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Rule2023-15512

Procedures for Disclosure of Records Pursuant to the Freedom of Information Act

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Published

July 28, 2023

Effective

September 26, 2023

Issuing agencies

National Intelligence, Office of the National Director

Abstract

This final rule amends the Office of the Director of National Intelligence's (ODNI) rules implementing the Freedom of Information Act (FOIA).

Full Text

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<title>Federal Register, Volume 88 Issue 144 (Friday, July 28, 2023)</title>
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[Federal Register Volume 88, Number 144 (Friday, July 28, 2023)]
[Rules and Regulations]
[Pages 48725-48731]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15512]

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OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

32 CFR Part 1700

Procedures for Disclosure of Records Pursuant to the Freedom of
Information Act

AGENCY: Office of the Director of National Intelligence.

ACTION: Final rule.

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SUMMARY: This final rule amends the Office of the Director of National
Intelligence's (ODNI) rules implementing the Freedom of Information Act
(FOIA).

[[Page 48726]]

DATES:
Effective date: This rule is effective September 26, 2023.
Comment date: Comments due on or before August 28, 2023.

ADDRESSES: Submit electronic comments to <a href="/cdn-cgi/l/email-protection#2b6f6562066d64626a0667424a425844456b4f4542054c445d">[email&#160;protected]</a>.

FOR FURTHER INFORMATION CONTACT: Erin Morrison, 703-275-3500, <a href="/cdn-cgi/l/email-protection#0f4b4146224940464e2243666e667c60614f6b616621686079">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION: On August 16, 2007, 32 CFR part 1700
``Procedures for Disclosure of Records Pursuant to the Freedom of
Information Act'' became effective for ODNI. The regulation addresses
all aspects of FOIA processing, including how and where to submit FOIA
requests, fees for record services, procedures for handling business
information, requests for expedited processing, and the right to appeal
denials of information. This amendment makes alterations due to
organizational changes and subsequent amendments to the FOIA.

Executive Order 12866 and 13563

This final rule has 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 this final rule
does not constitute a significant regulatory action under section 3(f)
of Executive Order 12866, it was 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

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that ODNI consider the impact of paperwork and other burdens imposed on
the public associated with the collection of information. There are no
information collection requirements associated with this final rule and
therefore no analysis of burden is required.

Executive Order 12988

This final rule meets the applicable standards set forth in
Executive Order 12988, Civil Justice Reform.

Executive Order 13132

Executive Order 13132 requires ODNI to examine the implications for
the distribution of power and responsibilities among the various levels
of government resulting from this final rule. ODNI concludes that the
final rule does not affect the rights, roles and responsibilities of
the States, involves no preemption of State law, and does not limit
State policymaking discretion. This rule has no federalism implications
as defined by the Executive Order.

Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b),
ODNI has reviewed this final rule and certifies that it will not have a
significant economic impact on a substantial number of small entities,
and thus no regulatory flexibility analysis is required. This final
rule pertains to ODNI's policies and practices for processing FOIA
requests, and does not impose any new requirements on small entities.

Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, 109 Stat. 48 (Mar. 22, 1995), requires Federal agencies to
assess the effects of certain regulatory actions on State, local, and
tribal governments, and the private sector. This final rule imposes no
Federal mandate on any State, local, or Tribal government or on the
private sector. Accordingly, no UMRA analysis of economic and
regulatory alternatives is required.

Small Business Regulatory Enforcement Fairness Act of 1996

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

Environmental Impact

ODNI has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, and has
determined that this action does not have a significant effect on the
human environment.

Energy Impact

The energy impact of this action has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163,
as amended, 42 U.S.C. 6362. This rulemaking is not a major regulatory
action under the provisions of the EPCA.
This document revises part 1700.

List of Subjects in 32 CFR Part 1700

Administrative practice and procedure, Freedom of information.

The Office of the Director of National Intelligence revises 32 CFR
part 1700 to read as follows:

PART 1700--PROCEDURES FOR DISCLOSURE OF RECORDS PURSUANT TO THE
FREEDOM OF INFORMATION ACT

Sec.
1700.1 Authority and purpose.
1700.2 Definitions.
1700.3 Contact for general information and requests.
1700.4 Requirements for making requests.
1700.5 Processing of requests for records.
1700.6 Time frames for ODNI responses.
1700.7 Administrative appeals.
1700.8 Procedures for requests implicating confidential commercial
information.
1700.9 Fees.
1700.10 Other rights and services.

Authority: 5 U.S.C. 552; 50 U.S.C. 3023-3025; Pub. L. 108-458,
118 Stat. 3638.

Sec. 1700.1 Authority and purpose.

(a) This part is issued under the authority of the Freedom of
Information Act, as amended, 5 U.S.C. 552; the National Security Act of
1947, as amended, 50 U.S.C. 3023-3025; and the Intelligence Reform and
Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638.
(b) This part prescribes procedures for:
(1) ODNI administration of the FOIA;
(2) Requesting records from ODNI pursuant to the FOIA; and
(3) Filing an administrative appeal with ODNI of an initial adverse
decision under the FOIA.
(c) This part contains the rules that ODNI follows in processing
requests for records under the FOIA. The rules 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.

Sec. 1700.2 Definitions.

For purposes of this part, the following definitions apply:
(a) Direct costs are those expenditures which ODNI actually incurs
in the processing of a FOIA request. It includes, but is not limited
to, the salary of the employee performing the work and costs associated
with duplication. It does not include overhead factors such as space.
(b) Fees are those direct costs which may be assessed considering
the categories established by the FOIA. Requesters should submit
information

[[Page 48727]]

to assist ODNI in determining the proper fee category. ODNI may draw
reasonable inferences from the identity and activities of the requester
in making fee determinations. The fee categories include:
(1) Commercial use request. A request seeking information for a use
or purpose that furthers the requester's commercial, trade, or profit
interests, including pursuit of those interests through litigation.
(2) Educational institution. Any institution that operates a
program or programs of scholarly research. To be in this category, a
requester must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are not
sought for a commercial use but are sought to further scholarly
research. ODNI may seek assurance from the requester that the request
is in furtherance of scholarly research and will advise requesters of
their placement in this category.
(3) Non-commercial scientific institution. 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. To be in this
category, a requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are not sought for a commercial use but are sought to further
scientific research.
(4) Representative of the news media. Any person or entity that
actively gathers information of potential interest to a segment of the
public, uses editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. The term ``news'' means
information that concerns current events or that would be of interest
to the public.
(c) Freedom of Information Act, FOIA, or the Act is the statute as
codified at 5 U.S.C. 552, as amended.
(d) FOIA Public Liaison is the individual designated by the Chief
FOIA Officer to assist FOIA requesters with concerns about ODNI's
processing of their FOIA requests, including assistance in resolving
disputes.
(e) Information Review & Release Group (``IRRG'') Chief is the ODNI
employee to whom the Chief of the ODNI Information Management Office
(IMO) has delegated their responsibility for processing FOIA requests.
(f) ODNI is the Office of the Director of National Intelligence and
its component organizations. This does not include other members of the
Intelligence Community as defined in 50 U.S.C. 3003, or other federal
entities subsequently designated in accordance with this authority,
unless specifically designated and included in this part or in the
notice of a system of records.
(g) OGIS is the Office of Government Information Services within
the National Archives and Records Administration.
(h) Pages are paper copies of standard office size or the dollar
value equivalent in other media.
(i) Person is an individual, partnership, corporation, association,
or public or private organization other than an agency.
(j) Record is any document, irrespective of physical or electronic
form, made or received by ODNI in pursuance of federal law or in
connection with the transaction of public business and appropriate for
preservation by ODNI as evidence of the organization, functions,
policies, decisions, procedures, operations, or other activities of
ODNI or because of the informational value of the data contained
therein.
(k) Reproduction is the generation of a copy of a requested record
in a form appropriate for release.
(l) Requester is a person, organization, or other entity who
submits a written or electronic communication requesting information on
or concerning the FOIA program, the availability of records from ODNI,
or both.
(m) Review means all time expended in examining a record to
determine whether any portion must be withheld pursuant to law and in
effecting any required deletions. This does not include personnel hours
expended in resolving general legal or policy issues.
(n) Search means all time expended in looking for and retrieving
material that may be responsive to a request.

Sec. 1700.3 Contact for general information and requests.

For general information on this part, to inquire about the FOIA
program at ODNI, or to file a FOIA request, a written submission should
be sent, either by mail to the Office of the Director of National
Intelligence, IRRG Chief, Information Management Office, Washington, DC
20511, or by email to <a href="/cdn-cgi/l/email-protection#14505a5d39525b5d5554707a7d3a737b62">[email&#160;protected]</a>. To check on the status of a
pending case, an individual may either call the ODNI FOIA Office at
(703) 275-1313 or email the ODNI FOIA Office at <a href="/cdn-cgi/l/email-protection#f2b6bcbbdfb4bdbbb3b2969c9bdc959d84">[email&#160;protected]</a>.

Sec. 1700.4 Requirements for making requests.

(a) FOIA requests must be submitted in writing. They may be sent to
the Office of the Director of National Intelligence, IRRG Chief,
Information Management Office, Washington, DC 20511; by email to <a href="/cdn-cgi/l/email-protection#a7e3e9ee8ae1e8eee6e7c3c9ce89c0c8d1">[email&#160;protected]</a>; or through the FOIA portal at <a href="https://www.foia.gov">https://www.foia.gov</a>. For
the most expeditious handling, the request letter and envelope, or
subject line of the electronic transmission, should be marked ``Freedom
of Information Act Request.'' The requester shall provide contact
information, such as a phone number, email address, or mailing address.
(b) A requester who is making a request for records about
themselves must comply with the verification of identity requirements
provided in the ODNI Privacy Act regulations, 32 CFR 1701.7(d).
(c) Where a request for records pertains to a third party, a
requester may receive greater access by submitting either a notarized
authorization signed by that third party or a declaration made in
compliance with the requirements set forth in 28 U.S.C. 1746 by that
third party. Such notarized authorization or declaration should
authorize disclosure of the requested records to the requester. If the
third party is deceased, the requester should submit proof of that fact
(e.g., a copy of a death certificate or an obituary). As an exercise of
administrative discretion, ODNI can require a requester to supply
additional information to verify that a third party has consented to
disclosure.
(d) Requests must describe the records sought with sufficient
detail to enable ODNI personnel to locate them with a reasonable amount
of effort. In general, requesters should include as much detail as
possible about the specific records or the types of records that they
are seeking, such as the date, title, name, author, recipient, or
subject matter of the record. Before or after submitting their
requests, requesters may contact the FOIA Public Liaison to discuss the
records they are seeking and to receive assistance in describing the
records. If ODNI determines that a request does not reasonably describe
the records sought, ODNI shall inform the requester what additional
information is needed or why the request is otherwise insufficient. If
a request does not reasonably describe the records sought, the agency's
response to the request may be delayed.
(e) A request should specify the preferred format (including
electronic) to convey the records requested. ODNI will accommodate a
request for a specific format if the record is readily available in
that format. When the format of the response is not specified,

[[Page 48728]]

ODNI will provide responsive records in the most convenient format.

Sec. 1700.5 Processing of requests for records.

(a) On receipt of a request, IMO's IRRG staff will send an
acknowledgement letter to the requester which will provide an assigned
request number for future reference and, if fees will be charged, shall
confirm the requester's agreement to pay fees.
(b) To determine which records are responsive to the request, IRRG
staff will task relevant ODNI components to search all places likely to
contain potentially responsive records. The ODNI components ordinarily
will include records in their possession as of the date that they begin
their search unless the request specifically included an end date for
the search. If another date is used, the IRRG staff will inform the
requester of the date used and the reason for its use. The potentially
responsive records will be sent to IRRG staff for responsiveness review
and application of relevant exemptions, if any.
(c) When reviewing responsive records, ODNI will determine whether
another agency of the Federal Government is better able to determine
whether the record is exempt from disclosure under the FOIA. As to any
such record, the agency will ordinarily proceed in one of the following
ways:
(1) When the record originates with ODNI but contains information
of interest to another agency or other Federal Government office, ODNI
will typically consult with that other agency or office prior to making
a release determination.
(2) When ODNI believes that a different agency is best able to
determine whether to disclose the record, ODNI typically will refer the
record to that agency and ask that agency to respond to the requester
concerning that record (provided the other agency is subject to FOIA).
(i) Ordinarily, the agency that originated the record will be
presumed to be the best agency to make the disclosure determination.
However, if ODNI and the originating agency jointly agree that ODNI is
in the best position to respond regarding the record, then the record
may be handled as a consultation.
(ii) If another agency accepts responsibility for responding to a
particular record, ODNI will notify the requester of the referral. When
appropriate and available, the notice will include a point of contact
for the other agency.
(3) The standard referral procedure is not appropriate where
disclosure of the identity of the agency to which the referral would be
made could harm an interest protected by an applicable exemption, such
as the exemptions that protect personal privacy or national security
interests. For instance, if ODNI locates within its file's materials
originating with another Intelligence Community element, and the
involvement of that element in the matter is classified and not
publicly acknowledged, then disclosing or attributing the involvement
of that Intelligence Community element could cause damage to the
national security. In such an instance, and to avoid harm to an
interest protected by an applicable exemption, ODNI will coordinate
with the originating agency to seek its views on the disclosure of the
record. ODNI will then inform the requester of the release
determination.
(d) When a request is made for information that is classified, ODNI
must determine whether the information is currently and properly
classified in accordance with applicable classification rules. When a
request involves a record containing classified information that has
been classified by another agency, ODNI will refer that portion of the
request to the agency that originated the information, or has the
primary interest in it, as appropriate. Similarly, when a record
contains information that ODNI has derivatively classified (for
example, when ODNI's classification is based on information originally
classified by another agency), ODNI must refer that portion of the
request to the agency that originally classified the underlying
information.
(e) ODNI will notify the requester of its determination to grant,
deny, or refer the FOIA request. ODNI will release reasonably
segregable, non-exempt information. For any adverse determination--
including those regarding any disputed fee matter; a denial of a
request for a fee waiver; a determination to withhold a record in whole
or in part; a determination that a record does not exist or cannot be
located; or a denial of a request for expedited processing--the notice
will include the following information:
(1) The name and title or position of the person responsible for
the determination to deny the request in whole or in part;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied in denying the request. The notice will
indicate, if feasible, the amount of information deleted and the
exemption under which a deletion is made on the released portion of the
record, unless including that information would harm an interest
protected by the exemption;
(3) An estimate of the volume of information withheld, if
applicable, such as the number of pages or some other reasonable form
of estimation. Such an estimate is not required if the volume is
otherwise indicated by deletions marked on records that are disclosed
in part or if providing an estimate would harm an interest protected by
an applicable FOIA exemption;
(4) A statement that the adverse determination may be appealed and
a description of the requirements for an appeal; and
(5) A statement notifying the requester of the assistance available
from the FOIA Public Liaison, and the dispute resolution services
offered by OGIS.

Sec. 1700.6 Time frames for ODNI responses.

(a) ODNI will ordinarily respond to requests according to their
order of receipt.
(b) When evaluating requests, ODNI may use two or more processing
tracks by distinguishing between simple and more complex requests based
on the amount of work or time needed to process the request.
(c) Subject to paragraphs (e) and (f) of this section, ODNI will
respond to a FOIA request within 20 days after receipt of the request.
A request is received by ODNI, for purposes of commencing the 20-day
time frame for its response, on the day that the request is received by
the IMO or, in any event, not later than ten days after the request is
first received by any ODNI component.
(d) ODNI must determine whether to grant or deny, in whole or in
part, an administrative appeal submitted in accordance with Sec.
1700.7 within 20 days after receipt of the appeal, unless the time
frame for a response to an appeal is extended in accordance with
paragraph (e) of this section.
(e) ODNI may toll the 20-day time frame set forth in paragraph (c)
or (d) of this section for one of the two reasons cited below, as
permitted by 5 U.S.C. 552(a)(6)(A)(ii). If ODNI tolls the time frame,
the tolling period ends upon receipt of the requester's response.
(1) Once, to await information that the ODNI has reasonably
requested from the requester; or
(2) As necessary, to clarify with the requester issues regarding
the fee assessment.
(f) Whenever the statutory time limit for processing a request
cannot be met because of ``unusual circumstances,'' as defined in the
FOIA, and ODNI extends

[[Page 48729]]

the time limit on that basis, ODNI will notify the requester in
writing, before expiration of the 20-day period to respond, of the
unusual circumstances involved and of the date by which processing of
the request can be expected to be completed. Where the extension
exceeds 10 days, ODNI shall, as described by the FOIA, provide the
requester with an opportunity to modify the request or arrange an
alternative time period for processing. ODNI shall make available its
designated FOIA contact and its FOIA Public Liaison for this purpose
and notify the requester of the dispute resolution services offered by
OGIS.
(g) For the purposes of satisfying unusual circumstances under the
FOIA, ODNI 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. ODNI will notify the
requester(s) of the decision to aggregate.
(h) Requests and appeals shall be processed on an expedited basis
whenever it is determined that they involve a compelling need. For this
purpose, a ``compelling need'' involves either:
(1) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(2) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by a person who is primarily
engaged in disseminating information.
(i) A request for expedited processing must be in writing and may
be made at any time.
(j) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. Under this
paragraph (h), a requester who is not a full-time member of the news
media must establish that the requester is a person whose primary
professional activity or occupation is information dissemination,
though it need not be the requester's sole occupation. Such a requester
also must establish a particular urgency to inform the public about the
government activity involved in the request--an urgency that extends
beyond the public's right to know about government activity generally.
The existence of numerous articles published on a given subject can be
helpful in establishing the requirement that there be an ``urgency to
inform'' the public on the topic. As a matter of administrative
discretion, ODNI may waive the formal certification requirement.
(k) The IMO will decide within 10 days of its receipt of a request
for expedited processing of its decision whether to grant or deny such
a request. If expedited processing is granted, the request shall be
given priority, placed in the processing track for expedited requests,
and shall be processed as soon as practicable. If a request for
expedited processing is denied, any appeal of that decision shall be
acted on expeditiously.

Sec. 1700.7 Administrative appeals.

(a) A requester may appeal any adverse determination to a person
designated by the Director of National Intelligence (the ``Designee'').
The Designee will act on behalf of the Director of National
Intelligence on all appeals under this section.
(b) An appeal ordinarily will not be adjudicated if the request
becomes subject to litigation.
(c) The appeal must be transmitted if sent by email, or postmarked
if sent by U.S. mail, within 90 days after the date of the adverse
determination letter. The appeal shall clearly identify the ODNI
determination that is being appealed, including the assigned ODNI case
request number. For the most expeditious handling, the subject line of
the electronic transmission, or appeal letter and envelope, should be
marked ``Freedom of Information Act Appeal.''
(d) On receipt of any appeal involving classified information, the
Designee must take appropriate action to ensure compliance with
applicable classification rules.
(e) ODNI's decision on an appeal shall be in writing. A decision
upholding ODNI's original determination will contain a statement that
identifies the reasons for affirmance, including any FOIA exemptions
applied. The decision will provide the requester with notification of
the statutory right to file a lawsuit and will inform the requester of
the mediation services offered by OGIS as a non-exclusive alternative
to litigation. If ODNI's decision is remanded or modified on appeal,
the requester will be notified of that determination in writing. ODNI
will thereafter further process the request in accordance with that
appeal determination.

Sec. 1700.8 Procedures for requests implicating confidential
commercial information.

(a) Definitions:
(1) Confidential commercial information means commercial or
financial information obtained by ODNI from a submitter that may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
(2) Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides information, either directly or
indirectly, to the Federal Government.
(b) A submitter of confidential commercial information must use
good faith efforts to designate by appropriate markings, either at the
time of submission or within a reasonable time thereafter, any portion
of its submission that it considers to be protected under FOIA
Exemption 4. These designations shall expire 10 years after the date of
the submission unless the submitter requests and provides justification
for a longer designation period.
(c) ODNI will provide the submitter with prompt written notice of
confidential commercial information when records containing such
information are responsive to a FOIA request and ODNI determines that
it may be required to disclose the records. The notice shall:
(1) Give the submitter an opportunity to object to disclosure of
the information, in whole or in part;
(2) Describe the confidential commercial information requested or
include copies of the requested record(s) or record portion(s)
containing the information; and
(3) Inform the submitter of the time frame in which it must respond
to the notice.
(d) ODNI will allow the submitter seven days to respond to the
notice described in paragraph (b) of this section. If the submitter
objects to the disclosure of the information, in whole or in part, they
must provide ODNI with a detailed written statement of the objection.
The statement must specify all grounds for withholding any portion of
the information under any FOIA exemption and, when relying on FOIA
Exemption 4, it must explain why the information is a trade secret, or
commercial or financial information that is privileged and
confidential. If the submitter fails to respond within the time frame
specified in the notice or an extended time frame if requested by the
submitter, ODNI will conclude that the submitter has no objection to
disclosure of the information. ODNI will only consider information that
it receives within the time frame specified in the notice or an
extended time frame if requested by the submitter. Any information
provided by a submitter under this Part may itself be subject to
disclosure under the FOIA.

[[Page 48730]]

(e) ODNI will consider the submitter's objection and specific
grounds for non-disclosure in deciding whether to disclose confidential
commercial information. Whenever ODNI decides to disclose information
over the submitter's objection, it will provide written notice to the
submitter that includes:
(1) A statement of the reasons why each of the bases for
withholding were not sustained in whole or in part;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
after the notice.
(f) The notice requirements of paragraphs (c) and (d) of this
section shall not apply if:
(1) ODNI determines that the information is exempt under the FOIA;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute other than
the FOIA or by a regulation issued in accordance with the requirements
of Executive Order 12600; or
(4) The designation made by the submitter under paragraph (a) of
this section appears obviously frivolous. In such a case, ODNI shall,
within a reasonable time prior to the date the disclosure will be made,
give the submitter written notice of the final decision to disclose the
information.
(g) Whenever ODNI provides a submitter with the notice described in
paragraph (b) of this section, ODNI also will provide notice to the
requester that notice and an opportunity to object to the disclosure
are being provided to the submitter. ODNI also must notify the
requester when it notifies the submitter of its intent to disclose the
requested information, and whenever a submitter files a lawsuit to
prevent the disclosure of the information.

Sec. 1700.9 Fees.

(a) Search, review, and reproduction fees will be charged in
accordance with the provisions below relating to the schedule,
limitations, and category of requester. Applicable fees will be due
even if a subsequent 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 FOIA. Requesters must pay fees by check or money
order made payable to the Treasury of the United States.
(1) ODNI will charge fees that recoup the full allowable direct
costs it incurs in processing a FOIA request. Fees may be charged for
search, review or duplication. As a matter of administrative
discretion, ODNI may release records without charge or at a reduced
rate whenever ODNI determines that the interest of the U.S. Government
would be served. ODNI will use the most efficient and least costly
methods to comply with a request. ODNI may charge for search time even
if no records are located or the records located are exempt from
disclosure. If ODNI fails to comply with the FOIA's time limits in
which to respond to a request, it may not charge search fees, unless
the circumstances outlined in paragraph (o) of this section are met.
(2) [Reserved][FEDREG][VOL]*[/VOL][NO]*[/NO][DATE]*[/
DATE][RULES][RULE][PREAMB][AGENCY]*[/AGENCY][SUBJECT]*[/SUBJECT][/
PREAMB][SUPLINF][HED]*[/HED]?>
(b) With regard to manual searches for records, ODNI will charge
the salary rate(s) (calculated as the basic rate of pay plus 16 percent
of that basic rate to cover benefits) of the employee(s) performing the
search.
(c) In calculating charges for computer searches for records, ODNI
will charge the actual direct cost of providing the service, including
the cost of operating computers and other electronic equipment, such as
photocopiers and scanners, directly attributable to searching for
records potentially responsive to the FOIA request and the portion of
the salary of the operators/programmers performing the search.
(d) ODNI may only charge requesters seeking records for commercial
use for time spent reviewing records to determine whether they are
exempt from mandatory disclosure. Charges may be assessed only for the
initial review--that is, the review undertaken the first time IRRG
staff analyzes the applicability of a specific exemption to a
particular record or portion of a record. Records or portions of
records withheld in full under an exemption that is subsequently
determined not to apply may be reviewed again to determine the
applicability of other exemptions not previously considered. ODNI may
assess the costs for such subsequent review. No charge will be made for
review at the administrative appeal stage of exemptions applied at the
initial review stage.
(e) Records will be duplicated at a rate of $.50 per page, except
that ODNI may adjust this rate from time to time by rule published in
the Federal Register. For copies prepared by computer, such as tapes,
CDs, DVDs, or printouts, ODNI will charge the actual cost, including
operator time, of production. For other methods of reproduction or
duplication, ODNI will charge the actual direct costs of producing the
document(s). If ODNI estimates that duplication charges are likely to
exceed $25.00, it will notify the requester of the estimated amount of
fees, unless the requester indicated in advance their willingness to
pay fees as high as those anticipated. The notice will offer an
opportunity to confer with IRRG staff to reformulate the request to
meet the requester's needs at a lower cost. If ODNI notifies a
requester that the actual or estimated fees are in excess of $25.00,
the request will not be considered received and further work will not
be completed until the requester commits in writing to pay the actual
or estimated total fee, or designate some amount of fees they are
willing to pay, or in the case of a non-commercial use requester who
has not yet been provided with their statutory entitlements, the
requester designates that they seek only that which can be provided by
the statutory entitlements. The ODNI's IRRG staff or FOIA Public
Liaison are available to assist requesters with reformulating requests
to meet their needs at a lower cost.
(f) ODNI will charge the requester the full costs of providing them
with the following services:
(1) Certifying that records are true copies; or
(2) Sending records by special methods such as express mail.
(g) ODNI may assess interest charges on an unpaid bill starting on
the 31st calendar day following the day on which the bill was sent.
Interest shall be at the rate prescribed in 31 U.S.C. 3717 and will
accrue from the date of the billing until payment is received by ODNI.
(h) ODNI will not charge a search fee for requests by educational
institutions, non-commercial scientific institutions, or
representatives of the news media. A search fee will be charged for a
commercial use request.
(i) ODNI will not charge duplication fees for requests by
educational institutions, non-commercial scientific institutions, or
representatives of the news media for a non-commercial use request if
ODNI fails to comply with the FOIA's time limits in which to respond to
a request.
(j) Except for a commercial use request, ODNI will not charge for
the first 100 pages of duplication and the first two hours of search.
(k) A requester may not file multiple requests, each seeking
portions of a record or records, solely for the purpose of avoiding
payment of fees. When ODNI reasonably believes that a requester, or a
group of requesters acting in concert, has submitted requests that
constitute a single request involving clearly related matters, ODNI may
aggregate those requests and charge accordingly.
(l) ODNI may not require a requester to make payment before ODNI
begins

[[Page 48731]]

work to satisfy the request or to continue work on a request, unless:
(1) ODNI estimates or determines that the allowable charges that
the requester may be required to pay are likely to exceed $250.00; or
(2) The requester has previously failed to pay a fee charged within
30 calendar days of the date of billing.
(m) In cases in which ODNI requires advance payment, the request
will not be considered received and further work will not be completed
until the required payment is received. If the requester does not pay
the advance payment within 30 calendar days after the date of ODNI's
fee determination, the request will be closed.
(1) Upon completion of all required review and the receipt of
accrued fees (or promise to pay fees), ODNI will promptly inform the
requester in writing of those records or portions of records that will
be released and those that will be denied.
(2) For records to be released, ODNI will provide paper copies or
records on electronic media, if requested and available.
(3) For records not released or partially released, ODNI shall
explain the reasons for any denial and give notice of a right of
administrative appeal. For partial releases, redactions will be applied
to ensure requesters can see the placement and general length of
withholdings with the applicable exemption(s) clearly with respect to
each withholding.
(n) Fee waiver requests and appeals. Upon written request, ODNI may
waive or reduce fees that are otherwise chargeable under this part. If
a fee waiver or reduction in fees is requested, the requester must
demonstrate that a waiver or reduction in fees is in the public
interest because disclosure of the requested records is likely to
contribute significantly to the public understanding of the operations
or activities of the government and is not primarily in the requester's
commercial interest. After processing, actual fees must exceed $25.00
for ODNI to require payment of fees. Appeals should be resolved prior
to the initiation of processing and the incurring of costs. However,
fee waiver requests will be accepted at any time prior to ODNI's
decision regarding the request, except when processing has been
initiated.
(o) If the ODNI has determined that unusual circumstances, as
defined by the FOIA, apply and more than 5,000 pages are necessary to
respond to the request, the ODNI may charge search fees, or, in the
case of requesters described in paragraph (h) of this section, may
charge duplication fees, if the following steps are taken.
(1) The ODNI must have provided timely written notice of unusual
circumstances to the requester in accordance with the FOIA and ODNI
must have 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 5 U.S.C. 552(a)(6)(B)(ii).
(2) If this exception is satisfied, the ODNI may charge all
applicable fees incurred in the processing of the request.

Sec. 1700.10 Other rights and services.

Nothing in this part shall be construed so as to enlarge, diminish,
modify, or alter the powers or authority of the ODNI; or construed to
entitle any person, as of right, to any service or to the disclosure of
any record to which such person is not entitled under the FOIA.

Dated: July 7, 2023.
Gregory M. Koch,
Director, Information Management Office, Chief Operating Officer,
Office of the Director of National Intelligence.
[FR Doc. 2023-15512 Filed 7-27-23; 8:45 am]
BILLING CODE P

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