Proposed Rule2022-13361
Freedom of Information Act Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 1, 2022
Issuing agencies
Central Intelligence Agency
Abstract
The Central Intelligence Agency (CIA or the Agency) has undertaken and completed a review of its public regulations governing its implementation of the Freedom of Information Act (FOIA), as amended by the FOIA Improvement Act of 2016. As a result of this review, the Agency proposes to revise its FOIA regulations concerning the requirements for filing FOIA requests and CIA's procedures for processing and reviewing such requests. As required by the FOIA, the Agency is providing an opportunity for interested persons to submit comments on these proposed regulations.
Full Text
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<title>Federal Register, Volume 87 Issue 126 (Friday, July 1, 2022)</title>
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[Federal Register Volume 87, Number 126 (Friday, July 1, 2022)]
[Proposed Rules]
[Pages 39432-39439]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13361]
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CENTRAL INTELLIGENCE AGENCY
32 CFR Part 1900
Freedom of Information Act Regulations
AGENCY: Central Intelligence Agency.
ACTION: Notice of proposed rulemaking and request for public comment.
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SUMMARY: The Central Intelligence Agency (CIA or the Agency) has
undertaken and completed a review of its public regulations governing
its implementation of the Freedom of Information Act (FOIA), as amended
by the FOIA Improvement Act of 2016. As a result of this review, the
Agency proposes to revise its FOIA regulations concerning the
requirements for filing FOIA requests and CIA's procedures for
processing and reviewing such requests. As required by the FOIA, the
Agency is providing an opportunity for interested persons to submit
comments on these proposed regulations.
DATES: Comments will be accepted until August 30, 2022.
ADDRESSES: All submissions must be in English. Comments may be
submitted by the following methods: By mail to Brian C. O'Neill,
Director, Advanced Data Lifecycle Solutions, Central Intelligence
Agency, Washington, DC 20505; or by email to <a href="/cdn-cgi/l/email-protection#b5f3d0d1e7d0d2f6dad8d8d0dbc1c6f5c0d6dcd49bd2dac3"><span class="__cf_email__" data-cfemail="d89ebdbc8abdbf9bb7b5b5bdb6acab98adbbb1b9f6bfb7ae">[email protected]</span></a>.
Please include ``FOIA PROPOSED RULEMAKING'' in the subject line of the
message.
FOR FURTHER INFORMATION CONTACT: Brian C. O'Neill; (571) 280-2899.
SUPPLEMENTARY INFORMATION: CIA is amending its regulations governing
implementation of the FOIA, as amended by the FOIA Improvement Act of
2016. CIA has undertaken and completed a review of its public FOIA
regulations that govern certain aspects of its processing of FOIA
requests. As a result of this review, the Agency proposes to revise its
FOIA regulations found in chapter 19 of title 32 of the Code of Federal
Regulations.
These proposed regulatory changes are intended to enhance the
administration and operations of the Agency's FOIA program by ensuring
compliance with all legal requirements and by increasing the
transparency and clarity of the regulations governing the Agency's FOIA
program.
Statutory and Executive Order Reviews
Executive Order 12866 and 13563
These proposed regulations have been drafted and reviewed in
accordance with Executive Order 12866, Regulatory Planning and Review,
section 1, Statement of Regulatory Philosophy and Principles, and in
accordance with Executive Order 13563, Improving Regulation and
Regulatory Review, section 1, General Principles of Regulation. Because
these proposed regulations do not constitute a significant regulatory
action under section 3(f) of Executive Order 12866, they were not
subject to mandatory prior review by the Office of Management and
Budget Office of Information and Regulatory Affairs (OMB/OIRA) under
section 6 of Executive Order 12866.
Paperwork Reduction Act
Because these proposed regulations do not involve a collection of
information, the review and OMB clearance requirements of the Paperwork
Reduction Act, 44 U.S.C. 3506 & 3507, do not apply.
Executive Order 12988
These proposed regulations meet the applicable standards set forth
in Executive Order 12988, Civil Justice Reform.
Executive Order 13132
Because these proposed regulations will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government, they do not
constitute policies that have federalism implications under Executive
Order 13132. Thus, the requirements of Executive Order 13132 sections
2, 3, and 8, governing agency policies or regulations do not apply.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b),
CIA has reviewed these proposed regulations and certifies that they
will not have a significant economic impact on a substantial number of
small entities, and thus no regulatory flexibility analysis is
required. These proposed regulations pertain to CIA's policies and
practices for processing FOIA requests, and do not impose any new
requirements on small entities.
Unfunded Mandates Reform Act of 1995
These proposed regulations will not result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year, and it will
not significantly or uniquely affect small governments. Therefore, no
actions are necessary under the provisions of the Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1532(a) & 1533(a).
Small Business Regulatory Enforcement Fairness Act of 1996
These proposed regulations will not result in an annual effect on
the economy of $100 million or more, a major increase in costs or
prices, or significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability
[[Page 39433]]
of United States-based enterprises to compete with foreign-based
enterprises in domestic and export markets. Thus, they do not
constitute major rules as defined by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 804.
National Environmental Policy Act of 1969
CIA has reviewed these proposed regulations for purposes of the
National Environmental Policy Act of 1969 (NEPA) and has determined
that these proposed regulations do not constitute ``major Federal
actions significantly affecting the quality of the human environment.''
42 U.S.C. 4332(C).
List of Subjects in 32 CFR Part 1900
Administrative practice and procedure, Classified information,
Freedom of information.
As stated in the preamble, the CIA proposes to revise 32 CFR part
1900 to read as follows:
PART 1900--PUBLIC ACCESS TO CIA RECORDS UNDER THE FREEDOM OF
INFORMATION ACT (FOIA)
General
Sec.
1900.01 Authority and purpose.
1900.02 Definitions.
1900.03 Contact for general information and requests.
1900.04 Suggestions and complaints.
Filing of FOIA Requests
1900.11 Preliminary information.
1900.12 Requirements as to form and content.
1900.13 Fees for record services.
1900.14 Fee estimates (pre-request option).
CIA Action on FOIA Requests
1900.21 Processing of requests for records.
1900.22 Action and determination(s) by originator(s) or any
interested party.
1900.23 Payment of fees, notification of decision, and right of
appeal.
Additional Administrative Matters
1900.31 Procedures for business information.
1900.32 Procedures for information concerning other persons.
1900.33 Allocation of resources; agreed extensions of time.
1900.34 Requests for expedited processing.
CIA Action on FOIA Administrative Appeals
1900.41 Designation of authority to hear appeals.
1900.42 Right of appeal and appeal procedures.
1900.43 [Reserved]
1900.44 Action by appeals authority.
1900.45 Notification of decision and right of judicial review.
Authority: 5 U.S.C. 552; 50 U.S.C. 3001 et seq.; 50 U.S.C. 3501
et seq.; 50 U.S.C. 3141; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp.,
p. 235; E.O. 13392, 70 FR 75373, 3 CFR, 2005 Comp., p. 216; E.O.
13526, 75 FR 707, 3 CFR, 2009 Comp., p. 298.
General
Sec. 1900.01 Authority and purpose.
(a) This part is issued under the authority of and in order to
implement the Freedom of Information Act (FOIA), as amended (5 U.S.C.
552); and in accordance with the CIA Information Act of 1984 (50 U.S.C.
3141); section 102A(i) of the National Security Act of 1947, as amended
(50 U.S.C. 3024(i)); and section 6 of the Central Intelligence Agency
Act of 1949, as amended (50 U.S.C. 3507). It contains procedures that
CIA follows in processing requests for records submitted under the
FOIA. The procedures in this part 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 Fee Guidelines).
(b) Requests made by individuals for records about themselves under
the Privacy Act of 1974 (5 U.S.C. 552a) are processed in accordance
with CIA's Privacy Act regulations, set forth at 32 CFR part 1901, as
well as under this part.
(c) Other than as expressly provided in this part, this part
creates no right or benefit, substantive or procedural, enforceable by
law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents,
or any other person.
Sec. 1900.02 Definitions.
For purposes of this part, the following terms have the meanings
indicated:
(a) Agency or CIA means the United States Central Intelligence
Agency acting through the CIA Information and Privacy Coordinator.
(b) Agency Release Panel (ARP) means the Agency's forum for
reviewing information review and release policy, assessing the adequacy
of resources available to all Agency declassification and release
programs, and considering administrative appeals in accordance with
this part.
(c) Chief FOIA Officer means the senior CIA official, at the CIA's
equivalent of the Assistant Secretary level, who has been designated by
the Director of the CIA (DCIA) to have Agency-wide responsibility for
the CIA's efficient and appropriate compliance with the FOIA.
(d) CIA Information and Privacy Coordinator or Coordinator means
the official who serves as the Agency manager of information review and
release activities implementing the FOIA.
(e) Days means calendar days when the Agency is operating and
specifically excludes Saturdays, Sundays, and legal public holidays.
Three (3) days may be added to any time limit imposed on a requester by
this part if responding by U.S. domestic mail; ten (10) days may be
added if responding by international mail.
(f) Direct costs means those expenditures which an agency actually
incurs in the processing of a FOIA request; it does not include
overhead factors such as space; it does include:
(1) Pages, which means paper copies of standard office size or the
dollar value equivalent in other media;
(2) Reproduction, which means generation of a copy of a requested
record in a form appropriate for release;
(3) Review, which means all time expended in preparing a record for
release, including examining a record to determine whether any portion
must be withheld pursuant to law and in effecting any necessary
deletions but excludes personnel hours expended in resolving general
legal or policy issues; and
(4) Search, which means all time expended in looking for and
retrieving material that may be responsive to a request utilizing
available paper and electronic indices and finding aids, including time
spent determining whether records located during a search are
responsive to the request.
(g) Fees means those direct costs which may be assessed a requester
considering the categories established by the FOIA; requesters should
submit information to assist the Agency in determining the proper fee
category and the Agency may draw reasonable inferences from the
identity and activities of the requester in making such determinations;
the fee categories include:
(1) Commercial use. Requests in which the disclosure sought is
primarily in the commercial interest of the requester and which
furthers such commercial, trade, income or profit interests, which can
include furthering those interests through litigation.
(2) Educational or non-commercial scientific institution, or a
representative of the news media--(i) Educational or non-commercial
scientific institution. Requests made under the auspices of an
accredited United States institution engaged in scholarly or scientific
research and which are for information not for commercial use, but
rather intended to be used in specific scholarly or scientific works.
[[Page 39434]]
(ii) Representative of the news media. Requests from any person or
entity 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 include television or radio stations broadcasting to the public
at large, and individual or corporate 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. ``Freelance'' journalists who
demonstrate a solid basis for expecting publication through a news
media entity will be considered a representative of the news media. A
publishing contract would be the clearest proof that publication is
expected, but the Agency may also look to the past publication record
of a requestor in making this determination.
(3) All other. Requests not described in paragraph (g)(1) or (2) of
this section.
(h) FOIA Public Liaison means the CIA supervisory official(s) who
shall assist in the resolution of any disputes between a FOIA requester
and the Agency and to whom a FOIA requester may direct a concern
regarding the service he or she has received from CIA and who shall
respond on behalf of the Agency as prescribed in this part.
(i) FOIA Requester Service Center means the office within the CIA
where a FOIA requester may direct inquiries regarding the status of a
FOIA request he or she filed at the CIA, requests for guidance on
narrowing or further defining the nature of scope of his or her FOIA
request, and requests for general information about the FOIA program at
the CIA.
(j) Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
the CIA, has a subject matter or physical interest in the documents or
information at issue.
Sec. 1900.03 Contact for general information and requests.
(a) A member of the public seeking to file a FOIA request or an
administrative appeal must direct a written request or appeal via mail
to: Information and Privacy Coordinator, Central Intelligence Agency,
Washington, DC 20505, or online at: <a href="https://www.foia.cia.gov/foia_request/form">https://www.foia.cia.gov/foia_request/form</a>, in accordance with the requirements of this part.
(b) Requesters may view the status of pending FOIA requests at
<a href="https://www.cia.gov/readingroom/request/status">https://www.cia.gov/readingroom/request/status</a>. In addition, inquiries
regarding the status of a FOIA request, obtaining guidance on narrowing
or further defining the nature or scope of a FOIA request, or obtaining
general information about the FOIA program at CIA, may be directed to
the CIA FOIA Requester Service Center, Central Intelligence Agency,
Washington, DC 20505, via facsimile at (703) 613-3007, or via telephone
at (703) 613-1287. Collect calls cannot be accepted.
(c) Concerns, suggestions, comments, or complaints regarding the
service received from CIA or regarding the Agency's general
administration of the FOIA may be directed to the FOIA Public Liaison,
Central Intelligence Agency, Washington, DC 20505, via facsimile at
703-613-3007, or via telephone at 703-613-1287. Collect calls cannot be
accepted.
Sec. 1900.04 Suggestions and complaints.
The CIA remains committed to administering a results-oriented and
citizen-centered FOIA program, to processing requests in an efficient,
timely and appropriate manner, and to working with requesters and the
public to continuously improve Agency FOIA operations. The Agency
welcomes suggestions, comments, or complaints regarding its
administration of the FOIA. Members of the public shall address all
such communications to the FOIA Public Liaison as specified at Sec.
1900.03(c). The Agency may respond as determined feasible and
appropriate under the circumstances. Requesters seeking to raise
concerns about the service received from the CIA FOIA Requester Service
Center may contact the FOIA Public Liaison after receiving an initial
response from the CIA FOIA Requester Service Center. The FOIA Public
Liaison shall be responsible for assisting in reducing delays and
assisting in the resolution of disputes between a FOIA requester and
the Agency.
Filing of FOIA Requests
Sec. 1900.11 Preliminary information.
(a) Members of the public shall address all communications to the
CIA Coordinator as specified at Sec. 1900.03. Any requests for access
to records which are not directed to the Information and Privacy
Coordinator, in accordance with the requirements set forth in
Sec. Sec. 1900.03 and 1900.12, shall not be considered proper FOIA
requests.
(b) The CIA shall not accept a request for records under the FOIA
that does not have a physical mailing address or email address where
CIA can send a response or other correspondence related to the request.
(c) The CIA shall not accept a request for records under the FOIA
or an appeal of an adverse determination regarding a FOIA request
submitted by a member of the public who owes outstanding fees for
information services at this or other Federal agencies and will
terminate the processing of any pending requests submitted by such
persons to the CIA.
(d) The CIA shall not accept requests for records under the FOIA
submitted by any government entity, other than a State, territory,
commonwealth, or district of the United States, or any subdivision
thereof, or from any representative of such a government entity.
Sec. 1900.12 Requirements as to form and content.
(a) Required information. Requests must reasonably describe the
records of interest sought by the requester, as set forth at 5 U.S.C.
552(a)(3). This means that documents must be described sufficiently so
that Agency professionals who are familiar with the subject area of the
request are able, with a reasonable effort, to determine which
particular records are within the scope of the request. In order to
assist CIA in identifying the specific records sought, all requesters
are encouraged to be as specific as possible in describing the records
they are seeking by including, for example, the relevant date or date
range, the title of the record, the type of record (such as memorandum
or report), the specific event or action to which the record refers,
and the subject matter. Requests for electronic communications should
attempt to specify a sender, recipient, date range, and subject or
keyword. Extremely broad or vague requests or requests requiring
research do not satisfy the requirement that a request be ``reasonably
described.''
(b) Requirements as to identification of requester. (1) Individuals
seeking access to records concerning themselves shall provide their
full (legal) name, address, date and place of birth together with a
signed statement that such information is true under penalty of perjury
or a notarized statement swearing to or affirming identity. If the
Agency determines that this information is not sufficient, the Agency
may request additional or clarifying information.
(2) Attorneys or other individuals retained to represent a
requester shall provide evidence of such representation
[[Page 39435]]
by submission of a representational agreement or other document which
establishes the relationship with the requester.
(c) Additional information for fee determination. A requester
should provide sufficient information to allow the Agency to determine
the appropriate fee category for the request. A requester should also
provide an agreement to pay all applicable fees or fees not to exceed a
certain amount or request a fee waiver.
(d) Additional communication with requester. Although the Agency is
not required to answer questions, create records, or perform research
in response to a FOIA request, when the request lacks sufficient
clarity to allow the records to be located with a reasonable effort,
the Agency will provide the requester with an opportunity to narrow or
further define the nature or scope of the request. Additionally,
individuals may contact the CIA FOIA Requester Service Center for the
purpose of obtaining recommendations as to how to frame or narrow a
particular request.
Sec. 1900.13 Fees for record services.
(a) In general. Search, review, and reproduction fees will be
charged in accordance with the provisions in paragraphs (b) through (j)
of this section relating to schedule, limitations, and category of
requester. Applicable fees will be due even if our search locates no
responsive records or some or all of the responsive records must be
denied under one or more of the exemptions of the Freedom of
Information Act.
(b) Fee waiver requests. Records will be furnished without charge
or at a reduced rate whenever the Agency determines:
(1) That, as a matter of administrative discretion, the interest of
the United States Government would be served; or
(2) That it is in the public interest because it is likely to
contribute significantly to the public understanding of the operations
or activities of the United States Government and is not primarily in
the commercial interest of the requester.
(c) Fee waiver appeals. Denials of requests for fee waivers or
reductions may be appealed to the Chair of the Agency Release Panel via
the Coordinator. A requester is encouraged to provide any explanation
or argument as to how his or her request satisfies the statutory
requirement set forth in Sec. 1900.01.
(d) Time for fee waiver requests and appeals. Fee waiver requests
and appeals must be directed to the Coordinator in accordance with
Sec. Sec. 1900.03 and 1900.11. It is suggested that such requests and
appeals be made and resolved prior to the initiation of processing and
the incurring of costs. However, fee waiver requests will be accepted
at any time prior to the release of documents or the completion of a
case, and fee waiver appeals within forty-five (45) days of our initial
decision subject to the following condition: If processing has been
initiated, then the requester must agree to be responsible for costs in
the event of an adverse administrative or judicial decision. When
making fee waiver requests or appeals, no particular format is required
other than a statement of the basis for the request or appeal.
(e) Agreement to pay fees. In order to protect requesters from
large and/or unanticipated charges, the Agency will request a specific
commitment from the requester to pay applicable fees when the Agency it
estimates that fees will exceed $100.00. The Agency will hold in
abeyance for forty-five (45) days requests requiring such agreement and
will thereafter deem the request closed in the absence of a response
from the requester. This action, of course, would not prevent a
requester from refiling the FOIA request with a fee commitment at a
subsequent date.
(f) Deposits. The Agency may require an advance deposit of up to
100 percent of the estimated fees when fees may exceed $250.00 and the
requester has no history of payment, or when, for fees of any amount,
there is evidence that the requester may not pay the fees which would
be accrued by processing the request. The Agency will hold in abeyance
for forty-five (45) days those requests where deposits have been
requested and will thereafter deem the request closed in the absence of
a response from the requester.
(g) Schedule of fees--(1) In general. The schedule of fees for
services performed in responding to requests for records is established
as follows:
Table 1 to Paragraph (g)(1)
------------------------------------------------------------------------
------------------------------------------------------------------------
Personnel Search and Review
------------------------------------------------------------------------
Clerical/Technical................... Quarter hour.......... $5.00
Professional/Supervisory............. Quarter hour.......... 10.00
Manager/Senior Professional.......... Quarter hour.......... 18.00
------------------------------------------------------------------------
Duplication
------------------------------------------------------------------------
Photocopy (b&w, standard, or legal).. Per page.............. 0.10
Photocopy (color, standard, or legal) Per page.............. 1.00
Microfiche........................... Per frame............. 0.20
CD (bulk recorded)................... Each.................. 10.00
CD (recordable)...................... Each.................. 20.00
Pre-printed (if available)........... Per 100 pages......... 5.00
Published (if available)............. Per item.............. NTIS
------------------------------------------------------------------------
(2) Application of schedule. Personnel search time includes time
expended in either manual paper records searches, indices searches,
review of computer search results for relevance, personal computer
system searches, and various reproduction services. In any event where
the actual cost to the Agency of a particular item is less than listed
in the schedule in table 1 to paragraph (g)(1) of this section (e.g., a
large production run of a document resulted in a cost less than $5.00
per hundred pages), then the actual lesser cost will be charged. Items
published and available at the National Technical Information Service
(NTIS) may also be available from CIA pursuant to this part at the NTIS
price as authorized by statute.
(3) Other services. For all other types of output, production, or
reproduction (e.g., photographs, maps, or published reports), actual
cost or amounts authorized by statute will be charged. Determinations
of actual cost shall include the commercial cost of the media, the
personnel time expended in making the item to be released, and an
allocated cost of the equipment used in
[[Page 39436]]
making the item, or, if the production is effected by a commercial
service, then that charge shall be deemed the actual cost for purposes
of this part.
(h) Charging fees. In responding to FOIA requests, CIA shall assess
fees as follows unless a waiver or reduction of fees has been granted
under paragraph (b) of this section:
(1) Commercial use requesters. Charges which recover the full
direct costs related to search, review, and duplication of responsive
records (if any);
(2) Educational or non-commercial scientific institutions, or
representatives of the news media. Charges for duplication of
responsive records (if any) beyond the first 100 pages; and
(3) All other requesters. Charges which recover the full direct
costs related to search and duplication of responsive records (if any)
beyond the first two hours of search time and first 100 pages.
(i) Limitations on collection of fees--(1) In general. No fees will
be charged if the cost of collecting the fee is equal to or greater
than the fee itself. That cost includes the administrative costs to the
Agency of billing, receiving, recording, and processing the fee for
deposit to the Treasury Department and, as of [EFFECTIVE DATE OF FINAL
RULE], is deemed to be $10.00.
(2) Requests for personal information. No fees will be charged for
U.S. citizens or lawful permanent residents seeking records about
themselves under the Privacy Act; such requests are processed in
accordance with both the FOIA and the Privacy Act in order to ensure
the maximum disclosure without charge.
(3) Untimely response. If CIA fails to comply with the FOIA's time
limits for responding to a request, CIA will not charge search fees or,
in the case of requesters in the educational or non-commercial
scientific institutions or representatives of the news media category,
duplication fees, except as set forth in paragraph (i)(4) of this
section.
(4) Special circumstances. (i) If CIA determines that unusual
circumstances as defined by the FOIA apply and the Agency has provided
timely written notice to the requester, a failure to comply with the
time limit shall be excused an additional ten (10) days.
(ii) If CIA determines that unusual circumstances, as defined by
the FOIA, apply and more than 5,000 pages are necessary to respond to
the request, the Agency may charge search fees or, in the case of
requesters in the educational or non-commercial scientific institutions
or representatives of the news media category, duplication fees if the
Agency has provided timely written notice of unusual circumstances to
the requester in accordance with the FOIA and has discussed with the
requester via written mail, email, or telephone (or made not less than
three good-faith attempts to do so) how the requester could effectively
limit the scope of the request in accordance with the requirements of
the FOIA, 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied,
CIA may charge all applicable fees incurred in the processing of the
request.
(iii) If a court determines that exceptional circumstances exists,
as defined in the FOIA, 5 U.S.C. 552(a)(6)(C), a failure to comply with
the time limit shall be excused for the length of time provided by the
court order.
(j) Associated requests. A requester or associated requesters may
not file a series of multiple requests, which are merely discrete
subdivisions of the information actually sought for the purpose of
avoiding or reducing applicable fees. In such instances, the Agency may
aggregate the requests and charge the applicable fees.
Sec. 1900.14 Fee estimates (pre-request option).
In order to avoid unanticipated or potentially large fees, a
requester may submit a request for a fee estimate. The Agency will
endeavor within twenty (20) days to provide an accurate estimate, and,
if a request is thereafter submitted, the Agency will not accrue or
charge fees in excess of our estimate without the specific permission
of the requester.
CIA Action on FOIA Requests
Sec. 1900.21 Processing of requests for records.
(a) In general. Requests meeting the requirements of Sec. Sec.
1900.11 through 1900.13 shall be considered proper FOIA requests and
will be processed under the Freedom of Information Act, 5 U.S.C. 552,
this part, and in accordance with any other applicable statutes. Upon
receipt, the Agency shall within ten (10) days record each request,
acknowledge receipt to the requester in writing, and thereafter effect
the necessary taskings to the CIA components reasonably believed to
hold responsive records.
(b) Previously-released records. As an alternative to extensive
tasking, search, and review, some requesters may wish to consider
limiting the scope of their requests to previously-released records.
Searches of such records can often be accomplished expeditiously.
Moreover, requests for such records that are specific and well-focused
will often incur minimal, if any, costs. Requesters interested in
limiting their requests to previously released Agency information, in
lieu of traditional processing of a FOIA request, should so indicate in
their correspondence.
(c) Effect of certain exemptions. In processing a request, the
Agency shall decline to confirm or deny the existence or nonexistence
of any responsive records whenever the mere fact of their existence or
nonexistence is itself classified under Executive Order 13526 (or
successor orders), or revealing of intelligence sources and methods
protected pursuant to section 102A(i)(1) of the National Security Act
of 1947. In such circumstances, the Agency, in the form of a final
written response, shall so inform the requester and advise the
requester of the right to an administrative appeal.
(d) Time for response. The Agency will make every effort to respond
to a proper FOIA request within the statutory 20-day time period after
receipt of the request. However, the current volume of requests
routinely requires that the Agency seek additional time from a
requester pursuant to Sec. 1900.33.
Sec. 1900.22 Action and determination(s) by originator(s) or any
interested party.
(a) Initial action for access. (1) CIA components tasked pursuant
to a FOIA request shall conduct a reasonable search of all relevant
record systems within their areas of responsibility which have not been
exempted from search, review, and disclosure under the FOIA by the CIA
Information Act of 1984 and which are reasonably likely to contain
records responsive to the request. They shall:
(i) Determine whether any responsive records exist;
(ii) Determine whether, and to what extent, any FOIA exemptions, as
set forth in 5 U.S.C. 552(b), apply to the responsive records;
(iii) Review the exempt records to determine whether they contain
any reasonably segregable, non-exempt material;
(iv) Approve the disclosure of all non-exempt records, or portions
of records, within their areas of responsibility; and
(v) Forward to the Coordinator all records approved for release or
necessary for coordination with or referral to another component or
interested party.
(2) In making the decisions discussed in paragraph (a)(1) of this
section, the CIA component officers shall be guided by the applicable
law as well as the procedures specified at Sec. Sec. 1900.31 and
1900.32 regarding confidential commercial or financial information and
[[Page 39437]]
personal information (about persons other than the requester).
(b) Referrals and coordinations. As applicable, any CIA records
containing information originated by other CIA components shall be
forwarded to those entities for appropriate action in accordance with
paragraph (a) of this section. Records originated by other Federal
agencies or CIA records containing other Federal agency information
shall be forwarded to such agencies for appropriate action in
accordance with the applicable procedures of each agency.
Sec. 1900.23 Payment of fees, notification of decision, and right of
appeal.
(a) Fees in general. Fees collected under this part do not accrue
to the Central Intelligence Agency and shall be deposited immediately
to the general account of the United States Treasury.
(b) Notification of decision. Upon completion of all required
review and the receipt of accrued fees (or promise to pay such fees),
the Agency will promptly inform the requester of its determination
regarding the request. With respect to any records that the Agency
determines may be released, the Agency will provide copies. For any
records or portions of records that the Agency determines must be
denied, the Agency shall explain the reasons for the denial, identify
the person(s) responsible for such decisions by name and title, and
give notice of a right of administrative appeal.
(c) Availability of reading room. As an alternative to receiving
records by mail, a requester may arrange to inspect the records deemed
releasable at a CIA ``reading room'' in the metropolitan Washington,
DC, area. Access will be granted after applicable and accrued fees have
been paid. All such requests shall be in writing and addressed pursuant
to Sec. 1900.03. The records will be available at such times as
mutually agreed but not less than three (3) days from our receipt of a
request. The requester will be responsible for reproduction charges for
any copies of records desired. The Agency has an electronic FOIA
reading room on its website, located at <a href="http://www.cia.gov/readingroom">www.cia.gov/readingroom</a>, which
contains records that the Agency has previously publicly released under
FOIA as well as under other information review and release activities.
Additional Administrative Matters
Sec. 1900.31 Procedures for business information.
(a) In general. Business information obtained by the Central
Intelligence Agency from a submitter shall not be disclosed pursuant to
a Freedom of Information Act request except in accordance with this
section. For purposes of this section, the following definitions apply:
(1) Business information means confidential commercial or financial
information obtained by the United States Government from a submitter
that is reasonably believed to contain information exempt from
disclosure under 5 U.S.C. 552(b)(4).
(2) Submitter means any person or entity who provides confidential
commercial information to the United States Government; it includes,
but is not limited to, corporations, businesses (however organized),
state governments, and foreign governments. This term does not include
any other Federal Government entity.
(b) Designation of confidential commercial or financial
information. A submitter of business information will use good-faith
efforts to designate, by appropriate markings, either at the time of
submission or at a reasonable time thereafter, any portions of its
submission that it considers to be confidential commercial or financial
information and hence protected from required disclosure pursuant to 5
U.S.C. 552(b)(4). Such designations shall expire ten (10) years after
the date of the submission unless the submitter requests, and provides
justification for, a longer designation period.
(c) Process in event of FOIA request--(1) Notice to submitters. The
Agency shall provide a submitter with prompt written notice of receipt
of a Freedom of Information Act request encompassing business
information if, after reviewing the request, the responsive records,
and, if applicable, any appeal by the requester, the Agency determines
that it may be required to release the records, provided:
(i) The submitter has in good faith designated the information as
confidential commercial or financial information; or
(ii) The Agency believes the information may be exempt from
disclosure pursuant to 5 U.S.C. 552(b), but is unable to make that
determination without additional information; and
(iii) The information was submitted within the last ten (10) years
unless the submitter requested and provided acceptable justification
for a specific notice period of greater duration.
(2) Form of notice. This notice shall either describe the exact
nature of the confidential commercial or financial information at issue
or provide copies of the responsive records containing such
information.
(3) Response by submitter. (i) The Agency shall specify a
reasonable time period within which the submitter must respond to the
notice described in paragraphs (c)(1) and (2) of this section with a
detailed statement identifying any claims of confidentiality, supported
by a detailed statement of any objection to disclosure. Such statement
shall:
(A) Specify that the information has not been disclosed to the
public;
(B) Explain why the information is contended to be a trade secret
or confidential commercial information;
(C) Explain how the information is capable of competitive damage if
disclosed;
(D) State that the submitter will provide the Agency and the
Department of Justice with such litigation defense as requested; and
(E) Be certified by an officer authorized to legally bind the
corporation or similar entity.
(ii) It should be noted that information provided by a submitter
pursuant to this provision may itself be subject to disclosure under
the FOIA.
(iii) A submitter who fails to respond within the time period
specified in the notice shall be considered to have no objections to
disclosure of the business information identified therein.
(4) Decision and notice of intent to disclose. (i) The Agency shall
consider carefully a submitter's objections and specific grounds for
nondisclosure prior to its final determination. If the Agency
determines that if must disclose the requested records, notwithstanding
the submitter's objections, the Agency shall provide the submitter a
written notice which shall include:
(A) A statement of the reasons for which the submitter's disclosure
objections were not sustained;
(B) A description of the information to be disclosed; and
(C) A specified disclosure date which is seven (7) days after the
date of the instant notice.
(ii) When notice is given to a submitter under this section, the
Agency shall also notify the requester and, if the Agency notifies a
submitter that it intends to disclose information, then the requester
shall be notified also and given the proposed date for disclosure.
(5) Notice of FOIA lawsuit. If a requester initiates a civil action
seeking to compel disclosure of information asserted to be within the
scope of this section, the Agency shall promptly notify the submitter.
The submitter, as specified in paragraph (a)(2) of this section, shall
provide such litigation assistance as required by the Agency and the
Department of Justice.
[[Page 39438]]
(6) Exceptions to notice requirement. The notice requirements of
this section shall not apply if the Agency determines that:
(i) The information should not be disclosed in light of other FOIA
exemptions;
(ii) The information has been published lawfully or has been
officially made available to the public;
(iii) The disclosure of the information is otherwise required by
law or Federal regulation; or
(iv) The designation made by the submitter under this section
appears frivolous, except that, in such a case, the Agency will, within
a reasonable time prior to the specified disclosure date, give the
submitter written notice of any final decision to disclose the
information.
Sec. 1900.32 Procedures for information concerning other persons.
(a) Personal information concerning individuals other than the
requester shall not be disclosed in response to a FOIA request if, as
set forth in 5 U.S.C. 552(b)(6), the release of such information would
constitute a clearly unwarranted invasion of personal privacy. Personal
information is any information about an individual that is not a matter
of public record, or easily discernible to the public, or protected
from disclosure because of the implications that arise from Government
possession of such information. Public interest means the public
interest in understanding the operations and activities of the United
States Government and not simply any matter which might be of general
interest to the requester or members of the public.
(b) In making the required determination under this section and
pursuant to 5 U.S.C. 552(b)(6), the Agency will balance the privacy
interests that would be compromised by disclosure against the public
interest in release of the requested information.
(c) A requester seeking information on a third party is encouraged
to provide a signed affidavit or declaration from the third party
waiving all or some of their privacy rights, or to submit proof that
the third party is deceased (e.g., a copy of a death certificate, a
published obituary, etc.). Third-party waivers shall be narrowly
construed and the Coordinator, in the exercise of his discretion and
administrative authority, may seek clarification from the third party
prior to any or all releases.
Sec. 1900.33 Allocation of resources; agreed extensions of time.
(a) In general. Agency components shall devote such personnel and
other resources to the responsibilities imposed by the Freedom of
Information Act as may be appropriate and reasonable considering:
(1) The totality of resources available to the component;
(2) The business demands imposed on the component by the DCIA or
otherwise by law;
(3) The information review and release demands imposed by the
Congress or other governmental authority; and
(4) The rights of all members of the public under the various
information review and disclosure laws.
(b) Discharge of FOIA responsibilities--(1) Chief FOIA Officer. The
Chief FOIA Officer shall monitor the Agency's compliance with the
requirements of the FOIA and administration of its FOIA program. The
Chief FOIA Officer shall keep the DCIA, the General Counsel of the CIA,
and other officials appropriately informed regarding the Agency's
implementation of the FOIA and make recommendations, as appropriate.
The Chief FOIA Officer shall designate one or more CIA FOIA Public
Liaisons. The CIA FOIA Public Liaison shall be responsible for
assisting in reducing delays and assisting in the resolution of
disputes between requesters and the Agency.
(2) Multi-track processing. The Agency shall exercise due diligence
in its responsibilities under the FOIA. The Agency shall designate a
specific track for requests that are granted expedited processing, as
set forth in Sec. 1900.34. In addition, although the Agency will
generally process requests and administrative appeals on a ``first in,
first out'' basis, based upon a reasonable allocation of available
resources, the Agency may designate additional processing queues that
distinguish between simple and more complex requests based on the
estimated amount of time or work needed to complete the processing of
the request. The Agency may provide requesters in a slower queue an
opportunity to limit the scope of their request in order to qualify for
faster processing.
(c) Requests for extension of time. When the Agency is unable to
meet the statutory time requirements of the FOIA due to unusual
circumstances, as defined in the FOIA, and the Agency extends the time
limit on that basis, the Agency shall, before the expiration of the 20-
day time limit to respond, notify the requester in writing of the
unusual circumstances involved and of an estimated date by which
processing of the request is expected to be completed. When the
extension exceeds 10 days, the Agency shall, as described in the FOIA,
provide the requester with an opportunity to modify the scope of the
request or arrange an alternative time period for processing the
original or modified request. CIA's FOIA Requester Service Center or
the CIA FOIA Public Liaison are available to assist in this process.
Sec. 1900.34 Requests for expedited processing.
(a) Expedited processing requests. Requests for expedited
processing shall be submitted to the Coordinator in accordance with
Sec. Sec. 1900.03, 1900.11, and 1900.12. Such requests will be
approved only when a compelling need is established to the satisfaction
of the Agency. Within ten (10) days of receipt of a request for
expedited processing, the Agency will decide whether to grant expedited
processing and will notify the requester of its decision. A compelling
need is deemed to exist:
(1) When the matter involves an imminent threat to the life or
physical safety of an individual; or
(2) When the request is made by a person primarily engaged in
disseminating information and the information is relevant to a subject
of public urgency concerning an actual or alleged Federal Government
activity.
(b) Expedited processing appeals. Denials of requests for expedited
processing may be appealed to the CIA's Agency Release Panel via the
Coordinator and shall be acted upon expeditiously.
CIA Action on FOIA Administrative Appeals
Sec. 1900.41 Designation of authority to hear appeals.
(a) Agency Release Panel (ARP). Appeals of initial adverse
decisions under the FOIA shall be reviewed by the ARP which shall issue
the final Agency decision.
(b) ARP membership. The ARP is chaired by the Director, Advanced
Data Lifecycle Solutions (ADLS) (or the Deputy Director, ADLS, acting
on the Director's behalf), and is composed of the Information Review
Officers from the various Directorates, a voting representative of the
Office of General Counsel, as well as the representatives of the
various CIA release programs and offices. The Information and Privacy
Coordinator also serves as Executive Secretary of the ARP. The Chair
may request interested parties to participate when special equities or
expertise are involved.
[[Page 39439]]
Sec. 1900.42 Right of appeal and appeal procedures.
(a) Right of appeal. A right of administrative appeal exists
whenever access to any requested record or any portion thereof is
denied, or no records are located in response to a request. In
addition, requesters may appeal denials of requests for expedited
processing and fee waivers, as well as the adequacy of a search for
records responsive to a request. The Agency will apprise all requesters
in writing of their right to file an administrative appeal to the ARP
through the Coordinator.
(b) Requirements as to time and form. Appeals of decisions must be
received by the Coordinator within ninety (90) days of the date of the
Agency's initial decision. The Agency may, for good cause and as a
matter of administrative discretion, permit an additional thirty (30)
days for the submission of an appeal. All appeals shall be in writing
and addressed as specified in Sec. 1900.03. All appeals must identify
the documents or portions of documents at issue with specificity and
may present such information, data, and argument in support as the
requester may desire.
(c) Exceptions. No appeal shall be accepted if the requester has
outstanding fees for information services at this or another Federal
agency.
(d) Receipt, recording, and tasking. The Agency shall promptly
record each request received under this part, acknowledge receipt to
the requester in writing, and thereafter effect the necessary taskings
to the relevant components for appropriate action.
(e) Time for response. The Agency shall attempt to complete action
on an appeal within twenty (20) days of the date of receipt, except for
appeals of denial of expedited processing, for which the Agency shall
attempt to complete action within ten (10) business days of the date of
receipt. The current volume of requests, however, often requires that
the Agency request additional time from the requester pursuant to Sec.
1900.33. In such event, the Agency will inform the requester of the
right to judicial review.
Sec. 1900.43 [Reserved]
Sec. 1900.44 Action by appeals authority.
(a) The Coordinator, acting in the capacity of Executive Secretary
of the ARP, shall place administrative appeals of FOIA requests ready
for adjudication on the agenda at the next occurring meeting of that
Panel. The Executive Secretary shall provide the ARP membership with a
summary of the request and issues raised on appeal for the Panel's
consideration, and make available to the Panel the complete
administrative record of the request consisting of the request, the
document(s) at issue (in redacted and full-text form), if any, and the
findings and recommendations of the relevant components.
(b) The ARP shall determine whether an appeal before the Panel is
meritorious. The ARP may take action when a simple majority of the
total membership is present. Issues shall be decided by a majority of
the members present. In all cases of a divided vote, before the
decision of the ARP becomes final, any member of the ARP may by written
memorandum to the Executive Secretary of the ARP, refer such matters to
the CIA Chief Data Officer (CDO) for resolution. In the event of a
disagreement with any decision by the CDO, Directorate or Independent
Office heads may appeal to the CIA Chief Operating Officer (COO) for a
final Agency decision. The final Agency decision shall reflect the vote
of the ARP, unless the CDO or COO disagrees with the ARP and makes a
superseding final Agency decision.
(c) Appeals of denials of requests for fee waivers or reductions
and/or denial of requests for expedited processing shall go directly
from the Coordinator to the Agency Release Panel for a final Agency
determination.
Sec. 1900.45 Notification of decision and right of judicial review.
The Executive Secretary of the ARP shall promptly prepare and
communicate the final Agency decision to the requester. With respect to
any adverse Agency determination, that correspondence shall state the
reasons for the decision, and include a notice of a right to judicial
review.
Dated: June 13, 2022.
Brian C. O'Neill,
Director, Advanced Data Lifecycle Solutions.
[FR Doc. 2022-13361 Filed 6-30-22; 8:45 am]
BILLING CODE 6310-02-P
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