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Rule2022-19185

Procedures for Disclosure of Records Under the Freedom of Information Act

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Published

September 9, 2022

Effective

October 11, 2022

Issuing agencies

Corporation for National and Community Service

Abstract

The Corporation for National and Community Service (operating as AmeriCorps) is finalizing updates to its regulations for processing requests for records under the Freedom of Information Act (FOIA) to reflect changes made in the FOIA Improvement Act of 2016 and to make the regulations more user friendly through plain language.

Full Text

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<title>Federal Register, Volume 87 Issue 174 (Friday, September 9, 2022)</title>
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[Federal Register Volume 87, Number 174 (Friday, September 9, 2022)]
[Rules and Regulations]
[Pages 55305-55317]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19185]

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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

45 CFR Part 2507

RIN 3045-AA59

Procedures for Disclosure of Records Under the Freedom of
Information Act

AGENCY: Corporation for National and Community Service.

ACTION: Final rule.

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

SUMMARY: The Corporation for National and Community Service (operating
as AmeriCorps) is finalizing updates to its regulations for processing
requests for records under the Freedom of Information Act (FOIA) to
reflect changes made in the FOIA Improvement Act of 2016 and to make
the regulations more user friendly through plain language.

DATES: This rule takes effect on October 11, 2022.

FOR FURTHER INFORMATION CONTACT: Stephanie Soper, AmeriCorps FOIA
Officer, at 202-606-6747 or <a href="/cdn-cgi/l/email-protection#760505190613043615180558111900">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

I. Background

On June 30, 2016, President Obama signed into law the FOIA
Improvement Act of 2016 (Pub. L. 114-185). The Act addresses a range of
procedural issues that affect agency FOIA regulations, including
requirements that agencies proactively make certain records available
on their websites, establish a minimum of 90 days for requesters to
file an administrative appeal, and provide dispute resolution services
at various times throughout the FOIA process. With regard to exemptions
from disclosure, the Act provides that the deliberative process
protection for a record sunsets after 25 years, codifies the Department
of Justice's ``foreseeable harm'' standard, and amends FOIA Exemption
5. The Act also creates a new ``Chief FOIA Officer Council'' and adds
two new elements to agency Annual FOIA Reports.
AmeriCorps published a proposed rule to incorporate these changes
on May 2, 2022. See 87 FR 25598. AmeriCorps received one public comment
submission on the proposed rule, which AmeriCorps addresses in section
III of Supplementary Information.

II. Overview of Final Rule

This final rule will incorporate the FOIA Improvement Act of 2016
changes into AmeriCorps' FOIA regulations by, among other things:
<bullet> Providing that the deliberative process protection for a
record exempt from disclosure sunsets after 25 years;
<bullet> Incorporating the ``foreseeable harm'' standard by
providing that when a FOIA exemption gives AmeriCorps the discretion to
either withhold or release records, AmeriCorps will release the records
or information whenever it determines that disclosure would not
foreseeably harm an interest that the exemption protects; and
<bullet> Providing that the deliberative process privilege of
Exemption 5 of the FOIA will not apply to records created 25 years or
more before the date when the records were requested.
This rule will update AmeriCorps' processing fees to align with
current agency salary ranges, establish different tracks for processing
simple FOIA requests and complex FOIA requests and establish a track
for expedited processing, and make several non-substantive changes to
make the regulation more user-friendly, including breaking the
regulation into different subparts and shortening section headings.
The following table provides a comparison of the current AmeriCorps
FOIA regulations and the final rule.

[[Page 55306]]

------------------------------------------------------------------------
New 45 CFR Description of
Current 45 CFR section section changes
------------------------------------------------------------------------
Subpart A-- New subpart
General designation.
Provisions.
2507.1 Definitions............ 2507.3 Replaces definition
Definitions. of ``Act'' with
``Freedom of
Information Act
(FOIA)'' for
clarity.
Replaces definition
of ``Corporation''
with definition of
``AmeriCorps.''
Moves definition of
``Freedom of
Information Act
Officer (FOIA
Officer)'' to a new
section Sec.
2507.4 describing
AmeriCorps' FOIA
officials and their
responsibilities.
Deletes definition
for ``electronic
data'' because these
terms are not used.
Deletes definition
for ``public
interest'' because
the meaning of the
term is explained in
the one section
where it appears at
final Sec.
2507.24.
Adds definitions for
``complex request,''
``consultation,''
``exemptions,''
``expedited
processing,''
``frequently
requested records,''
``multitrack
processing,''
``Office of
Government
Information Services
(OGIS),''
``proactive
disclosures,'' and
``referral.''
Moves and revises
definitions for
``commercial use
request,''
``educational
institution,'' ``non-
commercial
scientific
institution,''
``representative of
the news media,''
``review'' (changed
to ``review fees''),
and ``search''
(changed to ``search
fees'') to subpart G
where they are
exclusively used.
Revises the
definition of ``FOIA
request'' to move
the sentence about
how written requests
may be received to
Sec. 2507.6 (b).
Revises the
definition of
``record'' for
simplification.
2507.2 What is the purpose of 2507.1 Scope..... Deletes sentence
this part? about information
customarily
furnished to the
public because such
information does not
require FOIA
requests. Adds that
the rules should be
read in conjunction
with the FOIA
statute and OMB
guidelines and cross
references Privacy
Act regulations.
2507.2 Policy.... New section.
Addresses how
AmeriCorps
approaches its
duties and
responsibilities
under FOIA.
2507.4 Agency New section. Lists
FOIA Officials. AmeriCorps'
authorized FOIA
officials' positions
and their roles.
Subpart B-- New subpart
Proactive designation.
Disclosure of
Agency Records.
2507.3 What types of records 2507.5 Records Replaces section on
are available for disclosure Available on what records
to the public? Agency Website. AmeriCorps will
provide when asked
with a section on
what information
AmeriCorps
proactively makes
available to the
public by posting on
its website. Moves
information on
duplication to
relevant sections
and information on
creation of new
records to Sec.
2507.8.
Subpart C--Filing New subpart
a FOIA Request. designation.
2507.4 How are requests for 2507.6 See breakdown by
records made? Requirements for paragraph below.
FOIA Requests.
(a) General New paragraph.
information. Clarifies that
AmeriCorps has a
centralized system
for processing FOIA
requests but that
State service
commissions are not
subject to FOIA.
(a) How made and addressed.... (b) Directions Allows for email
for making submissions and
requests. online submissions
of FOIA requests, in
addition to hard
copy requests.
(Provision regarding
the electronic
reading room is at
final Sec.
2507.5).
(b) Request must adequately (c) Description Deletes specific
describe the records sought. of records required information
sought. for FOIA requests,
as long as the
requester provides
enough detail for
personnel to find
responsive records
with a reasonable
amount of effort.
Incorporates
description of what
happens if the
records are not
sufficiently
described that is in
current Sec.
2507.5(b).
(d) Third party Specifies what
requests. happens if the
records pertain to a
third party and
additional
information that may
be required.
(e) Date range Clarifies that the
for requested request may seek
records. records in a
specific date range.
(c) Agreement to pay fees..... ................. Deleted because the
final rule would not
charge for fees
totaling $25.00 or
less. See final Sec.
2507.19(d).
2507.7 Requests New section to
for Archived clarify to whom
Records. requesters should
direct requests for
records that have
been archived.
Subpart D--Agency New subpart
Processing and designation.
Response to FOIA
Requests.
2507.5 How does the 2507.8 Processing (See breakdown by
Corporation process requests of Requests. paragraph below.)
for records?
(a) Initial processing........ (a) Authority to Clarifies that the
grant or deny FOIA Officer grants
requests. or denies the
initial request.
(b) Insufficiently identified [See 2507.6(c)].. Moves provision on
records. how FOIA Officer
addresses requests
for records that are
insufficiently
described to Sec.
2507.6(c), and time
period for response
to Sec.
2507.10(f).
(c) Furnishing records........ (b) Providing Simplifies current
(d) Format of the disclosure records. provisions to state
of a record. that AmeriCorps will
ordinarily provide
the record in
electronic form or
in other forms upon
request if readily
reproducible in that
form.

[[Page 55307]]

(c) Records New paragraph.
previously Establishes that
released. AmeriCorps will
ordinarily release a
record if it has
released it in the
past.
(d) Consultation, New paragraph.
referral, and Establishes steps
coordination. AmeriCorps will take
when it determines
another Federal
agency is better
able to determine
whether a record is
exempt from
disclosure.
(e) Release of record......... 2507.10 Timing of Consolidates all
Responses to information on
Requests. timing for responses
to FOIA requests and
adds a new multi-
track processing
system based on the
complexity of the
requests.
(f) Form and content of notice 2507.11 Responses Adds that AmeriCorps
granting request. to Requests. will first
acknowledge the FOIA
request and provide
the requester with a
tracking number.
(g) Form and content of notice (c)(3) Adverse Clarifies what
denying the request. determinations qualifies as an
on requests. adverse
determination or
denial of a request.
2507.6 Under what 2507.10 Timing of Consolidates all
circumstances may the Responses to information on
Corporation extend the time Requests. timing for responses
limits for an initial to FOIA requests and
response? adds a new multi-
track processing
system based on the
complexity of the
requests.
Subpart F-- New subpart
Appeals and designation.
Alternative
Dispute
Resolution.
2507.7 How does one appeal the 2507.14 Increases time limit
Corporations denial of access Administrative for submitting an
to records? Appeals. appeal to 90 days
after the date of
the adverse
determination.
Identifies where to
send an appeal.
Refers to the FOIA
Appeals Officer
rather than the
Chief Operating
Officer as the
position designated
to act on appeals.
2507.15 Mediation New section.
and Dispute Establishes
Resolution requesters' right to
Services. seek dispute
resolution services
from the FOIA Public
Liaison or mediation
services from OGIS.
2507.8 How are fees Subpart G--Fees.. New subpart
determined?. designation. See
breakdown by
paragraphs and
proposed sections
below.
(a) Policy.................... 2507.17 Fees Consolidates
Overview. provisions regarding
how AmeriCorps will
charge fees.
(b) Types of request.......... 2507.18 Requester Consolidates
Categories and information to
Fees Charged. provide a table for
types of categories
and fees.
(c) Direct costs.............. 2507.16 New section.
Definitions for Consolidates
this Subpart. definitions for
requester categories
and types of fees
into one section.
Provisions regarding
direct costs are
contained within
definitions for
``duplication
fees,'' ``review
fees,'' and ``search
fees.''
(d) Charging of fees.......... 2507.18 Requester Consolidates fees
Categories and into a table.
fees charged. Increases fees for
photocopies from
10[cent] to 20[cent]
per page. Increases
search fee to $70
per hour (in place
of $12, $28, or $41
per hour depending
on who conducts the
search).
2507.19 New section.
Circumstances in Establishes when
Which Fees May AmeriCorps may not
Not Be Charged. charge fees and
incorporates the
statutory threshold
of 5,000 pages.
(e) Consent to pay fees....... 2507.20 Notice of Clarifies steps
Anticipated Fees AmeriCorps will take
in Excess of if it estimates fees
$25.00. to be assessed will
exceed $25.00, based
on the category of
the requester.
(f) Advance payment........... 2507.23 Provides additional
Collection and information on
Payment of Fees. AmeriCorps' ability
to require an
advance payment.
(g) Interest on non-payment... 2507.21 Other Adds provision for
Charges. special services,
such as certifying
records are true
copies.
(h) Aggregating requests...... 2507.22 Replaces ``solid
Aggregating basis'' with
Requests to ``reasonable
Ensure Payment basis.''
of Fees.
(i) Making payment............ 2507.23 Adds that AmeriCorps
Collection and is not required to
Payment of Fees. accept payments in
installments.
(j) Fee processing............ ................. Deleted. Proposed
rule does not
provide for charging
fees that total
$25.00 or less.
(k) Waiver or reduction of 2507.24 Fee Specifies factors
fees. Waivers or Fee AmeriCorps will
Reductions. consider in
determining whether
disclosure of the
information is in
the public interest
and whether the
disclosure is
primarily in the
commercial interest
of the requester.
2507.9 What records will be 2507.9 Reasons Adds steps AmeriCorps
denied disclosure under this for Withholding will take in
part? Some Records documenting the
2507.11 reason for
Responses to withholding. Adds
Requests. expiration to
deliberative process
of Exemption 5.
2507.10 What records are ................. Deleted. Instead
specifically exempt from refers to exemptions
disclosure? set out in Act. See
proposed definition
of ``exemptions.''
2507.11 What are the Subpart E-- Replaces ``business
procedures for the release of Confidential submitter'' with
commercial business Commercial ``submitter'' to
information? Information. include all
2507.12 submitters of
Definitions for confidential
this Subpart. commercial
2507.13 information, rather
Procedures for than just business
Release of submitters. Adds
Commercial that the
Information. notification to the
submitter will
include notice of
what information
AmeriCorps proposes
to disclose and
withhold.
Establishes that
AmeriCorps will
consider the
specific grounds the
submitter asserts
for non-disclosure
rather than the
general criteria
listed in the
current regulation.
Changes the advance
notice of the time
period for
disclosure from six
working days to five
working days.
2507.12 Authority............. ................. Deleted because
authority is stated
after the table of
contents.
Subpart H-- New subpart
Miscellaneous. designation.
2507.25 New section.
Preservation of Clarifies how
Records. AmeriCorps preserves
records.

[[Page 55308]]

2507.26 Reporting New section.
Requirements. Identifies what
reports AmeriCorps
will submit to the
Attorney General.
2507.27 Rights New section. States
and Services that the CFR part
Qualified by the should not be
FOIA Statute. interpreted to
entitle persons to
rights or services
for which they are
not entitled under
FOIA.
Appendix A--FOIA Request ................. Deleted. To be made
Letter (Sample). available on website
instead of CFR to
allow for
modifications to
keep current.
Appendix B--FOIA Appeal for ................. Deleted. To be made
Release of Information. available on website
instead of CFR to
allow for
modifications to
keep current.
------------------------------------------------------------------------

III. Response to Comments on Proposed Rule and Changes From Proposed to
Final

AmeriCorps received one public comment submission containing
several suggested edits to the proposed rule, which are summarized and
addressed as follows.
<bullet> The commenter pointed out that proposed Sec. 2507.2(b)'s
statement that the agency's practice of applying the foreseeable harm
standard is not enforceable in court is inaccurate because the right to
release of records and information under this standard is enforceable.
The final rule deletes this sentence. The final rule also revises the
preceding sentence regarding AmeriCorps' release of records or
information under this standard to better mirror the statute's
language.
<bullet> In proposed Sec. 2507.3, which contains definitions for
the regulation, the commenter questioned whether the definitions were
necessary. AmeriCorps has decided to retain the definitions in the
final rule for clarity. Additionally, the commenter suggested edits to
two definitions. First, the commenter suggested, in the definition of
``Freedom of Information Act (FOIA),'' adding the U.S. Code citation,
clarifying that a request must ``reasonably describe'' the records, and
clarifying that agencies may rely upon exclusions (in addition to the
exemptions) for not releasing records. The final rule adds each of
these suggested edits for clarification. Second, the commenter stated
that the definition of ``frequently requested records'' does not mirror
the statute, which requires the agency to have determined the records
have become or are likely to become the subject of subsequent requests
for substantially the same records. The proposed rule contained this
additional information in proposed Sec. 2507.5(b)(2). In response to
this comment, AmeriCorps has moved that information from Sec.
2507.5(b)(2) into the definition.
<bullet> Proposed Sec. 2507.11, Responses to Requests, paragraph
(b) imposed a requirement upon AmeriCorps to acknowledge a FOIA request
and inform the requester of the tracking number. The commenter pointed
out that, statutorily, AmeriCorps is not required to provide the
requester this information if AmeriCorps issues a final determination
in less than 10 days. AmeriCorps is nevertheless retaining this
provision in the final rule to ensure consistency in its approach to
acknowledging requests. Additionally, in paragraph (c)(3)(iii)(A) of
this section, the proposed rule imposes requirements on AmeriCorps to
provide a general description of withheld records at the administrative
stage, and the commenter noted that the statute does not require
AmeriCorps to provide a general description at this stage. AmeriCorps
is retaining this regulatory provision to ensure consistency in its
approach to withholding records. The commenter also noted that this
proposed paragraph would require AmeriCorps to provide an estimate of
the volume of the material withheld, but that doing so may harm an
interest protected by an applicable exemption. In response, the final
rule adds that AmeriCorps will not specify the volume withheld if doing
so would harm an interest protected by an exemption. The final rule
also specifies that AmeriCorps will provide the estimate of the volume
of material withheld ``where not evident'' given that in some cases,
the volume will be clear from visible redactions in released materials.
<bullet> In proposed Sec. 2507.13, Procedures for Release of
Commercial Information, the commenter suggested clarifying in paragraph
(a)(3) when the 10 business days in which a requester may inform the
agency of any objection begins. The final rule clarifies that the
calculation of the 10 business days begins from the date the notice is
sent. The commenter also suggested that paragraph (c) should state that
a submitter who fails to respond within the requisite time period
should be considered to have no objection to disclosure and that the
agency will not consider any information received after the date of the
disclosure decision. The final rule adds that AmeriCorps will not
consider any information that is not timely submitted. The final rule
also includes the requested provision that AmeriCorps will consider any
submitter who fails to make a timely objection to have no objection but
adds ``unless the submitter requests an extension of time to reply and
is granted that extension or a lesser one'' to account for situations
where AmeriCorps has granted an extension of time.
<bullet> Proposed Sec. 2507.14, Administrative Appeals, paragraph
(f)(2) addressed decisions on appeals. The commenter noted that the
provision addressed re-processing of withheld records, but that not all
appeal determinations will pertain to withheld records. The final rule
addresses this comment by specifying that AmeriCorps will re-process
the FOIA request in accordance with the FOIA Appeals Officer's decision
``if applicable'' and promptly send ``releasable'' records to the
requester.
<bullet> In proposed Sec. 2507.19, Circumstances in Which Fees May
Not Be Charged, the commenter pointed out that the statute refers to
5,000 pages of the response, rather than the 1,000 pages cited in the
proposed rule. The final rule corrects this error.
In addition, AmeriCorps made the following non-substantive edits to
the proposed rule for clarification:
<bullet> In Sec. 2507.3, Definitions, the final rule clarifies how
proactive disclosures are made publicly available by specifying that
they will be posted on AmeriCorps' website.
<bullet> In Sec. 2507.5, Records Available on Agency website, the
final rule adds that AmeriCorps will post records that AmeriCorps
determines are or will be the subject of widespread media, historical,
or academic interest and that may properly be posted.
<bullet> In Sec. 2507.6, Requirements for FOIA Requests, the final
rule moves the provision stating that requesters may adjust their
request or ask for drafting advice by emailing the FOIA office from
paragraph (c)(1) to paragraph (c). The final rule makes this change
because paragraph (c)(1) is specific to requests that do not reasonably
describe the records, while requesters have the option of adjusting
their request or

[[Page 55309]]

asking for advice outside of this context. Likewise, the final rule
moves the provision requiring requesters to provide contact information
from paragraph (c)(1) to a new paragraph (f), to require contact
information whenever a request is submitted.
<bullet> In Sec. 2507.8, Processing of Requests, the reference to
``coordination'' is removed from paragraph (d) because the section does
not address coordination. The final rule also clarifies that AmeriCorps
will determine whether another Federal agency holds an interest in the
record (as opposed to the proposed language regarding who is better
able to determine whether a record is exempt).
<bullet> In Sec. 2507.11, Responses to Requests, the final rule
adds that AmeriCorps will provide an estimated date by which it expects
to provide a response to the requester and may provide interim
responses releasing records on a rolling basis under certain
circumstances.
<bullet> In Sec. 2507.13, the final rule adds a new provision
requiring AmeriCorps to notify the requester whenever: (1) AmeriCorps
provides the submitter with notice and the opportunity to object to
disclosure, (2) AmeriCorps provides the submitter of its intent to
disclose requested information, or (3) the submitter files a lawsuit to
prevent disclosure of the information. These provisions incorporate
statutory requirements.
<bullet> In Sec. 2507.24(b), the final rule reorganizes paragraph
(b) for clarification, to distinguish criteria used to determine if a
disclosure is in the public interest from the criteria used to
determine that the disclosure is not primarily in the commercial
interest of the requester.
<bullet> In Sec. 2507.26, the final rule removes detail as to the
timing and content of reports to account for changes the Attorney
General may make to reporting requirements over time.

IV. Regulatory Analyses

A. Executive Orders 12866 and 13563

Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Information and Regulatory Affairs in the Office of
Management and Budget has determined that this rule is not a
significant regulatory action and therefore, was not subject to review
under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated
September 30, 1993.

B. Congressional Review Act (Small Business Regulatory Enforcement
Fairness Act of 1996, Title II, Subtitle E)

As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, AmeriCorps will submit
for an interim or final rule a report to each House of the Congress and
to the Comptroller General of the United States. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. The Office of Information and Regulatory Affairs in the
Office of Management and Budget has determined that this is not a major
rule under 5 U.S.C. 804.

C. Regulatory Flexibility Act

As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
et seq.), AmeriCorps certifies that this rule, if adopted, will not
have a significant economic impact on a substantial number of small
entities. Therefore, AmeriCorps has not performed the initial
regulatory flexibility analysis that is required under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) for rules that are expected to
have such results.

D. Unfunded Mandates Reform Act of 1995

For purposes of Title II of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this
regulatory action does not contain any Federal mandate that may result
in increased expenditures in either Federal, State, local, or Tribal
governments in the aggregate, or impose an annual burden exceeding $100
million on the private sector.

E. Paperwork Reduction Act

Under the PRA, an agency may not conduct or sponsor a collection of
information unless the collections of information display valid control
numbers. This proposed rule does not contain information collection
requirements within the meaning of the Paperwork Reduction Act, 44
U.S.C. 3501-3520.

F. Executive Order 13132, Federalism

Executive Order 13132, Federalism, prohibits an agency from
publishing any rule that has Federalism implications if the rule
imposes substantial direct compliance costs on State and local
governments and is not required by statute, or the rule preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This rule does not have any
Federalism implications, as described above.

G. Takings (E.O. 12630)

This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630 because this rule
does not affect individual property rights protected by the Fifth
Amendment or involve a compensable ``taking.'' A takings implication
assessment is not required.

H. Civil Justice Reform (E.O. 12988)

This rule complies with the requirements of Executive Order 12988.
Specifically, this rule: (a) meets the criteria of section 3(a)
requiring that all regulations be reviewed to eliminate errors and
ambiguity and be written to minimize litigation; and (b) meets the
criteria of section 3(b)(2) requiring that all regulations be written
in clear language and contain clear legal standards.

I. Consultation With Indian Tribes (E.O. 13175)

AmeriCorps recognizes the inherent sovereignty of Indian Tribes and
their right to self-governance. We have evaluated this rule under our
consultation policy and the criteria in E.O. 13175 and determined that
this rule does not impose substantial direct effects on federally
recognized Tribes.

List of Subjects in 45 CFR Part 2507

Freedom of information.

0
For the reasons stated in the preamble, AmeriCorps revises 45 CFR Part
2507 to read as follows:

PART 2507--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM
OF INFORMATION ACT

Subpart A--General Provisions
Sec.
2507.1 Scope.
2507.2 Policy.
2507.3 Definitions.
2507.4 Agency FOIA Officials.
Subpart B--Proactive Disclosures of Agency Records
2507.5 Records available on agency website.
Subpart C--Filing a FOIA Request
2507.6 Requirements for FOIA requests.
2507.7 Requests for archived records.

[[Page 55310]]

Subpart D--Agency Processing and Responses to FOIA Requests
2507.8 Processing of requests.
2507.9 Reasons for withholding some records.
2507.10 Timing of responses to requests.
2507.11 Responses to requests.
Subpart E--Confidential Commercial Information
2507.12 Definitions for this subpart.
2507.13 Procedures for release of commercial information.
Subpart F--Appeals and Alternative Dispute Resolution
2507.14 Administrative appeals.
2507.15 Mediation and dispute resolution services.
Subpart G--Fees
2507.16 Definitions for this subpart.
2507.17 Fees overview.
2507.18 Requester categories and fees charged.
2507.19 Circumstances in Which Fees May Not Be Charged.
2507.20 Notice of Anticipated Fees in Excess of $25.00.
2507.21 Other charges.
2507.22 Aggregating requests to ensure payment of fees.
2507.23 Collection and payment of fees.
2507.24 Fee waivers or fee reductions.
Subpart H--Miscellaneous
2507.25 Preservation of records.
2507.26 Annual reporting requirements.
2507.27 Rights and services qualified by the FOIA statute.

Authority: 5 U.S.C. 552, 42 U.S.C. 12501 et seq.

Subpart A--General Provisions

Sec. 2507.1 Scope.

This part contains the rules that the Corporation for National and
Community Service, operating as AmeriCorps (``the Agency'' or
``AmeriCorps''), follows in processing requests for records under the
Freedom of Information Act (``FOIA''), 5 U.S.C. 552. These rules should
be read in conjunction with the text of the FOIA and the Uniform
Freedom of Information Fee Schedule and Guidelines published by the
Office of Management and Budget (``OMB Guidelines''). Requests made by
individuals for records about themselves under the Privacy Act of 1974,
5 U.S.C. 552a, are processed in accordance with AmeriCorps' Privacy Act
regulations, 45 CFR part 2508, as well as under this part.

Sec. 2507.2 Policy.

(a) AmeriCorps follows a balanced approach in administering the
FOIA. The Agency recognizes the right of the public to seek access to
information in its possession. It also recognizes the legitimate
interests of organizations or persons who have submitted records to
AmeriCorps or who would otherwise be affected by release of records.
AmeriCorps has no discretion to release certain records, such as trade
secrets and confidential commercial information, prohibited from
release by law. The Agency provides the fullest responsible disclosure
that is consistent with the requirements of the FOIA.
(b) When a FOIA exemption gives Federal agencies the discretion to
either withhold or release records, AmeriCorps releases the records or
information unless it reasonably foresees that disclosure would harm an
interest that the exemption protects.

Sec. 2507.3 Definitions.

As used in this part:
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. AmeriCorps is an agency.
AmeriCorps or the Agency means the Corporation for National and
Community Service, which operates as AmeriCorps.
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 AmeriCorps locates a record that contains
information of interest to another agency, and, before any final
determination is made, AmeriCorps asks that other agency for its views
on whether or not the records can be released to the requester.
Exemptions are the 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 disclosure.
Expedited processing is the FOIA response track granted in certain
limited situations to process FOIA requests ahead of other pending
requests.
FOIA request is a written request for Agency records, made by any
person, including a member of the public (U.S. or foreign citizen), an
organization, or a business--but not including a Federal agency, an
agent of a foreign government, an order from a court, or a fugitive
from the law--that either explicitly or implicitly involves the FOIA,
or this part.
Freedom of Information Act (FOIA) is a United States Federal law at
5 U.S.C. 552 that grants the public access to records possessed by
government agencies. Upon written request, U.S. Government agencies are
required to release reasonably described records, except to the extent
the records fall under an exclusion or one of the nine exemptions
listed in the Act.
Frequently requested records are records that have been released
either in full or with the same information withheld and either:
(1) Have been requested from AmeriCorps three or more times; or
(2) Because of their subject matter, AmeriCorps determines have
become or are likely to become the subject of subsequent requests for
the same records.
Multitrack processing is a system that divides incoming FOIA
requests into processing tracks according to their complexity.
Office of Government Information Services (OGIS) is an office
within the National Archives and Records Administration that offers
mediation services to resolve disputes between FOIA requesters and
agencies, as a non-exclusive alternative to litigation. OGIS also
reviews agency FOIA compliance, policies, and procedures and makes
recommendations for improvement.
Proactive disclosures are records that agencies make publicly
available on their website without waiting for a specific FOIA request.
Record means information, regardless of the form in which it is
stored or its characteristics, which is created or obtained by an
agency and is under the control of the agency at the time of the
request. It includes information maintained for the agency by an entity
under government contract for records management purposes. It does not
include records that do not already exist and that would have to be
created specifically to respond to a request.
Referral occurs when an agency locates a record that originated
with, or is of otherwise primary interest to, another agency. The
receiving agency will forward that record to the other agency to
process the record and to provide the final determination directly to
the requester.
Search is the process of looking for and retrieving records or
information responsive to a request.
Simple request is a FOIA request that an agency anticipates will
involve a small volume of material or which the agency will be able to
process relatively quickly.
Tolling means temporarily stopping the running of a time limit.

[[Page 55311]]

Sec. 2507.4 Agency FOIA officials.

The following are AmeriCorps' authorized FOIA officials, each of
whom will be identified on <a href="http://americorps.gov">americorps.gov</a>, and their roles.
(a) The Chief FOIA Officer:
(1) Has overall responsibility for AmeriCorps' compliance with the
FOIA;
(2) Provides high-level oversight and support to AmeriCorps' FOIA
program;
(3) Recommends adjustments to AmeriCorps' practices, personnel, and
funding, as needed, to improve FOIA administration, including through
Chief FOIA Officer Reports submitted to the U.S. Department of Justice;
(4) Tells the Agency's FOIA Officers of all significant
developments with respect to the FOIA;
(5) Is responsible for offering training to agency staff regarding
their FOIA responsibilities;
(6) Serves as the primary liaison with the Office of Government
Information Services and the U.S. Department of Justice's Office of
Information Policy; and
(7) Reviews, at least annually, all aspects of AmeriCorps'
administration of the FOIA to ensure compliance with the FOIA's
requirements.
(b) The FOIA Officer receives, tracks, and processes the Agency's
FOIA requests, including making final release determinations. The FOIA
Officer is responsible for program direction, original denials, and
policy decisions required for effective implementation of the Agency's
FOIA program.
(c) The FOIA Appeals Officer receives and act upon appeals from
requesters whose initial requests for the Agency's records have been
denied, in whole or in part.
(d) The FOIA Public Liaison serves as the official to whom a FOIA
requester can raise concerns about the services received, following an
initial response from the FOIA Officer. In addition, the FOIA Public
Liaison assists, as appropriate, in reducing delays, increasing
transparency, answering requesters' questions about the status of their
requests, and resolving disputes.

Subpart B--Proactive Disclosures of Agency Records

Sec. 2507.5 Records available on agency website.

(a) AmeriCorps regularly updates and posts the following on its
public website, <a href="http://americorps.gov">americorps.gov</a>:
(1) Information that is required to be published in the Federal
Register under 5 U.S.C. 552(a)(1) and:
(2) Administrative staff manuals and instructions to staff that
affect any member of the public.
(3) Statements of policy and interpretation adopted by AmeriCorps
and not published in the Federal Register.
(4) Final opinions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of administrative cases.
(5) Records that AmeriCorps determines are or will be the subject
of widespread media, historical, or academic interest and that may
properly be publicly posted.
(b) On the FOIA page of its public website, <a href="http://americorps.gov">americorps.gov</a>, the
Agency posts records that are required by the FOIA to be made available
for public inspection and copying under 5 U.S.C 552(a)(2), including,
but not limited to, frequently requested records.
(c) For help from the FOIA Officer or the FOIA Public Liaison in
finding proactively disclosed records, members of the public may
contact AmeriCorps at <a href="/cdn-cgi/l/email-protection#55333a3c3415363b267b323a23">[email&#160;protected]</a> or at: AmeriCorps, Office of the
General Counsel, 250 E Street SW, Washington, DC 20525.

Subpart C--Filing a FOIA Request

Sec. 2507.6 Requirements for FOIA requests.

(a) General information. AmeriCorps has a centralized system for
responding to FOIA requests. AmeriCorps headquarters is the central
processing point for all requests for Agency records, regardless of
where they are stored. State service commissions are not part of
AmeriCorps and are not Federal agencies, and thus are not subject to
the FOIA.
(b) Directions for making requests. All FOIA requests must be
submitted in writing to the FOIA Officer at AmeriCorps headquarters in
one of the following ways:
(1) By email: <a href="/cdn-cgi/l/email-protection#7a1c15131b3a191409541d150c">[email&#160;protected]</a>. Including a phone number with a request
will help with processing.
(2) By online submission: via the National FOIA Portal at
<a href="http://www.FOIA.gov">www.FOIA.gov</a>.
(3) By mail: AmeriCorps, Attn.: FOIA Officer, Office of General
Counsel, 250 E Street SW, Washington, DC 20525.
(4) By fax: (202) 606-3467.
(c) Description of records sought. Requesters must provide enough
detail about the Agency's records they seek that AmeriCorps personnel
can find responsive records, if they exist, with a reasonable amount of
effort. To the extent possible, requesters should include information
that helps identify the records, such as dates, titles or names,
authors, recipients, subject matter of the records, or assigned
reference numbers. Requesters may adjust their request or ask for
advice on writing a request by sending a note to <a href="/cdn-cgi/l/email-protection#6f0900060e2f0c011c41080019">[email&#160;protected]</a>.
(1) If a request does not reasonably describe the records sought,
AmeriCorps' response to the request may be delayed or denied.
(2) When AmeriCorps determines that a request does not sufficiently
describe the records sought, it will ask the requester for further
information. If the requester does not respond to a request for
additional information within thirty (30) working days, the request may
be administratively closed at AmeriCorps' discretion. A requester may,
after administrative closure of a request, submit a new request with
additional information for further consideration.
(d) Third-party requests. When a request for records pertains to a
third party (that is, a person other than the requester), the requester
may receive greater access by submitting a notarized authorization
signed by the third party or a declaration, made in compliance with the
requirements set forth in the FOIA, that the third party authorizes
disclosure of the records to the requester, or proof that the third
party is deceased (for example, a copy of a death certificate or a
published obituary). If necessary, AmeriCorps may require additional
information from a requester to verify that the third party consents to
disclosure. Alternatively, requesters may demonstrate an overriding
public interest in the disclosure of information pertaining to a third
party (for example, by producing evidence that alleged Government
impropriety occurred, necessitating a disclosure of information related
to official misconduct).
(e) Date range for requested records. Requesters may ask for a
specific date range for a search, but requests may not ask for records
that are anticipated for the future, but do not yet exist. As it
determines which records are responsive to a request, AmeriCorps
ordinarily will include only records in its possession as of the date
it begins its search, if a date range is not specified.
(f) Contact information. Requesters must provide a telephone number
or email address in their request so that AmeriCorps can contact them
for clarification, if necessary, or help them narrow down a request
that would otherwise be unduly burdensome.

Sec. 2507.7 Requests for archived records.

In accordance with agency records schedules and General Records
Schedules, AmeriCorps transfers permanent records to the National
Archives and Records Administration (``National Archives''). Once these
records are transferred, they are in the physical and legal custody of
the National Archives. Accordingly,

[[Page 55312]]

requests for retired AmeriCorps 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 <a href="/cdn-cgi/l/email-protection#abd8dbcec8c2cac7cac8c8ced8d8f4cdc4c2caebc5cad9ca85ccc4dd">[email&#160;protected]</a>.

Subpart D--Agency Processing and Response to FOIA Requests

Sec. 2507.8 Processing of requests.

(a) Authority to grant or deny requests. The FOIA Officer is
authorized to grant or deny any requests for records maintained by
AmeriCorps. If the request is for records under the control and
jurisdiction of the Office of the Inspector General, the FOIA Officer
will forward the request to that office's FOIA officer for the initial
determination and the reply to the requester.
(b) Providing records. AmeriCorps will provide copies only of
records it has in its possession. AmeriCorps is not compelled to create
new records to respond to a FOIA request, answer questions posed as
FOIA requests, perform research for a requester, compile lists of
selected items from its files, or provide a requester with statistical
or other data, unless such data has been compiled previously and is
available in the form of a record.
(1) AmeriCorps is required to provide only one copy of a record.
(2) AmeriCorps will ordinarily provide the record in electronic
form. Requesters may specify the preferred form or format for the
records they seek, and AmeriCorps will provide releasable records in
that form or format if they are readily reproducible in that way and
the format allows for any necessary redactions.
(3) If AmeriCorps cannot make a legible copy of a record to be
released, it is not required to reconstruct the record. Instead,
AmeriCorps will furnish the best copy possible and note the record's
poor quality in its reply.
(c) Records previously released. If AmeriCorps has released a
record, or a part of a record, to a requester in the past, it will
ordinarily release it to a new requester. However, this principle does
not apply if the previous release was unauthorized or if an exemption
applies that did not apply earlier. If an exemption is the reason for
denial, AmeriCorps will specify the exemption under which information
is withheld.
(d) Consultation and referral. When AmeriCorps reviews records in
response to a request and determines that another agency of the Federal
Government holds an interest in the record, AmeriCorps will proceed in
one of the following ways:
(1) Consultation. When responsive records have originated with
AmeriCorps but contain within them information of interest to another
agency, or other Federal Government office, AmeriCorps consults with
that other agency before making a release determination.
(2) Referral. (i) When a responsive record has originated with a
different agency or other Federal Government office that is subject to
the FOIA, AmeriCorps refers the responsibility for responding to the
request regarding that record, on the presumption that the agency that
originated a record will be best able to make the disclosure
determination. However, if AmeriCorps and the originating agency
jointly agree that AmeriCorps is in the best position to respond
regarding the record, then the record may be handled as a consultation.
(ii) Whenever AmeriCorps refers any part of the responsibility for
responding to a request to another agency, it will document the
referral, maintain a copy of the record that it refers, notify the
requester of the referral, and tell the requester the name(s) of the
agency to which the record was referred and that agency's FOIA contact
information.

Sec. 2507.9 Reasons for withholding some records.

(a) AmeriCorps records will be made available to the public unless
it determines that such records should be withheld from disclosure
under subsection 552(b) of the Act and/or in accordance with this part.
Section 552(b) of the FOIA contains nine exemptions to the mandatory
disclosure of records.
(b) AmeriCorps will:
(1) Withhold information under the FOIA only if disclosure is
prohibited by law or it reasonably foresees that disclosure would harm
an interest protected by an exemption.
(2) Consider whether partial disclosure of information is possible
whenever it determines that a full disclosure of a requested record is
not possible.
(3) Take reasonable steps necessary to segregate and release
nonexempt information.
(4) Note in the record and response letter the basis for a
redaction when it withholds information in a record, or an entire
record.
(c) To the extent it properly can under an exemption, AmeriCorps
will withhold information it obtains from any submitter that gave it to
the agency in reliance on a statutory or regulatory provision for
confidentiality. This section does not authorize the giving of any
pledge of confidentiality by any officer or employee of AmeriCorps.
(d) The deliberative process privilege of Exemption 5 of the FOIA
will not apply to records created 25 years or more before the date when
the records were requested.

Sec. 2507.10 Timing of responses to requests.

(a) In General. AmeriCorps ordinarily will respond to requests
according to their order of receipt.
(b) Multitrack processing. AmeriCorps processes requests in a
multitrack system based on the date of receipt, the amount of work and
time involved in processing the request, and whether the request
qualifies for expedited processing. This multitrack processing system
does not lessen the Agency's responsibility to process requests as
quickly as possible.
(1) AmeriCorps uses three tracks:
(i) A track for simple requests that can be processed in 20 working
days;
(ii) A track for complex requests that require more than 20 working
days; and
(iii) A track for expedited processing.
(2) Within each track, processing will ordinarily proceed on a
``first-in, first-out'' basis, and rank-ordered by the date of receipt
of the request, unless there are unusual circumstances as set forth in
paragraph (c) of this section, or the requester is entitled to
expedited processing as set forth in paragraph (e) of this section.
(3) If a request does not qualify as simple, AmeriCorps may give
the requester an opportunity to limit the scope of the request in order
to qualify for faster processing.
(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 AmeriCorps extends the
time limit on that basis, AmeriCorps will:
(1) Before expiration of the 20-day period to respond, notify the
requester in writing of the unusual circumstances and when AmeriCorps
expects to complete processing the request; and
(2) When the extension exceeds 10 working days, AmeriCorps will:
(i) Notify the requester in writing of the right to seek dispute
resolution services from the Office of Government Information Services
(OGIS);
(ii) Give the requester an opportunity to modify the request or
arrange an alternative time period for processing; and
(iii) Provide contact information for the FOIA Public Liaison.

[[Page 55313]]

(d) Aggregating Requests to Satisfy Unusual Circumstances. For the
purposes of satisfying unusual circumstances under the FOIA, AmeriCorps
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. AmeriCorps will not aggregate
multiple requests that involve unrelated matters.
(e) Expedited processing. (1) Requests and appeals will 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 a person;
(ii) An urgency to inform the public about an actual or alleged
Federal Government activity, if the request is 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, that explains in detail
the basis for requesting expedited processing.
(i) For example, under paragraphs (e)(1)(ii) and (iv) of this
section, a requester who is not a full-time member of the news media
must establish that their primary professional activity or occupation
is information dissemination, though it need not be their sole
occupation. They must also clearly describe why there is a particular
urgency to inform the public about the government activity or questions
about integrity involved in the request--one that extends beyond the
public's right to know about government activity generally.
(ii) As a matter of administrative discretion, AmeriCorps may waive
the formal certification requirement.
(3) Within 10 calendar days of receiving a request for expedited
processing, AmeriCorps will notify the requester of its decision
whether to grant or deny the request. If AmeriCorps grants expedited
processing, the request will be placed in the expedited processing
track and be processed as soon as practicable. If AmeriCorps denies a
request for expedited processing, it will act expeditiously on any
appeal of that decision.
(f) Tolling. The 20-day period under paragraph (b)(1) of this
section commences on the date that the request is first received by the
FOIA Officer. The 20-day period will not be tolled by AmeriCorps except
under the following circumstances:
(1) The FOIA Officer may make one request to the requester for
information and will toll the 20-day period while waiting for the
information. The time from this request to the FOIA Officer's receipt
of a response that addresses the questions will be tolled.
(2) If the requester has indicated that they are willing to pay
fees up to a certain amount, but the estimated fee exceeds that amount,
the FOIA Officer will notify them of the higher estimated fees and ask
if they wish to revise the amount of fees they are willing to pay or
modify the request. The time from this request to the FOIA Officer's
receipt of a response that addresses the questions will be tolled.

Sec. 2507.11 Responses to requests.

(a) In general. To the extent practicable, AmeriCorps will
communicate with requesters using electronic means, such as email. Upon
request, AmeriCorps will provide an estimated date by which it expects
to provide a response to the requester. If a request involves a
voluminous amount of material, or searches in multiple locations, the
agency may provide interim responses, releasing records on a rolling
basis.
(b) Acknowledgment of requests. AmeriCorps will acknowledge the
request and inform the requester of the tracking number assigned to the
request.
(c) Determinations on requests. In all determinations on requests,
AmeriCorps will notify the requester in writing of the right to seek
assistance from AmeriCorps' FOIA Public Liaison.
(1) Grants of requests for records. When AmeriCorps grants a
request in for records in full, it will notify the requester in writing
and provide the records. If fees apply, AmeriCorps will inform the
requester of those fees and send them the requested records promptly
upon their payment of those fees.
(2) Grants for other matters. When AmeriCorps grants a request for
a fee waiver, modification of a request, or expedited processing, it
will notify the requester promptly, in writing.
(3) Adverse determinations on requests. If AmeriCorps denies a
request in any respect, it will notify the requester in writing of the
determination and their right to seek dispute resolution services from
AmeriCorps' FOIA Public Liaison or the Office of Government Information
Services.
(i) Adverse determinations, or denials of requests for records,
include decisions that a record, or portion of it, is exempt; that the
request does not reasonably describe the records sought; that the
record is not subject to the FOIA, is not an agency record, does not
exist, cannot be located, or has been destroyed; or that the record is
not readily reproducible in the format sought by the requester.
(ii) Adverse determinations also include denials involving fees or
fee waiver matters or denials of requests for expedited proceeding.
(4) Information provided in the case of a denial. Response letters
that deny all or part of a request will be signed by the person making
the decision and will provide:
(i) In the case of records withheld in whole or in part, a general
description of what has been withheld and, where not evident, an
estimate of the volume of material withheld, unless providing the
description or estimate would harm an interest protected by an
exemption;
(ii) The reasons for the denial, including, as applicable, a
reference to the specific FOIA exemption that authorizes the
withholding;
(iii) An explanation of the requester's appeal rights as described
in Subpart F and the name and contact information of the Agency's FOIA
Appeals Officer.

Subpart E--Confidential Commercial Information

Sec. 2507.12 Definitions for this subpart.

In addition to the definitions in Sec. 2507.3, the following
definitions apply to this subpart:
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.
Confidential commercial information means commercial or financial
information obtained by an agency from a submitter that may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).

Sec. 2507.13 Procedures for release of commercial information.

(a) Notification to submitters of confidential commercial or
financial information. When AmeriCorps possesses confidential
commercial or financial information, and receives a request for the
records, the Agency will, before release of any information:
(1) Notify the submitter about the request and provide copies of
the requested records;

[[Page 55314]]

(2) Tell the submitter what information it proposes to disclose and
withhold in accordance with Exemption (b)(4) of the Act; and
(3) Require the submitter to inform the agency in writing, within
10 business days from the date the notice is sent, if they object to
any proposed disclosure of commercial or financial information in the
records.
(b) When notice to submitter is not required. AmeriCorps will not
give notice to a submitter of confidential commercial or financial
information if:
(1) The Agency determines that the information shall not be
disclosed;
(2) The information has previously been published or otherwise
lawfully been made available to the public; or
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552).
(c) Analysis of objection. AmeriCorps will consider a submitter's
timely objections and specific grounds for nondisclosure in deciding
whether to disclose the requested information. AmeriCorps will not
consider any information not timely submitted. A submitter who fails to
make a timely objection will be considered to have no objection to
disclosure, unless the submitter requests an extension of time to reply
and is granted that extension or a lesser one.
(d) Disclosure over the objection of a submitter. Whenever
AmeriCorps determines to disclose information over the objection of a
submitter of commercial or financial information, it will send the
submitter written notice that includes:
(1) A description of the commercial or financial information to be
released to the requester;
(2) The reasons why the submitter's objection to release was not
sustained;
(3) The date when the records will be disclosed, which shall be not
less than 5 business days after the notice is sent.
(e) Notice of suit for release. Whenever a requester brings suit to
compel the disclosure of a submitter's commercial or financial
information, AmeriCorps will promptly notify the submitter.
(f) Notification to requestor. AmeriCorps will notify the requester
whenever:
(1) AmeriCorps provides the submitter with notice and the
opportunity to object to disclosure;
(2) AmeriCorps notifies the submitter of its intent to disclose
requested information; and
(3) The submitter files a lawsuit to prevent disclosure of the
information.

Subpart F--Appeals and Alternative Dispute Resolution

Sec. 2507.14 Administrative appeals.

Whenever AmeriCorps denies a FOIA request, it will inform the
requester of the reasons for the denial and of the requester's right to
appeal the denial to the FOIA Appeals Officer.
(a) What a requester may appeal. A requester may appeal:
(1) The withholding of a document or part of a document;
(2) Denial of a fee waiver request;
(3) The type or amount of fees they were charged;
(4) Any other type of adverse determination under the FOIA; or
(5) A failure by AmeriCorps to conduct an adequate search for the
requested records.
(b) What a requester may not appeal. A requester may not appeal the
lack of a timely response.
(c) When appeal is required. A requester must generally submit a
timely administrative appeal before they seek court review of the
Agency's adverse determination.
(d) Requirements for making an appeal. A requester must:
(1) Make the appeal in writing;
(2) Transmit or postmark the appeal within 90 calendar days after
the date of adverse determination;
(3) Clearly identify the assigned request number and the Agency
determination they are appealing;
(4) Mark the subject line of the appeal email, or letter and
envelope, with ``FOIA Appeal.''
(e) Where to file an appeal. A requester may file an appeal by
sending an email to <a href="/cdn-cgi/l/email-protection#f3959c9a92b3909d80dd949c85">[email&#160;protected]</a> to the attention of the FOIA Appeals
Officer, or a letter to: FOIA Appeals Officer, AmeriCorps, 250 E Street
SW, Washington, DC 20525. There is no charge for filing an
administrative appeal.
(f) Adjudication of appeals. (1) The FOIA Appeals Officer will
conduct de novo review and make the final determination on appeals.
(2) An appeal ordinarily will not be adjudicated if the request
becomes a matter of FOIA litigation.
(f) Decisions on appeals. The FOIA Appeals Officer will provide the
decision on any appeal in writing within 20 days (excepting Saturdays,
Sundays, and legal public holidays) from the date the FOIA Appeals
Officer received the appeal. The FOIA Appeals Officer's determination
of an appeal constitutes the Agency's final action.
(1) If the FOIA Appeals Officer's decision upholds the Agency's
determination, the decision will:
(i) State the reasons for the affirmance, including any FOIA
exemptions applied;
(ii) Notify the requester of their statutory right to file a
lawsuit; and
(iii) Inform the requester of the mediation services offered by
OGIS as a non-exclusive alternative to litigation.
(2) If the FOIA Appeals Officer's decision remands or modifies the
Agency determination, either in whole or in part, they will notify the
requester of that determination in writing. Thereafter, AmeriCorps will
re-process the FOIA request in accordance with that determination and,
if applicable, promptly send the releasable records to the requester,
unless a reasonable delay is justified.

Sec. 2507.15 Mediation and dispute resolution services.

If a requester receives an adverse determination on a FOIA request,
they have the right to seek dispute resolution services from the FOIA
Public Liaison or mediation services from OGIS. Congress has charged
OGIS with resolving FOIA disputes between Federal agencies and
requesters. OGIS's mediation services are an alternative to litigation,
but do not preclude it.

Subpart G--Fees

Sec. 2507.16 Definitions for this subpart.

In addition to the definitions in Sec. 2507.3, the following
definitions apply to this subpart:
Commercial use request is a FOIA request for 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, in consideration of the requester's intended use of
the information.
Direct costs are the expenses AmeriCorps 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, or of
heating or lighting a facility.
Duplication fees are the reasonable direct costs of making copies
of records to respond to a FOIA request, including the cost of
materials to produce paper copies and materials plus operator time to
produce tapes, disks, or other media.
Educational institution is any school that operates a program of
scholarly research. To qualify for this fee category, a requester must
show that the request is authorized by, and made under the auspices of,
an educational institution

[[Page 55315]]

and that the records are not sought for a commercial use, but rather
are sought to further scholarly research. The request must serve the
scholarly research goals of the institution rather than an individual
research goal.
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.
Noncommercial scientific institution is an institution that is not
operated on a ``commercial'' basis 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 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.
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. In this clause, the
term ``news'' means information that is about current events or that
would be of current interest to the public. A freelance journalist will
be regarded as a representative of the news media if they demonstrate a
solid basis for expecting publication through a news media entity.
Review fees are the direct costs incurred during the initial
examination of a document to determine if it must be disclosed under
the FOIA. This includes doing all that is necessary to prepare a record
for disclosure, such as redacting the record and marking the
appropriate exemptions. Review time also includes time spent obtaining
and considering any formal objection to disclosure made by a
confidential commercial information submitter. It does not include time
spent resolving general legal or policy issues regarding the
application of exemptions. Review fees are properly charged even if a
record ultimately is not disclosed.
Search fees are costs of all time spent looking for responsive
material, including, if necessary, page-by-page or line-by-line
identification of information within records.

Sec. 2507.17 Fees overview.

(a) AmeriCorps will charge fees for processing FOIA requests in
accordance with the provisions of this subpart and with the OMB
Guidelines, unless a waiver or reduction of fees has been granted under
Sec. 2507.24.
(b) AmeriCorps will search for, review, and duplicate records in
the most efficient and the least expensive manner.
(c) AmeriCorps may properly charge for time spent searching even if
it does not locate any responsive records or if it determines that the
records are entirely exempt from disclosure.
(d) When a request is made for commercial purposes, review fees
will be assessed for the Agency's time spent on its initial analysis to
determine whether an exemption applies to a record or portion of a
record.
(e) No charge will be made at the administrative review stage for
review of exemptions that were applied at the initial review stage.
However, if one or more exemptions are deemed to no longer apply, the
costs associated with the Agency's re-review of the records to consider
the use of other exemptions may be assessed as review fees.
(f) Requesters may seek a fee waiver. AmeriCorps will consider
requests for a fee waiver in accordance with the requirements in Sec.
2507.24.
(g) To resolve any fee issues that arise under this section,
AmeriCorps may contact a requester for additional information.

Sec. 2507.18 Requester categories and fees charged.

(a) The FOIA establishes the following categories of requesters
and, depending on the category, these types of fees to be paid:
(1) Commercial use requesters: these pay search, review, and
duplication fees.
(2) Non-commercial scientific institutions, educational
institutions whose purpose is scholarly or scientific research, or news
media requesters: these pay only duplication fees.
(3) All other requesters: these pay search and duplication fees.
(b) The fee schedule for search, review, and duplication is as
follows:

Table 1 to Paragraph (b)
----------------------------------------------------------------------------------------------------------------
Requester Search fee Review fee Duplication fee
----------------------------------------------------------------------------------------------------------------
Commercial use requester............. $70.00 per hour........ $70.00 per hour........ For photocopies,
20[cent] per page.
Educational & Non-Commercial No fee................. No fee................. For photocopies, the
Scientific institutions. first 100 pages are
free; after that,
20[cent] per page.
Representatives of the news media.... No fee................. No fee................. For photocopies, the
first 100 pages are
free; after that,
20[cent] per page.
All others........................... The first two hours are No fee................. For photocopies, the
free; after that, first 100 pages are
$70.00 per hour. free; after that,
20[cent] per page.
----------------------------------------------------------------------------------------------------------------

Sec. 2507.19 Circumstances in which fees may not be charged.

(a) If AmeriCorps fails to comply with the time limits for
responding to a request, and if no unusual or exceptional
circumstances, as defined by the FOIA, apply to processing the request,
it may not charge search fees (or, for requesters with preferred fee
status, may not charge duplication fees).
(b) If AmeriCorps fails to comply with the extended time limit for
unusual circumstances under Sec. 2705.10(c), it may not charge search
fees (or, for requesters with preferred fee status, may not charge
duplication fees), except as follows:
(1) If unusual circumstances apply and more than 5,000 pages are
necessary to respond to the request, AmeriCorps may charge search fees
(or, for requesters with preferred fee status, may charge duplication
fees), so long as AmeriCorps has given the requester timely written
notice and has discussed with the requester via email, telephone, or
paper mail (or made at least three good-faith attempts to do so) how
the requester could limit the scope of the request.
(2) If a court determines that exceptional circumstances exist,

[[Page 55316]]

AmeriCorps' failure to comply with a time limit will be excused for the
length of time provided by the court order.
(c) AmeriCorps will charge search or review fees for a quarter-hour
period only when more than half of that period is required for search
or review.
(d) AmeriCorps will not charge any fee if the total fee calculated
according to Sec. 2507.18 is $25.00 or less for any request.

Sec. 2507.20 Notice of anticipated fees in excess of $25.00.

(a) When AmeriCorps estimates that fees will exceed $25.00 and the
requester has not stated in writing their willingness to pay fees as
high as anticipated, it will inform the requester of the estimated
fees, including a breakdown for search, review, or duplication.
(1) AmeriCorps will inform the requester if only a portion of the
fee can be readily estimated.
(2) For non-commercial-use requesters subject to search fees, the
notice will tell them that they are entitled to two hours of search
time at no charge. For all requesters who ask for non-electronic copies
of the records, AmeriCorps will inform them that they are entitled to
100 pages of duplication at no charge. In both cases, AmeriCorps will
tell the requester whether those entitlements are included in the
estimate.
(b) When AmeriCorps notifies a requester that the actual or
estimated total fee exceeds $25.00, it will stop work on the request
and the processing time will be tolled until the requester, in writing:
(1) Commits to paying the actual or estimated total fee; or
(2) Designates a specific dollar amount of fees they are willing to
pay; or
(3) Tells AmeriCorps that they seek only that which can be provided
with two free hours of search time and 100 free pages of duplication,
in the case that they are eligible for these entitlements.
(c) If the requester has specified a fee amount they are willing to
pay, but AmeriCorps estimates that the total fee will be greater than
that:
(1) It will notify the requester of the estimated excess and ask if
they wish to either revise the amount of fees they are willing to pay
or modify the request, and
(2) The Agency will stop work on the request and toll the
processing time according to Sec. 2507.10(f).
(d) The FOIA Officer or FOIA Public Liaison will be available to
help any requester reformulate a request to meet the requester's needs
at a lower cost.

Sec. 2507.21 Other charges.

(a) Charges for other services. Although it is not required to
provide special services, if AmeriCorps chooses as a matter of
administrative discretion to do so, it will charge the direct costs of
providing those services. 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.
(b) Charging interest. AmeriCorps may charge interest on any unpaid
bill starting on the 31st day following the billing date. Interest
charges will 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. AmeriCorps will 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.

Sec. 2507.22 Aggregating requests to ensure payment of fees.

(a) When AmeriCorps reasonably believes that a requester or a group
of requesters acting together is attempting to divide a single request
into multiple smaller requests so as to avoid fees, AmeriCorps may
aggregate those requests and charge accordingly.
(1) AmeriCorps may presume that multiple requests of this type made
within a 30-day period have been made in order to avoid fees.
(2) For requests separated by more than 30 days, AmeriCorps will
aggregate them only where there is a reasonable basis for determining
that aggregation is justified in view of all the circumstances
involved.
(b) Multiple requests involving unrelated matters will not be
aggregated.

Sec. 2507.23 Collection and Payment of Fees.

(a) AmeriCorps must ordinarily receive all applicable fees before
it sends copies of records to a requester. This is payment for work
already completed, not an advance payment.
(b) AmeriCorps may require an advance payment before work begins or
is continued on a request when one of the following two circumstances
exists. In these cases, AmeriCorps will not consider the FOIA request
to have been received and will not conduct further work on the request
until it receives the required payment. If the requester does not pay
the advance payment within 30 calendar days after the date of
AmeriCorps' fee determination, the request will be closed.
(1) If AmeriCorps determines or estimates that a total fee will be
greater than $250.00, it may require that the requester pay in advance,
up to the amount of the entire anticipated fee, before starting to
process the request. AmeriCorps may choose to process the request
before it collects fees if it receives a satisfactory assurance of full
payment from a requester with a history of prompt payment.
(2) When a requester has previously failed to pay a properly
charged FOIA fee to the Agency within 30 calendar days of the billing
date, AmeriCorps may require the requester to pay the full amount past
due, plus any applicable interest on that prior request, and may also
require the requester to pay in advance the full amount of any
anticipated fee before it begins to process a new request or continues
to process a pending request or any pending appeal. If AmeriCorps has a
reasonable basis to believe that a requester has misrepresented their
identity in order to avoid paying outstanding fees, it may require the
requester to provide proof of identity.
(c) Requesters must pay fees by check or money order made payable
to the Treasury of the United States.
(d) AmeriCorps is not required to accept payments in installments.

Sec. 2507.24 Fee waivers or fee reductions.

(a) Requests for a waiver or reduction of fees should be made when
the FOIA request is first submitted to AmeriCorps and should address in
specific detail the factors below. However, a requester may ask for a
fee waiver at a later time, if their FOIA request is still pending or
is on administrative appeal.
(b) AmeriCorps will grant a waiver of fees, or a one-time reduction
of the rate established under Sec. 2507.18, when it determines that
the requester has demonstrated that disclosure of the requested
information is in the public interest and is not primarily in the
commercial interest of the requester.
(1) To determine whether 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, AmeriCorps will consider 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 Federal Government operations or activities in order
to be

[[Page 55317]]

``likely to contribute'' to an increased public understanding of those
operations or activities. Disclosure of information that is already in
the public domain, in either the same or a substantially identical
form, would not contribute to such understanding.
(iii) 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 their ability and intention
to effectively convey information to the public, will be considered. A
representative of the news media making the request for professional
purposes satisfies this consideration.
(iv) The public's understanding of the subject in question must be
enhanced by the disclosure to a significant extent. However, AmeriCorps
will not make value judgments about whether the information at issue is
``important'' enough to be made public.
(2) To determine whether disclosure of the requested information is
primarily in the commercial interest of the requester, AmeriCorps will
give requesters an opportunity to explain the purpose of the request.
The Agency will consider the following factors:
(i) If there is an identified commercial interest, AmeriCorps will
determine whether that is the primary interest furthered by the
request.
(ii) The identified commercial interest is not the primary interest
furthered by the request (such that a waiver or reduction of fees is
justified) where the public interest in disclosure is greater than the
identified commercial interest in disclosure. AmeriCorps ordinarily
will presume that when a news media requester has satisfied the public
interest standard, it is a public interest that is primarily served by
disclosure to that requester. Disclosure to data brokers or others who
merely compile and market government information for direct economic
return will not be presumed to primarily serve the public interest.
(c) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver will be granted for those
records only.
(d) A requester may appeal the denial of a fee waiver.

Subpart H--Miscellaneous

Sec. 2507.25 Preservation of records.

AmeriCorps will preserve all correspondence relating to FOIA
requests it receives, and all records processed for those requests,
until the destruction of the correspondence and records is authorized
by Title 44 of the United States Code and the records disposition
authority granted by NARA. The records will not 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.

Sec. 2507.26 Reporting requirements.

(a) AmeriCorps will submit to the Attorney General a statistical
report on FOIA requests, processing, disposition, and appeals.
(b) As required, the Chief FOIA Officer will submit to the Attorney
General a Chief FOIA Officer Report containing a narrative description
of the steps taken by the agency to support and improve FOIA compliance
and transparency.

Sec. 2507.27 Rights and services qualified by the FOIA statute.

Nothing in this part may 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.

Fernando Laguarda,
General Counsel.
[FR Doc. 2022-19185 Filed 9-8-22; 8:45 am]
BILLING CODE 6050-28-P

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