Proposed Rule2023-26151
Procedures for Disclosure of Information Under the Freedom of Information Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 28, 2023
Issuing agencies
Peace Corps
Abstract
This proposed rule amends the regulations that the Peace Corps follows in processing requests under the Freedom of Information Act (FOIA) to comply with the FOIA Improvement Act of 2016. The amendments would clarify and update procedures for requesting information from the Peace Corps and procedures that the Peace Corps follows in responding to requests from the public.
Full Text
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<title>Federal Register, Volume 88 Issue 227 (Tuesday, November 28, 2023)</title>
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[Federal Register Volume 88, Number 227 (Tuesday, November 28, 2023)]
[Proposed Rules]
[Pages 83044-83054]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26151]
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PEACE CORPS
22 CFR Part 303
RIN 0420-AA31
Procedures for Disclosure of Information Under the Freedom of
Information Act
AGENCY: The Peace Corps.
ACTION: Proposed rule.
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SUMMARY: This proposed rule amends the regulations that the Peace Corps
follows in processing requests under the Freedom of Information Act
(FOIA) to comply with the FOIA Improvement Act of 2016. The amendments
would clarify and update procedures for requesting information from the
Peace Corps and procedures that the Peace Corps follows in responding
to requests from the public.
DATES: Comments must be received by December 28, 2023.
ADDRESSES: You may send comments, identified by Regulatory Information
Number (RIN) 0420-AA31, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for sending comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#a3d3cccfcac0dae3d3c6c2c0c6c0ccd1d3d08dc4ccd5"><span class="__cf_email__" data-cfemail="bacad5d6d3d9c3facadfdbd9dfd9d5c8cac994ddd5cc">[email protected]</span></a>. Include RIN 0420-AA31 in the
subject line of the message.
<bullet> Mail: The Peace Corps/The Office of the General Counsel/
1275 First Street NE/Washington, DC 20526.
Instructions: All submissions received must include the receiving
agency's name, which is the Peace Corps, designate the Office of the
General Counsel, and note the RIN for this rulemaking.
FOR FURTHER INFORMATION CONTACT: David van Hoogstraten, Supervisory
Associate General Counsel at (202) 692-2150 or
<a href="/cdn-cgi/l/email-protection#8febf9eee1e7e0e0e8fcfbfdeefbeae1cfffeaeeeceaece0fdfffca1e8e0f9"><span class="__cf_email__" data-cfemail="e6829087888e89898195929487928388a696838785838589949695c8818990">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On June 30, 2016, President Obama signed
into law the FOIA Improvement Act of 2016, Public Law 114-185, 130
Stat. 538 (the Act). The Act specifically requires all agencies to
review and update their FOIA regulations in accordance with its
provisions, and the Peace Corps is making changes to its regulations
accordingly. Among other requirements, the Act addresses a range of
procedural issues that affect Peace Corps FOIA regulations, including
requirements that agencies establish a minimum of 90 days for
requesters to file an administrative appeal and that agencies provide
notice to requesters of dispute resolution services at various times
throughout the FOIA process. The proposed rule would revise and update
policies and procedures concerning the Peace Corps FOIA process, which
were last published in the Federal Register (FR) on April 10, 2014 (79
FR 19816), entered into effect on May 12, 2014, and currently appear at
22 CFR part 303.
Request for Comments: The Peace Corps invites public comment on all
aspects of this proposed rule and will take those comments into account
before publishing a final rule. The proposed rule makes small
adjustments for clarification, rearranges and redesignates sections in
a more logical order, streamlines the language of some procedural
provisions, and makes the following key changes:
22 CFR Part 303
(1) Definitions. Section 303.2 is expanded to revise current
definitions and add definitions for the following terms: ``Compelling
need,'' ``Confidential commercial information,'' ``Direct costs,''
``Unusual circumstances,'' and ``Initial denial authority (IDA).''
(2) Public reading room. Section 303.5 is revised to delete
reference to a physical public reading room and to provide for a public
electronic FOIA Library on the Peace Corps website on which certain
specified records will be made available. Also, related to this change,
the former Sec. 303.6 (Procedures for use of public reading room.) is
deleted.
(3) Requests for records. This section, the former Sec. 303.8, has
been redesignated as Sec. 303.7 and is updated to provide revised
procedures for the following paragraphs:
<bullet> (b) through (d) Submitting a FOIA request;
<bullet> (f) Requesting a waiver or reduction of fees;
<bullet> (h) Initial response/delays to FOIA requests;
<bullet> (j) Giving notice of delays; and
<bullet> (l) Requesting expedited processing and appeals from
denials of requests for expedited processing.
(4) Timing of responses to requests. A new Sec. 303.8 sets forth
guidelines and procedures for:
(a) Order of response to FOIA requests;
(b) Multitrack processing;
(c) Delays in responses due to unusual circumstances and notice of
such delays and of the availability of both the FOIA Public Liaison and
the dispute resolution services provided for by the Office of
Government Information Services (OGIS);
(d) Aggregating requests; and
(e) Expedited processing.
(5) Exemptions for withholding records. A revised Sec. 303.9
provides that the deliberative process privilege shall not apply to
records created 25 years or more before the date on which the records
were requested.
(6) Responses to requests. A new Sec. 303.11 sets forth guidelines
and procedures for:
(a) Electronic communication with requesters;
(b) Acknowledgement of requests that will take longer than 10
working days to process;
(c) Estimated dates of completion and interim responses;
(d) The granting of requests;
(e) Adverse determination of requests;
(f) Markings on released documents; and
(g) Use of records exclusions.
(7) Appeals. A renumbered Sec. 303.13, formerly Sec. 303.12, is
updated to set forth revised guidelines and procedures for:
(a) Submitting appeals;
(b) Adjudication of appeals;
(c) Decisions on appeals;
(d) Engaging in dispute resolution services offered by OGIS; and
(e) When an appeal is required.
(8) Confidential commercial information. A new Sec. 303.14 sets
forth guidelines and procedures for:
(a) Designation of confidential commercial information;
(b) When notice to submitters is required;
(c) Exceptions to submitter notice requirements;
(d) Opportunity to object to disclosure;
(e) Analysis of objections;
(f) Notice of intent to disclose;
(g) Notice of FOIA lawsuit; and
(h) Requester notification.
(9) Preservation of records. A new Sec. 303.15 sets forth
guidelines and procedures for preserving records
[[Page 83045]]
pertaining to the requests it receives under this subpart.
(10) Fees. A revised Sec. 303.16, formerly Sec. 303.13,
incorporates the new statutory restrictions on charging fees in certain
circumstances, reflects developments in the case law, and streamlines
the description of the factors to be considered when making fee waiver
determinations. In this regard, Sec. 303.16(a) is revised to conform
to recent appellate court decisions addressing two FOIA fee categories:
``representative of the news media'' and ``educational institution.''
Section 303.16(e)(2), which addresses restrictions on charging fees
when the FOIA's time limits are not met, is revised to reflect changes
made to those restrictions by the FOIA Improvement Act of 2016.
Specifically, these changes reflect that the Peace Corps may not charge
search fees or duplication fees for representatives of the news media
and educational/non-commercial scientific institution requesters when
the Peace Corps fails to comply with the FOIA's time limits. The
restriction on charging fees is excused and the Peace Corps may charge
fees as usual when it satisfies one of three exceptions detailed at 5
U.S.C. 552(a)(4)(A)(viii)(II) and incorporated into this section at
Sec. 303.16(e)(2)(ii) through (iv). Lastly, Sec. 303.16(l), which
addresses the requirements for a waiver or reduction of fees, is
revised to specify that requesters may seek a waiver of fees and to
streamline and simplify the description of the factors to be considered
by the Peace Corps when making fee waiver determinations.
(11) Procedures for responding to a subpoena. A redesignated Sec.
303.17, formerly Sec. 303.14, is updated to revise the definition of
``employee'' in this section to include volunteers and trainees of the
Peace Corps for purposes only of Sec. 303.17.
(12) Other rights and services. A new Sec. 303.18 sets forth that
nothing in this part shall be construed to entitle any person, as of
right, to any service or to the disclosure of any record to which such
person is not entitled under the FOIA.
Regulatory Certifications
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation, and in accordance with Executive Oder
13563, ``Improving Regulation and Regulatory Review,'' section 1(b),
General Principles of Regulation, and the Peace Corps has determined it
to be non-significant within the meaning of Executive Order 12866.
Additionally, because this proposed rule does not meet the definition
of a significant regulatory action it does not trigger the requirements
contained in Executive Order 13771. See the Office of Management and
Budget's (OMB's) Memorandum titled ``Interim Guidance Implementing
section 2 of the Executive order of January 30, 2017, titled `Reducing
Regulation and Controlling Regulatory Costs' '' (February 2, 2017),
supplemented by OMB's Memorandum titled ``Implementing Executive Order
13771, Titled `Reducing Regulation and Controlling Regulatory Costs.'
''
Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))
This regulatory action will not have a significant adverse impact
on a substantial number of small entities.
Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)
This regulatory action does not contain a Federal mandate that will
result in the expenditure by state, local, and tribal governments, in
aggregate, or by the private sector, of $100,000,000 or more in any one
year, and it will not significantly or uniquely affect small
governments.
Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)
This regulatory action will not impose any additional reporting or
recordkeeping requirements under the Paperwork Reduction Act.
Federalism (Executive Order 13132)
This regulatory action does not have federalism implications, as
set forth in Executive Order 13132. It will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
List of Subjects in 22 CFR Part 303
Freedom of Information Act.
For the reasons set out in the preamble, the Peace Corps proposes
to amend 22 CFR part 303 as follows:
PART 303--PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE
FREEDOM OF INFORMATION ACT
0
1. The authority citation for part 303 is revised to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 22 U.S.C. 2501 et
seq.; 31 U.S.C. 3717.
0
2. Revise Sec. 303.2 as follows:
Sec. 303.2 Definitions.
Commercial use request means a request from or on behalf of one who
seeks information for a use or purpose that furthers the commercial,
trade, or profit interests of the requester or the person on whose
behalf the request is made. In determining whether a requester has made
a commercial use request, the Peace Corps will look to the use to which
a requester will put the documents requested. When the Peace Corps has
reasonable cause to doubt the requester's stated use of the records
sought, or where the use is not clear from the request itself, it will
seek additional clarification before assigning the request to a
category.
Compelling need means:
(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;
(2) An urgency to inform the public about an actual or alleged
Peace Corps or Federal Government activity and the request is made by a
person primarily engaged in disseminating information; or
(3) A matter of widespread and exceptional media interest in which
there exist possible questions about the Peace Corps' or the Federal
Government's integrity which affect public confidence.
Confidential commercial information means commercial or financial
information obtained by the Peace Corps from a submitter that may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
Direct costs are those expenses that the Peace Corps incurs in
searching for and duplicating (and, in the case of commercial use
requests, reviewing) records in order to respond to a FOIA request. For
example, direct costs include the salary of the employee performing the
work (i.e., the basic rate of pay for the employee, plus 16 percent of
that rate to cover benefits) and the cost of operating computers and
other electronic equipment, such as photocopiers and scanners. Direct
costs do not include overhead expenses, such as the costs of space, and
of heating or lighting a facility.
Duplication means the process of making a copy of a record
requested pursuant to this part. Such copies can take the form of paper
copy, microform, audio-visual materials, or machine readable electronic
documents, among others.
[[Page 83046]]
Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, or an institution of professional or
vocational education which operates a program or programs of scholarly
research.
Expedited processing means the process set forth in the FOIA that
allows requesters to ask for expedited processing of their FOIA request
if they can demonstrate a compelling need.
Fee waiver means the 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.
FOIA Public Liaison means an agency official who is responsible for
assisting in reducing delays, increasing transparency and understanding
of the status of requests, and assisting in the resolution of disputes.
Initial denial authority (IDA) is an official who has been granted
authority as the FOIA Officer who may deny FOIA requests of the Peace
Corps based on one or more of the nine categories of exemptions from
mandatory disclosure. An IDA also: denies a fee category claim by a
requester; denies a request for expedited processing due to
demonstrated compelling need; denies a request for a waiver or
reduction of fees; reviews a fee estimate; and confirms that no records
were located in response to a request.
Non-commercial scientific institution means an institution that is
not operated on a ``commercial'' basis and which is operated solely for
the purpose of conducting scientific research, the results of which are
not intended to promote any particular product or industry.
OIG records means those records as defined generally in this
section which originated with or are in the possession and control of
the Office of Inspector General (OIG) of the Peace Corps which have
been compiled for law enforcement, audit, and investigative functions
and/or any other purpose authorized under the IG Act of 1978, as
amended.
Records means books, papers, maps, photographs, or other
documentary materials, regardless of whether the format is physical or
electronic, made or received by the Peace Corps in connection with the
transaction of Peace Corps' business and preserved by the Peace Corps
as evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the Peace Corps, or
because of the informational value of data in them. The term does not
include, inter alia, books, magazines, or other materials acquired
solely for library purpose, or that are otherwise publicly available.
Representative of the news media is any person or entity that
actively gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. The term
``news'' means information that is about current events or that would
be of current interest to the public. Examples of news media entities
include television or radio stations that broadcast ``news'' to the
public at large and publishers of periodicals that disseminate ``news''
and make their products available through a variety of means to the
general public, including news organizations that disseminate solely on
the internet. A request for records supporting the news-dissemination
function of the requester shall not be considered to be for a
commercial use. ``Freelance'' journalists who demonstrate a solid basis
for expecting publication through a news media entity shall be
considered as a representative of the news media. A publishing contract
would provide the clearest evidence that publication is expected;
however, components shall also consider a requester's past publication
record in making this determination.
Requester category means one of the three categories that agencies
place requesters in for the purpose of determining whether a requester
will be charged fees for search, review and duplication, including
commercial requesters; non-commercial scientific or educational
institutions or news media requesters, and all other requesters.
Review means the process of examining a document located in
response to a request to determine whether any portion of such document
is exempt from disclosure. It also includes processing any such
document for disclosure. Review does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
Search means the process of looking for and retrieving records that
are responsive to a request for records. It includes page-by-page or
line-by-line identification of material within documents and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Searches may be
conducted manually or by automated means and will be conducted in the
most efficient and least expensive manner. If the Agency cannot
identify the requested records after a 2 hour search, it can determine
that the records were not adequately described and ask the requester to
provide a more specific request.
Submitter means any person or entity, including a corporation,
state, or foreign government, but not including another Federal
Government entity, that provides confidential commercial information,
either directly or indirectly to the Federal Government.
Unusual circumstances, as used in this part, mean circumstances
attending a request for information and are limited to the following,
but only to the extent reasonably necessary for the proper processing
of the particular request: (1) The need to search for and collect the
requested records from offices or locations that are separate from the
office processing the request; (2) The need to search for, collect, and
appropriately examine a voluminous amount of separate and distinct
records which are demanded in a single request; or (3) The need for
consultation, which shall be conducted with all practicable speed, with
another agency or organization having a substantial interest in the
determination of the request or among two or more offices of the Peace
Corps having a substantial subject matter interest therein.
0
3. Revise Sec. 303.3 to read as follows:
Sec. 303.3 Policy.
(a) The Peace Corps will make its records concerning its
operations, activities, and business available to the public consistent
with the requirements of the FOIA and will not withhold requested
information unless the Peace Corps reasonably foresees that disclosure
would harm an interest protected by an exemption under the FOIA or a
disclosure that is prohibited by law.
(b) The Peace Corps may make discretionary disclosures of records
or information, without a formal FOIA request and that may be exempt
from disclosure under the FOIA whenever disclosure would not
foreseeably harm an interest protected by a FOIA exemption, but this
policy does not create any right enforceable in court.
(c) Requests for records of the Office of Inspector General (OIG
records), as defined in Sec. 303.2, and appeals from denials of
requests for OIG records are subject to this policy and will be granted
or denied consistent with Sec. 303.10(b) through (c) through their own
FOIA adjudication process.
0
4. Revise Sec. 303.5 to read as follows:
[[Page 83047]]
Sec. 303.5 FOIA Library.
(a) The public reading room is no longer physically available. The
Peace Corps makes information available to the public electronically
through the Peace Corps' FOIA Library on its public website at <a href="https://www.peacecorps.gov/about/open-government/">https://www.peacecorps.gov/about/open-government/</a>.
(b) Subject to the limitation stated in paragraph (c) of this
section, the following records will be made available in the FOIA
Library:
(1) All final public opinions, including concurring and dissenting
opinions, and orders issued in the adjudication of cases that involve
the Peace Corps;
(2) Statements of policy and interpretations adopted by the Peace
Corps that are not published in the Federal Register;
(3) Administrative staff manuals and instructions to the staff that
affect the public;
(4) Copies of frequently requested records, regardless of form or
format, with a general index of such records:
(i) Released to any person in response to a public request for
records which the Peace Corps determines are likely to become subject
to subsequent requests for substantially the same records or
(ii) For which there have been 3 or more requests;
(5) The index required by Sec. 303.6; and
(6) Other records the Peace Corps has determined are of general
interest to members of the public in understanding activities of the
Peace Corps or in dealing with the Peace Corps in connection with those
activities.
(c) Records required by the FOIA to be available in the FOIA
Library may be exempt from mandatory disclosure pursuant to section
552(b) of the FOIA. Such records will not be made available in the FOIA
Library. Other records maintained in the FOIA Library may be edited by
the redaction of information protected under section 552(b) of the
FOIA. The extent of the redaction shall be indicated, unless doing so
would harm an interest protected by the exemption under which the
redaction is made. If technically feasible, the extent of the redaction
shall be indicated at the place in the record where the redaction was
made.
(d) Records required by the FOIA to be maintained shall be made
available in the Peace Corps' electronic FOIA Library.
(e) Most public electronic records will also be made available to
the public on the Peace Corps website at <a href="https://www.peacecorps.gov">https://www.peacecorps.gov</a>.
Sec. 303.6 [Removed]
0
5. Remove Sec. 303.6.
Sec. Sec. 303.7 and 303.8 [Redesignated as Sec. Sec. 303.6 and
303.7]
0
6. Redesignate Sec. Sec. 303.7 and 303.8 as Sec. Sec. 303.6 and
303.7, respectively.
0
7. Revise newly redesignated Sec. 303.7 to read as follows:
Sec. 303.7 Requests for records.
(a) Except for records required by the FOIA to be published in the
Federal Register or to be made available in the FOIA Library, Peace
Corps records will be made promptly available, upon request, to any
person in accordance with this section, unless it is determined that
such records should be withheld and are exempt from mandatory
disclosure under the FOIA.
(b) Requests for records under this section shall be:
(1) Made in writing, shall include the name of the requester, and
the envelope, email, and/or the letter shall be clearly marked
``Freedom of Information Request.'' All such requests shall be
addressed to the FOIA Officer. Requests by letter shall be directed to
Peace Corps FOIA Officer, 1275 First Street NE, Washington, DC 20526.
Requests by email shall be directed to <a href="/cdn-cgi/l/email-protection#2660696f67665643474543454954565508414950"><span class="__cf_email__" data-cfemail="5b1d14121a1b2b3e3a383e3834292b28753c342d">[email protected]</span></a>. Any request
not marked and addressed as specified in this paragraph will be so
marked by Peace Corps personnel as soon as it is properly identified
and will be forwarded immediately to the FOIA Officer. A request
improperly addressed will not be deemed to have been received for
purposes of the time period set out in paragraph (h) of this section
until it has been received by the FOIA Officer. Upon receipt of an
improperly addressed request, the FOIA Officer shall notify the
requester of the date on which the time period began. All paper
requests shall be stamped ``received'' on the date it is received by
the FOIA Officer. Electronic requests are deemed to be ``received'' on
the date in which the FOIA Officer acknowledges receipt.
(2) A request must reasonably describe the records requested so
that employees of the Peace Corps who are familiar with the subject
area of the request are able, with a reasonable amount of effort, to
determine which particular records are within the scope of the request.
If it is determined that a request does not reasonably describe the
records sought, the requester shall be so informed and provided an
opportunity to confer with Peace Corps personnel in order to attempt to
reformulate the request in a manner that will meet the needs of the
requester and the requirements of this paragraph (b).
(c) The Peace Corps requires that first-party requesters provide
the following information so that the Peace Corps can protect the
personal information found in its files and ensure that records are
disclosed only to the proper persons: the requester's full name,
current address, citizenship or legal permanent resident alien status,
date and place of birth (city, state, and country), and a copy of a
photo ID. A first-party request must be signed, and the requester's
signature must be either notarized or made under penalty of perjury
pursuant to 28 U.S.C. 1746 as a substitute for notarization. A
requester may request this penalty of perjury statement from the FOIA
office to complete for submission.
(d) To facilitate the location of records by the Peace Corps, a
requester should try to provide the following kinds of information, if
known:
(1) The specific event or action to which the record refers;
(2) The unit or program of the Peace Corps which may be responsible
for or may have produced the record;
(3) The date of the record or the date or period to which it refers
or relates;
(4) The type of record, such as an application, a particular form,
a contract, or a report;
(5) Personnel of the Peace Corps who may have prepared or have
knowledge of the record; or
(6) Citations to newspapers or publications which have referred to
the record.
(e) The Peace Corps is not required to create a record or to
perform research to satisfy a request.
(f) Any request for a waiver or reduction of fees should be
included in the FOIA request, and any such request should indicate the
grounds for a waiver or reduction of fees, as set out in Sec.
303.16(k).
(g) The Peace Corps will provide records in the form or format
indicated by the requester to the extent such records are readily
reproducible in the requested form or format.
(h)(1) The FOIA Officer or OIG FOIA Officer, upon request for any
records made in accordance with this section, shall make an initial
determination of whether to comply with or deny such request and
dispatch such determination to the requester within 20 business days
after receipt of such request, except for unusual circumstances, as
defined in Sec. 303.2, in which case the time limit may be extended
for up to 10 business days by written notice to the requester setting
forth the reasons for such extension and the date on which a
determination is expected to be dispatched.
(2) If the FOIA Officer determines that a request or portion
thereof is for OIG records, the FOIA Officer shall promptly
[[Page 83048]]
refer the request or portion thereof to the OIG FOIA Officer and send
notice of such action to the requester. In such case, the OIG FOIA
Officer shall make an initial determination of whether to comply with
or deny such request and dispatch such determination to the requester
within 20 business days after receipt of such request, except for
unusual circumstances, in which case the time limit may be extended for
up to 10 business days by written notice to the requester setting forth
the reasons for such extension and the date on which a determination is
expected to be dispatched .
(i) If a request is particularly broad or complex so that it cannot
be completed within the time periods stated in paragraph (h) of this
section, the Peace Corps may ask the requester to narrow the request or
agree to an additional delay.
(j) When no determination can be dispatched within the applicable
time limit, the FOIA Officer or the OIG FOIA Officer shall inform the
requester of the reason for the delay, the date on which a
determination may be expected to be dispatched, and the requester's
right to treat the delay as a denial and to appeal to the Associate
Director for the Office of Management or the Inspector General, in
accordance with Sec. 303.13. If no determination has been dispatched
by the end of the 20-day period, or the last extension thereof, the
requester may deem the request denied, and exercise a right of appeal
in accordance with Sec. 303.13. The FOIA Officer or the OIG FOIA
Officer may ask the requester to forego an appeal until a determination
is made.
(k) After it has been determined that a request will be granted,
the responsible official will act with due diligence in providing a
prompt response.
(l)(1) Requests and appeals will be taken out of order and given
expedited treatment whenever the requester demonstrates a compelling
need as defined in Sec. 303.2.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, a request for expedited processing must be properly
addressed and marked and received by the Peace Corps pursuant to Sec.
303.7(b).
(3) A requester who seeks expedited processing must submit a
statement demonstrating a compelling need, as defined in Sec. 303.2,
that is certified by the requester to be true and correct to the best
of that person's knowledge and belief, explaining in detail the basis
for requesting expedited processing.
(4) Within 10 business days of its receipt of a request for
expedited processing, the FOIA Officer or the OIG FOIA Officer shall
decide whether to grant the request and shall notify the requester of
the decision. If a request for expedited treatment is granted, the
request shall be given priority 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.
(5) Appeals regarding expedited processing denials shall be made to
the Associate Director for the Office of Management, or in the case of
a denial by the OIG FOIA Officer of a request for expedited processing,
the Inspector General, who shall respond within 10 business days of
receipt of the appeal.
0
8. Add new Sec. 303.8 to read as follows:
Sec. 303.8 Timing of responses to requests.
(a) In general. The Peace Corps ordinarily will respond to requests
according to their order of receipt. The response time will commence on
the date that the request is received by the Peace Corps' FOIA Officer
or by the OIG FOIA Officer.
(b) Multitrack processing. The Peace Corps designates a specific
track for requests that are granted expedited processing in accordance
with the standards set forth in paragraph (e) of this section. The
Peace Corps may also designate additional processing tracks that
distinguish between simple and more complex requests based on the
estimated amount of work or time needed to process the request. Among
the factors the Peace Corps may consider are the number of records
requested, the number of pages involved in processing the request and
the need for consultations or referrals. The Peace Corps will advise
requesters of the track into which their request falls and, when
appropriate, should offer the requesters an opportunity to narrow or
modify their request so that it can be placed in a different processing
track.
(c) Unusual circumstances. Whenever the Peace Corps cannot meet the
time limit for processing a request because of unusual circumstances as
defined in Sec. 303.2 and the Peace Corps extends the time limit on
that basis, the Peace Corps will, before expiration of the 20-day
period to respond, notify the requester in writing of the unusual
circumstances involved and of the date by which the Peace Corps
estimates processing of the request will be completed. Where the
extension exceeds 10 working days, the Peace Corps will provide the
requester with an opportunity to modify the request or arrange an
alternative time period for processing the original or modified
request. The Peace Corps will make available its designated FOIA
contact or its FOIA Public Liaison for this purpose. The Peace Corps
FOIA Public Liaison is identified on the agency's FOIA Open Government
web page <a href="https://www.peacecorps.gov/about/open-government/foia/">https://www.peacecorps.gov/about/open-government/foia/</a> and is
available at <a href="/cdn-cgi/l/email-protection#55131a1c14152530343630363a2725267b323a23"><span class="__cf_email__" data-cfemail="e7a1a8aea6a797828684828488959794c9808891">[email protected]</span></a>. The Peace Corps will also alert
requesters to the availability of the Office of Government Information
Services (OGIS) to provide dispute resolution services.
(d) Aggregating requests. To address unusual circumstances as
defined in Sec. 303.2, the Peace Corps may aggregate requests in cases
where it reasonably appears that multiple requests, submitted either by
a requester or by a group of requesters acting in concert, constitute a
single request that would otherwise involve unusual circumstances. The
Peace Corps will not aggregate multiple requests that involve unrelated
matters.
(e) Expedited processing. (1) The Peace Corps will process requests
and appeals on an expedited basis whenever it is determined that they
involve a compelling need as defined in Sec. 303.2.
(2) A request for expedited processing of a request for information
may be made at any time and submitted to the Peace Corps FOIA Officer
or to the OIG FOIA Officer in the case of a request concerning OIG
records. When making a request for expedited processing of an
administrative appeal, the request should be submitted to the Associate
Director for the Office of Management, or in the case of an appeal
concerning OIG records, the Inspector General.
(3) A requester who seeks expedited processing will submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. For example, in
Sec. 303.2, paragraph (2) of the definition for compelling need, a
requester who is not a full-time member of the news media must
establish that the requester is a person whose primary professional
activity or occupation is information dissemination, though it need not
be the requester's sole occupation. Such a requester also must
establish a particular urgency to inform the public about the
government activity involved in the request--one that extends beyond
the public's right to know about government activity generally. The
existence of numerous articles published on a given subject may be
helpful in establishing the requirement that there be an ``urgency to
inform'' the public on the topic. As a matter of administrative
discretion, the
[[Page 83049]]
Peace Corps may waive the formal certification requirement.
(4) The Peace Corps will notify the requester within 10 calendar
days of the receipt of a request for expedited processing of its
decision whether to grant or deny expedited processing. If expedited
processing is granted, the request will be given priority, placed in
the processing track for expedited requests, and processed as soon as
practicable. If a request for expedited processing is denied, the Peace
Corps will act on any appeal of that decision expeditiously.
0
9. Amend Sec. 303.9 by revising paragraphs (a) introductory text,
(a)(5), and paragraph (b) introductory text to read as follows:
Sec. 303.9 Exemptions for withholding information.
(a) The Peace Corps may withhold information in part or in its
entirety using FOIA exemptions listed in 5 U.S.C. 552 (b), when the
Initial Denial Authority (IDA) reasonably foresees that the disclosure
of such information would cause harm to an interest protected by the
exemption or exemptions, or if disclosure is prohibited by law. The
Peace Corps will take reasonable steps necessary to segregate and
release nonexempt information. The Peace Corps may withhold a requested
record from public disclosure only if the record fits within one or
more of the following FOIA exemptions:
* * * * *
(5) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a party other than an agency in litigation
with the Peace Corps, except that the deliberative process privilege
shall not apply to records created 25 years or more before the date on
which the records were requested;
* * * * *
(b) The IDA may also withhold information applicable under the
Privacy Act of 1974, 5 U.S.C. 552a(j) and (k) when the records are
managed within a system of records; see 22 CFR part 308.
* * * * *
0
10. Amend Sec. 303.10 by redesignating paragraph (c) as paragraph (d)
and adding a new paragraph (c) to read as follows:
Sec. 303.10 Responsibilities and authorities.
* * * * *
(c) Authority to grant or deny appeals. The Associate Director for
the Office of Management is authorized to grant or deny appeals under
Sec. 303.13(a) through (c) except in the case of appeals from denials
of requests for OIG records. The Inspector General is authorized to
grant or deny appeals under Sec. 303.13(a) through (c) from denials of
requests for OIG records. Both the Associate Director for the Office of
Management and the Inspector General shall follow this part in
processing appeals.
* * * * *
Sec. Sec. 303.13 and 303.14 [Redesignated as Sec. Sec. 303.16 and
303.17]
0
11. Redesignate Sec. Sec. 303.13 and 303.14 as Sec. Sec. 303.16 and
303.17, respectively.
Sec. Sec. 303.11 and 303.12 [Redesignated as Sec. Sec. 303.13 and
303.14]
0
12. Redesignate Sec. Sec. 303.11 and 303.12 as Sec. Sec. 303.13 and
303.14, respectively
0
13. Add new Sec. 303.11 to read as follows:
Sec. 303.11 Responses to requests.
(a) In general. The Peace Corps, to the extent practicable, will
communicate with requesters having access to the internet
electronically, such as email or web portal.
(b) Acknowledgments of requests. The Peace Corps will acknowledge
the request in writing and assign it an individualized tracking number
if it will take longer than 10 working days to process. The Peace Corps
will include in the acknowledgment a brief description of the records
sought to allow requesters to more easily keep track of their requests.
(c) Estimated dates of completion and interim responses. Upon
request, the Peace Corps will provide an estimated date by which the
Peace Corps expects to provide a response to the requester. If a
request involves a voluminous amount of material, or searches in
multiple locations, the Peace Corps may provide interim responses,
releasing the records on a rolling basis.
(d) Grants of requests. Once the Peace Corps determines it will
grant a request in full or in part, it will notify the requester in
writing. The Peace Corps will also inform the requester of any fees
charged under Sec. 303.16 and will disclose the requested records to
the requester promptly upon payment of any applicable fees. The Peace
Corps will inform the requester of the availability of its FOIA Public
Liaison to offer assistance.
(e) Adverse determinations of requests. If the Peace Corps makes an
adverse determination denying a request in any respect, it will notify
the requester of that determination in writing. Adverse determinations,
or denials of requests, include decisions that: the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees or fee waiver matters or denials of
requests for expedited processing.
(f) Markings on released documents. The Peace Corps will release
any reasonably segregable portion of a record after redaction of the
exempt portions. The amount of information redacted and the exemption
under which the redaction is made shall be indicated on the released
portion of the record unless doing so would harm an interest protected
by an applicable exemption. The location of the information redacted
will also be indicated on the record, if technically feasible.
(g) Use of record exclusions. (1) In the event that the Peace Corps
identifies records that may be subject to exclusion from the
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the Peace Corps
will confer with Department of Justice, Office of Information Policy
(OIP), prior to application of the exclusion.
(2) The Peace Corps, when invoking an exclusion, should document
its consultation with OIP.
0
14. Revise newly redesignated Sec. 303.12 to read as follows:
Sec. 303.12 Denials.
(a) A denial of a written request for a record or information that
complies with the requirements of Sec. 303.7 shall be in writing and
shall include, as applicable:
(1) The name and title or position of the responsible IDA;
(2) The signature of the agency's FOIA Officer, or in the case of
denials of requests concerning OIG records, the signature of the
Inspector General or designee;
(3) A brief statement of the reasons for the denial, including any
FOIA exemption applied in denying the request;
(4) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the volume is
otherwise indicated by redactions marked on records that are disclosed
in part or if providing an estimate would harm an interest protected by
an applicable exemption;
[[Page 83050]]
(5) For any information denied under Exemption 3, the specific
statute relied upon to deny the information along with a short
description of the statute;
(6) A statement that the requester must appeal no later than 90
days after the date of the denial and along with instructions on how to
appeal to the appellate authority. The instructions will include the
appellate authority's duty title, the mailing address for the appeal,
and instructions on how the requester can appeal electronically; as
defined under Sec. 303.13; and
(7) A statement notifying the requester of the assistance available
from the Peace Corps' FOIA Public Liaison and the dispute resolution
services offered by OGIS.
(b) [Reserved]
0
15. Revise newly redesignated Sec. 303.13 to read as follows:
Sec. 303.13 Appeals.
(a) Requirements for making an appeal. A requester may appeal any
adverse determinations to the Associate Director of the Office of
Management or, in the case of a denial of a request for OIG records,
the Inspector General. Examples of adverse determinations are provided
in Sec. 303.11(e). Requesters can submit appeals by mail or online in
accordance with the following requirements or with those on the Peace
Corps' website. The requester must make the appeal in writing and to be
considered timely it must be postmarked, or in the case of electronic
submissions, transmitted, within 90 calendar days after the date of the
response. The appeal should clearly identify the Peace Corps'
determination that is being appealed and the assigned request number.
To facilitate handling, the requester should mark both the appeal
letter and envelope, or subject line of the electronic transmission,
``Freedom of Information Act Appeal.''
(b) Adjudication of appeals. (1) The Associate Director of the
Office of Management or designee, or in the case of a denial of a
request for OIG records, the Inspector General or designee, will
consider all appeals under this section.
(2) An appeal ordinarily will not be adjudicated if the request
becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, the
Associate Director of the Office of Management, or in the case of a
denial of a request for OIG records, the Inspector General, will take
appropriate action to ensure compliance with applicable classification
rules.
(c) Decisions on appeals. The Associate Director of the Office of
Management or designee, or in the case of a denial of a request for OIG
records, the Inspector General or designee, will provide the decision
on an appeal in writing. A decision that upholds a determination in
whole or in part will contain a statement that identifies the reasons
for the affirmance, including any FOIA exemptions applied. The decision
will provide the requester with notification of the statutory right to
file a lawsuit and will inform the requester of the dispute resolution
services offered by the OGIS of the National Archives and Records
Administration as a non-exclusive alternative to litigation. If a
decision is remanded or modified on appeal, the Associate Director of
the Office of Management or designee, or in the case of a denial of a
request for OIG records, the Inspector General or designee, will notify
the requester of that determination in writing. The Associate Director
of the Office of Management or designee, or in the case of a denial of
a request for OIG records, the Inspector General or designee, will then
further process the request in accordance with that appeal
determination and will respond directly to the requester.
(d) Engaging in dispute resolution services provided by OGIS.
Dispute resolution is a voluntary process. If the Peace Corps agrees to
participate in the dispute resolution services provided by OGIS, it
will actively engage as a partner to the process in an attempt to
resolve the dispute.
(e) When an appeal is required. Before seeking review by a court of
a Peace Corps' adverse determination, a requester generally will first
submit a timely administrative appeal.
0
16. Add new Sec. 303.14 to read as follows:
Sec. 303.14 Confidential commercial information.
(a) Designation of confidential commercial information. A submitter
of confidential commercial information as defined in Sec. 303.2 will
use good faith efforts to designate by appropriate markings, at the
time of submission, any portion of its submission that it considers to
be protected from disclosure under Exemption 4. These designations
expire 10 years after the date of the submission unless the submitter
requests and provides justification for a longer designation period.
(b) When notice to submitters is required. (1) The Peace Corps will
promptly provide written notice to the submitter of confidential
commercial information whenever records containing such information are
requested under the FOIA if the Peace Corps determines that it may be
required to disclose the records, provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The Peace Corps has a reason to believe that the requested
information may be protected from disclosure under Exemption 4 but has
not yet determined whether the information is protected from
disclosure.
(2) The notice will either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information. In cases involving a voluminous
number of submitters, the Peace Corps may post or publish a notice in a
place or manner reasonably likely to inform the submitters of the
proposed disclosure, instead of sending individual notifications.
(c) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) The Peace Corps determines that the information is exempt under
the FOIA, and therefore will not be disclosed;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous. In such case, the Peace Corps
will give the submitter written notice of any final decision to
disclose the information within a reasonable number of days prior to a
specified disclosure date.
(d) Opportunity to object to disclosure. (1) The Peace Corps will
specify a reasonable time period within which the submitter may respond
to the notice referenced in paragraph (b) of this section.
(2) If a submitter has any objections to disclosure, it should
provide the Peace Corps a detailed written statement that specifies all
grounds for withholding the particular information under any exemption
of the FOIA. In order to rely on Exemption 4 as basis for
nondisclosure, the submitter will explain why the information
constitutes a trade secret or commercial or financial information that
is commercially confidential.
(3) A submitter who fails to respond within the time period
specified in the
[[Page 83051]]
notice will be considered to have no objection to disclosure of the
information. The Peace Corps is not required to consider any
information received after the date of any disclosure decision. Any
information provided by a submitter under this part may itself be
subject to disclosure under the FOIA.
(e) Analysis of objections. The Peace Corps will consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose the requested information.
(f) Notice of intent to disclose. Whenever the Peace Corps decides
to disclose information over the objection of a submitter, the Peace
Corps will provide the submitter written notice, which will include:
(1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of
the records as the Peace Corps intends to release them; and
(3) A specified disclosure date, which will be a reasonable time
after the notice.
(g) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, the Peace Corps will promptly notify the submitter.
(h) Requester notification. The Peace Corps will notify the
requester whenever it provides the submitter with notice and an
opportunity to object to disclosure; whenever it notifies the submitter
of its intent to disclose the requested information; and whenever a
submitter files a lawsuit to prevent the disclosure of the information.
0
17. Add Sec. 303.15 to read as follows:
Sec. 303.15 Preservation of records.
The Peace Corps will preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized
pursuant to title 44 of the United States Code or the General Records
Schedule 4.2 of the National Archives and Records Administration. The
Peace Corps will not dispose of or destroy records while they are the
subject of a pending request, appeal, or lawsuit under the FOIA.
0
18. Revise newly redesignated Sec. 303.16 to read as follows:
Sec. 303.16 Fees.
(a) In general. The Peace Corps will charge for processing requests
under the FOIA in accordance with the provisions of this section and
with the Guidelines of the Office of Management and Budget (OMB). For
purposes of assessing fees, the FOIA establishes three categories of
requesters:
(1) Commercial use requesters;
(2) Non-commercial scientific or educational institutions or news
media requesters; and
(3) All other requesters.
(b) Fee assessment. Different fees are assessed depending on the
requester category and approved by the FOIA Officer. Requesters may
seek a fee waiver. The Peace Corps will consider individual requests
for fee waivers in accordance with the requirements in paragraph (l) of
this section. To resolve any fee issues that arise under this section,
Peace Corps may contact a requester for additional information. The
Peace Corps will ensure that searches, reviews, and duplications are
conducted in the most efficient and the least expensive manner. The
Peace Corps ordinarily will collect all applicable fees before sending
copies of records to a requester. Requesters will pay fees by check or
money order made payable to the Treasury of the United States, or by
another method as determined by the Peace Corps.
(c) Fee charging considerations. (1) Whether the request is a
commercial use request as defined in Sec. 303.2. The Peace Corps'
decision to place a requester in the commercial use category will be
made on a case-by-case basis based on the requester's intended use of
the information. The Peace Corps will notify requesters of their
placement in this category.
(2) The sum of direct costs as defined in Sec. 303.2.
(3) The cost of duplication as defined in Sec. 303.2.
(4) Whether the requester is an educational institution as defined
in Sec. 303.2. A requester in this fee category will show that the
request is made in connection with his or her role at the educational
institution. The Peace Corps may seek verification from the requester
that the request is in furtherance of scholarly research, and the Peace
Corps will advise requesters of their placement in this category.
Example 1 to paragraph (c)(4). A request from a professor of
geology at a university for records relating to soil erosion, written
on letterhead of the Department of Geology, would be presumed to be
from an educational institution.
Example 2 to paragraph (c)(4). A request from the same professor of
geology seeking drug information from the Food and Drug Administration
in furtherance of a murder mystery he is writing would not be presumed
to be an institutional request, regardless of whether it was written on
institutional stationery.
Example 3 to paragraph (c)(4). A student who makes a request in
furtherance of their coursework or other school-sponsored activities
and provides a copy of a course syllabus or other reasonable
documentation to indicate the research purpose for the request, would
qualify as part of this fee category.
(5) Whether the requester is a noncommercial scientific institution
as defined in Sec. 303.2. A requester in this category will show that
the request is authorized by and is made under the auspices of a
qualifying institution and that the records are sought to further
scientific research and are not for a commercial use. The Peace Corps
will advise requesters of their placement in this category.
(6) Whether the requester is a representative of the news media as
defined in Sec. 303.2. Examples of news media entities include
television or radio stations that broadcast ``news'' to the public at
large and publishers of periodicals that disseminate ``news'' and make
their products available through a variety of means to the general
public, including news organizations that disseminate solely on the
internet. A request for records supporting the news-dissemination
function of the requester will not be considered to be for a commercial
use. ``Freelance'' journalists who demonstrate a solid basis for
expecting publication through a news media entity will be considered as
a representative of the news media. A publishing contract would provide
the clearest evidence that publication is expected; however, the Peace
Corps may also consider a requester's past publication record in making
this determination. The Peace Corps will advise requesters of their
placement in this category.
(7) The cost of the review as defined in Sec. 303.2. Review time
includes processing any record for disclosure, such as doing all that
is necessary to prepare the record for disclosure, including the
process of redacting the record and marking the appropriate exemptions.
Review costs are properly charged even if a record ultimately is not
disclosed. Review time also includes time spent both obtaining and
considering any formal objection to disclosure made by a confidential
commercial information submitter under Sec. 303.14, but it does not
include time spent resolving general legal or policy issues regarding
the application of exemptions.
[[Page 83052]]
(8) The cost of the time involved in the search as defined in Sec.
303.2. Search time includes page-by-page or line-by-line identification
of information within records and the reasonable efforts expended to
locate and retrieve information from electronic records.
(d) Charging fees. In responding to FOIA requests, the Peace Corps
will charge the following fees unless a waiver or reduction of fees has
been granted under paragraph (l) of this section. Because the fee
amounts provided under paragraph (m) of this section already account
for the direct costs associated with a given fee type, the Peace Corps
will not add any additional costs to charges calculated under this
section.
(1) Search. (i) Requests made by educational institutions,
noncommercial scientific institutions, or representatives of the news
media are not subject to search fees. The Peace Corps will charge
search fees for all other requesters, subject to the restrictions of
paragraph (e) of this section. The Peace Corps may properly charge for
time spent searching even if they do not locate any responsive records
or if they determine that the records are entirely exempt from
disclosure.
(ii) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require
new programming, the fees will be charged.
(iii) The Peace Corps will charge the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. The Peace Corps will notify
the requester of the costs associated with creating such a program, and
the requester will agree to pay the associated costs before the costs
may be incurred.
(iv) For requests that require the retrieval of records stored by
the Peace Corps at a Federal records center operated by the National
Archives and Records Administration (NARA), agencies will charge
additional costs in accordance with the Transactional Billing Rate
Schedule established by NARA.
(2) Duplication. The Peace Corps will charge duplication fees to
all requesters, subject to the restrictions of paragraph (e) of this
section. The Peace Corps will honor a requester's preference for
receiving a record in a particular form or format where the Peace Corps
can readily reproduce it in the form or format requested. Where
photocopies are supplied, the Peace Corps will provide one copy per
request at no charge up to 100 pages. For copies of records produced on
tapes, disks, or other media, the Peace Corps will charge the direct
costs of producing the copy, including operator time. Where paper
documents will be scanned in order to comply with a requester's
preference to receive the records in an electronic format, the
requester will also pay the direct costs associated with scanning those
materials. For other forms of duplication, the Peace Corps will charge
the direct costs.
(3) Review. The Peace Corps will charge review fees to requesters
who make commercial use requests. Review fees will be assessed in
connection with the initial review of the record, i.e., the review
conducted by the Peace Corps to determine whether an exemption applies
to a particular record or portion of a record. No charge will be made
for review at the administrative appeal stage of exemptions applied at
the initial review stage. However, if a particular exemption is deemed
to no longer apply, any costs associated with the Peace Corps' re-
review of the records in order to consider the use of other exemptions
may be assessed as review fees. Review fees will be charged at the same
rates as those charged for a search under paragraph (d)(1)(ii) of this
section.
(e) Restrictions on charging fees. (1) When the Peace Corps
determines that a requester is an educational institution, non-
commercial scientific institution, or representative of the news media,
and the records are not sought for commercial use, it will not charge
search fees.
(2)(i) If the Peace Corps fails to comply with the FOIA's time
limits in which to respond to a request, it may not charge search fees,
or, in the instances of requests from requesters described in paragraph
(e)(1) of this section, may not charge duplication fees, except as
described in (e)(2)(ii) through (iv).
(ii) If the Peace Corps has determined that unusual circumstances
as defined in Sec. 303.2 apply and the Peace Corps provided timely
written notice to the requester in accordance with the FOIA, a failure
to comply with the time limit shall be excused for an additional 10
days.
(iii) If the Peace Corps has determined that unusual circumstances
as defined in Sec. 303.2 apply and more than 5,000 pages are necessary
to respond to the request, the Peace Corps may charge search fees, or,
in the case of requesters described in paragraph (e)(1) of this
section, may charge duplication fees, if the following steps are taken:
the Peace Corps will have provided timely written notice of unusual
circumstances to the requester in accordance with the FOIA; and the
Peace Corps will 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). If this
exception is satisfied, the Peace Corps may charge all applicable fees
incurred in the processing of the request.
(iv) If a court has determined that exceptional circumstances
exist, as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(4) Except for requesters seeking records for a commercial use, the
Peace Corps will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(5) No fee will be charged when the total fee, after deducting the
100 free pages (or its cost equivalent) and the first two hours of
search, is equal to or less than $25.
(f) Notice of anticipated fees in excess of $25.00. (1) When the
Peace Corps determines or estimates that the fees to be assessed in
accordance with this section will exceed $25.00, the Peace Corps will
notify the requester of the actual or estimated amount of the fees,
including a breakdown of the fees for search, review, or duplication,
unless the requester has indicated a willingness to pay fees as high as
those anticipated. If only a portion of the fee can be estimated
readily, the Peace Corps will advise the requester accordingly. If the
request is not for noncommercial use, the notice will specify that the
requester is entitled to the statutory entitlements of 100 pages of
duplication at no charge and, if the requester is charged search fees,
two hours of search time at no charge, and will advise the requester
whether those entitlements have been provided.
(2) If the Peace Corps notifies the 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 designates some amount of fees the requester is willing to pay, or
in the case of a noncommercial use requester who has not yet been
provided with the requester's statutory entitlements, designates that
the requester seeks only that which can be provided by the
[[Page 83053]]
statutory entitlements. The requester will provide the commitment or
designation in writing, and will, when applicable, designate an exact
dollar amount the requester is willing to pay. The Peace Corps will not
accept payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but the Peace Corps estimates that the total
fee will exceed that amount, the Peace Corps will toll the processing
of the request when it notifies the requester of the estimated fees in
excess of the amount the requester has indicated a willingness to pay.
The Peace Corps will inquire whether the requester wishes to revise the
amount of fees the requester is willing to pay or modify the request.
Once the requester responds, the time to respond will resume from where
it was at the date of the notification.
(4) The Peace Corps will make available their FOIA Public Liaison
or other FOIA professional to assist any requester in reformulating a
request to meet the requester's needs at a lower cost.
(g) Charges for other services. Although not required to provide
special services, if the Peace Corps chooses to do so as a matter of
administrative discretion, the direct costs of providing the service
will be charged. Examples of such services include certifying that
records are true copies, providing multiple copies of the same
document, or sending records by means other than first class mail.
(h) Charging interest. The Peace Corps may charge interest on any
unpaid bill starting on the 31st day following the date of billing the
requester. 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 Peace Corps. The Peace Corps 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.
(i) Aggregating requests. When the Peace Corps reasonably believes
that a requester or a group of requesters acting in concert is
attempting to divide a single request into a series of requests for the
purpose of avoiding fees, the Peace Corps may aggregate those requests
and charge accordingly. The Peace Corps may presume that multiple
requests of this type made within a 30-day period have been made in
order to avoid fees. For requests separated by a longer period, the
Peace Corps will aggregate them only where there is a reasonable basis
for determining that aggregation is warranted in view of all the
circumstances involved. Multiple requests involving unrelated matters
cannot be aggregated.
(j) Advance payments. (1) For requests other than those described
in paragraph (j)(2) or (j)(3) of this section, the Peace Corps may not
require the requester to make an advance payment before work is
commenced or continued on a request. Payment owed for work already
completed (i.e., payment before copies are sent to a requester) is not
an advance payment.
(2) When the Peace Corps determines or estimates that a total fee
to be charged under this section will exceed $250.00, it may require
that the requester make an advance payment up to the amount of the
entire anticipated fee before beginning to process the request. The
Peace Corps may elect to process the request prior to collecting fees
when it receives a satisfactory assurance of full payment from a
requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to the Peace Corps within 30 calendar days of the
billing date, the Peace Corps may require that the requester pay the
full amount due, plus any applicable interest on that prior request,
and the Peace Corps may require that the requester make an advance
payment of the full amount of any anticipated fee before the Peace
Corps begins to process a new request or continues to process a pending
request or any pending appeal. Where the Peace Corps has a reasonable
basis to believe that a requester has misrepresented the requester's
identity in order to avoid paying outstanding fees, it may require that
the requester provide proof of identity.
(4) In cases in which the Peace Corps 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
the Peace Corps' fee determination, the request will be closed.
(k) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires the Peace Corps to set and collect
fees for particular types of records. In instances where records
responsive to a request are subject to a statutorily-based fee schedule
program, the Peace Corps will inform the requester of the contact
information for that program.
(l) Requirements for waiver or reduction of fees. (1) Requesters
may seek a waiver of fees by submitting a written application
demonstrating how disclosure of the requested information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.
(2) The Peace Corps will furnish records responsive to a request
without charge or at a reduced rate when it determines, based on all
available information, that the factors described in paragraphs
(l)(2)(i) through (iii) are satisfied:
(i) Disclosure of the requested information would shed light on the
operations or activities of the government. The subject of the request
will concern identifiable operations or activities of the Federal
Government with a connection that is direct and clear, not remote or
attenuated; and
(ii) Disclosure of the requested information is likely to
contribute significantly to public understanding of those operations or
activities. This factor is satisfied when the following criteria are
met:
(A) Disclosure of the requested records will be meaningfully
informative about government operations or activities. The disclosure
of information that already is in the public domain, in either the same
or a substantially identical form, would not be meaningfully
informative if nothing new would be added to the public's
understanding; and
(B) The disclosure will contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public will be
considered. The Peace Corps will presume that a representative of the
news media will satisfy this consideration.
(iii) The disclosure will not be primarily in the commercial
interest of the requester. To determine whether disclosure of the
requested information is primarily in the commercial interest of the
requester, the Peace Corps will consider the following criteria:
(A) The Peace Corps will identify whether the requester has any
commercial interest that would be furthered by the requested
disclosure. A commercial interest includes any commercial, trade, or
profit interest. Requesters will be given an opportunity
[[Page 83054]]
to provide explanatory information regarding this consideration; and
(B) If there is an identified commercial interest, the Peace Corps
will determine whether that is the primary interest furthered by the
request. A waiver or reduction of fees is justified when the
requirements of paragraphs (l)(2)(i) and (ii) are satisfied and any
commercial interest is not the primary interest furthered by the
request. The Peace Corps ordinarily will presume that when a news media
requester has satisfied factors of paragraphs (l)(2)(i) and (ii), the
request is not primarily in the commercial interest of the 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.
(3) 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.
(4) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the Peace Corps and should address
the criteria referenced under paragraph (1) of this section A requester
may submit a fee waiver request at a later time so long as the
underlying record request is pending or on administrative appeal. When
a requester who has committed to pay fees subsequently asks for a
waiver of those fees and that waiver is denied, the requester will pay
any costs incurred up to the date the fee waiver request was received.
(5) These fee waiver/reduction provisions are subject to appeal in
the same manner as appeals from denial under Sec. 303.13.
(m) Minimal amount. No fee will be charged under this section
unless the cost of routine collection and processing of the fee payment
is likely to exceed the average cost of processing a payment.
(n) Agreement to pay fees. Requesters must agree to pay all fees
charged for services associated with their requests.
(o) Charging interest. Interest may be charged to those requesters
who fail to pay the fees charged. Interest will be assessed on the
amount billed, starting on the 31st day following the day on which the
billing was sent. The rate charged will be as prescribed in 31 U.S.C.
3717.
(p) Nonpayment of fees. The Peace Corps is not required to process
a request for a requester who has not paid FOIA fees owed to another
Federal agency.
(q) Multiple copies. The Peace Corps reserves the right to charge
for multiple copies of any document that will be provided to any one
requester or to require that special arrangements for duplication be
made in the case of bound volumes or other records representing unusual
problems of handling or reproduction.
0
19. Amend newly redesignated Sec. 303.17 by revising paragraphs (a)(1)
through (6) and (b)(1) through (3) to read as follows:
Sec. 303.17 Procedures for responding to a subpoena.
(a) * * *
(1) This section sets forth the procedures to be followed in
proceedings in which the Peace Corps is not a party, whenever a
subpoena, order, or other demand (collectively referred to as a
``demand'') of a court or other authority is issued for:
(i) The production or disclosure of any material contained in the
files of the Peace Corps;
(ii) The production or disclosure of any information relating to
material contained in the files of the Peace Corps;
(iii) The production or disclosure of any information or material
acquired by any person while such person was an employee of the Peace
Corps as a part of the performance of their official duties or because
of their official status, or
(iv) The production of an employee of the Peace Corps for the
deposition or an appearance as a witness in a legal action or
proceeding.
(2) For purposes of this section, the term ``employee of the Peace
Corps'' includes all officers, employees, volunteers, and trainees of
the Peace Corps appointed by, or subject to the supervision,
jurisdiction or, control of, the Director of the Peace Corps, including
personal services contractors. Also, for purposes of this section,
records of the Peace Corps do not include records of the Office of
Inspector General.
(3) This section is intended to provide instructions regarding the
internal operations of the Peace Corps, and is not intended, and does
not and may not be relied upon, to create any right or benefit,
substantive or procedural, enforceable at law by a party against the
Peace Corps.
(4) This section applies to:
(i) State and local court, administrative and legislative
proceedings; and
(ii) Federal court and administrative proceedings.
(5) This section does not apply to:
(i) Congressional requests or subpoenas for testimony or documents;
and
(ii) Employees or former employees making appearances solely in
their private capacity in legal or administrative proceedings that do
not relate to the Peace Corps (such as cases arising out of traffic
accidents or domestic relations). Any questions regarding whether the
appearance relates solely to the employee's or former employee's
private capacity should be referred to the Office of the General
Counsel.
(6) Nothing in this section otherwise permits disclosure of
information by the Peace Corps except as is provided by statute or
other applicable law.
(b) * * *
(1) No employee or former employee of the Peace Corps shall, in
response to a demand of a court or other authority set forth in
paragraph (a) of this section produce any material, disclose any
information, or appear in any proceeding, described in paragraph (a) of
this section without the approval of the General Counsel or designee.
(2) Whenever an employee or former employee of the Peace Corps
receives a demand for the production of material or the disclosure of
information described in paragraph (a) of this section they shall
immediately notify and provide a copy of the demand to the General
Counsel or designee. The General Counsel, or designee, shall be
furnished by the party causing the demand to be issued or served a
written summary of the information sought, its relevance to the
proceeding in connection with which it was served, and why the
information sought is unavailable by any other means or from any other
sources.
(3) The General Counsel, or designee, in consultation with
appropriate Peace Corps officials, including the Peace Corps' FOIA
Officer, or designee, and in light of the considerations listed in
paragraph (d) of this section, will determine whether the person on
whom the demand was served should respond to the demand.
* * * * *
0
20. Add Sec. 303.18 to read as follows:
Sec. 303.18 Other rights and services.
Nothing in this part shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
Dated: November 22, 2023.
James Olin,
FOIA and Privacy Officer.
[FR Doc. 2023-26151 Filed 11-27-23; 8:45 am]
BILLING CODE 6051-01-P
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</html>Indexed from Federal Register on November 28, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.