1.5—Specific requests for other records.
(a) In general.
(1)
Except for records made available under 5 U.S.C.
552(a)(1) and (a)(2), but subject to the application of the exemptions and
exclusions described in 5 U.S.C. 552(b) and (c), each bureau of the Department of
the Treasury shall promptly make the requested records available to any person in
conformance with 5 U.S.C. 552(a)(3). The request must conform in every respect with
the rules and procedures of this subpart and the applicable bureau's appendix to
this subpart. Any request or appeal from the initial denial of a request that does
not comply with the requirements in this subpart will not be considered subject to
the time constraints of paragraphs (h), (i), and (j) of this section, unless and
until the request is amended to comply. Bureaus shall promptly advise the requester
in what respect the request or appeal is deficient so that it may be amended and
resubmitted for consideration in accordance with this subpart. If a requester does
not respond within 30 days to a communication from a bureau to amend the request in
order for it to be in conformance with this subpart, the request file will be
considered closed. When the request conforms with the requirements of this subpart,
bureaus shall make every reasonable effort to comply with the request within the
time constraints. If the description of the record requested is of a type that is
not maintained by the bureau, the requester shall be so advised and the request
shall be returned to the requester.
(2)
This subpart applies only to records in the possession or control of the bureau
at the time of the request. Records considered to be responsive to the request are
those in existence on or before the date of receipt of the request by the
appropriate bureau official. Requests for the continuing production of records
created after the date of the appropriate bureau official's receipt of the request
shall not be honored. Bureaus shall provide the responsive record or records in the
form or format requested if the record or records are readily reproducible by the
bureau in that form or format. Bureaus shall make reasonable efforts to maintain
their records in forms or formats that are reproducible for the purpose of
disclosure. For purposes of this section, readily reproducible means,
with respect to electronic format, a record or records that can be downloaded or
transferred intact to a floppy disk, compact disk (CD), tape, or other electronic
medium using equipment currently in use by the office or offices processing the
request. Even though some records may initially be readily reproducible, the need to
segregate exempt from nonexempt records may cause the releasable material to not be
readily reproducible.
(3)
Requests for information classified pursuant to Executive Order 12958,
“Classified National Security Information,” require the responsible bureau to review
the information to determine whether it continues to warrant classification.
Information which no longer warrants classification under the Executive Order's
criteria shall be declassified and made available to the requester, unless the
information is otherwise exempt from disclosure.
(4)
When a bureau receives five or more requests for substantially the same
records, it shall place those requests in front of an existing request backlog that
the responsible official may have. Upon completion of processing,
the released records shall be made available in the bureau's public reading room,
and if created on or after November 1, 1996, shall be made available in the
electronic reading room of the bureau's web site.
(b) Form of request.
In order to be subject to the provisions of this
section, the following must be satisfied.
(1)
The request for records shall be made in writing, signed by the person making
the request, and state that it is made pursuant to the Freedom of Information Act, 5
U.S.C. 552, or this subpart.
(2)
The request shall indicate whether the requester is a commercial user, an
educational institution, non-commercial scientific institution, representative of
the news media, or “other” requester, subject to the fee provisions described in §
1.7. In order for the Department to determine the proper category for fee purposes
as defined in this section, a request for records shall also state how the records
released will be used. This information shall not be used to determine the
releasibility of any record or records. A determination of the proper category of
requester shall be based upon a review of the requester's submission and the
bureau's own records. Where a bureau 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, bureaus should seek additional clarification before assigning the
request to a specific category. The categories of requesters are defined as
follows:
(i) Commercial.
A 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, which can include furthering those interests through
litigation. The bureaus may determine from the use specified in the request that the
requester is a commercial user.
(ii) Educational institution.
This 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. This category does not include requesters wanting
records for use in meeting individual academic research or study requirements.
(iii) Non-commercial scientific institution.
This refers to an
institution that is not operated on a “commercial” basis as that term is defined in
paragraph (b)(2)(i) 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.
(iv) Representative of the news media.
This 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. 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 bureaus may also look to the
past publication record of a requester in making this determination.
(v) “Other” Requester.
This refers to a requester who does not fall
within any of the previously described categories.
(3)
The request must be properly addressed to the bureau that maintains the record.
The functions of each bureau are summarized in The United States
Government Manual which is issued annually and is available from the
Superintendent of Documents. Both the envelope and the request itself should be
clearly marked “Freedom of Information Act Request.” See the
appendices to this subpart for the office or officer to which requests shall be
addressed for each bureau. A requester in need of guidance in defining a request or
determining the proper bureau to which a request should be sent may contact
Disclosure Services at 202/622-0930, or may write to Disclosure Services, Department
of the Treasury, 1500 Pennsylvania Avenue, NW, Washington, DC 20220. Requesters may
access the “FOIA Home Page” at the Department of the Treasury World Wide Web site
at: http://www.treas.gov.
(5)
The request must set forth the address where the person making the request
wants to be notified about whether or not the request will be granted.
(6)
The request must state whether the requester wishes to inspect the records or
desires to have a copy made and furnished without first inspecting them.
(7)
The request must state the firm agreement of the requester to pay the fees for
search, duplication, and review as may ultimately be determined in accordance with §
1.7. The agreement may state the upper limit (but not less than $25) that the
requester is willing to pay for processing the request. A request that fees be
waived or reduced may accompany the agreement to pay fees and shall be considered to
the extent that such request is made in accordance with § 1.7(d) and provides
supporting information to be measured against the fee waiver standard set forth in §
1.7(d)(1). The requester shall be notified in writing of the decision to grant or
deny the fee waiver. A requester shall be asked to provide an agreement to pay fees
when the request for a fee waiver or reduction is denied and the initial request for
records does not include such agreement. If a requester has an outstanding balance
of search, review, or duplication fees due for FOIA request processing, the
requirements of this paragraph are not met until the requester has remitted the
outstanding balance due.
(c)
Requests for records not in control of bureau; referrals;
consultations. (1) When a requested record is in the possession or under the
control of a bureau of the Department other than the office to which the request is
addressed, the request for the record shall be transferred to the appropriate bureau
and the requester notified. This referral shall not be considered a denial of access
within the meaning of these regulations. The bureau of the Department to which this
referral is made shall treat this request as a new request addressed to it and the
time limits for response set forth by paragraph (h)(1) of this section shall begin
when the referral is received by the designated office or officer of the bureau.
(2)
When a requested record has been created by an agency or Treasury bureau other
than the Treasury bureau possessing the record, the bureau having custody of the
record shall refer the record to the originating agency or Treasury bureau for a
direct response to the requester. The requester shall be informed of the referral
unless otherwise instructed by the originating agency. This is not a denial of a
FOIA request; thus no appeal rights accrue to the requester.
(3)
When a FOIA request is received for a record created by a Treasury bureau that
includes information originated by another bureau of the Department of the Treasury
or another agency, the record shall be referred to the originating agency or bureau
for review and recommendation on disclosure. The agency or bureau shall respond to
the referring office. The Treasury bureau shall not release any such records without
prior consultation with the originating bureau or agency.
(4)
In certain instances and at the discretion of the Departmental Offices,
requests having impact on two or more bureaus of the Department may be coordinated
by the Departmental Offices.
(d) Reasonable description of records.
The request for records must
describe the records in reasonably sufficient detail to enable employees who are
familiar with the subject area of the request to locate the records without placing
an unreasonable burden upon the Department. Whenever possible, a request should
include specific information about each record sought, such as the date, title or
name, author, recipients, and subject matter of the record. If the
Department determines that the request does not reasonably describe the records
sought, the requester shall be given an opportunity to provide additional
information. Such opportunity may, when necessary, involve a discussion with
knowledgeable Department of the Treasury personnel. The reasonable description
requirement shall not be used by officers or employees of the Department of the
Treasury to improperly withhold records from the public.
(e) Requests for expedited processing.
(1)
When a request for records
includes a request for expedited processing, both the envelope and the request
itself must be clearly marked, “Expedited Processing Requested.”
(2)
Records will be processed as soon as practicable when a requester asks for
expedited processing in writing and is granted such expedited treatment by the
Department. The requester must demonstrate a compelling need for expedited
processing of the requested records. A compelling need is defined as follows:
(i)
Failure to obtain the requested records on an expedited basis could reasonably
be expected to pose an imminent threat to the life or physical safety of an
individual. The requester shall fully explain the circumstances warranting such an
expected threat so that the Department may make a reasoned determination that a
delay in obtaining the requested records could pose such a threat; or
(ii)
With respect to a request made by a person primarily engaged in disseminating
information, urgency to inform the public concerning actual or alleged Federal
Government activity. A person “primarily engaged in disseminating information” does
not include individuals who are engaged only incidentally in the dissemination of
information. The standard of “urgency to inform” requires that the records requested
pertain to a matter of current exigency to the American public and that delaying a
response to a request for records would compromise a significant recognized interest
to and throughout the American general public. The requester must adequately explain
the matter or activity and why the records sought are necessary to be provided on an
expedited basis.
(3)
A demonstration of a compelling need by a person making a request for expedited
processing shall be made by a statement certified by the requester to be true and
correct to the best of his or her knowledge and belief. The statement must be in the
form prescribed by 28 U.S.C. 1746, “I declare under penalty of perjury that the
foregoing is true and correct to the best of my knowledge and belief. Executed on
[date].”
(4)
Upon receipt by the appropriate bureau official, a request for expedited
processing shall be considered and a determination as to whether to grant or deny
the request for expedited processing shall be made, and the requester notified,
within 10 calendar days of the date of the request. However, in no event shall the
bureau have fewer than five days (excluding Saturdays, Sundays, and legal public
holidays) from the date of receipt of the request for such processing. The
determination to grant or deny a request for expedited processing may be made solely
on the information contained in the initial letter requesting expedited
treatment.
(5)
Appeals of initial determinations to deny expedited processing must be made
within 10 calendar days of the date of the initial letter of determination denying
expedited processing. Both the envelope and the appeal itself shall be clearly
marked, “Appeal for Expedited Processing.”
(6)
An appeal determination regarding expedited processing shall be made, and the
requester notified, within 10 days (excluding Saturdays, Sundays, and legal public
holidays) from the date of receipt of the appeal.
(f) Date of receipt of request.
A request for records shall be
considered to have been received on the date on which a complete request containing
the information required by paragraph (b) of this section has been received. A
determination that a request is deficient in any respect is not a denial of access,
and such determinations are not subject to administrative appeal. Requests shall be
stamped with the date of receipt by the office prescribed in the appropriate
appendix. As soon as the date of receipt has been established, the requester shall
be so informed and shall also be advised when to expect a response.
The acknowledgment of receipt requirement shall not apply if a disclosure
determination will be issued prior to the end of the 20-day time limit.
(g) Search for record requested.
Department of the Treasury employees
shall search to identify and locate requested records, including records stored at
Federal Records Centers. Searches for records maintained in electronic form or
format may require the application of codes, queries, or other minor forms of
programming to retrieve the requested records. Wherever reasonable, searches shall
be done by electronic means. However, searches of electronic records are not
required when such searches would significantly interfere with the operation of a
Treasury automated information system or would require unreasonable effort to
conduct. The Department of the Treasury is not required under 5 U.S.C. 552 to
tabulate or compile information for the purpose of creating a record or records that
do not exist.
(h) Initial determination—
(1) In general.
The officers
designated in the appendices to this part shall make initial determinations either
to grant or to deny in whole or in part requests for records. Such officers shall
respond in the approximate order of receipt of the requests, to the extent
consistent with sound administrative practice. These determinations shall be made
and the requester notified within 20 days (excepting Saturdays, Sundays, and legal
public holidays) after the date of receipt of the request, as determined in
accordance with paragraph (f) of this section, unless the designated officer invokes
an extension pursuant to paragraph (j)(1) of this section or the requester otherwise
agrees to an extension of the 20-day time limitation.
(2) Granting of request.
If the request is granted in full or in
part, and if the requester wants a copy of the records, a copy of the records shall
be mailed to the requester, together with a statement of the applicable fees, either
at the time of the determination or shortly thereafter.
(3) Inspection of records.
In the case of a request for inspection,
the requester shall be notified in writing of the determination, when and where the
requested records may be inspected, and of the fees incurred in complying with the
request. The records shall then promptly be made available for inspection at the
time and place stated, in a manner that will not interfere with Department of the
Treasury operations and will not exclude other persons from making inspections. The
requester shall not be permitted to remove the records from the room where
inspection is made. If, after making inspection, the requester desires copies of all
or a portion of the requested records, copies shall be furnished upon payment of the
established fees prescribed by § 1.7. Fees may be charged for search and review time
as stated in § 1.7.
(4) Denial of request.
If it is determined that the request for
records should be denied in whole or in part, the requester shall be notified by
mail. The letter of notification shall:
(ii)
If technically feasible, indicate the amount of information deleted at the
place in the record where such deletion is made (unless providing such indication
would harm an interest protected by the exemption relied upon to deny such
material);
(iv)
Advise the requester of the right to administrative appeal in accordance with
paragraph (i) of this section; and
(5) No records found.
If it is determined, after a thorough search
for records by the responsible official or his delegate, that no records have been
found to exist, the responsible official will so notify the requester in writing.
The letter of notification will advise the requester of the right to
administratively appeal the Department's determination that no records exist (i.e., to challenge the adequacy of the Department's search for
responsive records) in accordance with paragraph (i) of this section. The response
shall specify the official or office to which the appeal shall be submitted for
review.
(i) Administrative appeal.
(1)
A requester may appeal a Department
of the Treasury initial determination when:
(B)
There has been an adverse determination of the requester's category as provided
in § 1.7(d)(4) ;
(ii)
An appeal, other than an appeal for expedited processing, must be submitted
within 35 days of the date of the initial determination or the date of the letter
transmitting the last records released, whichever is later, except in the case of a
denial for expedited processing. An appeal of a denial for expedited processing must
be made within 10 days of the date of the initial determination to deny expedited
processing (see § 1.5(e)(5) ). All appeals must be submitted to the official
specified in the appropriate appendix to this subpart whose title and address should
also have been included in the initial determination. An appeal that is improperly
addressed shall be considered not to have been received by the Department until the
office specified in the appropriate appendix receives the appeal.
(ii)
Be addressed to and mailed or hand delivered within 35 days (or within 10 days
when expedited processing has been denied) of the date of the initial determination,
or the date of the letter transmitting the last records released, whichever is
later, to the office or officer specified in the appropriate appendix to this
subpart and also in the initial determination. (See the appendices to this subpart
for the address to which appeals made by mail should be addressed);
(iii)
Set forth the address where the requester desires to be notified of the
determination on appeal;
(iv)
Specify the date of the initial request and date of the letter of initial
determination, and, where possible, enclose a copy of the initial request and the
initial determination being appealed.
(3)
(i)
Appeals shall be stamped with the date of their receipt by the office to
which addressed, and shall be processed in the approximate order of their receipt.
The receipt of the appeal shall be acknowledged by the office or officer specified
in the appropriate appendix to this subpart and the requester advised of the date
the appeal was received and the expected date of response. The decision to affirm
the initial determination (in whole or in part) or to grant the request for records
shall be made and notification of the determination mailed within 20 days (exclusive
of Saturdays, Sundays, and legal public holidays) after the date of receipt of the
appeal, unless extended pursuant to paragraph (j)(1) of this section. If it is
decided that the initial determination is to be upheld (in whole or in part) the
requester shall be—
(C)
Notified of the name and title or position of the official responsible for the
determination on appeal; and
(D)
Provided with a statement that judicial review of the denial is available in
the United States District Court for the judicial district in which the requester
resides or has a principal place of business, the judicial district in which the
requested records are located, or the District of Columbia in accordance with 5
U.S.C. 552(a)(4)(B).
(ii)
If the initial determination is reversed on appeal, the requester shall be so
notified and the request shall be processed promptly in accordance with the decision
on appeal.
(4)
If a determination cannot be made within the 20-day period (or within a period
of extension pursuant to paragraph (j)(1) of this section), the requester may be
invited to agree to a voluntary extension of the 20-day appeal period. This
voluntary extension shall not constitute a waiver of the right of the requester
ultimately to commence an action in a United States district court.
(j) Time extensions; unusual circumstances.
(1)
In unusual
circumstances, the time limitations specified in paragraphs (h) and (i) of this
section may be extended by written notice from the official charged with the duty of
making the determination to the person making the request or appeal setting forth
the reasons for this extension and the date on which the determination is expected
to be sent. As used in this paragraph, unusual circumstances means,
but only to the extent reasonably necessary to the proper processing of the
particular requests:
(i)
The need to search for and collect the requested records from field facilities
or other establishments that are separate from the office processing the
request;
(ii)
The need to search for, collect, and appropriately examine a voluminous amount
of separate and distinct records which are demanded in a single request; or
(iii)
The need for consultation, which shall be conducted with all practicable
speed, with another agency having a substantial interest in the determination of the
request, or among two or more bureaus or components of bureaus of the Department of
the Treasury having substantial subject matter interest therein.
(2)
Any extension or extensions of time shall not cumulatively total more than 10
days (exclusive of Saturdays, Sundays, and legal public holidays). However, if
additional time is needed to process the request, the bureau shall notify the
requester and provide the requester an opportunity to limit the scope of the request
or arrange for an alternative time frame for processing the request or a modified
request. The requester shall retain the right to define the desired scope of the
request, as long as it meets the requirements contained in this subpart.
(3)
Bureaus may establish multitrack processing of requests based on the amount of
work or time, or both, involved in processing requests.
(4)
If more than one request is received from the same requester, or from a group
of requesters acting in concert, and the Department believes that such requests
constitute a single request which would otherwise satisfy the unusual circumstances
specified in paragraph (j)(1) of this section, and the requests involve clearly
related matters, the Department may aggregate these requests for processing
purposes.
(k) Failure to comply.
If a bureau of the Department of the Treasury
fails to comply with the time limits specified in paragraphs (h) or (i) of this
section , or the time extensions of paragraph (j) of this section, any person making
a request for records in accordance with § 1.5 shall be considered to have exhausted
administrative remedies with respect to the request. Accordingly, the person making
the request may initiate suit as set forth in paragraph (l) of this section.
(l) Judicial review.
If an adverse determination is made upon appeal
pursuant to paragraph (i) of this section, or if no determination is made within the
time limits specified in paragraphs (h) and (i) of this section, together with any
extension pursuant to paragraph (j)(1) of this section or within the time otherwise
agreed to by the requester, the requester may commence an action in a United States
district court in the district in which he resides, in which his principal place of
business is located, in which the records are situated, or in the District of
Columbia, pursuant to 5 U.S.C. 552(a)(4).
(m) Preservation of records.
Under no circumstances shall records be
destroyed while they are the subject of a pending request, appeal, or lawsuit under
the FOIA.
(n) Processing requests that are not properly addressed.
A request
that is not properly addressed as specified in the appropriate appendix to this
subpart shall be forwarded to the appropriate bureau or bureaus for processing. If
the recipient of the request does not know the appropriate bureau to forward it to,
the request shall be forwarded to the Departmental Disclosure Officer (Disclosure
Services, DO), who will determine the appropriate bureau. A request not addressed to
the appropriate bureau will be considered to have been received for purposes of
paragraph (f) of this section when the request has been received by
the appropriate bureau office as designated in the appropriate appendix to this
subpart. An improperly addressed request, when received by the appropriate bureau
office, shall be acknowledged by that bureau.