Title 40
SECTION 1850.6
1850.6 Responding to requests.
§ 1850.6 Responding to requests.(a) Receipt and processing. The date of receipt for any request, including one that is addressed incorrectly or that is referred to the Council by another agency, is the date the Council actually receives the request. The Council normally will process requests in the order they are received. However, in the Records Management Officer's discretion, the Council may use two or more processing tracks by distinguishing between simple and more complex requests based on the number of pages involved, or some other measure of the amount of work and/or time needed to process the request, and whether the request qualifies for expedited processing as defined by paragraph (d) of this section. When using multi-track processing, the Records Management Officer may provide requesters in the complex track(s) with an opportunity to limit the scope of their requests to qualify for the simple track and faster processing.
(b) Authorization. The Records Management Officer and other persons designated by the Council's Executive Director are solely authorized to grant or deny any request for Council records.
(c) Timing. (1) When a requester submits a request in accordance with § 1850.5, the Records Management Officer shall inform the requester of the determination concerning that request within 20 days from receipt of the request, unless “unusual circumstances” exist, as defined in § 1850.2(w). The Records Management Officer also shall provide requesters with a unique tracking number, an estimated date of completion (once the request is perfected), and a fee estimate (when applicable). The Records Management Officer shall also include in the Council's acknowledgment letter a brief description of the subject of the request.
(2) When additional time is required as a result of “unusual circumstances,” as defined in § 1850.2(w), the Records Management Officer shall, within the statutory 20 day period, issue to the requester a brief written statement of the reason for the delay and an indication of the date on which it is expected that a determination as to disclosure will be forthcoming. If more than 10 additional days are needed, the requester shall be notified and provided an opportunity to limit the scope of the request or to arrange for an alternate time frame for processing the request.
(3) The Council may toll the statutory time period to issue its determination on a FOIA request one time during the processing of the request to obtain clarification from the requester. The statutory time period to issue the determination on disclosure is tolled until the Council receives the information reasonably requested from the requester. The Council may also toll the statutory time period to issue the determination to clarify with the requester issues regarding fees. There is no limit on the number of times the agency may request clarifying fee information from the requester.
(d) Expedited processing. (1) A requester may request expedited processing by submitting a statement, certified to be true and correct to the best of that person's knowledge and belief, that demonstrates a compelling need for records, as defined in 5 U.S.C. 552(a)(6)(E)(v).
(2) The Records Management Officer will notify a requester of the determination to grant or deny a request for expedited processing within ten days of receipt of the request. If the Records Management Officer grants the request for expedited processing, the Council staff shall process the request as soon as practicable subject to § 1850.10(d) and (e). If the Records Management Officer denies the request for expedited processing, the requester may file an appeal in accordance with the process described in § 1850.7.
(3) The Council staff will give expedited treatment to a request when the Records Management Officer determines the requester has established one of the following:
(i) Circumstances in which the lack of expedited treatment reasonably could be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by an individual primarily engaged in disseminating information;
(iii) The loss of substantial due process rights;
(iv) A matter of widespread and exceptional media interest raising possible questions about the Federal government's integrity which affects public confidence; or
(4) These procedures for expedited processing also apply to requests for expedited processing of administrative appeals.
(e) Denials. If the Records Management Officer denies the request in whole or part, the Records Management Officer will inform the requester in writing and include the following:
(1) A brief statement of the reason(s) for the denial, including applicable FOIA exemption(s) and a description of those exemptions;
(2) An estimate of the volume of records or information withheld;
(3) If technically feasible, the precise amount of information deleted at the place in the record where the deletion was made, and the exemption under which a deletion is made on the released portion of the record, unless including that information would harm an interest protected by the exemption;
(4) The name and title or position of the person responsible for the denial of the request;
(5) The requester's right to appeal any such denial and the title and address of the official to whom such appeal is to be addressed; and
(6) The requirement that the appeal be received within 45 days of the date of the denial.
(f) Referrals to another agency. (1) When the Council receives a request for a record (or a portion thereof) in its possession that originated with another Federal agency subject to the FOIA, the Council shall, except as provided in paragraph (f)(4) of this section, refer the record to that agency for direct response to the requester. However, if the Council and the originating agency jointly agree that the Council is in the best position to respond regarding the record, then the record may be handled as a consultation.
(2) Whenever the Council refers any part of the responsibility for responding to a request to another agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name of the agency to which the record was referred, including that agency's FOIA contact information.
(3) The Council's response to an appeal will advise the requester that the 2007 FOIA amendments created the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. A requester may contact OGIS in any of the following ways: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road - OGIS, College Park, MD 20740, ogis.archives.gov, Email: [email protected], Telephone: 202-741-5770, Facsimile: 202-741-5769, Toll-free: 1-877-684-6448.
(4) The referral procedure is not appropriate where disclosure of the identity of the agency, typically a law enforcement agency or Intelligence Community 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 and national security interests. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the Council shall coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination shall then be conveyed to the requester by the Council.
(g) Consulting with another agency. In instances where a record is requested that originated with the Council and another agency has a significant interest in the record (or a portion thereof), the Council shall consult with that agency before responding to a requester. When the Council receives a request for a record (or a portion thereof) in its possession that originated with another agency that is not subject to the FOIA, the Council shall consult with that agency before responding to the requester.
(h) Providing responsive records. (1) Council staff shall send a copy of records or portions of records responsive to the request to the requester by regular United States mail to the address indicated in the request or by email to the email address provided by the requester, unless the requester makes other acceptable arrangements or the Council deems it appropriate to send the records by other means. The Council shall provide a copy of the record in any form or format requested if the record is readily reproducible in that form or format. The Council need not provide more than one copy of any record to a requester.
(2) The Records Management Officer shall provide any reasonably segregable portion of a record that is responsive to the request after redacting those portions that are exempt under FOIA or this section.
(3) The Council is not required to create, compile, prepare or obtain from outside the Council a record to satisfy a request. Retrieving data from a Council database or running a report from a database is permissible.
(i) Prohibition against disclosure. Except as provided in this subpart, no member or employee of the Council shall disclose or permit the disclosure of any non-public information of the Council to any person (other than Council members, employees, or agents properly entitled to such information for the performance of their official duties), unless required by law to do so.