Title 36
SECTION 1120.2
1120.2 Definitions.
§ 1120.2 Definitions.For the purposes of this part:
(a) A&TBCB or Board means the Architectural and Transportation Barriers Compliance Board.
(b) A&TBCB record or record means any document, writing, photograph, sound or magnetic recording, drawing or other similar thing by which information has been preserved, from which the information can be retrieved and copied, and which is, was, or is alleged to be under the control of the A&TBCB.
(1) The term includes -
(i) Informal writings such as handwritten notes and drafts;
(ii) Information preserved in a form which must be translated or deciphered by machine in order to be intelligible to humans;
(iii) Records which were created or acquired by the A&TBCB, its members, its employees, its members' employees, or persons acting on behalf of its members, by use of A&TBCB funds or in the course of transacting official business for the A&TBCB.
(2) The term does not include -
(i) Materials which are legally owned by an A&TBCB member, employee, or member's employee or representative in his or her purely personal capacity; and
(ii) Materials published by non-Federal organizations which are readily available to the public, such as books, journals, standards, and periodicals available through reference libraries, even if such materials are in the A&TBCB's possession.
(c) The terms agency, person, party, rule, rulemaking, order, and adjudication have the meanings given in 5 U.S.C. 551, except where the context demonstrates that a different meaning is intended, and except that for purposes of the Freedom of Information Act the term agency as defined in 5 U.S.C. 551 includes any executive department, military department, Government corporation, Government controlled corporation, the United States Postal Service, or other establishment in the executive branch of the Government (including the Executive Office of the President) or any independent regulatory agency.
(d) A government record under the control of the A&TBCB means that the record is subject to the free disposition of the A&TBCB. This includes keeping the record available for governmental use as required and protecting, preserving, and exercising such control over it as may be necessary for that purpose. Control of a record is not synonymous with, and does not require, actual physical possession of the record.
(e) Request means a request to inspect or obtain a copy of one or more records.
(f) Requestor means any person who submits a request to the A&TBCB.
(g) Public member means a member appointed by the President from among members of the general public.
(h) Direct Costs means those expenditures which an agency actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.
(i) Search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents. Agencies should ensure that searching for material is done in the most efficient and least expensive manner so as to minimize costs for both the agency and the requester. For example, agencies should not engage in line-by-line search when merely duplicating an entire document would prove the less expensive and quicker method of complying with a request. Search should be distinguished, moreover, from review of material in order to determine whether the material is exempt from disclosure (see paragraph (k) of this section). Searches may be done manually or by computer using existing programming.
(j) Duplication refers to the process of making a copy of a document necessary to respond to an FOIA request. Such copies can take the form of paper copy, microform, audio-visual materials, or machine readable documentation (e.g., magnetic tape or disk), among others. The copy provided must be in a form that is reasonably usable by requesters.
(k) Review refers to the process of examining documents located in response to a request that is for a commercial use (see paragraph (l) of this section) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(l) Commercial Use Request refers to 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 properly belongs in this category, agencies must determine the use to which a requester will put the documents requested. Moreover, where an agency has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, agencies should seek additional clarification before assigning the request to a specific category.
(m) Educational Institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research.
(n) Non-Commercial Scientific Institution refers to an institution that is not operated on a commercial basis as that term is referenced in paragraph (l) of this section, 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.
(o) Representative of the News Media refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. 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 broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of news) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive.
Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of freelance journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but agencies may also look to the past publication record of a requester in making this determination. [45 FR 80976, Dec. 8, 1980, as amended at 52 FR 43195, Nov. 10, 1987; 55 FR 2519, Jan. 25, 1990]