Rule2024-18391
Freedom of Information Act Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 16, 2024
Effective
September 16, 2024
Issuing agencies
Selective Service System
Abstract
The Selective Service System (SSS) is finalizing revisions to its Freedom of Information Act (FOIA) regulations to meet the requirements set forth in the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA); the Openness Promotes Effectiveness requirement in the National Government Act of 2007 (the OPEN Government Act); and the FOIA Improvement Act of 2016 (FOIA Improvement Act). This final rule comprehensively updates the Agency's FOIA regulations.
Full Text
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<title>Federal Register, Volume 89 Issue 159 (Friday, August 16, 2024)</title>
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[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Rules and Regulations]
[Pages 66568-66579]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18391]
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SELECTIVE SERVICE SYSTEM
32 CFR Part 1662
RIN 3240-AA03
Freedom of Information Act Regulations
AGENCY: United States Selective Service System.
ACTION: Final rule.
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SUMMARY: The Selective Service System (SSS) is finalizing revisions to
its Freedom of Information Act (FOIA) regulations to meet the
requirements set forth in the Electronic Freedom of Information Act
Amendments of 1996 (E-FOIA); the Openness Promotes Effectiveness
requirement in the National Government Act of 2007 (the OPEN Government
Act); and the FOIA Improvement Act of 2016 (FOIA Improvement Act). This
final rule comprehensively updates the Agency's FOIA regulations.
DATES: This rule is effective September 16, 2024.
FOR FURTHER INFORMATION CONTACT: Mr. Daniel A. Lauretano, Sr., General
Counsel, 703-605-4012, <a href="/cdn-cgi/l/email-protection#4a2e262b3f382f3e2b24250a393939642d253c"><span class="__cf_email__" data-cfemail="27434b46525542534649486754545409404851">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: SSS published a proposed rule on February 6,
2024 (89 FR 8112). Public comments were received and were considered.
Based on public comments, SSS is finalizing this rule with a few
changes. Specifically, proposed subsection (a) and (b) were deleted
from the proposed Sec. 1662.23 (FOIA Exemption 6) and it now reads,
``The FOIA exempts from disclosure records about individuals if
disclosure would constitute a clearly unwarranted invasion of their
personal privacy.'' Additionally, minor edits were made to proposed
Sec. 1662.6 (c) (Requirements of a FOIA request) and it now reads,
``The FOIA requires an Agency to provide the record in any form or
format requested by the person if the record is readily reproducible by
the Agency in that form or format. SSS will not search or produce
records in response to a FOIA request that the FOIA Officer determines
would be unduly burdensome (as defined in case law) to process. FOIA
requests are unreasonably burdensome when it is a broad, sweeping
request that lacks specificity.''
I. Background & Legal Basis for This Rule
A. The Housekeeping Statute
The Housekeeping Statute, 5 U.S.C. 301, authorizes agency heads to
promulgate regulations governing ``the custody, use, and preservation
of its records, papers, and property.'' The FOIA is a Federal statute
that allows the public to request records from the Federal government.
The FOIA provides that any person has a right, enforceable in court, to
obtain access to Federal agency records subject to the FOIA, except to
the extent that any portions of such records are protected from public
disclosure by one of nine exemptions or other law. Additionally, under
the FOIA, agencies must make records specified in 5 U.S.C. 552(a)(2)
(e.g., instructional manuals issued to employees, general statements of
policy, etc.) available for public inspection in an electronic format.
The FOIA also statutorily requires Federal agencies to annually report
on numerous and various metrics to the Department of Justice (DOJ).
Since the most recent update to 32 CFR part 1662, the E-FOIA, the
OPEN Government Act, and the FOIA Improvement Act have been enacted.
These laws provide guidance to agencies for the implementation of the
FOIA requirements. This final rule updates and revises part 1662
consistent with these laws.
The final rule will better streamline the process for the Agency's
FOIA policies and procedures. These updates are consistent with the
Plain Writing Act of 2010 which requires Federal agencies to use clear
communications that the public can understand and use. They underscore
the FOIA guidelines issued by Attorney General Merrick Garland in his
March 15, 2022, Memorandum for Heads of Executive Departments and
Agencies. The Memorandum directs the heads of all executive branch
departments and agencies to apply a presumption of openness in
administering the FOIA, instructs agencies to remove barriers to
access, and asks agencies to help requesters understand the FOIA
process.
B. The E-FOIA
The E-FOIA requires agencies to make certain types of records,
created by the Agency on or after November 1, 1996, available
electronically. It requires agencies to make available for public
inspection, via an electronic reading room, ``copies of all records,
regardless of form or format that have been released to any person
[under the FOIA] and which, because of the nature of their subject
matter, the Agency determines have become or are likely to become the
subject of subsequent requests for substantially the same records.''
The final rule complies with this requirement.
C. The OPEN Government Act
The OPEN Government Act amended the FOIA by providing new
procedural and reporting requirements agencies must implement in their
administration of the FOIA. It requires that (1) all FOIA requests that
will take longer than ten days to process must be assigned an
individualized tracking number and (2) agencies must provide requesters
with a telephone line or internet service from which requesters can
receive the status of their request(s).
The statute established the Office of Government Information
Services (OGIS) within the National Archives and Records Administration
that, among other duties, offers mediation services between FOIA
requesters and Federal agencies as an alternative to litigation. It
further directs agencies to designate a Chief FOIA Officer, who: (1)
has responsibility for FOIA compliance; (2) monitors FOIA
implementation; (3) makes recommendations to the Agency head concerning
improvements to FOIA implementation; (4) reports to the Attorney
General (through the Agency Head), as requested, on the Agency's FOIA
implementation; (5) facilitates public understanding of the purposes of
FOIA's statutory exemptions; and (6) designates one or more FOIA Public
Liaisons. The FOIA Public Liaison serves as an official to whom a FOIA
requester can raise concerns about service and is responsible for
assisting in reducing delays in FOIA request processing, helping
resolve disputes, and helping requesters understand the status of their
requests.
The OPEN Government Act also revised annual reporting obligations,
mandating reports on agency compliance with the FOIA to include
information on: (1) FOIA denials based upon particular statutes; (2)
response times; and (3) compliance by the agency and by each principal
component thereof.
Regarding FOIA request processing, the OPEN Government Act: (1)
modifies and specifies the time limits for an agency to determine
whether to comply with a FOIA request; (2) establishes limitations on
the circumstances under which the statutory time period may be
``tolled''; and (3) prohibits an agency from assessing search or
duplication fees under the FOIA if it fails to comply with time limits,
provided that no unusual or exceptional circumstances apply.
Lastly, the OPEN Government Act provides for the definition of
``representative of the news media'' and amends the definition of
``record'' to include any information maintained by
[[Page 66569]]
an agency contractor ``for the purposes of record management.'' This
final rule conforms with the requirements of the OPEN Government Act.
D. The FOIA Improvement Act
The FOIA Improvement Act took effect on June 30, 2016, and applies
to any FOIA request made after the date of enactment. Its intent is to
improve Agency transparency and responsiveness in processing FOIA
requests.
The statute codifies the ``foreseeable harm'' standard,
establishing that agencies may only withhold information if the Agency
reasonably foresees that disclosure would harm an interest protected by
a statutory exemption, or if disclosure is prohibited by existing law.
Unless the record is prohibited from disclosure by law, asserting a
FOIA exemption alone is not sufficient; an agency must also determine
that release of the record would cause foreseeable harm to others/
interests protected under the exemption.
The FOIA Improvement Act also imposes numerous administrative and
procedural requirements upon Federal agencies. It adds new elements to
the annual reports that capture the number of record denials and the
number of records of general interest or use to the public that are
made available for public inspection. It also creates new duties for
the Chief FOIA Officer, requiring the Chief FOIA Officer to (1) serve
as the primary liaison between OGIS and the Office of Information
Policy at DOJ and (2) offer training to staff regarding their FOIA
responsibilities. It also creates a council of Chief FOIA Officers
whose purpose is to improve an agency's administration of the FOIA.
Within the Agency's final revisions to part 1662, it is not addressing
the additional reporting requirements provided in the FOIA Improvement
Act, as they do not affect its day-to-day administration of the FOIA.
This law also requires agencies to offer the services of the FOIA
Public Liaison and OGIS in all decision letters. It further increases
the time for appeals, now allowing requesters at least 90 days to file
an administrative appeal of an adverse determination. Additionally, it
codifies the ``rule of three,'' which requires agencies to make
available for public inspection, in an electronic format, records that
are of general interest or have been requested three or more times and
released to any person.
Further, it prohibits an agency from charging search and/or
duplication fees under the FOIA for providing records if the agency
misses a deadline for complying with a FOIA request, unless unusual
circumstances exist, and the agency takes certain action to notify the
requester. Additionally, it amends one of the privileges recognized
under the FOIA Exemption 5, the deliberative process privilege, by
providing that this privilege cannot be applied to records that are 25
years or older at the time of the FOIA request.
Finally, the FOIA Improvement Act requires the head of each agency
to (1) review agency regulations and issue regulations on procedures
for disclosure of records in accordance with the amendments made by the
bill and (2) include in such regulations procedures for engaging in
dispute resolution through the FOIA Public Liaison and OGIS.
This final rule conforms with the requirements of the FOIA
Improvement Act.
II. The FOIA Process at SSS
This final rule ensures the SSS FOIA program is easier for the
public to navigate. Under this final rule, the Chief FOIA Officer
conducts a thorough review to ensure proper disclosure. The Agency's
Chief FOIA Officer makes the final determination on the release of
records in response to initial requests and the Director of Selective
Service is designated the final authority on appeal determinations. SSS
also makes available for public inspection, in an electronic format,
records that have been requested and released three or more times and
other specified records described in revised Sec. 1662.26, available
at <a href="http://www.sss.gov/foia">www.sss.gov/foia</a>.
III. Regulatory Procedures
A. Expected Impact of the Final Rule
The Agency does not anticipate any additional costs associated with
promulgations of the regulations contained herein.
The Agency anticipates qualitative benefits from the final rule
which includes revisions to the FOIA regulations from streamlined and
codified FOIA policies and procedures. SSS expects the codified
regulations will benefit both the Agency and the public because the
administration of the FOIA will be better organized and user friendly
for requesters. The purpose of the FOIA is to provide the public with
access to government records, and administrative transparency is
paramount to a successful FOIA program. Clear policies generate
efficient and effective processing of FOIA requests.
B. Executive Order (E.O.) 12866, ``Regulatory Planning and Review,''
E.O. 13563, Improving Regulation and Regulatory Review,'' and
Congressional Review Act (5 U.S.C. 801-08)
E.O.s 12866 and 13563 direct agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). E.O. 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. Following the
requirements of these E.O.s, the Office of Management and Budget (OMB)
has determined that this final rule is not a significant regulatory
action under section 3(f) of E.O. 12866 nor a ``major rule'' as defined
by 5 U.S.C. 804(2).
C. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
SSS certifies that this final rule is not subject to the Regulatory
Flexibility Act, 5 U.S.C. 601, because it would not have a significant
economic impact on a substantial number of small entities. Therefore,
the Regulatory Flexibility Act, as amended, does not require SSS to
prepare a regulatory flexibility analysis.
D. Section 202 of Public Law 104-4, ``Unfunded Mandates Reform Act'' (2
U.S.C. 1532)
Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532, requires agencies to assess anticipated costs and benefits before
issuing any rule whose mandates require the expenditure of $100 million
or more (in 1995 dollars, adjusted annually for inflation) in any one
year. This final rule will not mandate any requirements for state,
local, or tribal governments, nor will it affect private sector costs.
E. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
This final rule does not impose reporting or recordkeeping
requirements under the Paperwork Reduction Act.
F. E.O. 13132, ``Federalism''
E.O. 13132 establishes certain requirements that an agency must
meet when it promulgates a proposed rule (and subsequent final rule)
that imposes substantial direct requirement costs on state and local
governments, preempts state law, or otherwise has federalism
implications. This final rule will not
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have a substantial effect on state and local governments.
G. E.O. 11623, Delegation of Authority & Coordination Requirements
In E.O. 11623, the President delegated to the Director of Selective
Service the authority to prescribe the necessary rules and regulations
to carry out the provisions of the Military Selective Service Act. In
carrying out the provisions of E.O. 11623, as amended by E.O. 13286,
the Director shall request the views of the Secretary of Defense; the
Attorney General; the Secretary of Labor; the Secretary of Health and
Human Services; the Secretary of Homeland Security (when the Coast
Guard is serving under the Department of Homeland Security); the
Director of the Office of Emergency Preparedness; and the Chairman of
the National Selective Service Appeal Board with regard to such
proposed rule or regulation, and shall allow not less than 10 days for
the submission of such views before publication of the proposed rule or
regulation. On January 24, 2024, SSS completed its coordination
requirements, and the Director certifies that he has requested the
views of the officials required to be consulted pursuant to subsection
(a) of E.O. 11623, considered those views and as appropriate
incorporated those views in these regulations, and that none of these
officials has requested that the matter be referred to the President
for decision.
This final rule was reviewed and approved by Joel C. Spangenberg,
Acting Director of Selective Service.
List of Subjects in 32 CFR Part 1662
Freedom of information.
0
For the reasons stated in the preamble, the Selective Service System
revises 32 CFR part 1662 to read as follows:
PART 1662--FREEDOM OF INFORMATION ACT (FOIA) PROCEDURES
Sec.
1662.1 Scope and purpose of this part.
1662.2 Definitions.
1662.3 SSS's FOIA policy.
1662.4 Relationship between the FOIA and the Privacy Act of 1974.
1662.5 Who can file a FOIA request?
1662.6 Requirements of a FOIA request.
1662.7 Where to submit a FOIA request.
1662.8 Requests not processed under the FOIA.
1662.9 Chief FOIA Officer's authority.
1662.10 Responsibility for responding to requests.
1662.11 How does SSS process FOIA requests?
1662.12 Expedited processing.
1662.13 Fees associated with processing FOIA requests.
1662.14 Release of records.
1662.15 FOIA Public Liaison and the Office of Government Information
Services.
1662.16 Appeals of the Chief FOIA Officer's determination.
1662.17 U.S. District Court action.
1662.18 The FOIA Exemption 1: National defense and foreign policy.
1662.19 The FOIA Exemption 2: Internal personnel rules and
practices.
1662.20 The FOIA Exemption 3: Records exempted by other statutes.
1662.21 The FOIA Exemption 4: Trade secrets and confidential
commercial or financial information.
1662.22 The FOIA Exemption 5: Internal documents.
1662.23 The FOIA Exemption 6: Clearly unwarranted invasion of
personal privacy.
1662.24 The FOIA Exemption 7: Law enforcement.
1662.25 The FOIA Exemptions 8 and 9: Records on financial
institutions; records on wells.
1662.26 Records available for public inspection.
1662.27 Where records are published.
1662.28 Publications for sale through the Government Publishing
Office.
Authority: 5 U.S.C. 301; 50 U.S.C. 3809; 5 U.S.C. 552 and 552a;
18 U.S.C. 1905; 31 U.S.C. 9701; & E.O. 11623, as amended by E.O.
13286, Feb 28, 2003.
Sec. 1662.1 Scope and purpose of this part.
(a) The purpose of this part is to describe the Selective Service
System's (SSS) policies and procedures for implementing the
requirements of the Freedom of Information Act (FOIA) as set forth at 5
U.S.C. 552. The FOIA mandates disclosure to the public of Federal
agency records unless specific exemptions apply. The FOIA also requires
an agency to proactively disclose records and make certain records
available for public inspection.
(b) The rules in this part describe how SSS makes records available
to the public, including:
(1) What constitutes a proper request for records;
(2) How to make a FOIA request;
(3) Who has the authority to release and withhold records;
(4) What fees may be charged to process a request for records;
(5) The timing of determinations regarding release;
(6) The exemptions that permit the withholding of records;
(7) A requester's right to seek assistance from the FOIA Public
Liaison;
(8) A requester's right to appeal the Agency's FOIA determination;
(9) A requester's right to seek assistance from the Office of
Government Information Services (OGIS) and then go to court if they
still disagree with the Agency's release determination; and
(10) The records available for public inspection.
(c) The rules in this part do not revoke, modify, or supersede the
SSS regulations relating to disclosure of information in parts 1660 or
1665 of this chapter.
Sec. 1662.2 Definitions.
As used in this part:
Agency means the Selective Service System. Agency may also refer to
any executive department, military department, government corporation,
government-controlled corporation, or other establishment in the
executive branch of the Federal Government, or any independent
regulatory agency. A private organization is not an agency even if it
is performing work under contract with the Government or is receiving
Federal financial assistance.
Chief FOIA Officer means a senior official of SSS who has an
Agency-wide responsibility for ensuring efficient and appropriate
compliance with the FOIA, monitoring implementation of the FOIA
throughout SSS, and making recommendations to the Director of Selective
Service to improve SSS's implementation of the FOIA. The Director of
Selective Service designates a Chief FOIA Officer for the Agency. The
Director of Selective Service makes final decisions in response to
appeals of the Chief FOIA Officer's determinations.
Commercial interest includes interests relating to business, trade,
and profit, as well as non-profit corporations, individuals, unions,
and other associations. The interest of a representative of the news
media in using the information for news dissemination purposes will not
be considered a commercial interest.
Component consists of the Office of the Director, National
Headquarters Directorates and Offices, Data Management Center, Region
Offices, and all other organizational entities within SSS that may
maintain Agency records subject to a request under the FOIA.
Duplication means the process of reproducing a copy of a record, or
of the information contained in it, to the extent necessary to respond
to a request. Copies include paper, electronic records, audiovisual
materials, and other formats of Agency records.
Educational institution means a preschool, elementary or secondary
school, institution of undergraduate or graduate higher education, or
institution of professional or vocational education, which operates a
program of scholarly research. To qualify for this category, a
[[Page 66571]]
requester must show that the FOIA request is authorized by, and is made
under the auspices of, a qualifying institution and that the records
are sought to further a scholarly research goal of the institution, and
not for a commercial use or purpose, or for individual use or benefit.
Exemption means one of the nine exemptions to the mandatory
disclosure of records permitted under section 552(b) of the FOIA.
Expedited processing means the process set forth in the FOIA that
allows requesters to request faster processing of their FOIA request if
they meet specific criteria noted in Sec. 1662.12.
Fee category means one of the three categories established by the
FOIA to determine whether a requester will be charged fees under FOIA
for search, review, and duplication. The categories are: commercial use
requests; non-commercial scientific or educational institutions and
news media requests; and all other requests.
Fee waiver means the waiver or reduction of fees if a requester
meets the requirements set forth in Sec. 1662.13.
FOIA Officer means an SSS official whom the Director of Selective
Service has delegated the authority to assist the Chief FOIA Officer in
releasing or withholding records; assessing, waiving, or reducing fees
in response to FOIA requests; and all other determinations regarding
the processing of a FOIA request. In this capacity, the FOIA Officer is
authorized to request and receive responsive records that may be
maintained by other Agency components. Except for records subject to
proactive disclosure pursuant to section (a)(2) of the FOIA, only the
Chief FOIA Officer has the authority to release or withhold records or
to waive fees in response to a FOIA request.
FOIA Public Liaison means an Agency official who reports to the
Agency Chief FOIA Officer and serves as a supervisory official to whom
a requester can raise concerns about the service the requester received
concerning the processing of the FOIA request. This individual is
responsible for increasing transparency in the Agency's FOIA business
process, helping requesters understand the status of requests, and
assisting in the resolution of disputes. The FOIA Public Liaison may be
contacted via email at <a href="/cdn-cgi/l/email-protection#db9d94929af58baeb9b7b2b8f597b2bab2a8b4b59ba8a8a8f5bcb4ad"><span class="__cf_email__" data-cfemail="72343d3b335c2207101e1b115c3e1b131b011d1c320101015c151d04">[email protected]</span></a>.
FOIA request means a written request that meets the criteria in
Sec. 1662.6.
Freedom of Information Act or FOIA means the law codified at 5
U.S.C. 552 that provides the public with the right to request Agency
records from Federal executive branch agencies.
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, including print and online
publications that disseminate news and make their products available
through a variety of means to the public. SSS does not consider FOIA
requests for records that support the news dissemination function of
the requester to be commercial use. SSS considers ``freelance''
journalists who demonstrate a solid basis for expecting publication
through a news media entity as working for that entity. A publishing
contract provides the clearest evidence that a journalist expects
publication; however, SSS also considers a requester's past publication
record.
Non-commercial scientific institution means an institution that
does not further the commercial, trade, or profit interests of any
person or entity and is operated for the purpose of conducting
scientific research whose results are not intended to promote any
particular product or industry.
Online FOIA portal means the electronic application that SSS uses
to process FOIA requests. The public may also submit requests directly
to SSS via the online <a href="http://FOIA.gov">FOIA.gov</a>--Freedom of Information Act.
Other requester means any individual or organization whose FOIA
request does not qualify as a commercial-use request, representative of
the news media request (including a request made by a freelance
journalist), or an educational or non-commercial scientific institution
request.
Production means the process of preparing the records for
duplication, including the time spent in preparing the records for
duplication (i.e., materials used, records/database retrieval,
employee, and contractor time, as well as systems processing time).
Reading room means an electronic location(s) that SSS uses to post
records that are made available to the public without a specific
request. SSS makes reading room records electronically available to the
public through the SSS website, <a href="https://www.sss.gov/">https://www.sss.gov/</a>, including at
<a href="https://www.sss.gov/foia/">https://www.sss.gov/foia/</a>.
Record(s) means any information maintained by an Agency, regardless
of format, that is made or received in connection with official Agency
business that is under the Agency's control at the time of the FOIA
request. Record(s) includes any information maintained for an Agency by
a third party. Record(s) does not include personal records of an
employee, or other information in formally organized and officially
designated SSS libraries and reading rooms, where such materials are
available under the rules of the particular library.
Redact means delete or mark over.
Representative of the news media means any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn raw materials into a distinct work,
and distributes that work to an audience.
Request means asking for records, whether or not the requester
refers specifically to the FOIA. Requests from federal agencies,
subpoenas, and court orders for documents are not included within this
definition.
Review, unless otherwise specifically defined in this part, means
examining records responsive to a request to determine whether any
portions are exempt from disclosure. Review time includes processing a
record for disclosure (i.e., doing all that is necessary to prepare the
record for disclosure), including redacting the record and marking the
appropriate FOIA exemptions. It does not include the process of
resolving general legal or policy issues regarding exemptions.
Search means the process of identifying, locating, and retrieving
records responsive to a request, whether in hard copy or in electronic
form or format, or by manual or automated/electronic means.
Special services mean performing additional services outside of
those required under the FOIA to respond to a request. Examples include
using an overnight mail service to send the Agency's response to a FOIA
request.
SSS means the Selective Service System.
Submitter means any person or entity that provides trade secrets or
commercial or financial information to the Agency, and includes
individuals, corporations, other organizational entities, and state and
foreign governments.
Tolling means temporarily stopping the running of a time limit. SSS
may toll a FOIA request to seek clarification from the requester or to
address fee issues, as further described in Sec. 1662.11.
Trade secrets and commercial or financial information means trade
secrets and commercial or financial information that are confidential,
and are obtained by the Agency from a submitter, such that it may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
[[Page 66572]]
Sec. 1662.3 SSS's FOIA policy.
(a) Presumption of openness. The Agency will withhold information
only if the Chief FOIA Officer reasonably foresees that disclosure
would harm an interest protected by a FOIA exemption or if disclosure
is prohibited by law.
(b) Authority to release and withhold records. As described in
Sec. 1662.9, the Agency's Chief FOIA Officer has the authority to:
(1) Release or withhold records in response to initial requests;
(2) Grant or deny expedited processing; and
(3) Reduce or waive fees.
(c) Records publicly available. The Agency makes available for
public inspection, in an electronic format, records that have been
requested and released three or more times and other specified records
described in Sec. 1662.26.
(d) Required record production. The FOIA does not require an Agency
to give opinions, conduct research, answer questions, or create
records.
Sec. 1662.4 Relationship between the FOIA and the Privacy Act of
1974.
(a) Coverage. The FOIA and the rules in this part apply to all SSS
records. The Privacy Act, 5 U.S.C. 552a, applies to records that are
about individuals, but only if the records are in a system of records.
(b) Requesting your own records. If you have filed a FOIA request
and are an individual requesting your own records that are maintained
in a system of records, or if you are a parent or legal guardian
authorized to act on behalf of a minor or custodian who is seeking the
records about a minor or individual who has been declared incompetent,
the Agency will handle your request under the Privacy Act.
Sec. 1662.5 Who can file a FOIA request?
Any member of the public may submit a FOIA request to SSS. Under
the FOIA, ``member of the public'' includes requests from individuals,
corporations, state, and local agencies, as well as foreign entities.
Requests from Federal agencies and Federal or state courts are not
covered by the FOIA.
Sec. 1662.6 Requirements of a FOIA request.
(a) To be considered a FOIA request under this part, the following
must occur:
(1) The request must be written (either by hand or electronically);
(2) The request must be submitted in accordance with Sec. 1662.7;
(3) The requester must provide the following required contact
information: requester's name, U.S. or foreign postal address,
description of records sought, and fee willing to pay. While not
required, the Agency encourages requesters to provide us with their
email address and phone number; and
(4) The request must clearly state and reasonably describe what SSS
records are requested. Broad, sweeping requests and vague requests are
not reasonably described. The requester must describe the records
sought in sufficient detail to enable the Agency to locate the records
within a reasonable amount of effort. When known, requests should
identify the records sought by providing the name/title of the record,
applicable date range, subject matter, offices, or employees involved,
and record type. If the request is for electronic communications, such
as email records, it would assist SSS if the requestor could provide as
much information as possible, such as the names, position titles, or
other identifying information about the Agency employees involved, as
well as the applicable timeframe. Absent sufficient details, the Agency
may be unable to search for or locate the records sought. The greater
the date range, the longer it may take to process the request and the
greater amount of fees that may be charged.
(b) Requests that do not meet the required criteria above are not
considered proper FOIA requests.
(c) The FOIA requires an Agency to provide the record in any form
or format requested by the person if the record is readily reproducible
by the Agency in that form or format. SSS will not search or produce
records in response to a FOIA request that the FOIA Officer determines
would be unduly burdensome (as defined in case law) to process. FOIA
requests are unreasonably burdensome when it is a broad, sweeping
request that lacks specificity.
Sec. 1662.7 Where to submit a FOIA request.
Submission of requests. Requesters must submit FOIA requests in
writing to the Agency through one of the following options:
(a) Online FOIA portal: link available from the Agency's
<a href="http://www.sss.gov/foia">www.sss.gov/foia</a> website.
(b) Email: <a href="/cdn-cgi/l/email-protection#60262f2921201313134e070f16"><span class="__cf_email__" data-cfemail="33757c7a72734040401d545c45">[email protected]</span></a>.
(c) Mail: SSS, ATTN: Freedom of Information Act Officer, 1501
Wilson Boulevard, Suite 700, Arlington, VA 22209.
Sec. 1662.8 Requests not processed under the FOIA.
(a) The Chief FOIA Officer will not process a request under the
FOIA and the regulations in this part to the extent it asks for records
that are currently publicly available, either from SSS or from another
part of the Federal Government, unless the requester does not have
access to the internet and cannot retrieve records online. See Sec.
1662.26.
(b) The Chief FOIA Officer will not process a request under the
FOIA and the regulations in this part if the records sought are
distributed by the Agency as part of its regular program activity, for
example, public information leaflets distributed by SSS. See Sec. Sec.
1662.26 through 1662.28.
(c) The Chief FOIA Officer will not process a request under the
FOIA that does not meet the requirements of a FOIA request as defined
in Sec. 1662.21. When a request under FOIA does not meet the
requirements of Sec. 1662.21, the Chief FOIA Officer will send written
correspondence to the requester:
(1) Providing instructions for how to submit a proper FOIA request;
or
(2) Asking for additional information to make the request a proper
FOIA request.
Sec. 1662.9 Chief FOIA Officer's authority.
(a) Release determination. The Chief FOIA Officer is authorized to
make determinations about:
(1) Release or withholding of records;
(2) Expedited processing;
(3) Charging or waiver of fees; and
(4) Other matters relating to processing a request for records
under this part.
(b) Determination provided in writing. The Chief FOIA Officer's
determination is provided in writing to the requester via emailed
communication or, in the absence of the requester's email address, via
U.S. postal mail. If the requester disagrees with the FOIA Officer's
determination in response to items identified in paragraph (a) of this
section, the requester may appeal the determination to the Director of
Selective Service, as described in Sec. 1662.16.
Sec. 1662.10 Responsibility for responding to requests.
(a) In general. When the Chief FOIA Officer first receives a
request for a record and SSS maintains that record, it is the
responsibility of SSS to respond to the request. In determining which
records are responsive to a request, SSS ordinarily will include only
records in its possession as of the date that it begins its search. If
any other date is used, SSS will inform the requester of that date. A
record that is excluded from the requirements of the FOIA pursuant to 5
U.S.C. 552(c), is not considered responsive to a request.
(b) Authority to grant or deny requests. The Chief FOIA Officer is
authorized to grant or to deny any
[[Page 66573]]
requests for records that are maintained by SSS. Denials may be
appealed to the Director of the Selective Service.
(c) Consultation, referral, and coordination. When reviewing
records located by SSS in response to a request, the Chief FOIA Officer
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 must proceed in one
of the following ways:
(1) Consultation. When records originated with SSS but contain
within them information of interest to another agency or other Federal
Government office, SSS will consult with that other entity prior to
making a release determination.
(2) Referral. (i) When the Chief FOIA Officer believes that a
different agency or component is best able to determine whether to
disclose the record, the Chief FOIA Officer will refer the
responsibility for responding to the request regarding that record to
that agency. Ordinarily, the agency that originated the record is
presumed to be the best agency to make the disclosure determination.
However, if the Chief FOIA Officer and the originating agency jointly
agree that SSS is in the best position to respond regarding the record,
then the record may be handled as a consultation.
(ii) Whenever the Chief FOIA Officer refers any part of the
responsibility for responding to a request to another agency, it will
document the referral, maintain a copy of the record that it refers,
and notify the requester of the referral, informing the requester of
the name(s) of the agency to which the record was referred, including
that Agency's FOIA contact information.
(3) Coordination. The standard referral procedure is not
appropriate where disclosure of the identity of the agency to which the
referral would be made could harm an interest protected by an
applicable exemption, such as the exemptions that protect personal
privacy or national security interests. For example, if a non-law
enforcement agency responding to a request for records on a living
third party locates within its file's records originating with a law
enforcement agency, and if the existence of that law enforcement
interest in the third party was not publicly known, then to disclose
that law enforcement interest could cause an unwarranted invasion of
the personal privacy of the third party. Similarly, if the Chief FOIA
Officer locates within its files material originating from an
Intelligence Community agency, and the involvement of that agency in
the matter is classified and not publicly acknowledged, then to
disclose or give attribution to the involvement of that Intelligence
Community agency could cause national security harms. In such
instances, in order to avoid harm to an interest protected by an
applicable exemption, the Chief FOIA Officer will coordinate with the
originating agency to seek its views on whether the record may be
disclosed. The release determination for the record that is the subject
of the coordination will then be conveyed to the requester by the Chief
FOIA Officer.
(d) Classified information. On receipt of any request involving
classified information, the Chief FOIA Officer must determine whether
the information is currently and properly classified in accordance with
applicable classification rules. Whenever a request involves a record
containing information that has been classified or may be appropriate
for classification by another agency under any applicable executive
order concerning the classification of records, the Chief FOIA Officer
will refer the responsibility for responding to the request regarding
that information to the agency that classified the information, or that
should consider the information for classification. Whenever the record
of SSS contains information that has been derivatively classified (for
example, when it contains information classified by another agency),
the Chief FOIA Officer will refer the responsibility for responding to
that portion of the request to the agency that classified the
underlying information.
(e) Timing of responses to consultations and referrals. All
consultations and referrals received by the Chief FOIA Officer will be
handled according to the date that SSS received the perfected FOIA
request.
(f) Agreements regarding consultations and referrals. The Chief
FOIA Officer may establish agreements with other agencies to eliminate
the need for consultations or referrals with respect to particular
types of records.
Sec. 1662.11 How does SSS process FOIA requests?
(a) Acknowledgement. (1) The Chief FOIA Officer acknowledges all
FOIA requests in writing within ten business days after the Agency's
receipt of the request. The acknowledgement email or letter restates
the FOIA request and provides the requester with the request's tracking
number.
(2) If the Chief FOIA Officer requires clarification to process the
FOIA request, the Chief FOIA Officer will contact the requester either
via email, U.S. postal mail, or phone call. The Chief FOIA Officer will
attempt to contact requesters twice. If the Chief FOIA Officer does not
receive a response to their clarification attempts within 30 calendar
days from the date of the first contact to the requester, the Chief
FOIA Officer will close the FOIA request due to insufficient
information.
(b) Perfected requests. FOIA requests are considered ``perfected,''
i.e., the 20-business day statutory time begins, when the request meets
the requirements of the proper FOIA request listed in Sec. 1662.6.
There may be times that the Chief FOIA Officer requires more
information from the requester after perfecting a request. The 20-
business day period may be extended in unusual circumstances by written
notice to the requester. See paragraph (e) of this section.
(c) Expedited processing. Unless granted expedited processing, the
Chief FOIA Officer processes FOIA requests according to a first-in,
first-out basis. See Sec. 1662.12 for information on expedited
processing.
(d) Multi-tracking procedures. FOIA requests are categorized as
either simple or complex, depending on the nature of the request and
the estimated processing time:
(1) Simple. For most non-expedited requests, the Chief FOIA Officer
makes a determination about release of the record(s) requested within
20 business days.
(2) Complex. The Chief FOIA Officer will place into a complex
processing queue any request that cannot be completed within 20
business days due to unusual circumstances. The Chief FOIA Officer
notifies requesters in writing if it is necessary for SSS to take
additional time to process a request and of the requester's right to
seek dispute resolution services with the OGIS. See Sec. 1662.15.
(e) Unusual circumstances. (1) Unusual circumstances exist when
there is a need to:
(i) Search for and collect records from SSS components or locations
that are separate from National Headquarters;
(ii) Search for, collect, and review a voluminous number of records
that are part of a single request; and/or
(iii) Consult with two or more SSS components or another agency
having substantial interest in the request before releasing the
records.
(2) Within the unusual circumstances letter to the requester, the
Chief FOIA Officer will provide an estimated date that they will
contact the requester with the applicable fee notice and/or further
correspondence. The Chief FOIA Officer will also advise the requester
that they
[[Page 66574]]
may modify or narrow the scope of their request.
(f) Fee notice. FOIA requesters are issued a fee notice from the
Chief FOIA Officer that informs them of the estimated search and review
time associated with processing their FOIA request. For more
information on fees, see Sec. 1662.13.
(g) Tolling. (1) The Chief FOIA Officer may stop or toll the 20
business days in two circumstances:
(i) The Chief FOIA Officer may stop the clock one time if they
require additional information regarding the specifics of the request;
and
(ii) The Chief FOIA Officer may stop the clock as many times as
needed regarding fee assessments.
(2) The processing time will resume upon the Chief FOIA Officer's
receipt of the requester's response. There may be instances when the
Chief FOIA Officer requires multiple clarifications on a FOIA request.
After the first request for clarification, any additional
clarifications are performed without tolling the clock. Should the
requester not respond to any correspondence wherein the Chief FOIA
Officer requests clarification, or should the correspondence be
returned as undeliverable, the Agency reserves the right to
administratively close the FOIA request if the Chief FOIA Officer does
not receive a response within 30 business days of the date of their
correspondence requesting clarification.
(h) Retrieving records. The Agency is required to furnish copies of
records only when they are in the Agency's possession or SSS can
retrieve them from storage. The Federal government follows National
Archives and Records Administration (NARA) rules on record retention.
Records are retained or destroyed under the guidelines of the Federal
Records Act.
(i) Unproductive searches. SSS will search for records to satisfy a
request using methods that can be reasonably expected to produce the
requested records. Nevertheless, the Agency may not be able to find the
records requested using the information provided by the requester, or
they may not exist. If the Chief FOIA Officer advises that SSS is
unable to find the records despite a diligent search, the requester may
appeal the no records determination to the Director of Selective
Service, as described in Sec. 1662.16.
(j) Furnishing records. The Chief FOIA Officer will provide the
requester with the record(s) requested unless disclosure would harm an
interest protected by a FOIA exemption or disclosure is prohibited by
law. When information within a responsive record(s) is exempt from
disclosure, the information is redacted and the applicable FOIA
exemption(s) are noted within the redacted cell. The Chief FOIA Officer
will make reasonable efforts to provide the records in the form or
format requested if the record is readily reproducible in that form or
format. The Chief FOIA Officer may provide individual records as the
Agency processes them on a rolling basis, or the Chief FOIA Officer may
release all responsive records once the request is completed. See Sec.
1662.14 for more information on the release of records by SSS.
Sec. 1662.12 Expedited processing.
(a) Expedited processing must be requested at the same time as the
FOIA request. The Chief FOIA Officer provides expedited processing when
the requester can demonstrate a ``compelling need'' for the requested
information, such as:
(1) When there is an imminent threat to the life or safety of a
person;
(2) When the request is from the media, or others primarily engaged
in disseminating information, and shows an immediate urgency to inform
the public about actual or alleged government activities; or
(3) When the requester can show, in detail and to the Chief FOIA
Officer's satisfaction, that a prompt response is needed because the
requester may be denied a legal right, benefit, or remedy without the
requested information, and that it cannot be obtained elsewhere in a
reasonable amount of time.
(b) Only the Chief FOIA Officer may make the decision to grant or
deny expedited processing. Requests that do not meet the ``compelling
need'' criteria will be processed normally. If the Chief FOIA Officer
does not grant the request for expedited processing, the requester may
appeal the denial to the Director of Selective Service. In the appeal
letter, the requester should explain why they believe their request
demonstrates a ``compelling need,'' such as describing how the request
meets the criteria in paragraphs (a)(1) through (3) of this section.
The process described in Sec. 1662.16 will apply to these appeals.
Sec. 1662.13 Fees associated with processing FOIA requests.
(a) Charging fees. In responding to FOIA requests, the Chief FOIA
Officer shall charge the following fees unless a waiver or reduction of
fees has been granted under paragraph (i) of this section. Because the
fee amounts provided below already account for the direct costs
associated with a given fee type, the Chief FOIA Officer should not add
any additional costs to charges calculated under this section.
(1) Search. (i) Requests made by educational institutions, non-
commercial scientific institutions, or representatives of the news
media are not subject to search fees. Search fees shall be charged for
all other requesters, subject to the restrictions of paragraph (b) of
this section. The Chief FOIA Officer may properly charge for time spent
searching even if the Agency does not locate any responsive records or
if the Chief FOIA Officer determines 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 shall be as follows: professional--$10.00;
and clerical/administrative--$4.75.
(iii) Requesters shall be charged the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. Requesters shall be notified
by the Chief FOIA Officer of the costs associated with creating such a
program and must agree to pay the associated costs before the costs may
be incurred.
(iv) For requests that require the retrieval of records stored by
the Agency at a Federal records center operated by NARA, additional
costs shall be charged in accordance with the Transactional Billing
Rate Schedule established by NARA.
(2) Duplication. Duplication fees shall be charged to all
requesters, subject to the restrictions of paragraph (b) of this
section. The Chief FOIA Officer shall honor a requester's preference
for receiving a record in a particular form or format where it is
readily reproducible in the form or format requested. Where photocopies
are supplied, the Chief FOIA Officer shall provide one copy per request
at a cost of five cents per page. For copies of records produced on
tapes, disks, or other media, components shall charge the direct costs
of producing the copy, including operator time. Where paper documents
must be scanned to comply with a requester's preference to receive the
records in an electronic format, the requester shall pay the direct
costs associated with scanning those materials. For other forms of
duplication, the Chief FOIA Officer shall charge the direct costs.
(3) Review. Review fees shall be charged to requesters who make
commercial use requests. Review fees shall be assessed in connection
with the initial review of the record, i.e., the
[[Page 66575]]
review conducted by the Chief FOIA Officer to determine whether an
exemption applies to a particular record or portion of a record. No
charge will be made for review at the administrative appeal stage of
exemptions applied at the initial review stage. However, if a
particular exemption is deemed to no longer apply, any costs associated
with the Agency's re-review of the records in order to consider the use
of other exemptions may be assessed as review fees. Review fees shall
be charged at the same rates as those charged for a search under
paragraph (a)(1)(ii) of this section.
(b) Restrictions on charging fees. (1) No search fees will be
charged for requests by educational institutions (unless the records
are sought for commercial use), non-commercial scientific institutions,
or representatives of the news media.
(2) If the Agency fails to comply with the FOIA's time limits in
which to respond to a request, the Chief FOIA Officer may not charge
search fees, or, in the instances of requests from requesters described
in paragraph (b)(1) of this section, may not charge duplication fees,
except as described in paragraphs (b)(2)(i) through (iii) of this
section.
(i) If the Chief FOIA Officer has determined that unusual
circumstances as defined by the FOIA apply and they 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.
(ii) If the Chief FOIA Officer 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 Chief FOIA Officer may
charge search fees, or, in the case of requesters described in
paragraph (b)(1) of this section, may charge duplication fees if the
following steps are taken. The Chief FOIA Officer must have provided
timely written notice of unusual circumstances to the requester in
accordance with the FOIA and the Chief FOIA Officer 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). If this exception is satisfied, the Chief FOIA
Officer may charge all applicable fees incurred in the processing of
the request.
(iii) 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
Chief FOIA Officer shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(5) When, after first deducting the 100 free pages (or its cost
equivalent) and the first two hours of search, a total fee calculated
under paragraph (a) of this section is $25.00 or less for any request,
no fee will be charged.
(c) Notice of anticipated fees in excess of $25.00. (1) When the
Chief FOIA Officer determines or estimates that the fees to be assessed
in accordance with this section will exceed $25.00, the Chief FOIA
Officer shall notify the requester of the actual or estimated amount of
the fees, including a breakdown of the fees for search, review, or
duplication, unless the requester has indicated a willingness to pay
fees as high as those anticipated. If only a portion of the fee can be
estimated readily, the Chief FOIA Officer shall advise the requester
accordingly. If the requester is a non-commercial use requester, the
notice shall specify that the requester is entitled to the statutory
entitlements of 100 pages of duplication at no charge and, if the
requester is charged search fees, two hours of search time at no
charge, and shall advise the requester whether those entitlements have
been provided.
(2) In cases in which a requester has been notified that the actual
or estimated fees are in excess of $25.00, the request shall not be
considered received and further work will not be completed until the
requester commits in writing to pay the actual or estimated total fee,
or designates some amount of fees the requester is willing to pay, or
in the case of a non-commercial use requester who has not yet been
provided with the requester's statutory entitlements, designates that
the requester seeks only that which can be provided by the statutory
entitlements. The requester must provide the commitment or designation
in writing to the Chief FOIA Officer, and must, when applicable,
designate an exact dollar amount the requester is willing to pay. The
Agency is not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but the Chief FOIA Officer estimates that
the total fee will exceed that amount, they shall toll the processing
of the request when they notify the requester of the estimated fees
more than the amount the requester has indicated a willingness to pay.
The Chief FOIA Officer shall inquire whether the requester wishes to
revise the amount of fees the requester is willing to pay or modify the
request. Once the requester responds, the time to respond will resume
from where it was at the date of the notification.
(4) The Agency shall make available the 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.
(d) Charges for other services. Although not required to provide
special services, if the Chief FOIA Officer chooses to do so as a
matter of administrative discretion, the direct costs of providing the
service shall be charged. Examples of such services include certifying
that records are true copies, providing multiple copies of the same
document, or sending records by means other than first class mail.
(e) Charging interest. The Chief FOIA Officer may charge interest
on any unpaid bill starting on the 31st day following the date of
billing the requester. Interest charges shall be assessed at the rate
provided in 31 U.S.C. 3717 and will accrue from the billing date until
payment is received by the Chief FOIA Officer. The Chief FOIA Officer
shall follow the provisions of the Debt Collection Act of 1982 (Pub. L.
97-365, 96 Stat. 1749), as amended, and its administrative procedures,
including the use of consumer reporting agencies, collection agencies,
and offset.
(f) Aggregating requests. When the Chief FOIA Officer 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 Chief FOIA Officer may aggregate those
requests and charge accordingly. The Chief FOIA Officer may presume
that multiple requests of this type made within a 30-day period have
been made to avoid fees. For requests separated by a longer period, the
Chief FOIA Officer will aggregate them only where there is a reasonable
basis for determining that aggregation is warranted in view of all the
circumstances involved. Multiple requests involving unrelated matters
shall not be aggregated.
(g) Advance payments. (1) For requests other than those described
in paragraph (g)(2) or (g)(3) of this section, the Chief FOIA Officer
shall not require the requester to make an advance
[[Page 66576]]
payment before work on a request is commenced or continued. Payment
owed for work already completed (i.e., payment before copies are sent
to a requester) is not an advance payment.
(2) When the Chief FOIA Officer determines or estimates that a
total fee to be charged under this section will exceed $250.00, they
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 Chief FOIA Officer may elect to process the request prior to
collecting fees when they receive a satisfactory assurance of full
payment from a requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to the Agency within 30 calendar days of the billing
date, the Chief FOIA Officer may require that the requester pay the
full amount due, plus any applicable interest on that prior request,
and the Chief FOIA Officer may require that the requester make an
advance payment of the full amount of any anticipated fee before the
FOIA Officer begins to process a new request or continues to process a
pending request or any pending appeal. Where the Chief FOIA Officer has
a reasonable basis to believe that a requester has misrepresented the
requester's identity to avoid paying outstanding fees, it may require
that the requester provide proof of identity.
(4) In cases in which the Chief FOIA Officer requires advance
payment, the request shall not be considered received and further work
will not be completed until the required payment is received. If the
requester does not pay the advance payment within 30 calendar days
after the date of the Chief FOIA Officer's fee determination, the
request will be closed.
(h) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. In instances where records responsive
to a request are subject to a statutorily based fee schedule program,
the Chief FOIA Officer shall inform the requester of the contact
information for that program.
(i) 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 Chief FOIA Officer must furnish records responsive to a
request without charge or at a reduced rate when they determine, based
on all available information, that 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. In deciding whether this standard is
satisfied the component must consider the factors described in
paragraphs (i)(2)(i) through (iii) of this section:
(i) Disclosure of the requested information would shed light on the
operations or activities of the government. The subject of the request
must concern identifiable operations or activities of the Federal
government with a connection that is direct and clear, not remote or
attenuated.
(ii) Disclosure of the requested information would be 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 must 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.
(B) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public must be
considered. The Chief FOIA Officer will presume that a representative
of the news media will satisfy this consideration.
(iii) The disclosure must 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 Chief FOIA Officer will consider the following criteria:
(A) FOIA requires an Agency requester has any commercial interest
that would be furthered by the requested disclosure. A commercial
interest includes any commercial, trade, or profit interest. Requesters
must be given an opportunity to provide explanatory information
regarding this consideration.
(B) If there is an identified commercial interest, the Chief FOIA
Officer must determine whether that is the primary interest furthered
by the request. A waiver or reduction of fees is justified when the
requirements of paragraphs (i)(2)(i) and (ii) of this section are
satisfied and any commercial interest is not the primary interest
furthered by the request. The Chief FOIA Officer ordinarily will
presume that when a news media requester has satisfied the requirements
of paragraphs (i)(2)(i) and (ii) of this section, 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 shall 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 Chief FOIA Officer and should
address the criteria referenced above. A requester may submit a fee
waiver request later so long as the underlying record request is
pending or on administrative appeal. When a requester who has committed
to pay fees subsequently asks for a waiver of those fees and that
waiver is denied, the requester shall be required to pay any costs
incurred up to the date the fee waiver request was received.
Sec. 1662.14 Release of records.
(a) Records previously released. If the Agency has released a
record, or a part of a record, to others in the past, the Chief FOIA
Officer will ordinarily release it to the requester, as well. However,
the Chief FOIA Officer will not release it to a requester if a statute
forbids this disclosure; an exemption applies that was not previously
applicable; or if the previous release was unauthorized.
(b) Withholding records. Section 552(b) of the FOIA explains the
nine exemptions under which the Chief FOIA Officer may withhold records
requested under the FOIA. Within Sec. Sec. 1662.18 through 1662.25,
the Agency describes the FOIA exemptions and explain how the Chief FOIA
Officer applies them to disclosure determinations. In some cases, more
than one exemption may apply to the same document. Section 552(b) of
the FOIA, while providing nine exemptions from mandatory disclosure,
does not
[[Page 66577]]
itself provide any assurance of confidentiality by the Agency.
(c) Reading room. If the record(s) requested are already publicly
available, either in the SSS electronic reading room or elsewhere
online, such as at <a href="http://www.sss.gov">www.sss.gov</a>, SSS will direct the requester to the
publicly available record(s), unless the requester does not have access
to the internet.
(d) Poor copy. If the Chief FOIA Officer cannot make a legible copy
of a record to be released, they do not attempt to reconstruct it.
Instead, the Chief FOIA Officer will furnish the best copy possible and
note its poor quality in their reply.
Sec. 1662.15 FOIA Public Liaison and the Office of Government
Information Services.
The Chief FOIA Officer notifies requesters of their right to seek
dispute resolution from the FOIA Public Liaison or OGIS within the SSS
fee notices, responses to determinations identified in Sec. 1662.9(a),
and responses to appeals.
(a) FOIA Public Liaison. If requesters have questions about the
response to their request or wish to seek dispute resolutions services
within SSS, the requester may contact the FOIA Public Liaison via email
to <a href="/cdn-cgi/l/email-protection#5b1d14121a750b2e393732387517323a322834351b282828753c342d"><span class="__cf_email__" data-cfemail="a8eee7e1e986f8ddcac4c1cb86e4c1c9c1dbc7c6e8dbdbdb86cfc7de">[email protected]</span></a>.
(b) OGIS. OGIS is an entity outside of SSS that offers mediation
services to resolve disputes between FOIA requesters and Federal
agencies as a non-exclusive alternative to litigation. OGIS' contact
information will be provided in any decision letter issued by the Chief
FOIA Officer and Director of Selective Service.
Sec. 1662.16 Appeals of the Chief FOIA Officer's determination.
(a) Appeal requirements. If a requester disagrees with the Chief
FOIA Officer's determination in response to items specified in Sec.
1662.9, the requester may appeal the decision to the Director of
Selective Service. The appeal must meet the following requirements:
(1) Be submitted in writing via the avenues identified in Sec.
1662.7;
(2) Be received within 90 days from the date of the determination
the requester is appealing; and
(3) Explain what the requester is appealing and include additional
information to support the appeal.
(b) Acknowledgement. The Director of Selective Service acknowledges
all appeals in writing within 10 business days after their receipt of
the appeal. The acknowledgement is provided via email or, when the
requester does not provide an email address, via U.S. postal mail. The
acknowledgement email or letter restates the FOIA appeal and provides
the requester with the appeal's tracking number.
(c) Processing timeframe. FOIA appeals are categorized as either
simple or complex, based on the designation of the initial request.
(1) Simple. Generally, the Director of Selective Service makes a
determination about release of the requested record(s) within 20
business days.
(2) Complex. Appeals of complex requests cannot be completed within
20 business days due to unusual circumstances. During the Director of
Selective Service's processing of the appeal, they will need to consult
with appropriate SSS component(s), including legal counsel; therefore,
the Director of Selective Service generally requires more than 20
business days to issue a final decision on the appeal.
(d) Final decision. The Director of Selective Service makes
decisions on appeals of the Chief FOIA Officer's determinations.
(1) The Director of Selective Service's final decision is provided
in writing to the requester via email or, in the absence of the
requester's email address, via U.S. postal mail.
(2) The final decision letter will explain the basis of the
decision (for example, the reasons why an exemption applies).
(e) Disagreement with final decision. If a requester disagrees with
the final decision issued by the Director of Selective Service, they
may seek assistance from OGIS, as described in Sec. 1662.15.
Requesters may also ask a U.S. District Court to review the Director of
Selective Service's final decision. See 5 U.S.C. 552(a)(4)(B).
Sec. 1662.17 U.S. District Court action.
If the Director of Selective Service, upon review, affirms the
denial of the Chief FOIA Officer's determination of items specified in
Sec. 1662.9(a), requesters may ask a U.S. District Court to review
that denial. See 5 U.S.C. 552(a)(4)(B).
Sec. 1662.18 The FOIA Exemption 1: National defense and foreign
policy.
The FOIA exempts from disclosure records that are specifically
authorized under criteria established by an executive order to be kept
secret in the interest of national defense or foreign policy and are in
fact properly classified pursuant to such executive order.
Sec. 1662.19 The FOIA Exemption 2: Internal personnel rules and
practices.
The FOIA exempts from disclosure records that are related solely to
the internal personnel rules and practices of an agency.
Sec. 1662.20 The FOIA Exemption 3: Records exempted by other
statutes.
The FOIA exempts from disclosure records if another statute
specifically allows or requires the agency to withhold them. The Chief
FOIA Officer may use another statute to justify withholding only if it
prohibits disclosure; it sets forth criteria to guide the Chief FOIA
Officer's decision on releasing; or identifies types of material to be
withheld.
Sec. 1662.21 The FOIA Exemption 4: Trade secrets and confidential
commercial or financial information.
The FOIA exempts from disclosure trade secrets as well as
commercial or financial information that is obtained from a person that
is either privileged or confidential. SSS will allow submitters to
designate information as trade secrets and confidential commercial or
financial information at the time of submission or within a reasonable
time thereafter. Submitters must use good faith efforts to designate,
by appropriate markings, any portion of its submission that it
considers to be protected from disclosure under the FOIA exemptions.
These designations expire ten years after the due date of the
submission unless the submitter requests a longer designation period.
(a) Steps of submitters notice--(1) The submitter's notice. When
trade secrets or confidential commercial or financial information is
requested under the FOIA, the Chief FOIA Officer will provide written
submitter's notice if they have substantial reason to believe that
information in the records could reasonably be considered exempt under
the FOIA Exemption 4. The submitter's notice will describe and include
a copy of the trade secret, or commercial or financial information
requested. In cases involving many submitters, SSS may publish a
submitter's notice to inform the submitters of the proposed disclosure
instead of sending individual notifications. The submitter's notice
requirements of this section do not apply if:
(i) The Chief FOIA Officer determines the information is fully
exempt under the FOIA, and therefore will not be disclosed;
(ii) The information has been previously published or made
generally available; or
(iii) Disclosure of the information is required by statute other
than the FOIA.
(2) Submitter's opportunity to object to disclosure. (i) The
submitter must respond to the notice within five business days of the
Chief FOIA Officer issuing the submitter's notice or the information
may be released in
[[Page 66578]]
accordance with these regulations and the FOIA. A submitter who fails
to respond within five business days will be considered to have no
objection to the disclosure of the information. The Chief FOIA Officer
is not required to consider any information received after the date of
any disclosure decision. Any information provided by a submitter under
this subpart may itself be subject to disclosure under the FOIA.
(ii) If a submitter objects to disclosure, the submitter should
provide the Chief FOIA Officer with a detailed written statement that
specifies all grounds for withholding the particular information under
any exemption of the FOIA. To rely on Exemption 4 as basis for
nondisclosure, the submitter must explain why the information
constitutes a trade secret or commercial or financial information that
is confidential.
(iii) The Chief FOIA Officer will consider a submitter's timely
made objections and specific grounds for nondisclosure in deciding
whether to disclose the requested information.
(3) Notice of intent to disclose. Whenever the Chief FOIA Officer
decides to disclose information over the objection of a submitter, they
must provide the following to the submitter:
(i) A Release Over Objection letter explaining the reasons why each
of the submitter's disclosure objections did not meet the requirements
for withholding under the FOIA;
(ii) A copy of the information as SSS intends to release it; and
(iii) A statement of the Chief FOIA Officer's intent to disclose
the information five business days from the date on the Release Over
Objection letter unless the submitter files an action in a U.S.
District Court to prevent the release.
(b) Notice of FOIA lawsuit. When a submitter's notice is issued for
a request that is the subject of a lawsuit, the Chief FOIA Officer
shall notify the submitter of the lawsuit within the notice.
(c) Requester notification. To the extent the Chief FOIA Officer
expects substantial delays in the processing of FOIA requests due to
the Agency's communications with the submitter, they will notify the
requester in writing via email, or when the requester's email is not
provided, via U.S. postal mail.
Sec. 1662.22 The FOIA Exemption 5: Internal documents.
This exemption covers inter-agency or intra-agency government
documents that fall within an evidentiary privilege recognized in civil
discovery. Such internal government communications include an agency's
communications with an outside consultant or other outside person, with
a court, or with Congress, when those communications are for a purpose
similar to the purpose of privileged intra-agency communications. Some
of the most commonly applicable privileges are described in the
following paragraphs:
(a) Deliberative process privilege. This privilege protects the
decision-making processes of government agencies. Information is
protected under this privilege if it is pre-decisional and
deliberative. The purpose of the privilege is to prevent injury to the
quality of the agency decision-making process by encouraging open and
frank internal discussions, by avoiding premature disclosure of
decisions not yet adopted, and by avoiding the public confusion that
might result from disclosing reasons that were not in fact the ultimate
grounds for an agency's decision. Purely factual material in a
deliberative document is within this privilege only if it is
inextricably intertwined with the deliberative portions so that it
cannot reasonably be segregated, if it would reveal the nature of the
deliberative portions, or if its disclosure would in some other way
make possible an intrusion into the decision-making process. The
privilege continues to protect pre-decisional documents even after a
decision is made; however, the Chief FOIA Officer will release pre-
decisional deliberative communications that were created 25 years or
more before the date on which the records are requested, unless
disclosure is otherwise prohibited by law.
(b) Attorney work product privilege. This privilege protects
records prepared by or for an attorney in anticipation of or for
litigation. It includes documents prepared for purposes of
administrative and court proceedings. This privilege extends to
information directly prepared by an attorney, as well as materials
prepared by non-attorneys working for an attorney.
(c) Attorney-client communication privilege. This privilege
protects confidential communications between an attorney and the
attorney's client where legal advice is sought or provided.
Sec. 1662.23 The FOIA Exemption 6: Clearly unwarranted invasion of
personal privacy.
The FOIA exempts from disclosure records about individuals if
disclosure would constitute a clearly unwarranted invasion of their
personal privacy.
Sec. 1662.24 The FOIA Exemption 7: Law enforcement.
The FOIA exempts from disclosure information or records that the
government has compiled for law enforcement purposes. The records may
apply to actual or potential violations of either criminal or civil
laws or regulations. The Agency can withhold these records only to the
extent that releasing them would cause harm in at least one of the
following situations:
(a) Enforcement proceedings. Pursuant to the FOIA Exemption 7(A) (5
U.S.C. 552(b)(7)(a)), the Chief FOIA Officer may withhold information
whose release could reasonably be expected to interfere with
prospective or ongoing law enforcement proceedings. Investigations of
fraud and mismanagement, employee misconduct, and civil rights
violations may fall into this category.
(b) Fair trial or impartial adjudication. Under the FOIA Exemption
7(B) (5 U.S.C. 552(b)(7)(b)), the FOIA exempts from disclosure records
whose release would deprive a person of a fair trial or an impartial
adjudication because of prejudicial publicity.
(c) Personal privacy. Under the FOIA Exemption 7(C) (5 U.S.C.
552(b)(7)(c)), the FOIA exempts from disclosure personally identifiable
information of individuals when the disclosure could reasonably be
expected to constitute an unwarranted invasion of personal privacy.
(d) Confidential sources and information. Pursuant to the FOIA
Exemption 7(D) (5 U.S.C. 552(b)(7)(d)), the FOIA exempts from
disclosure the identity of confidential sources, as well as the records
obtained from the confidential sources in criminal investigations or by
an agency conducting a lawful national security investigation. A
confidential source may be an individual; a state, local, or foreign
government agency; or any private organization. The exemption applies
whether the source provides information under an express promise of
confidentiality or under circumstances from which such an assurance
could be reasonably inferred; however, inferred confidentiality is
determined in a case-by-case analysis. Also protected from mandatory
disclosure is any information which, if disclosed, could reasonably be
expected to jeopardize the system of confidentiality that assures a
flow of information from sources to investigatory agencies.
(e) Techniques and procedures. Under the FOIA Exemption 7(E) (5
U.S.C. 552(b)(7)(e)), the FOIA exempts from disclosure records
reflecting special techniques or procedures of investigation or
prosecution, not otherwise generally known to the
[[Page 66579]]
public. In some cases, it is not possible to describe even in general
terms those techniques without disclosing the very material to be
withheld. The Chief FOIA Officer may also withhold records whose
release would disclose guidelines for law enforcement investigations or
prosecutions if this disclosure could reasonably be expected to create
a risk that someone could circumvent requirements of law or of
regulation.
(f) Life and physical safety. Under the FOIA Exemption 7(F) (5
U.S.C. 552(b)(7)(f)), the Chief FOIA Officer may withhold records whose
disclosure could reasonably be expected to endanger the life or
physical safety of any individual. This protection extends to threats
and harassment, as well as to physical violence.
Sec. 1662.25 The FOIA Exemptions 8 and 9: Records on financial
institutions; records on wells.
Exemption 8 exempts from disclosure records about regulation or
supervision of financial institutions. Exemption 9 exempts from
disclosure geological and geophysical information and data, including
maps, concerning wells.
Sec. 1662.26 Records available for public inspection.
Under the FOIA, SSS is required to make available for public
inspection in an electronic format:
(a) Final opinions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of cases;
(b) The Agency's statements and interpretations of policy that have
been adopted but are not published in the Federal Register;
(c) Administrative staff manuals and instructions that affect the
public; and
(d) Copies of records, regardless of form or format, that an agency
determines will likely become the subject of subsequent requests, as
well as records that have been requested and released three or more
times, unless said materials are published and copies are offered to
sale.
Sec. 1662.27 Where records are published.
Materials SSS is required to publish pursuant to the provisions of
5 U.S.C. 552(a)(1) and (a)(2) are published in one of the following
ways:
(a) By publication in the Federal Register of Selective Service
System regulations, and by their subsequent inclusion in the Code of
Federal Regulations;
(b) By publication in the Federal Register of appropriate general
notices; and/or
(c) By other forms of publication, when incorporated by reference
in the Federal Register with the approval of the Director of the
Federal Register.
Sec. 1662.28 Publications for sale through the Government Publishing
Office.
The public may purchase publications containing information
pertaining to the program, organization, functions, and procedures of
SSS from the electronic U.S. Government Bookstore maintained by the
Government Publishing Office. The publications for sale include but are
not limited to:
(a) Title 50, Chapter 49, of the United States Code (the Military
Selective Service Act);
(b) Title 32, Subtitle B, Chapter XVI, of the Code of Federal
Regulations (Selective Service System Regulations);
(c) Federal Register issues; and
(d) Legal Aspects of the Selective Service System.
Daniel A. Lauretano, Sr.,
General Counsel.
[FR Doc. 2024-18391 Filed 8-15-24; 8:45 am]
BILLING CODE 8015-01-P
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</html>Indexed from Federal Register on August 16, 2024.
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.