying the requested records, such as the date, title or name, 
author, recipient, subject matter of the record, case number, file 
designation, or reference number. In general, requesters should include 
as much detail as possible about the specific records or the types of 
records that they are seeking. Before submitting their requests, 
requesters may contact the Agency's FOIA contact or FOIA Public Liaison 
to discuss the records they are seeking and to receive assistance in 
describing the records. If, after receiving a request and the Agency 
determines that it does not reasonably describe the records sought, the 
Agency shall inform the requester what additional information is needed 
or why the request is otherwise insufficient. Requesters who are 
attempting to reformulate or modify such a request may discuss their 
request with the Agency's designated FOIA Specialist or its FOIA Public 
Liaison, each of whom is available to assist the requester in 
reasonably describing the records sought. If a request does not 
reasonably describe the records sought, the Agency's response to the 
request may be delayed or denied.

Subpart D--Responsibility for Responding to Requests


Sec.  212.6   Designation of authorized officials.

    (a) The Assistant Administrator for the Bureau for Management (M) 
serves as the USAID Chief FOIA Officer. The Chief FOIA Officer has 
overall responsibility for USAID compliance with the FOIA. The Chief 
FOIA Officer provides high level oversight and support to USAID's FOIA 
programs, and recommends adjustments to agency practices, personnel, 
and funding as may be necessary to improve FOIA

[[Page 93809]]

administration, including through an annual Chief FOIA Officers Report 
submitted to the U.S. Department of Justice. The Chief FOIA Officer is 
responsible for offering training to agency staff regarding their FOIA 
responsibilities; serves as the primary liaison with the Office of 
Government Information Services and the Office of Information Policy; 
and reviews, not less frequently than annually, all aspects of the 
Agency's administration of the FOIA to ensure compliance with the 
FOIA's requirements.
    (b) The Bureau for Management, Office of Management Services, 
Information Records Division (M/MS/IRD) is the centralized FOIA office 
that receives, tracks, and processes all of USAID's FOIA requests to 
ensure transparency within the Agency.
    (c) The Director, Bureau for Management, Office of Management 
Services (M/MS/OD) serves as the USAID FOIA Appeals Officer. The FOIA 
Appeals Officer is responsible for receiving and acting upon appeals 
from requesters whose initial FOIA requests for USAID records have been 
denied, in whole or in part.
    (d) The Chief, Bureau for Management, Office of Management 
Services, Information and Records Division (M/MS/IRD) serves as USAID's 
FOIA Officer and FOIA Public Liaison. The FOIA Officer is responsible 
for program direction, original denials, and policy decisions required 
for effective implementation of USAID's FOIA program. The FOIA Public 
Liaison serves as a supervisory official to whom a FOIA requester can 
raise concerns about the services received, following an initial 
response from the FOIA staff. In addition, the FOIA Public Liaison 
assists, as appropriate, in reducing delays, increasing transparency 
and understanding of the status of requests, and resolving disputes.
    (e) The FOIA Team Leader is the Principal Operations Officer within 
USAID for the processing of FOIA requests and release determinations.
    (f) The FOIA Specialist also known as the Government Information 
Specialist (GIS) is responsible for processing requests and preparing 
records for release when such releases are authorized by the FOIA. They 
do not have the authority to make denials, including ``no records'' 
responses.
    (g) The General Counsel (GC), FOIA Backstop Attorney Advisor has 
responsibility for providing legal advice on all USAID matters 
regarding or resulting from the FOIA. Upon request, GC advises M/MS/IRD 
on release and denial decisions, and apprises the FOIA Office of all 
significant developments with respect to the FOIA.
    (h) Each Attorney Advisor designated to provide legal advice to 
USAID Bureaus/Independent Offices (B/IOs) is responsible for providing, 
at M/MS/IRD's request, legal advice on FOIA requests assigned to those 
B/IOs.
    (i) The designated FOIA Liaison Officer (FLO) in each USAID Bureau 
and Office is responsible for tasking and facilitating the collection 
of responsive records and monitoring the production of records to M/MS/
IRD.


Sec.  212.7  Processing of request.

    (a) In general. In determining which records are responsive to a 
request, the Agency ordinarily will include only records in its 
possession as of the date that it begins its search. If any other date 
is used, the Agency shall inform the requester of that date.
    (b) Authority to grant or deny requests. The FOIA Officer is 
authorized to grant or to deny any requests for records that are 
maintained by the Agency.
    (c) Consultation, referral, and coordination. When reviewing 
records located by the Agency in response to a request, USAID shall 
determine whether another agency of the Federal Government is better 
able to determine whether the record is exempt from disclosure under 
the FOIA. All consultations and referrals received by the Agency will 
be handled according to the date that the first agency received the 
perfected FOIA request. As to any such record, USAID shall proceed in 
one of the following ways:
    (1) Consultation. When records originated with USAID, but contain 
within them information of substantial interest to another agency, or 
other Federal Government office, USAID should consult with that other 
agency prior to making a release determination.
    (2) Referral. (i) When USAID believes that a different agency, or 
other Federal Government office is best able to determine whether to 
disclose the record, USAID should refer the responsibility for 
responding to the request regarding that record, as long as the 
referral is to an agency that is subject to the FOIA. Ordinarily, the 
agency that originated the record will be presumed to be best able to 
make the disclosure determination. However, if USAID and the 
originating agency jointly agree that the former is in the best 
position to respond regarding the record, then the record may be 
handled as a consultation.
    (ii) Whenever USAID refers any part of the responsibility for 
responding to a request to another agency, it shall document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral and inform the requester of the name(s) of 
the agency to which the record was referred, including that agency's 
FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, USAID 
will coordinate with the originating agency to seek its views on the 
disclosability of the record. The release determination for the record 
that is the subject of the coordination will then be conveyed to the 
requester by USAID.
    (d) Classified information. On receipt of any request involving 
classified information, USAID must determine whether the information is 
currently and properly classified in accordance with applicable 
classification rules. Whenever a request involves a record containing 
information that has been classified or may be appropriate for 
classification by another agency under any applicable executive order 
concerning the classification of records, the USAID must refer the 
responsibility for responding to the request regarding that information 
to the agency that classified the information, or that should consider 
the information for classification. Whenever USAID's record contains 
information that has been derivatively classified (for example, when it 
contains information classified by another agency), USAID must refer 
the responsibility for responding to that portion of the request to the 
agency that classified the underlying information.
    (e) Furnishing records. USAID shall furnish copies only of records 
that the Agency has in its possession. The Agency is not compelled to 
create new records. The Agency is not required to perform research for 
a requester. The Agency is required to furnish only one copy of a 
record. If information exists in different forms, the Agency will 
provide the record in the form that best conserves government 
resources. Requests may specify the preferred form or format (including 
electronic formats) for the records sought by the requester. USAID will 
accommodate the form or format request if the record is readily 
reproducible in that form or format.
    (f) Archival records. The Agency ordinarily transfers records in

[[Page 93810]]

accordance with its retirement authority, included in ADS 502, to the 
National Archives. These records become the physical and legal custody 
of the National Archives. Accordingly, requests for retired Agency 
records should be submitted to the National Archives by mail addressed 
to Special Access and FOIA Staff (NWCTF), 8601 Adelphi Road, Room 5500, 
College Park, MD 20740; by fax to (301) 837-1864; or by email to 
[email protected].
    (g) Poor copy. If USAID cannot make a legible copy of a record to 
be released, the Agency is not required to reconstruct it. Instead, the 
Agency will furnish the best copy possible and note its poor quality in 
the Agency's reply.

Subpart E--Timing of Responses to Requests


Sec.  212.8   Time limits.

    (a) In general. The Agency ordinarily will respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) USAID shall designate a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (e) of this section. The 
Agency may designate additional processing tracks that distinguish 
between simple and more complex requests based on the estimated amount 
of work or time needed to process the request. Among the factors the 
Agency may consider are, the number of pages involved in processing the 
request and the need for consultations or referrals. The Agency shall 
advise requesters of the track into which their request falls and, when 
appropriate, shall offer the requesters an opportunity to narrow their 
request so that it can be placed in a different processing track.
    (2) The Agency shall generally process requests in each track on a 
``first-in, first-out'' basis.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and the Agency extends the 
time limit on that basis, the Agency shall, before expiration of the 
20-day period to respond, notify the requester in writing of the 
unusual circumstances involved and of the date by which processing of 
the request can be expected to be completed. Where the extension 
exceeds 10 working days, the Agency shall, in the written notice, 
notify the requester of the right to contact the Agency's FOIA Public 
Liaison, or seek dispute resolution services from the Office of 
Government Information Services (OGIS). In addition, the Agency shall, 
as described by the FOIA, provide the requester with an opportunity to 
modify the request or arrange an alternative time period for 
processing.
    (d) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, the Agency may aggregate requests in 
cases where it reasonably appears that multiple requests, submitted 
either by a requester or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances. The Agency shall not aggregate multiple requests that 
involve unrelated matters.
    (e) Expedited processing. (1) Requests and appeals shall be 
processed on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity that 
affect public confidence.
    (2) A 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 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, the Agency may waive the formal 
certification requirement.
    (3) The Agency 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.

Subpart F--Responses to Requests


Sec.  212.9  Responsibility for responding to requests.

    (a) In general. USAID should, to the extent practicable, 
communicate with requesters having access to the Internet using 
electronic means, such as email or web portal.
    (b) Acknowledgments of requests. USAID shall acknowledge the 
request and assign it an individualized tracking number. The Agency 
shall include in the acknowledgment a brief description of the records 
sought to allow requesters to more easily keep track of their requests.
    (c) Grants of requests. Once the Agency makes a determination to 
grant a request in full or in part, it shall notify the requester in 
writing. The Agency also shall inform the requester of any fees charged 
and shall disclose the requested records to the requester promptly upon 
payment of any applicable fees.
    (d) Consultations and Referrals. Whenever USAID consults with 
another Federal Government office over the releasability of a record, 
the Agency shall notify the requester of the consultation and inform 
the requester of the name(s) of the agency or office with which the 
consultation is taking place. Whenever USAID refers any part of the 
responsibility for responding to a request to another Federal 
Government office, the Agency shall document the referral, maintain a 
copy of the record that it refers, notify the requester of the 
referral, and inform the requester of the name(s) of the agency to 
which the record was referred, including that agency's FOIA contact 
information.
    (e) Adverse determinations of requests. If the Agency has made an 
adverse determination denying a request in any respect, the Agency 
shall notify the requester of that determination in writing, and 
provide the contact information for the FOIA Public Liaison, as well as 
a description of the requester's right to seek mediation services from 
the Office of Government Information Services (OGIS). Adverse 
determinations, or denials of requests, include decisions that: The 
requested record is exempt, in whole or in part;

[[Page 93811]]

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. A response will provide an 
estimate of the volume of any records or any information withheld. 
Adverse determinations also include denials involving fees or fee 
waiver matters or denials of requests for expedited processing.
    (f) Information furnished. All denials are in writing and describe 
in general terms the material withheld; state the reasons for the 
denial, including, as applicable, a reference to the specific exemption 
of the FOIA authorizing the withholding; explain your right to appeal 
the decision and identify the official to whom you should send the 
appeal; and are signed by the person who made the decision to deny all 
or part of the request. Records disclosed in part must be marked 
clearly 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 must also be indicated on the record, if 
technically feasible.
    (g) Conducting searches. USAID performs a diligent search for 
records to satisfy your request. Nevertheless, the Agency may not be 
able to find the records requested using the information provided, or 
the records may not exist.

Subpart G--Confidential Commercial Information


Sec.  212.10   Policy and procedure.

    (a) Definitions. (1) Confidential commercial information means 
commercial or financial information obtained by the Agency from a 
submitter that may be protected from disclosure under Exemption 4 of 
the FOIA, 5 U.S.C. 552(b)(4).
    (2) Business submitter means any person or entity, including a 
corporation, State, or foreign government, but not including another 
Federal Government entity, that provides information, either directly 
or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, either at the time of submission or 
within a reasonable time thereafter, any portion of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations shall expire 10 years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (c) When notice to business submitters is required. (1) The Agency 
shall promptly provide written notice to a business 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 
Agency determines that it may be required to disclose the records, 
provided:
    (i) The requested information has been designated in good faith by 
the business submitter as information considered protected from 
disclosure under Exemption 4; or
    (ii) The Agency 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 business submitter notice requirements. The 
notice requirements of this section shall not apply if:
    (1) The Agency determines that the information is exempt under the 
FOIA;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the business submitter appears 
obviously frivolous, except that, in such a case, the Agency shall give 
the business 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 Agency shall 
specify a reasonable time period within which the business submitter 
must respond to the notice referenced above. If a business submitter 
has any objections to disclosure, the business submitter should:
    (i) Provide the Agency with 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 business submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is privileged or confidential.
    (ii) [Reserved]
    (2) A business 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 Agency 
after the date of any disclosure decision shall not be considered by 
the Agency. Any information provided by a business submitter under this 
subpart may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. The Agency shall consider a business 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the requested information.
    (g) Notice of intent to disclose. Whenever the Agency decides to 
disclose information over the objection of a business submitter, the 
Agency shall provide the business submitter written notice, which shall 
include:
    (1) A statement of the reasons why each of the business submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the Agency shall promptly notify the business submitter.
    (i) Requester notification. The Agency shall notify the requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.

Subpart H--Administrative Appeals


Sec.  212.11   Appeal procedures.

    USAID must inform the requester of the reasons for the denial and 
the requester's right to appeal the denial to the FOIA Appeals Officer 
whenever a FOIA request is denied.

[[Page 93812]]

    (a) What a requester can appeal. A requester may appeal the 
withholding of a document or denial of a fee waiver request. A 
requester may contest the type or amount of fees that were charged, or 
may appeal any other type of adverse determination under the FOIA. A 
requester may also appeal because USAID failed to conduct an adequate 
search for the documents requested. However, a requester may not file 
an administrative appeal for the lack of a timely response. A requester 
may administratively appeal any portion denied when their request is 
granted in part and denied in part.
    (b) Requirements for making an appeal. A requester may appeal any 
adverse determinations to USAID. The requester must make the appeal in 
writing. To be considered timely, the appeal must be postmarked, or in 
the case of electronic submissions, transmitted, within 90 calendar 
days after the date of the response. The appeal should clearly identify 
the Agency's determination that is being appealed and the assigned 
request number. To facilitate handling, the requester should mark both 
the appeal letter and envelope, or subject line of the electronic 
transmission, ``Freedom of Information Act Appeal.''
    (c) Adjudication of appeals. (1) The Director of the Bureau for 
Management Services or designee will conduct de novo review and make 
the final determination on the appeals.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (d) Decisions on appeals. A decision on an appeal must be made in 
writing. A decision that upholds the Agency's determination will 
contain a statement that identifies the reasons for the affirmance, 
including any FOIA exemptions applied. The decision will provide the 
requester with notification of the statutory right to file a lawsuit 
and will inform the requester of the mediation services offered by the 
Office of Government Information Services of the National Archives and 
Records Administration as a non-exclusive alternative to litigation. 
Mediation is a voluntary process. If USAID agrees to participate in the 
mediation services provided by OGIS, it will actively engage as a 
partner to the process in an attempt to resolve the dispute. If the 
Agency's decision is remanded or modified on appeal, the requester will 
be notified of that determination in writing. The Agency will 
thereafter further process the request in accordance with that appeal 
determination and respond directly to the requester.
    (e) When appeal is required. Before seeking review by a court of 
the Agency's adverse determination, a requester generally must first 
submit a timely administrative appeal.
    (f) Where to file an appeal. An appeal may be filed by sending a 
letter to: FOIA Appeals Officer, Bureau for Management Director, Office 
of Management Services, U.S. Agency for International Development Room 
2.12-010, RRB, Washington, DC 20523-4601. There is no charge for filing 
an administrative appeal.


Sec.  212.12   Mediation and dispute services.

    The Office of Government Information Services of the National 
Archives and Records Administration (OGIS) is a Freedom of Information 
Act (FOIA) resource for the public and the government. Congress has 
charged OGIS with reviewing FOIA policies, procedures and compliance of 
Federal agencies and to recommend changes to the FOIA. OGIS' mission 
also includes providing dispute resolution services between Federal 
agencies and requesters. OGIS works as a non-exclusive alternative to 
litigation.'' When USAID makes a determination on a request, the Agency 
shall offer the services of the FOIA Public Liaison, and will notify 
requesters of the mediation services provided by OGIS. Specifically, 
USAID will include in the Agency's notification to the requester;
    (a) The right of the requester to seek assistance from the FOIA 
Public Liaison of the Agency, and in the case of an adverse 
determination;
    (b) The right of the requester to seek dispute resolution services 
from the FOIA Public Liaison of the agency or the Office of Government 
Information Services.

Subpart I--Preservation of Records


Sec.  212.13   Policy and procedures.

    The Agency shall preserve all correspondence relating to the 
requests it receives under this subpart, and all records processed 
pursuant to such requests, until such time as the destruction of such 
correspondence and records is authorized pursuant to Title 44 of the 
United States Code, and appropriate records disposition authority 
granted by NARA. Under no circumstances shall records be sent to a 
Federal Records Center, transferred to the permanent custody of NARA, 
or destroyed while they are the subject of a pending request, appeal, 
or civil action under the FOIA.

Subpart J--Fees


Sec.  212.14   Fees to be charged--general.

    (a) In general. USAID shall charge for processing requests under 
the FOIA in accordance with the provisions of this section and with the 
Office of Management and Budget (OMB) Guidelines. In order to resolve 
any fee issues that arise under this section, the Agency may contact a 
requester for additional information. The Agency shall ensure that 
search, review, and duplication are conducted in the most efficient and 
the least expensive manner. USAID ordinarily will collect all 
applicable fees before sending copies of records to a requester. 
Requesters must pay fees by check or money order made payable to the 
Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. The Agency'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 Agency incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. 
Direct costs do not include overhead expenses such as the costs of 
space, and of heating or lighting a facility.
    (3) Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with his or her role at the 
educational institution. Agencies may seek verification from the 
requester that the request is in furtherance of scholarly research.
    (5) Fee waiver is a waiver or reduction of processing fees if a 
requester can demonstrate that certain statutory standards are 
satisfied, including that the information is in the public interest and 
is not requested for a commercial interest.
    (6) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this

[[Page 93813]]

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.
    (7) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
Internet. A request for records supporting the news-dissemination 
function of the requester shall not be considered to be for a 
commercial use. ``Freelance'' journalists who demonstrate a solid basis 
for expecting publication through a news media entity shall be 
considered as a representative of the news media. A publishing contract 
would provide the clearest evidence that publication is expected; 
however, components shall also consider a requester's past publication 
record in making this determination.
    (8) Requester category is one of the three categories that agencies 
place requesters in for the purpose of determining whether a requester 
will be charged fees for search, review, and duplication. The three 
categories are: Commercial requesters; non-commercial scientific or 
educational institutions or news media requesters; and all other 
requesters.
    (9) 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, but it does 
not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (10) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the Agency shall 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section.
    (1) Search. 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 Agency may properly charge for time spent searching 
even if they do not locate any responsive records or if they determine 
that the records are entirely exempt from disclosure.
    (2) Duplication. Duplication fees shall be charged to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The Agency shall honor a requester's preference for receiving 
a record in a particular form or format where it is readily 
reproducible by the agency in the form or format requested. Where 
photocopies are supplied, the Agency shall provide one copy per request 
at a cost of ten cents per page. For copies of records produced on 
tapes, disks, or other media, the direct costs of producing the copy, 
including operator time shall be charged. 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, the Agency shall charge the direct costs.
    (3) Review. Review fees shall be charged to requesters who make 
commercial use requests. Review fees shall be assessed in connection 
with the initial review of the record, i.e., the review conducted by 
the agency 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 the Agency re-review of the records in order 
to consider the use of other exemptions may be assessed as review fees.
    (d) Restrictions on charging fees. (1) No search fees will be 
charged for requests by educational institutions, noncommercial 
scientific institutions, or representatives of the news media, unless 
the records are sought for commercial use.
    (2) When the Agency determines that unusual circumstances apply to 
the processing of a request, and the Agency has provided timely written 
notice to the requester, the delay is excused for an additional 10 
days. If the Agency fails to comply with the extended time limit, it 
may not charge search fees (or for requesters with preferred fee 
status, may not charge duplication fees) except as provided in 
paragraphs (d)(2)(i)-(ii) of this section.
    (i) Exception: If unusual circumstances apply and more than 5000 
pages are necessary to respond to the request, the Agency may charge 
search fees (or, for requesters in preferred fee status, may charge 
duplication fees) if timely written notice has been made to the 
requester and the Agency has discussed with the requester via written 
mail, electronic mail, or telephone (or made not less than 3 good-faith 
attempts to do so) how the requester could effectively limit the scope 
of the request.
    (ii) Court determination that exceptional circumstances exist: If a 
court determines that exceptional circumstances exist, the Agency's 
failure to comply with a time limit shall be excused for the length of 
time provided by the court order.
    (3) If the Agency fails to comply with the time limits in which to 
respond to a request, and if no unusual or exceptional circumstances, 
as those terms are defined by the FOIA, apply to the processing of the 
request, it may not charge search fees, or, in the instances of 
requests from requesters described in paragraph (d)(1) of this section, 
may not charge duplication fees.
    (4) 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.
    (5) Except for requesters seeking records for a commercial use, the 
Agency 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.
    (6) 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.

[[Page 93814]]

    (e) Notice of anticipated fees in excess of $25.00. (1) When the 
Agency determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the Agency 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 agency shall advise the requester accordingly. If the 
requester is a noncommercial use requester, the notice shall specify 
that the requester is entitled to the statutory entitlements of 100 
pages of duplication at no charge and, if the requester is charged 
search fees, two hours of search time at no charge, and shall advise 
the requester whether those entitlements have been provided.
    (2) In cases in which a requester has been notified that the actual 
or estimated fees are in excess of $25.00, the request shall not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees the requester is willing to pay, or 
in the case of a noncommercial use requester who has not yet been 
provided with the requester's statutory entitlements, designates that 
the requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. The Agency is not required to accept 
payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the Agency estimates that the total fee 
will exceed that amount, the Agency 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 
Agency 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) The Agency shall make available their FOIA Public Liaison or 
other FOIA Specialists 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 the Agency chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
shall be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (g) Charging interest. The Agency may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges shall be assessed at the rate provided in 
31 U.S.C. 3717 and will accrue from the billing date until payment is 
received by the agency. The Agency shall follow the provisions of the 
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as 
amended, and its administrative procedures, including the use of 
consumer reporting agencies, collection agencies, and offset.
    (h) Aggregating requests. When the Agency reasonably believes that 
a requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, the Agency may aggregate those requests and charge 
accordingly. The Agency may presume that multiple requests of this type 
made within a 30-day period have been made in order to avoid fees. For 
requests separated by a longer period, the Agency will aggregate them 
only where there is a reasonable basis for determining that aggregation 
is warranted in view of all the circumstances involved. Multiple 
requests involving unrelated matters shall not be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) or (i)(3) of this section, the agency shall not 
require the requester to make an advance payment before work is 
commenced or continued on a request. Payment owed for work already 
completed (i.e., payment before copies are sent to a requester) is not 
an advance payment.
    (2) When the Agency 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. The Agency may 
elect to process the request prior to collecting fees when it receives 
a satisfactory assurance of full payment from a requester with a 
history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to the agency within 30 calendar days of the billing 
date, the Agency may require that the requester pay the full amount 
due, plus any applicable interest on that prior request, and the Agency 
may require that the requester make an advance payment of the full 
amount of any anticipated fee before the Agency begins to process a new 
request or continues to process a pending request or any pending 
appeal. If the Agency 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 the Agency 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 Agency's fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
the Agency shall inform the requester of the contact information for 
that program.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request shall be furnished without charge or at a 
reduced rate below the rate established under paragraph (c) of this 
section, where the Agency determines, based on all available 
information, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) In deciding whether disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of operations or activities of the government, 
the Agency shall consider all four of the following factors:
    (i) The subject of the request must concern identifiable operations 
or activities of the Federal Government, with a connection that is 
direct and clear, not remote or attenuated.
    (ii) Disclosure of the requested records must be meaningfully 
informative about government

[[Page 93815]]

operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either the same or a substantially identical form, would not contribute 
to such understanding where nothing new would be added to the public's 
understanding.
    (iii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public shall be 
considered. It shall be presumed that a representative of the news 
media will satisfy this consideration.
    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent. However, the Agency 
shall not make value judgments about whether the information at issue 
is ``important'' enough to be made public.
    (3) To determine whether disclosure of the requested information is 
primarily in the commercial interest of the requester, the Agency shall 
consider the following factors:
    (i) The Agency shall identify any commercial interest of the 
requester, as defined in paragraph (b)(1) of this section, that would 
be furthered by the requested disclosure. Requesters shall be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (ii) A waiver or reduction of fees is justified where the public 
interest is greater than any identified commercial interest in 
disclosure. The Agency ordinarily shall presume that where a news media 
requester has satisfied the public interest standard, the public 
interest will be the interest primarily served by disclosure to that 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return shall not be 
presumed to primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Agency 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. A requester may appeal 
the denial of a fee waiver.


Sec.  212.15  Fees to be charged--requester categories.

    (a) The following specific fees are charged for services rendered:
    (1) Commercial Use:
    Search: $40.00 per hour
    Search costs will be assessed even though no records may be found 
or even if, after review, there is no disclosure or records.
    Review: $55.00 per hour.
    Duplication: 10[cent] per page.
    (2) Educational & Non-Commercial Scientific Institutions.
    Search: No fee.
    Review: No fee.
    Duplication: 10[cent] per page after the first 100 pages.
    (3) Representatives of the News Media.
    Search: No fee.
    Review: No fee.
    Duplication: 10[cent] per page after the first 100 pages.
    (4) All Others.
    Search: Same as ``Commercial Users'' except the first two hours 
shall be furnished without charge.
    Review: No fee.
    Duplication: 10[cent] per page after the first 100 pages.
    (b) If copies of records are provided in other than paper format 
(such as on microfiche, video tape, or as electronic data files), or 
other than first-class mail is requested or required, the requester is 
charged the actual cost of providing these additional services.

Subpart K--FOIA Definitions


Sec.  212.16   Glossary.

    As used in this part:
    Administrative FOIA Appeal is an independent review of the initial 
determination made in response to a FOIA request. Requesters who are 
dissatisfied with the response made on their initial request have a 
statutory right to appeal the initial determination made by the Agency.
    Agency is any executive agency, military agency, government 
corporation, government controlled corporation, or other establishment 
in the executive branch of the Federal Government, or any independent 
regulatory agency. Thus, USAID is an agency.
    Complex request is a request that typically seeks a high volume of 
material or requires additional steps to process such as the need to 
search for records in multiple locations.
    Consultation is when USAID locates a record that contains 
information of substantial interest to another agency, and USAID asks 
for the views of that other agency on the disclosablity of the records 
before any final determination is made.
    Discretionary disclosure is information that the Agency releases 
even though it could have been withheld under one of the FOIA's 
exemptions.
    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.
    Electronic record is any information that is recorded in a form 
that only a computer can process and that satisfies the definition of a 
Federal record per the Federal Records Act. Federal electronic records 
are not necessarily kept in a ``recordkeeping system'' but may reside 
in a generic electronic information system or are produced by an 
application such as word processing or electronic mail.
    Exemptions are nine categories of information that are not required 
to be released in response to a FOIA request because release would be 
harmful to a government or private interest. These categories are 
called ``exemptions'' from disclosures.
    Expedited processing is the FOIA response track granted in certain 
limited situations, specifically when a FOIA request is processed ahead 
of other pending requests.
    Freedom of Information Act or FOIA is a United States federal law 
that grants the public access to information possessed by government 
agencies. Upon written request, U.S. government agencies are required 
to release information unless it falls under one of nine exemptions 
listed in the Act.
    Frequently requested records are records that have been requested 
three (3) or more times from the Agency.
    Multi-track processing is a system that divides in-coming FOIA 
requests according to their complexity so that simple requests 
requiring relatively minimal review are placed in one processing track 
and more complex requests are placed in one or more other tracks. 
Requests granted expedited processing are placed in yet another track. 
Requests in each track are processed on a first in/first out basis.
    Office of Government Information Services (OGIS) offers mediation 
services to resolve disputes between

[[Page 93816]]

FOIA requesters and agencies as an alternative to litigation. OGIS also 
reviews agency FOIA compliance, policies, and procedures and makes 
recommendations for improvement. The Office is a part of the National 
Archives and Records Administration, and was created by Congress as 
part of the OPEN Government Act of 2007, which amended the FOIA.
    Proactive disclosures are records made publicly available by 
agencies without waiting for a specific FOIA request. Agencies now post 
on their Web sites material concerning their functions and mission. The 
FOIA itself requires agencies to make available certain categories of 
information, including final opinions and orders, specific policy 
statements, certain administrative staff manuals and frequently 
requested records.
    Record means information regardless of its physical form or 
characteristics including information created, stored, and retrievable 
by electronic means that is created or obtained by the Agency and under 
the control of the Agency at the time of the request, including 
information maintained for the Agency by an entity under Government 
contract for records management purposes. It does not include records 
that are not already in existence and that would have to be created 
specifically to respond to a request. Information available in 
electronic form shall be searched and compiled in response to a request 
unless such search and compilation would significantly interfere with 
the operation of the Agency's automated information systems.
    Referral occurs when an agency locates a record that originated 
with, or is of otherwise primary interest to another agency. It will 
forward that record to the other agency to process the record and to 
provide the final determination directly to the requester.
    Simple request is a FOIA request that an agency anticipates will 
involve a small volume of material or which will be able to be 
processed relatively quickly.

Subpart L--Other Rights and Services


Sec.  212.17   Rights and services qualified by the FOIA statute.

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

Subpart M--Privacy Act Provisions


Sec.  212.18  Purpose and scope.

    This subpart contains the rules that the USAID follows under the 
Privacy Act of 1974 (PA), 5 U.S.C. 552a, as amended. These rules should 
be read together with the text of the statute, which provides 
additional information about records maintained on individuals. The 
rules in this subpart apply to all records in systems of records 
maintained by the agency that are retrieved by an individual's name or 
personal identifier. They describe the procedures by which individuals 
may request access to records about themselves, request amendment or 
correction of those records, and request an accounting of disclosures 
of those records by the agency. If any records retrieved pursuant to an 
access request under the PA are found to be exempt from access under 
that Act, they will be processed for possible disclosure under the 
FOIA, as amended. No fees shall be charged for access to or amendment 
of PA records.


Sec.  212.19   Privacy definitions.

    As used in this subpart, the following definitions shall apply:
    (a) Individual means a citizen or a legal permanent resident alien 
(LPR) of the United States.
    (b) Maintain includes maintain, collect, use, or disseminate.
    (c) Record means any item, collection, or grouping of information 
about an individual that is maintained by the agency and that contains 
the individual's name or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a finger or 
voice print or photograph.
    (d) System of records means a group of any records under the 
control of the agency from which information is retrieved by the name 
of an individual or by some identifying number, symbol, or other 
identifying particular assigned to an individual.


Sec.  212.20  Request for access to records.

    (a) In general. Requests for access to records under the PA must be 
made in writing and mailed to the Bureau for Management Services, 
Information and Records Division at the address given in Sec.  212.7.
    (b) Description of records sought. Requests for access should 
describe the requested record(s) in sufficient detail to permit 
identification of the record(s). At a minimum, requests should include 
the individual's full name (including maiden name, if appropriate) and 
any other names used, current complete mailing address, and date and 
place of birth (city, state and country). Helpful data includes the 
approximate time period of the record and the circumstances that give 
the individual reason to believe that the agency maintains a record 
under the individual's name or personal identifier, and, if known, the 
system of records in which the record is maintained. In certain 
instances, it may be necessary for the Agency to request additional 
information from the requester, either to ensure a full search, or to 
ensure that a record retrieved does in fact pertain to the individual.
    (c) Verification of personal identity. The Agency will require 
reasonable identification of individuals requesting records about 
themselves under the PA's access provisions to ensure that records are 
only accessed by the proper persons. Requesters must state their full 
name, current address, citizenship or legal permanent resident alien 
status, and date and place of birth (city, state, and country). The 
request must be signed, and the requester's signature must be either 
notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. 
If the requester seeks records under another name the requester has 
used, a statement, under penalty of perjury, that the requester has 
also used the other name must be included.
    (d) Authorized third party access. The Agency shall process all 
properly authorized third party requests, as described in this section, 
under the PA. In the absence of proper authorization from the 
individual to whom the records pertain, the Agency will process third 
party requests under the FOIA. The Agency's form, AID 507-1, may be 
used to certify the identity and provide third party authorization.
    (1) Parents and guardians of minor children. Upon presentation of 
acceptable documentation of the parental or guardian relationship, a 
parent or guardian of a U.S. citizen or LPR minor (an unmarried person 
under the age of 18) may, on behalf of the minor, request records under 
the PA pertaining to the minor. In any case, U.S. citizen or LPR minors 
may request such records on their own behalf.
    (2) Guardians. A guardian of an individual who has been declared by 
a court to be incompetent may act for and on behalf of the incompetent 
individual upon presentation of appropriate documentation of the 
guardian relationship.
    (3) Authorized representatives or designees. When an individual 
wishes to authorize another person or persons access to his or her 
records, the individual may submit, in addition to

[[Page 93817]]

the identity verification information described in paragraph (c) or 
paragraph (d) of this section. The designated third party must submit 
identity verification information described in paragraph (c).
    (e) Referrals and consultations. If the Agency determines that 
records retrieved as responsive to the request were created by another 
agency, it ordinarily will refer the records to the originating agency 
for direct response to the requester. If the agency determines that 
records retrieved as responsive to the request are of interest to 
another agency, it may consult with the other agency before responding 
to the request. The Agency may make agreements with other agencies to 
eliminate the need for consultations or referrals for particular types 
of records.
    (f) Records relating to civil actions. Nothing in this subpart 
entitles an individual to access to any information compiled in 
reasonable anticipation of a civil action or proceeding.
    (g) Time limits. The Agency will acknowledge the request promptly 
and furnish the requested information as soon as possible thereafter.


Sec.  212.21   Request to amend or correct records.

    (a) An individual has the right to request that the Agency amend a 
record pertaining to the individual that the individual believes is not 
accurate, relevant, timely, or complete.
    (b) Requests to amend records must be in writing and mailed or 
delivered to the Bureau for Management, Management Services, 
Information Records Division at the address given in Sec.  212.7, with 
ATTENTION: PRIVACY ACT AMENDMENT REQUEST written on the envelope. IRD 
will coordinate the review of the request with the appropriate offices 
of the Agency. The Agency will require verification of personal 
identity before it will initiate action to amend a record. Amendment 
requests should contain, at a minimum, identifying information needed 
to locate the record in question, a description of the specific 
correction requested, and an explanation of why the existing record is 
not accurate, relevant, timely, or complete. The request must be 
signed, and the requester's signature must be either notarized or made 
under penalty of perjury pursuant to 28 U.S.C. 1746. The requester 
should submit as much pertinent documentation, other information, and 
explanation as possible to support the request for amendment.
    (c) All requests for amendments to records shall be acknowledged 
within 10 working days.
    (d) In reviewing a record in response to a request to amend, the 
Agency shall review the record to determine if it is accurate, 
relevant, timely, and complete.
    (e) If the Agency agrees with an individual's request to amend a 
record, it shall:
    (1) Advise the individual in writing of its decision;
    (2) Amend the record accordingly; and
    (3) If an accounting of disclosure has been made, advise all 
previous recipients of the record of the amendment and its substance.
    (f) If the Agency denies an individual's request to amend a record, 
it shall advise the individual in writing of its decision and the 
reason for the refusal, and the procedures for the individual to 
request further review. See Sec.  171.25 of this chapter.


Sec.  212.22  Appeals from denials of PA amendment requests.

    (a) How made. Except where accountings of disclosures are not 
required to be kept, as set forth in paragraph (b) of this section, or 
where accountings of disclosures do not need to be provided to a 
requesting individual pursuant to 5 U.S.C. 552a(c)(3), an individual 
has a right to request an accounting of any disclosure that the Agency 
has made to another person, organization, or agency of any record about 
an individual. This accounting shall contain the date, nature, and 
purpose of each disclosure as well as the name and address of the 
recipient of the disclosure. Any request for accounting should identify 
each particular record in question and may be made by writing directly 
to the Appeals Officer, Bureau for Management, Office of Management 
Services at the address given in Sec.  212.19.
    (b) Where accountings not required. The Agency is not required to 
keep an accounting of disclosures in the case of:
    (1) Disclosures made to employees within the Agency who have a need 
for the record in the performance of their duties; and
    (2) Disclosures required under the FOIA.


Sec.  212.23  Request for accounting of record disclosures.

    (a) If the Agency denies a request for amendment of such records, 
the requester shall be informed of the reason for the denial and of the 
right to appeal the denial to the Appeals Review Panel. Any such appeal 
must be postmarked within 60 working days of the date of the Agency's 
denial letter and sent to: Appeals Officer, Bureau for Management, 
Office of Management Services at the address given in Sec.  212.19.
    (b) Appellants should submit an administrative appeal of any 
denial, in whole or in part, of a request for access to the PA at the 
above address. The Agency will assign a tracking number to the appeal.
    (c) The Appeals Review Panel will decide appeals from denials of PA 
amendment requests within 30 business days, unless the Panel extends 
that period for good cause shown, from the date when it is received by 
the Panel.
    (d) Appeals Review Panel decisions will be made in writing, and 
appellants will receive notification of the decision. A reversal will 
result in reprocessing of the request in accordance with that decision. 
An affirmance will include a brief statement of the reason for the 
affirmance and will inform the appellant that the decision of the Panel 
represents the final decision of the Department and of the right to 
seek judicial review of the Panel's decision, when applicable.
    (e) If the Panel's decision is that a record shall be amended in 
accordance with the appellant's request, the Chairman shall direct the 
office responsible for the record to amend the record, advise all 
previous recipients of the record of the amendment and its substance 
(if an accounting of previous disclosures has been made), and so advise 
the individual in writing.
    (f) If the Panel's decision is that the amendment request is 
denied, in addition to the notification required by paragraph (d) of 
this section, the Chairman shall advise the appellant:
    (1) Of the right to file a concise Statement of Disagreement 
stating the reasons for disagreement with the decision of the 
Department;
    (2) Of the procedures for filing the Statement of Disagreement;
    (3) That any Statement of Disagreement that is filed will be made 
available to anyone to whom the record is subsequently disclosed, 
together with, at the discretion of the Agency, a brief statement by 
the Agency summarizing its reasons for refusing to amend the record;
    (4) That prior recipients of the disputed record will be provided a 
copy of any statement of disagreement, to the extent that an accounting 
of disclosures was maintained.
    (g) If the appellant files a Statement of Disagreement under 
paragraph (f) of this section, the Agency will clearly annotate the 
record so that the fact that the record is disputed is apparent to 
anyone who may subsequently access the record. When the disputed record 
is

[[Page 93818]]

subsequently disclosed, the Agency will note the dispute and provide a 
copy of the Statement of Disagreement. The Agency may also include a 
brief summary of the reasons for not amending the record. Copies of the 
Agency's statement shall be treated as part of the individual's record 
for granting access; however, it will not be subject to amendment by an 
individual under this part.


Sec.  212.24   Specific exemptions.

    (a) Pursuant to 5 U.S.C. 552a(k), the Director or the Administrator 
may, where there is a compelling reason to do so, exempt a system of 
records, from any of the provisions of subsections (c)(3); (d); (e)(1); 
(e)(4)(G), (H), and (I); and (f) of the Act if a system of records is:
    (1) Subject to the provisions of 5 U.S.C. 552(b)(1); (2) 
Investigatory material compiled for law enforcement purposes, other 
than material within the scope of subsection (j)(2) of the Act: 
Provided, however, That if any individual is denied any right, 
privilege, or benefit to which he or she would otherwise be eligible, 
as a result of the maintenance of such material, such material shall be 
provided to such individual, except to the extent that the disclosure 
of such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the 
identity of the source would be held in confidence, or prior to the 
effective date of this section, under an implied promise that the 
identity of the source would be held in confidence;
    (2) Maintained in connection with providing protective services to 
the President of the United States or other individuals pursuant to 18 
U.S.C. 3056;
    (3) Required by statute to be maintained and used solely as 
statistical records;
    (4) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the 
identity of the source would be held in confidence, or, prior to the 
effective date of this section, under an implied promise that the 
identity of the source would be held in confidence;
    (5) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service, the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process; or
    (6) Evaluation material used to determine potential for promotion 
in the armed services, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the 
identity of the source would be held in confidence, or, prior to the 
effective date of this section, under an implied promise that the 
identity of the source would be held in confidence.
    (b) Each notice of a system of records that is the subject of an 
exemption under 5 U.S.C. 552a(k) will include a statement that the 
system has been exempted, the reasons therefore, and a reference to the 
Federal Register, volume and page, where the exemption rule can be 
found.
    (c) The systems of records to be exempted under section (k) of the 
Act, the provisions of the Act from which they are being exempted, and 
the justification for the exemptions, are set forth below:
    (1) Criminal Law Enforcement Records. If the 5 U.S.C. 552a(j)(2) 
exemption claimed under paragraph (c) of 22 CFR 215.13 and on the 
notice of systems of records to be published in the Federal Register on 
this same date is held to be invalid, then this system is determined to 
be exempt, under 5 U.S.C. 552(a)(k)(1) and (2) of the Act, from the 
provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4); (G); (H); (I); 
and (f). The reasons for asserting the exemptions are to protect the 
materials required by executive order to be kept secret in the interest 
of the national defense or foreign policy, to prevent subjects of 
investigation from frustrating the investigatory process, to insure the 
proper functioning and integrity of law enforcement activities, to 
prevent disclosure of investigative techniques, to maintain the ability 
to obtain necessary information, to fulfill commitments made to sources 
to protect their identities and the confidentiality of information and 
to avoid endangering these sources and law enforcement personnel.
    (2) Personnel Security and Suitability Investigatory Records. This 
system is exempt under U.S.C. 552a(k)(1), (k)(2), and (k)(5) from the 
provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4); (G); (H); (I); 
and (f). These exemptions are claimed to protect the materials required 
by executive order to be kept secret in the interest of national 
defense or foreign policy, to prevent subjects of investigation from 
frustrating the investigatory process, to insure the proper functioning 
and integrity of law enforcement activities, to prevent disclosure of 
investigative techniques, to maintain the ability to obtain candid and 
necessary information, to fulfill commitments made to sources to 
protect the confidentiality of information, to avoid endangering those 
sources and, ultimately, to facilitate proper selection or continuance 
of the best applicants or persons for a given position or contract. 
Special note is made of the limitation on the extent to which this 
exemption may be asserted.
    (3) Litigation Records. This system is exempt under 5 U.S.C. 
552(k)(1), (k)(2), and (k)(5) from the provisions of 5 U.S.C. 
552a(c)(3); (d); (e)(1); (e)(4) (G), (H), (I); and (f). These 
exemptions are claimed to protect the materials required by executive 
order to be kept secret in the interest of national defense or foreign 
policy, to prevent subjects of investigation from frustrating the 
investigatory process, to insure the proper functioning and integrity 
of law enforcement activities, to prevent disclosure of investigative 
techniques, to maintain the ability to obtain candid and necessary 
information, to fulfill commitments made to sources to protect the 
confidentiality of information.
    (4) Employee Equal Employment Opportunity Complaint Investigatory 
Records. This system is exempt under 5 U.S.C. 552a(k)(1) and (k)(2) 
from the provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), 
(H), (I); and (f). These exemptions are claimed to protect the 
materials required by executive order to be kept secret in the interest 
of national defense or foreign policy, to prevent subjects of 
investigation from frustrating the investigatory process, to insure the 
proper functioning and integrity of law enforcement activities, to 
prevent disclosure of investigative techniques, to maintain the ability 
to obtain candid and necessary information, to fulfill commitments made 
to sources to protect the confidentiality of information, to avoid 
endangering these sources.
    (5) The following systems of records are exempt under 5 U.S.C. 
552a(k)(5) from the provision of 5 U.S.C. 552a(c)(3); (d); (e)(1); 
(e)(4)(G), (H), (I); and (f):
    (i) Employee Conduct and Discipline Records.
    (ii) Employee Relations Records.

    Note to paragraph (c)(5): This exemption is claimed for these 
systems of records to maintain the ability to obtain candid and 
necessary information, to fulfill commitments made to sources to 
protect the confidentiality of information, to avoid endangering 
these sources and, ultimately, to facilitate proper selection or 
continuance of the best applicants or persons for a given position 
or contract. Special note is made of

[[Page 93819]]

the limitation on the extent to which this exemption may be 
asserted. The existence and general character of the information 
exempted will be made known to the individual to whom it pertains.

    (6) Partner Vetting System. This system is exempt under 5 U.S.C. 
552a(k)(1), (k)(2), and (k)(5) from the provision of 5 U.S.C. 
552a(c)(3); (d); (e)(1); (e)(4)(G), (H), (I); and (f). These exemptions 
are claimed to protect the materials required by executive order to be 
kept secret in the interest of national defense or foreign policy, to 
prevent subjects of investigation from frustrating the investigatory 
process, to insure the proper functioning and integrity of law 
enforcement activities, to prevent disclosure of investigative 
techniques, to maintain the ability to obtain candid and necessary 
information, to fulfill commitments made to sources to protect the 
confidentiality of information, to avoid endangering these sources, and 
to facilitate proper selection or continuance of the best applicants or 
persons for a given position or contract.

    Dated: December 12, 2016.
Alecia Sillah,
Chief, Information and Records Division (acting), FOIA Public Liaison/
Agency Records Officer, U.S. Agency for International Development.
[FR Doc. 2016-30413 Filed 12-21-16; 8:45 am]
 BILLING CODE P