[Federal Register Volume 75, Number 198 (Thursday, October 14, 2010)]
[Proposed Rules]
[Pages 63120-63139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25362]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 1 and 2
RIN 2009-AN72
Release of Information From Department of Veterans Affairs
Records
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulations governing the submission and processing of requests for
information under the Freedom of Information Act (FOIA) in order to
implement provisions of the E-FOIA Act and the Openness in Government
Act, and to reorganize and clarify existing regulations. The proposed
regulations would establish the procedures and rules necessary for VA
to process requests for information under the FOIA, including matters
such as how to file a request or appeal, how requests for business
information are handled, and how issues regarding fees are resolved.
The intended effect of these regulations is to implement legislative
changes made to the FOIA, as noted above, and to provide the public
clear instructions and useful information regarding the filing and
processing of FOIA requests.
DATES: Comments must be received on or before December 13, 2010.
ADDRESSES: Written comments may be submitted through http://www.Regulations.gov/; by mail or hand-delivery to the Director,
Regulations Management (02REG), Department of Veterans Affairs, 810
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to
(202) 273-9026. Comments should indicate that they are submitted in
response to ``RIN 2900-AN72, Release of Information from Department of
Veterans Affairs Records.'' Copies of comments received will be
available for public inspection in the Office of Regulation Policy and
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m.,
Monday through Friday (except holidays). Please call (202) 461-4902 for
an appointment. In addition, during the comment period, comments may be
viewed online through the Federal Docket Management System (FDMS) at
http://www.Regulations.gov/.
FOR FURTHER INFORMATION CONTACT: Catherine Nachmann, Staff Attorney,
Office of the General Counsel (024), Department of Veterans Affairs,
810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7684. (This is
not a toll free number.)
SUPPLEMENTARY INFORMATION: The FOIA, codified at 5 U.S.C. 552, requires
an agency to publish public guidance regarding its implementation of
the statute, such as rules of procedure and substantive rules of
general applicability. The Privacy Act of 1974, as amended, codified at
5 U.S.C. 552a, requires an agency to publish its rules and procedures
implementing that statute. Section 501(a) of title 38, U.S.C.,
authorizes the Secretary of Veterans Affairs to prescribe rules and
regulations to carry out the laws administered by VA, including when
information may be released from claimant records under 38 U.S.C. 5701,
what activities fall within 38 U.S.C. 5705 regarding confidentiality of
medical quality assurance records, whether and to whom information
pertaining to those activities may be released, and when information
may be released from records covered by 38 U.S.C. 7332 regarding the
identity, diagnosis, or treatment of drug abuse, alcoholism or alcohol
abuse, infection with the human immunodeficiency virus, and sickle cell
anemia.
We propose to amend VA's regulations pertaining to release of
information under 5 U.S.C. 552. VA's current FOIA regulations are
codified at 38 CFR 1.550 through 1.557, including reserved Sec. Sec.
1.558 and 1.559. This proposed rule would implement the FOIA in
Sec. Sec. 1.550 through 1.562. The proposed rule would in large part
cover the same issues as are covered in VA's current regulations, such
as how to submit a request for records, how VA addresses a request for
records, and fees for addressing record requests under the FOIA. We
propose to update these regulations to accommodate current means of
communication with VA, streamline the existing procedures based on our
experience administering the FOIA, incorporate changes in the
procedural requirements of the FOIA since promulgation of current
regulations, make VA's procedures easier for the public to understand,
and generally reorganize and renumber the applicable provisions.
In addition, we propose to add new provisions to explicitly
implement the E-FOIA Act, Public Law 104-231, and the Openness in
Government Act, Public Law 110-175. For additional resources on any of
the procedural requirements of the FOIA, E-FOIA Act, or Openness in
Government Act in particular, see the detailed information available at
the U.S. Department of Justice (DOJ) website. For example, a copy of
the FOIA can be located at http://www.justice.gov/oip/amended-foia-redlined.pdf. The current edition of the VA FOIA Reference Guide can be
located at http://www.foia.va.gov/docs/RequesterHandbook.pdf, and
specific information about implementing the FOIA and its amendments can
be found in guidance issued by DOJ through its FOIA Updates and FOIA
Post publications, located at http://www.usdoj.gov/oip/foi-upd.htm and
http://www.justice.gov/oip/foiapost/mainpage.htm.
Changes to 38 CFR Part 1
1.550 Purpose
Current Sec. 1.550 is entitled ``General'' and provides a general
statement of VA policy regarding disclosure of information to the
extent permitted by law, including when VA would otherwise be
authorized to withhold the information, if the disclosure is for a
useful purpose or when disclosure will not affect the proper conduct of
official
[[Page 63121]]
agency business or constitute an invasion of personal privacy. Current
Sec. 1.550 does not provide all of the general information that may be
useful to the public regarding a request for VA records, including
information necessitated by recent FOIA amendments and VA policy
updates.
We propose to amend Sec. 1.550 to generally provide more detail
regarding VA's FOIA program. Proposed Sec. 1.550(a) would encourage
requesters to read the VA FOIA regulations in conjunction with the
FOIA. Based on our experience administering the FOIA, we believe that
FOIA requesters will benefit from a greater awareness of the context in
which their requests are addressed. In keeping with the legal and
policy considerations associated with the administration of the FOIA,
proposed Sec. 1.550(a) would authorize release of information on a
discretionary basis and without regard to otherwise applicable
restrictions in VA's FOIA regulations when current law and governmental
policy permit such disclosures. Proposed Sec. 1.550(b) through (e)
would advise requesters that other regulations also apply to requests
for particular types of records, such as Privacy Act records.
1.551 Definitions
With the exception of current Sec. 1.554a, regarding pre-
disclosure notification, and current Sec. 1.555, regarding fees, VA's
current FOIA regulations do not contain definitions. Accordingly, we
propose to add a definitions section in which we would consolidate all
applicable definitions. By providing more definitions of terms commonly
used in the FOIA process, proposed Sec. 1.551(a) would clarify the
regulations, provide greater understanding for requesters, and assist
in the implementation of VA's FOIA regulations. These definitions are
proposed for clarification purposes only. No substantive effect is
intended.
1.552 General Provisions
Proposed Sec. 1.552(a) would create a section that would refer
requesters to an Internet link through which they may obtain access to
VA's information that is electronically available under the FOIA and
information regarding VA's processing of FOIA requests.
Section 552(a)(6)(B)(ii), as amended by the Openness in Government
Act, requires Federal agencies to make available a Public Liaison to
assist in disputes arising between the agency and individual
requesters. Proposed Sec. 1.552(b) would identify VA's Public Liaisons
and provide contact information.
Section 552(e)(1) through (3) requires agencies to prepare an
Annual Report that provides details regarding the agency's
administration of its FOIA program. Proposed Sec. 1.552(c) would
advise the public of this requirement and provide information
concerning the procedures for obtaining a copy of VA's Annual Report.
1.553 Public Reading Rooms
Proposed Sec. 1.553 would replace current Sec. 1.552(a). Current
Sec. 1.552(a), in part, provides (1) that statements of policy and
interpretations adopted by VA but not published in the Federal
Register, and administrative staff manuals and staff instructions that
affect any member of the public, unless promptly published and copies
offered for sale, will be indexed by VA; (2) that such indexes will be
published, quarterly or more frequently, and distributed or that VA
will provide copies at a cost not to exceed the direct cost of
duplication and both the index and the materials indexed will be made
available to the public for inspection and copying; and (3) that public
reading facilities will be maintained by VA Central Office and VA field
facilities for this purpose.
Proposed Sec. 1.553(a) would advise the public that VA maintains a
public reading room electronically at its FOIA home page on the
Internet, which contains records and a current subject matter index of
reading room records (updated quarterly or more frequently) that the
FOIA requires to be regularly made available for public inspection and
copying. In so doing, proposed Sec. 1.553(a) would implement section
552(a)(2) of the FOIA, as amended by the E-FOIA Act, which requires
that for records created after November 1, 1996, agencies make such
information available by electronic means. Proposed Sec. 1.553(a)
would also prescribe that each VA component is responsible for
determining which of its records are required to be made available
electronically. Proposed Sec. 1.553(a) would generally update VA's
FOIA program with regard to public access to records by advising the
public of the electronic availability of records. The information
provided in this provision would be a useful starting point for an
individual seeking access to VA records.
Section 552(a)(2), requires agencies to make available certain
documents for public inspection and copying. Current Sec. 1.552(b)
implements 552(a)(2), stating that when publishing or making available
to the public any opinion, order, statement of policy, interpretation,
staff manual or instruction to staff, identifying details will be
deleted, and the deletion justified in writing, to the extent required
to prevent a clearly unwarranted invasion of personal privacy.
Similarly, proposed Sec. 1.553(b) would prescribe that VA may delete
some of the information that it is making publicly available,
including, for example, when its release would result in an unwarranted
invasion of an individual's privacy. In substance, proposed Sec.
1.553(b) restates the provisions of current Sec. 1.552(b).
Proposed Sec. 1.553(c) would implement Sec. 552(a)(2), which
requires that the agency make public reading room material available
for inspection and copying. It would provide that some VA components
may maintain physical public reading rooms where individuals may obtain
publicly available information. In part, current Sec. 1.552(a)
implements the same requirement, providing for the maintenance of
public reading facilities. Proposed Sec. 1.553(c), therefore, would
replace that portion of current Sec. 1.552(a) that implements this
requirement. It would also provide that contact information regarding
VA components having physical public reading rooms is available on VA's
Internet home page. Proposed Sec. 1.553(c) would facilitate an
individual's access to a physical public reading room by providing
easily accessible information regarding the availability of reading
rooms within VA, thereby facilitating an individual's access to reading
room material.
1.554 Requirements for Making Requests
Proposed Sec. 1.554 would replace current Sec. 1.553. Current
Sec. 1.553(a) prescribes that except for records made publicly
available, requests for records will be processed under current Sec.
1.553(b) (discussed below) and any other law applicable to the
confidentiality of information. Current Sec. 1.553(a) also provides
that VA will consider making records available that it is permitted to
withhold under the FOIA if it determines that such disclosure could be
in the public interest.
Current Sec. 1.553(b) prescribes the requirements for submitting a
FOIA request, including that the request must be in writing over the
signature of the requester, that it must contain a reasonable
description of the record sought so that it may be located with
relative ease, and that it should be made to the office having
jurisdiction of the record desired. Proposed Sec. Sec. 1.554(a) and
1.554(b) would replace current Sec. 1.553(a) and (b) and clarify the
procedure for submission of requests for
[[Page 63122]]
records under the FOIA. The proposed provisions would prescribe that VA
will accept a facsimile (fax) or electronic mail (e-mail) FOIA request
if it contains an image of the requester's handwritten signature. These
amendments are necessary to clearly identify the acceptable methods of
submitting requests and expand the methods by which requests may be
made. They would also provide more flexibility for individuals in
submitting a FOIA request to VA and would authorize requests in keeping
with updated technology. Proposed Sec. 1.554(a) also would clarify
other administrative details with respect to making a FOIA request,
such as referring the requester to VA's list of FOIA contacts, advising
the requester to direct the request to the proper office, and referring
the requester to VA's FOIA Reference Guide.
As a general rule, a record covered by the Privacy Act, 5 U.S.C.
552a, will only be released at the request of, or with the prior
authorization by, the subject of the record. Proposed Sec. 1.554(c)
would add a provision advising requesters that if they wish to receive
information about another individual, the requester should provide
proof of his or her authorization to receive that information to cover
instances where, after weighing personal privacy interest against the
public interest under 5 U.S.C. 552(b)(6), FOIA does not require
disclosure. Based on our experience in administering the FOIA, we
believe that by providing more detailed information regarding the
submission of FOIA requests and making such information available
electronically, proposed Sec. 1.554(a) through (c) would facilitate
the submission of FOIA requests and would expedite the FOIA process,
including by directing the request to the proper address.
Section 552(a)(3)(A) provides that upon a request for records that
``reasonably describes'' the records and is made in accordance with the
agency's rules and procedures, the agency shall make such records
available. Proposed Sec. 1.554(d)(1) would clarify VA's implementation
of the requirement that the request reasonably describe the records
sought. Specifically, proposed Sec. 1.554(d)(1) would expand current
Sec. 1.553(b) by requiring that requesters provide, to the extent
possible, sufficient detail in requests to allow VA to formulate a
response. It would also advise requesters that requests that lack
specificity may not be considered ``reasonably described.'' Based on
our experience in administering the FOIA, we believe these proposed
amendments will make the FOIA process more efficient in that it would
clarify for requesters the required level of detail for their requests,
thereby allowing VA personnel to locate any responsive records more
easily. The amendments would generally clarify the request process.
Proposed Sec. 1.554(d)(2) would advise the requester that requests
for voluminous amounts of records may be considered ``complex'' or may
meet the criteria for ``unusual circumstances'' as set forth in
proposed Sec. 1.556; both concepts are discussed in detail below
regarding proposed Sec. 1.556.
Proposed Sec. 1.554(d)(3) would expand current Sec. 1.553(b) by
prescribing an opportunity for requesters to modify their requests if
they do not reasonably describe the records or otherwise do not meet
the regulatory requirements for requests. Proposed Sec. 1.554(d)(3)
would allow VA to address a request even if the request does not
initially meet regulatory requirements. Based on VA's experience,
handling any insufficiencies or ambiguities in the request at the
outset would avoid delay in addressing the request and provide the
requester an avenue for early resolution of the request.
Under section 552(a)(3)(A), a FOIA request must reasonably describe
the record sought. Upon receipt, VA must respond to the request,
ordinarily, within 20 days (excepting Saturdays, Sundays, and Federal
legal public holidays). Proposed Sec. 1.554(d)(4) would prescribe that
the time limit for addressing a FOIA request does not begin to run
until VA determines that the requester has reasonably described the
records and that, if clarification is sought and not received within
ten business days, VA will close its file on the request. In our
experience, the enforcement of this provision would assist in VA's
administration of the FOIA by clarifying VA's process and providing a
firm deadline by which an individual must respond to a request for
clarifying information. In so doing, VA would place responsibility on
the requester to follow request procedures, as required by section
552(a)(3)(A), and promptly reply to VA requests for clarifying
information. VA cannot process a request that does not reasonably
describe the records. Attempts to address such a request would be
futile and may delay action on other requests that meet the
requirements. It is imperative, therefore, that the requester
reasonably describes the record that is the subject of the request.
Section 552(a)(4)(A) sets forth the requirements regarding the
payment of fees for processing record requests. Proposed Sec. 1.554(e)
would provide preliminary information regarding the payment of fees
(fees are discussed in more detail in proposed Sec. 1.561). It is
included at an introductory level to notify requesters of the general
fee guidelines. Proposed Sec. 1.554(e) would restate current Sec.
1.555(b)(2) regarding notification of an anticipated fee in excess of
$25.00 or the amount that the requester has indicated a willingness to
pay. It would also restate current Sec. 1.555(g)(4)(i) and (ii)
regarding advance payment where the estimated fee is $250.00 or higher
or the requester has previously failed to pay a fee in a timely manner.
Proposed Sec. 1.554(e) would also implement section
552(a)(6)(A)(ii), as amended by the Openness in Government Act, which
authorizes an agency to toll the response due date if it is awaiting
information from the requester or if clarification is being sought
regarding fee issues. Proposed Sec. 1.554(e) would prescribe tolling
of the time limit for responding to a FOIA request if necessary to
clarify issues regarding a fee assessment. It would also amend the
provisions in current Sec. 1.555 by advising requesters that the
responding VA component has authority to require written assurance that
the fee will be paid, and that if the component's FOIA Officer does not
receive a response either to a request for more information or, under
certain circumstances, a request for an advance payment, he or she may
close the file. Further, proposed Sec. 1.554(e) would advise
requesters that even if they are seeking a fee waiver, they may
indicate a willingness to pay a fee up to a certain amount. These
amendments are necessary to clarify VA policy regarding the assessment
of FOIA processing fees and how fee issues may affect the processing of
an individual's request. Based on our experience, we believe that
setting out the parameters of the FOIA process, including with respect
to fees, will encourage resolution of administrative issues early in
the processing of a request, thus streamlining the process and avoiding
unnecessary delay.
Proposed Sec. 1.554(f) would prescribe that a request must meet
the requirements of proposed Sec. 1.554 in order to be considered a
perfected request. We propose this amendment to ensure that FOIA
requesters understand that VA requirements must be met before the
Department devotes resources to processing any request.
1.555 Responsibility for Responding to Requests
Proposed Sec. 1.555 would replace current Sec. 1.553a. Proposed
Sec. 1.555(a)
[[Page 63123]]
would provide at the outset that the component's FOIA Officer may
process the request or refer it to the appropriate VA office, that
office will provide the FOIA Officer with all documents in their
possession, and that the search cut-off date generally is the date that
the search begins, i.e., no documents created after that date will be
considered responsive to the FOIA request. If another date is used, the
requester will be advised. In our experience, this amendment is
necessary to clarify the processing of requests within the agency. This
amendment, for example, would resolve questions about the FOIA
Officer's authority to access records potentially responsive to a FOIA
request and would establish a cut-off date for searches. Removing any
ambiguity that exists with regard to the application of the FOIA or
VA's processing of FOIA requests would allow the system to operate more
effectively and efficiently.
Proposed Sec. 1.555(b) would replace current Sec. 1.553a(a) and
provide that the individual in each component who will be responsible
for granting or denying a request is the ``FOIA Officer'' rather than
the ``proper employee designated.'' This amendment would clarify that
the individual responsible for addressing FOIA requests is the FOIA
Officer and is intended to encourage consistency throughout the agency
in handling FOIA requests.
Proposed Sec. 1.555(c) and (d) would replace current Sec. 1.553a
and prescribe that the FOIA Officer will transfer to, or consult with,
another component or agency regarding, a request, including a request
that involves classified information, when another component or agency
is better able to address the request. Proposed Sec. 1.555(e) would
provide that the FOIA Officer will notify the requester when all or
part of the request has been referred to another component or agency.
We propose this amendment to provide as much information as possible to
requesters about the processing of their requests. Informing requesters
of the administrative actions that may occur with respect to their
requests will assist in the effective administration of the FOIA
program.
1.556 Timing of Responses to Requests
Proposed Sec. 1.556 would replace current provisions and add
provisions regarding the treatment of FOIA requests. Proposed Sec.
1.556(a) would add a provision stating generally that VA components
will respond to FOIA requests according to their order of receipt.
Proposed Sec. 1.556(b)(1) would prescribe VA's use of a multitrack
processing system in which, once received, FOIA requests are placed in
one of two tracks based upon the work and time required to process the
request. Proposed Sec. 1.556(b)(2) would require VA processors to
advise requesters of the track to which their request is assigned
(simple or complex). Under the proposed rule, VA would provide the
requester the opportunity to discuss his or her request with the
processing VA component in order to qualify for the faster processing
track. These proposed provisions implement sections 552(a)(6)(D)(i) and
(ii), which authorize agency rulemaking regarding multitrack processing
of records requests and the opportunity to qualify for the faster
track. Multitrack processing would enable VA to organize its FOIA
request intake in such a way as to provide a greater understanding of
the nature and extent of the work required to address various requests.
In addition, it would allow personnel to organize their workload in
accordance with varying degrees of complexity of the requests
presented. Lastly, it would allow requesters to modify their requests
to enable VA to address the request more expeditiously. In our
experience, requesters often frame requests in a way that would include
more material than may be necessary to answer their inquiry. Allowing
requesters to work with VA to clarify a request before the agency
expends resources on gathering documents that the requester does not
want would allow a quicker resolution for the requester and would allow
the agency to allocate resources to other requests.
Proposed Sec. 1.556(c) would amend current Sec. 1.553a(d) in that
it would set forth the circumstances under which VA may determine that
unusual circumstances exist with regard to addressing a FOIA request.
The definition of ``unusual circumstances'' is prescribed at 5 U.S.C.
552(a)(6)(B), and includes, for example, the need to collect records
from a facility other than the office processing the request. Proposed
Sec. 1.556(c) would add a provision that if VA requires an extension
of more than 10 business days to address the request, the requester may
modify the request so that it may be processed within applicable time
limits or arrange an alternative time period with the VA component that
is processing the request. Similar to proposed Sec. 1.556(b)(2),
proposed Sec. 1.556(c) would prescribe consultation with the requester
to allow for modification of the request or arrange an alternative time
period within which VA must process the request. This provision
encourages early clarification of the request and should promote
expeditious processing. Our experience is that communication with the
requester in cases such as this is beneficial to all parties, as it
clarifies issues for the agency and notifies the requester that the
agency is interested in processing the request as expeditiously as
possible.
Proposed Sec. 1.556(c)(1)(i) through (iii) would replace current
Sec. 1.553a(d)(1) through (3) and incorporate statutory requirements
in section 552(a)(6)(B)(i) through (iv) regarding the meaning of
``unusual circumstances.''
Proposed Sec. 1.556(c)(2) would authorize the aggregation of
requests if VA determines that certain requests are from the same
requester, or a group of requesters acting in concert, actually
constitute the same request and that as such, the requests would
otherwise meet the requirements for ``unusual circumstances,'' as
defined in section 552(a)(6)(B)(iii). This provision would allow VA to
address the substance of a request rather than the form of the request;
in other words, when a request, in substance, meets the unusual
circumstances requirements, the agency would address it as such. The
proposed revision in this regard would result in a more equitable
distribution of FOIA requests and request workload as it would allow
the agency to consider the nature of the request in determining how to
characterize it.
Section 552(a)(6)(E)(i) through (vi) requires VA rulemaking
regarding the procedures for expedited processing of requests. We
propose to implement these procedures in Sec. 1.556(d). Proposed Sec.
1.556(d)(1) would prescribe the circumstances that represent a
``compelling need'' for the information, a requirement that must be met
in order to meet the requirement for expedited review under the FOIA.
Proposed Sec. 1.556(d)(2) restates section 552(a)(6)(E)(vi), which
provides that a requester seeking expedited processing must submit a
certified statement to the processing agency regarding the request for
expedited review. Proposed Sec. 1.556(d)(3) restates section
552(a)(6)(E)(ii), which requires agencies to make a determination
regarding a request for expedited processing within 10 days of the
receipt of the request.
1.557 Responses to Requests
Proposed Sec. 1.557(a) would require the processing VA component
to acknowledge receipt of the request and assign a docket number to the
request. This provision is intended as an
[[Page 63124]]
administrative tool that components would use to organize incoming
requests and to provide the requester with pertinent information should
he or she wish to contact VA for information.
Proposed Sec. 1.557(b) would implement the provisions of section
552(a)(3)(B) through (C) to the extent that the proposed rule would
require a component properly in receipt of a request to conduct a
reasonable search for records, including records in electronic form or
format, and to provide those records in the form or format requested by
the individual, if readily reproducible in that form or format. In this
regard, proposed Sec. 1.557(b) would essentially restate the FOIA
provisions. In addition, proposed Sec. 1.557(b) would clarify that any
responsive records would be those in the component's possession and
control as of the date the search for responsive records begins and
would provide for notification to the requester if a fee is due under
proposed Sec. 1.561. Adding this interpretation of the search date and
initial fee assessment requirements would eliminate any ambiguity with
regard to the time frame of the search and any resulting fee.
Proposed Sec. 1.557(b) also would implement section 552(b), which
requires deletion of certain exempt portions of records and
identification of the FOIA exemption under which the deletion is made.
This proposed revision would also restate, in part, current Sec.
1.554(a), which prescribes that records will be provided after deletion
of material exempt under the FOIA, as discussed in current Sec.
1.554(a).
Proposed Sec. 1.557(c) would restate section 552(a)(6)(A) and
replace current Sec. 1.553a(b). The proposed rule would prescribe a
20-day deadline in which a VA component will act upon a request and a
10-day limit for referring a request to another component.
Proposed Sec. 1.557(d) would implement section 552(a)(6)(F), which
requires agencies to provide requesters a statement regarding the
amount of information withheld and the FOIA exemption under which
information is withheld, unless providing such a statement would harm
an interest protected by the applicable exemption, and would replace
current Sec. 1.557(a). The proposed rule would provide specific
examples of the types of determinations that are adverse to requesters,
restate the requirement to include the name of the individual
responsible for the denial, and prescribe a statement of the reasons
for the denial and notice regarding the right to appeal under proposed
Sec. 1.559. Placing the information that will be included in an
adverse determination in one provision will clarify the FOIA process
and benefit all parties involved. Our intent in proposing this
provision is to provide VA components clear and consistent direction
regarding the requirements for adverse determinations and to ensure
that requesters receive notice concerning the reasons for the
determination and their appeal options.
1.558 Business Information
Section 552(b)(4) exempts from release matters that are trade
secrets and commercial or financial information obtained from a person
that is privileged and confidential. Executive Order 12,600 establishes
the procedures to be followed when the agency believes that responsive
records include such information. Ordinarily, these provisions apply
when a request is received for information submitted by an individual
doing business with VA who has provided to VA its business information,
or information that he or she considers commercial or confidential;
this individual is referred to as the ``submitter'' of the information.
The ``submitter'' typically designates the information as protected, as
discussed further below.
Proposed Sec. 1.558 would replace current Sec. 1.554a in
addressing the issues raised by business information; it would replace
the term ``confidential commercial'' information used in current Sec.
1.554a with ``business'' information. This revision would provide
individuals specific information at the outset concerning whether their
request would involve such information. Proposed Sec. 1.558(a) would
replace current Sec. 1.554a(a) and provide an introductory statement
regarding the consideration of business information pursuant to
proposed Sec. 1.558. Proposed Sec. 1.558(b) essentially would replace
current Sec. 1.554a(d), which outlines the requirements for a
submitter to designate records as business information. Proposed Sec.
1.558(b) varies from current Sec. 1.554a(d) in that it would allow for
the business information designation to take place within a reasonable
time after submission of the information to VA. Current Sec. 1.554a(d)
contains the same language but qualifies the ``reasonable time'' as not
later than 60 days after receipt of the information by VA. In addition,
proposed Sec. 1.558(b) would add a provision stating that the
designation will be considered by the VA component processing the
request, but will not control the FOIA Officer's determination. Based
on VA's experience in administering current FOIA provisions, VA
believes that these revisions would allow flexibility with regard to
the submitter's designation and would clarify the role of the
designation for the submitter, i.e., the submitter should understand at
the outset that while records may be designated as business
information, the designation itself does not necessarily determine the
outcome of the VA component's decision, which will be made in
compliance with applicable laws.
Proposed Sec. 1.558(c)(1) would replace current Sec. 1.554a(c)
and prescribe the requirements for notice to a submitter of business
information whenever a request for that information is being processed
under the FOIA. Proposed Sec. 1.558(c)(1) would differ from current
Sec. 1.554a(c) by requiring the submitter to provide objections to the
disclosure within the ``time period specified'' in the notice, as
opposed to within 10 working days, as prescribed in current Sec.
1.554a(c). This revision is repeated in proposed Sec. 1.558(d). This
revision would allow VA the flexibility to meet statutory time limits
and/or change the number of days in which a response is required as a
policy matter without requiring a change in its regulations. Proposed
Sec. 1.558(c)(1) also would delete the current requirement for the
notice to be mailed by certified mail, return receipt requested. Our
experience is that certified mail may unnecessarily delay the
notification process when there are other suitable alternatives.
Proposed Sec. 1.558(c)(1) would add a provision allowing the FOIA
Officer to post the notification in a place reasonably likely to
accomplish the required notice when the notice concerns a large number
of submitters. This proposed provision would allow the FOIA Officer
greater flexibility and expedite notice by allowing electronic or other
public notification of multiple submitters simultaneously.
Proposed Sec. 1.558(d) would replace current Sec. 1.554a(f) and
eliminate ``or designee'' when referring to the submitter. We intend
that this change will bring VA's FOIA regulations into compliance with
Executive Order 12600, which established Federal policy regarding
agency communication only with the submitter of information.
Proposed Sec. 1.558(d) would require that the submitter's
objections be contained in a single written response and that oral or
multiple subsequent written responses ordinarily would not be
considered. Based on our experience administering the FOIA with regard
to business information, we believe that this revision would create a
more efficient process by requiring a cohesive statement from the
submitter rather than allowing continued or successive
[[Page 63125]]
submissions. Additionally, eliminating oral responses would better
develop the administrative record for all parties.
Proposed Sec. 1.558(d) would also provide that if the submitter
does not respond to VA's notification within the specified time limit,
the submitter will be considered to have no objection to the
disclosure. This provision would impose a duty to respond within the
time limit in order to ensure that the submitter's objections, if any,
can be properly considered in an efficient and timely manner. This
proposed provision would also eliminate the requirement that the
submitter provide objections within 10 days after receipt by the
submitter of notification of a request for the submitter's information.
Instead, the proposed rule would allow the FOIA Officer to set forth a
``specified time limit'' within which to respond.
Proposed Sec. 1.558(d) would eliminate the language in current
Sec. 1.554a(f), which prescribes that information provided by the
submitter would itself be subject to the FOIA. Our experience is that
the existing notice in current Sec. 1.554a(f) has a chilling effect on
submitters detailing their objections to disclosure and discussing the
likelihood of disclosure causing substantial competitive harms.
Additionally, any submission of information to the government may be
subject to the FOIA, thus making that language superfluous.
Proposed Sec. 1.558(e) would replace current Sec. 1.554a(f)(3)
regarding the FOIA Officer's consideration of the submitter's
objections in making a determination whether to release information.
While current Sec. 1.554a(f)(3), for example, states that VA will
consider a submitter's comments if received within a 10-day time limit,
proposed Sec. 1.558(e) states that information provided by the
submitter after the ``specified time limit'' will not be considered.
While a specific time frame is not expressly stated in the proposed
regulation, the regulation does provide for consideration of comments
within a time frame specified by the FOIA Officer.
Proposed Sec. 1.558(e) also would replace current Sec.
1.554a(f)(3) with regard to the information contained in the written
notice to the submitter. The proposed regulation makes no substantive
changes to this provision.
Proposed Sec. 1.558(f) would replace current Sec. 1.554a(i)(1)
through (3), identifying when the pre-disclosure notification
requirements need not be followed. It would add to the provisions in
current Sec. 1.554a(i)(3) that pre-disclosure notification is not
required if the disclosure is required by regulation issued in
accordance with Executive Order 12600 or any other Executive Order. In
this regard, the proposed rule would ensure that Executive Orders are
included, as appropriate, as a basis for the disclosure of information.
Proposed Sec. 1.558(f) would delete references to current Sec.
1.554a(i)(4) through (6) because VA's experience is that these
provisions have not been utilized, and the revised provisions would, if
necessary, cover the instances referred to in the referenced sections.
Proposed Sec. 1.558(g) would replace current Sec. 1.554a(g)(1)
and would make no change to that provision. Current Sec. 1.554a(g)(2)
regarding notice to a requester when a submitter is given an
opportunity to provide comments about the disclosure would be deleted
because under the proposed rule requesters would be on notice regarding
VA's contacts with submitters. Proposed Sec. 1.558(g) would prescribe
notice to a requester that the request is being processed under Sec.
1.558, including the provisions in Sec. 1.558(c) and (e) prescribing
notice to submitters regarding opportunity to comment. Current Sec.
1.554a(g)(3) regarding notice to a submitter and requester of a final
decision on disclosure of business information would also be deleted as
unnecessary. Submitters would instead be given notice of an impending
agency decision on disclosure of business information under proposed
Sec. 1.558(e). The requester would be notified when a final agency
decision is issued pursuant to proposed Sec. 1.557.
1.559 Appeals
Section 552(a)(6)(A) provides that when an agency component
responds to an initial request for records, it shall provide the
requester with the right to appeal any adverse determination to the
head of the agency.
Proposed Sec. 1.559 would replace current Sec. 1.557(b). Current
Sec. 1.557(b) states only that the final agency decisions in appeals
will be made by the VA General Counsel or Deputy General Counsel.
Proposed Sec. 1.559(a) would allow for an informal resolution of the
request prior to an appeal in appropriate cases. We believe that in
appropriate cases, requesters may benefit from contact with the FOIA
Officer or VA component addressing the request and an attempt to
resolve outstanding issues with regard to the request. The requester
may seek informal resolution, for example, when he or she has not
received a response to the request. Direct communication between the
FOIA Officer and the requester could resolve the issue and therefore
make an appeal unnecessary.
Proposed Sec. 1.559(b) would establish authority for the VA Office
of Inspector General (OIG) to handle appeals related to OIG records.
This would allow the OIG to establish its independence regarding its
own records.
Proposed Sec. 1.559(b) through (c) would provide details regarding
how to file an appeal and the form that an appeal may take and a
reference to additional information available online.
Proposed Sec. 1.559(d) would establish a 60-day time limit from
the date of any adverse determination concerning the FOIA request for
the requester to file an appeal. Current regulations do not address the
timeliness of an appeal. Based upon our experience, we believe that
prescribing a period within which an appeal may be filed provides an
effective tool for establishing workload and allocating resources. We
have determined that a 60-day time limit would be reasonable given the
convenient means by which an individual may quickly file an appeal. We
note that the proposed 60-day appeal period would be the same as the
appeal period established by the Department of Justice for its FOIA
appeals. We also believe that the requester should have the
responsibility to follow through with the appeal if he or she wishes
the request to be addressed and that the 60-day appeal period would
provide ample time to exercise that responsibility. Further, the appeal
process would be more seamless and effective if requesters included
necessary information in their appeal notices, such as the information
listed in proposed Sec. 1.559(d). Based on our experience, we believe
that encouraging requesters to initially provide as much information as
possible would ease the administrative burdens of gathering relevant
information and processing the appeal. Proposed Sec. 1.559(d) would
also provide that an appeal is not perfected until either the
information requested is received or VA determines that the appeal is
otherwise sufficiently defined. In our experience, appeals occasionally
are so lacking in detail that it requires an excessive amount of time
to identify the issues or records involved. Requesters would provide
more clarity and therefore would require less labor-intensive inquiries
by VA if they initially provided the information that is necessary to
process the appeal. Proposed Sec. 1.559(d) would also delegate
authority to decide appeals to the VA Assistant General Counsel who has
jurisdiction over FOIA matters. This amendment would add the Assistant
General Counsel that has jurisdiction over records disclosure matters
to the list of individuals authorized to make
[[Page 63126]]
such final agency determinations thus streamlining the appeal process
while continuing to provide the thorough legal analyses currently
afforded FOIA appeals.
Proposed Sec. 1.559(e) would prescribe the content of a decision
on appeal. Prescribing these requirements would facilitate consistency
in decision-making and fully inform requesters regarding their right to
a complete appellate decision from the agency.
Proposed Sec. 1.559(f) would require a requester to file an appeal
prior to seeking court review. This provision would provide the
opportunity for resolution of the requester's concerns prior to
initiating litigation and ensure that the matter is ready for judicial
review.
1.560 Maintenance and Preservation of Records
The Federal Records Act, 44 U.S.C. chapter 31, addresses record
preservation and destruction by Federal agencies. Section 3102 of title
44, U.S.C., requires that the head of an agency establish and maintain
a records management system.
Proposed Sec. 1.560(a) would require that VA components maintain
FOIA requests and copies of pertinent records in accordance with NARA's
General Records Schedule.
Proposed Sec. 1.560(b) would require that the FOIA Officer
maintain copies of records that are the subject of a pending request,
appeal, or lawsuit under the FOIA. It would also prescribe that a copy
of the records shall be provided to the Office of the General Counsel
upon request.
These provisions would underscore the importance of maintaining
records as appropriate and prescribe consistent compliance within VA.
They would emphasize that administrative record-keeping is an important
function in the FOIA program and that in order for VA components to
build an administrative record, if required, information must be
preserved as appropriate.
1.561 Fees
In accordance with section 552(a)(4)(A), an agency is required to
promulgate regulations specifying the schedule of fees applicable to
processing requests under the FOIA and establishing procedures and
guidelines for determining when fees will be waived or reduced. In
addition, agencies must implement the 1987 Fee Schedule and Guidelines
published by the Office of Management and Budget (OMB). See The Freedom
of Information Reform Act of 1986; Uniform FOIA Fee Schedule and
Guidelines, 52 FR 59 (27 March 1987).
Proposed Sec. 1.561 replaces current Sec. 1.555. In part,
proposed Sec. 1.561(a) would replace current Sec. 1.555(b)(1) in
providing a general introduction and rules regarding fees. Proposed
Sec. 1.561(a) would add that the VA component would collect prescribed
fees before releasing copies of the information to the requester and
would include a provision regarding payment of fees. Lastly, proposed
Sec. 1.561(a) would direct a requester's attention to other VA
statutes that contain provisions related to access to records and the
fees for such access. These amendments would provide introductory
comments regarding VA's fee provisions and are intended to clarify and
highlight VA's general framework for the assessment of fees.
Proposed Sec. 1.561(b) would replace current Sec. 1.555(a) and
would contain the definitions of terms used regarding FOIA fees.
Proposed Sec. 1.561(b)(1) would restate that portion of current Sec.
1.555(d)(4) that defines ``all other requesters'' as any requester that
does not fit within any other category; the proposed inclusion of this
definition in this section would ensure that all pertinent definitions
are included.
Proposed Sec. 1.561(b)(2) would replace current Sec. 1.555(a)(1)
and would restate the definition of ``commercial use request.'' The
proposed regulation would make no substantive change to current Sec.
1.555(a)(1).
Proposed Sec. 1.561(b)(3) would replace current Sec. 1.555(a)(2)
and would restate the definition of ``direct costs.'' The proposed
regulation would make no substantive change to current Sec.
1.555(a)(2).
Proposed Sec. 1.561(b)(4) would replace current Sec. 1.555(a)(3)
and would restate the definition of ``duplication.'' The proposed
regulation would make no substantive change to current Sec.
1.555(a)(3).
Proposed Sec. 1.561(b)(5) would replace current Sec. 1.555(a)(4)
and would restate the definition of ``educational institution.'' The
proposed regulation would make no substantive change to current Sec.
1.555(a)(4).
Proposed Sec. 1.561(b)(6) would replace current Sec. 1.555(a)(5)
and in large part, restate the definition of ``non-commercial
scientific institution.'' The proposed regulation would make no
substantive change to the provisions of current Sec. 1.555(a)(5) with
the exception of the addition that the requester must show that the
request is authorized by and made under the auspices of a qualifying
institution. This amendment would clarify the requirement for
submitting such a request and would place responsibility on the
requester to establish that it fits within this fee category. Our
experience indicates that this requirement will assist in resolving the
status of a fee requester at the outset and will clarify the
requirements for such requesters.
Proposed Sec. 1.561(b)(7) would replace current Sec. 1.555(a)(6).
It would restate current Sec. 1.555(a)(6), but also implement the
change in the definition of news media in section 552(a)(4)(A)(ii),
which defines ``representative of the news media'' as described
immediately below. The proposed rule would prescribe that a member of
the news media is one who gathers information of potential interest to
the public, uses his or her editorial skills to turn the raw material
into a distinct work, and distributes that work to an audience. We
propose to add language that alternative media sources may be
considered news media if they otherwise meet the definition of news
media. We believe this proposed language would underscore that the
entity seeking classification as a news media must also meet the other
criteria set forth in the definition of news media. Proposed Sec.
1.561(b)(7) would also delete a reference to freelance journalists'
option to seek a reduction or waiver of fees. We believe placing the
reference here would be superfluous, as waiver or fee reduction is
discussed in the introductory paragraph of proposed Sec. 1.561(b)(7).
In accordance with section 552(a)(4)(A)(ii), proposed Sec. 1.561(b)(7)
would add language that a representative of the news media must not be
seeking records for a commercial use.
Proposed Sec. 1.561(b)(8) would replace current Sec. 1.555(a)(7).
The proposed rule would essentially restate current Sec. 1.555(a)(7)
and would add examples of the types of records that are subject to
review in a FOIA request. We believe that providing examples would
provide more clarity for requesters concerning the potential assessment
of fees.
Proposed Sec. 1.561(b)(9) would replace the definition of search
in current Sec. 1.555(a)(8). The proposed rule would make no
substantive change to current Sec. 1.555(a)(8) with the exception of
the deletion of the last sentence in current Sec. 1.555(a)(8)
regarding excluding review time. We believe that this language is
unnecessary, as we have previously defined the term search in the
context of the FOIA.
Proposed Sec. 1.561(c) would replace current Sec. 1.555(d)
regarding categories of requesters and fees charged each category. The
introductory language of proposed Sec. 1.561(c) and (c)(1) (commercial
use requesters) restates the
[[Page 63127]]
introductory language of current Sec. 1.555(d) and(d)(1) (commercial
use requesters), with the exception of adding language noting that the
provisions apply unless a waiver or reduction of fees applies. We
believe these proposed additions would clarify application of the fee
provisions by directing the requester's attention to the exceptions
that apply to the assessment of fees. In addition, proposed Sec.
1.561(c)(1) would delete language from current Sec. 1.559(d)(1) that
states that a requester must reasonably describe the record requested.
We believe that this language is superfluous in light of the full
discussion of reasonably described records in proposed Sec. 1.554(d).
Proposed Sec. 1.561(c)(2) and (3) would replace current Sec.
1.555(d)(2) and (3), respectively. Proposed Sec. 1.561(c)(2) and (3)
would refer the requester to the potential waiver or reduction of fees
and would reiterate the charges assessed to an educational institution
and a representative of the news media. It would delete language in
current Sec. 1.559(d)(2) and (3) regarding the requirements that must
be met to be categorized as an educational and non-commercial
scientific institution or a representative of the news media. The
criteria for classification of these types of requesters would be
clearly set forth in the definitions section.
Proposed Sec. 1.561(c)(4) would replace current Sec. 1.555(d)(4).
Proposed Sec. 1.561(c)(4) essentially restates the provisions of
current Sec. 1.555(d)(4) as to the charges that are assessed for an
all other requester and its reference to the waiver or reduction of
fees. Proposed Sec. 1.561(c)(4) would delete language from current
Sec. 1.555(d)(4) that refers to requests for records retrievable by
personal identifiers and the treatment of such requests. In doing so,
the proposed rule would more clearly distinguish between requests made
under the FOIA and requests made under other authority. Based on our
experience, we believe that such distinctions are helpful in that
requesters can determine which procedures are applicable to their
requests and will be able to more clearly identify the action that is
required. In addition, proposed Sec. 1.550 provides information
concerning the various disclosure statutes and the distinctions between
those statutes. Including that information here would be superfluous.
Proposed Sec. 1.561(d) would clarify the types of fees that VA may
charge for processing requests. The introductory paragraph in proposed
Sec. 1.561 would provide a general statement notifying requesters that
the fees to be charged are defined in proposed Sec. 1.561. Proposed
Sec. 1.561(d)(1)(i) would clarify how a search fee is assessed and
would advise that fees are charged in quarter hour increments. This
provision would better advise requesters concerning the potential for a
fee assessment and how VA will assess the fee. This information may
also be helpful to requesters seeking to identify more precisely the
records that are the subject of their request.
Proposed Sec. 1.561(d)(1)(ii), in part, would replace current
Sec. 1.555(c)(2). It would reiterate how fees are assessed in cases
requiring a computer search and make no substantive change in that
regard. As an administrative matter, it would add a reference to the
proposed-rule provisions that discuss when a fee would not be charged
and when 2 hours of free search time would be granted.
Proposed Sec. 1.561(d)(2) and (3) would add provisions clarifying
when duplication and review fees, respectively, apply, and how such
fees are calculated. These provisions would provide VA and requesters
clear rules for determining the level of fees that may be assessed,
depending upon the request submitted. Proposed Sec. 1.561(d)(3), for
example, would prescribe in detail when a fee may be charged for
consideration of an exemption and when it may not. We believe that this
type of detail would be useful to requesters as a means of explaining
why certain charges are made or not made and accordingly, would
potentially assist in VA's administration of the FOIA.
Proposed Sec. 1.561(e)(1) and (2) would implement administrative
provisions regarding the assessment of fees. In accordance with
proposed Sec. 1.561(e)(2), for example, more than half of a quarter-
hour period must be spent on search and review for the requester to be
charged for that quarter-hour. This proposed provision represents VA's
determination that it is administratively worthwhile only to collect a
fee representing more than one half of a quarter-hour increment.
Proposed Sec. 1.561(e)(3) would implement section
552(a)(4)(A)(viii) by prescribing that certain fees may not be charged
to various types of requesters if the agency fails to meet the time
limits set forth in agency regulations. The proposed provision
clarifies that duplication fees may still be charged to commercial use
requesters and ``all other'' requesters.
Proposed Sec. 1.561(e)(4), in part, would replace current Sec.
1.555(c) and prescribe that the agency will provide the first 100 one-
sided pages and the first 2 hours of search time without charge. We do
not intend any substantive change to this provision.
Proposed Sec. 1.561(e)(5), in part, would replace current Sec.
1.555(c), which provides that no fee will be charged if the cost of
collecting the fee is equal to or greater than the fee itself. Proposed
Sec. 1.561(e)(5) would clarify that if the total fee calculated is
less than $25.00, no fee will be charged. Prescribing a dollar amount
in this provision should clarify the regulation for requesters and
remove any ambiguity that may exist in current regulations regarding
permissible fees.
Proposed Sec. 1.561(e)(6) would prescribe that VA may provide free
copies of records or free services in response to requests from other
government agencies or congressional offices when to do so would assist
in providing medical care to a patient or to further VA's mission. This
provision would allow the agency the flexibility to respond to certain
requests promptly without addressing issues that may arise with regard
to fees.
Proposed Sec. 1.561(f) would add a chart that contains the
categories of fee requesters and a summary of the types of fees that VA
may charge. Proposed Sec. 1.561(f) would provide a convenient
administrative tool for VA officials and requesters, which would
summarize information previously set forth in the proposed regulations
and would not make any substantive changes.
Proposed Sec. 1.561(g) would replace current Sec. 1.555(e).
Current Sec. 1.555(e) consists of a schedule of fees in chart form.
Proposed Sec. 1.561(g) would add an introductory paragraph regarding
the assessment of fees and would restate generally when the payment of
fees is required. The proposed provision, for example, notes that VA
would charge for special services used in responding to a FOIA request,
that the fee schedule applies to requests under the Privacy Act as
well, and that in cases in which the processing fee is less than
$25.00, or in cases in which the requirements for a waiver have been
met, the fee would be waived.
Section 552(a)(4)(A)(i) requires agencies to promulgate regulations
prescribing a schedule of fees applicable to processing FOIA requests.
The fees must conform to OMB guidelines regarding a uniform schedule of
fees for all agencies. Proposed Sec. 1.561(g)(1) would implement the
OMB guidance and prescribe the criteria that VA would use to calculate
search and review fees when such fees are based upon VA employees'
salaries.
Proposed Sec. 1.561(g)(2) would also provide a fee schedule in
chart form that describes the type of activity for which the fee is
being assessed and the composition of the fee being assessed.
[[Page 63128]]
Proposed Sec. 1.561(h), in part, would replace current Sec.
1.555(b)(2) and would add that the requester will be notified of the
assessment of a fee over $25.00 or the amount set by OMB fee
guidelines, whichever is higher. This provision would allow VA
flexibility with regard to notifying requesters of fee assessments
should the limit be changed in the future. It would also advise
requesters of the potential for such a change. Proposed Sec. 1.561(h)
would add that any agreement made by the requester to pay a fee on a
later date shall be in writing. Based on our experience, we believe
that this requirement would help to avoid any ambiguity with regard to
fee issues. Proposed Sec. 1.561(h) would also expand the language in
current Sec. 1.555(b)(2) and authorize the FOIA Officer's contact with
the requester regarding clarification of fee issues. Proposed Sec.
1.561(h) would provide that the timeline for responding to the request
shall be tolled until the fee issue is resolved. This proposed
provision would implement section 552(a)(6)(A)(ii)(II), which
authorizes tolling of the time limit if necessary to clarify issues
regarding fee assessment. Proposed Sec. 1.561(h) would also provide
that if VA does not receive a response regarding a request for
clarification of the fee issue within 10 days, it will close the file
on the records request. We believe that setting a clear limit on the
response time will avoid delay that results when a requester's
intentions are unclear. Such a limit will also prevent VA from having
to maintain cases on its docket that the requester has no interest in
pursuing. Thus, it would be reasonable to place responsibility on the
requester to follow through with the request that he or she initiated
if the records sought are still desired.
Section 552 authorizes recovery of direct costs of search,
duplication, and review in certain cases. Proposed Sec. 1.561(i) would
add a provision that when the agency chooses to provide a special
service sought by the requester, such as certifying records, the direct
cost of that service will be charged to the requester. This provision
would allow the agency the flexibility to work with the requester to
grant special services of this nature if possible, but allows the
agency to recoup the costs of those services. This proposed provision
would be promulgated pursuant to 31 U.S.C. 9701, which permits agencies
to prescribe regulations establishing a charge for things of value
provided by the agency.
Proposed Sec. 1.561(j) would restate the provisions of current
Sec. 1.555(g) in all pertinent respects with regard to charging
interest on an unpaid bill. It also would replace current Sec.
1.555(g)(5) regarding application of the Debt Collection Act of 1982
(Pub. L. 97-365). It would delete the requirement that the
determination to charge interest will be made by a VA Central Office
official or field facility head or designee. Based on our experience,
we believe that this requirement does not make the process more
efficient. By deleting the current delegation of authority provision,
we intend to provide flexibility for other individuals to make the
determination to charge interest but only according to the criteria
prescribed in VA's regulations. The proposed rule would also delete
references to VA procedures that ensure that a requester who has
remitted payment is credited with the payment. We believe this
provision to be superfluous, as any payment would ordinarily be
credited as a matter of administrative regularity.
Proposed Sec. 1.561(k) would restate the provisions of current
Sec. 1.555(g)(3) in all pertinent respects with regard to aggregating
requests. Proposed Sec. 1.561(k) would use the term ``component''
rather than ``responsible Central Office official or field facility
head or designee.'' Based on our experience, we believe that this
requirement would allow more flexibility in determining whether a
request should be aggregated according to the criteria in VA's
regulations. It also would allow those most familiar with the FOIA
process to make the determination, which we believe would add more
administrative regularity to the process.
Proposed Sec. 1.561(l)(1) would restate the introductory language
set forth in current Sec. 1.555(g)(4). Proposed Sec. 1.561(l)(1)
would add that payment for work already completed is not an advance
payment. This language is an administrative provision intended to
clarify what constitutes an advance payment.
Proposed Sec. 1.561(l)(2) would restate the provisions of current
Sec. 1.555(g)(4)(i) in all pertinent respects with regard to advance
payments. It would delete current provisions providing an option for
the VA to notify the requester of the likely fee and obtain
satisfactory assurance of full payment. Based on our experience,
deleting this language would avoid any ambiguity with regard to the fee
and would clarify that the component may require payment in advance. We
believe this would assist in the administration of this provision.
Proposed Sec. 1.561(l)(3) would generally restate the provisions
in current Sec. 1.555(g)(4)(ii). However, proposed Sec. 1.561(l)(3)
would delete the option that a requester may demonstrate that a fee
owed has been paid in order to allow VA to process the request. In our
experience, the circumstances under which fee issues arise do not
concern a requester who has already paid the fee. Typically, unresolved
fee issues occur in the context of a fee that has not been paid. In
order to address the typical situations in this regard, we propose the
deletion of the language above as unnecessary.
Proposed Sec. 1.561(l)(4) would add a provision that if a
requester has a history of prompt payment, the FOIA Officer may accept
assurance of full payment from the requester rather than require an
advance payment.
Proposed Sec. 1.561(l)(5) would restate current Sec.
1.555(g)(4)(iii) with no substantive change.
Proposed Sec. 1.561(m) would replace and restate current Sec.
1.555(b)(4). Proposed Sec. 1.561(m) would make no substantive change
to current Sec. 1.555(b)(4).
Proposed Sec. 1.561(n)(1) would add language regarding the waiver
or reduction of fees in general. It would direct the requester's
attention to the requirements for fee waiver requests, and would
require that the requester submit adequate justification for the fee
waiver request and advise that without adequate justification, the
waiver request will be denied. Proposed Sec. 1.561(n)(1) also would
provide the opportunity for the FOIA Officer to request additional
information from the requester regarding the fee waiver request and
close the file on the records request if VA does not receive the
requested information within 10 days. This provision would advise the
requester that it is important to submit adequate justification for the
fee waiver request, which would avoid delay and fee waiver denials
based simply on lack of adequate data. It would also provide for
consistency in the administrative decision-making process by
establishing a firm deadline for the submission of additional support.
These provisions essentially would create a more efficient fee waiver
request process, which would benefit both VA in its administration of
the FOIA and requesters seeking records. In addition, proposed Sec.
1.561(n)(1) would prescribe that fee waiver requests are determined on
a case-by-case basis. This provision would clarify that each request
for a fee waiver will be analyzed in its own right. A requester's
history of having received a fee waiver in the past would have no
bearing on future requests. We believe that this provision will also
provide for greater administrative consistency in addressing fee waiver
requests.
[[Page 63129]]
Proposed Sec. 1.561(n)(2) through (4) would replace and restate
the provisions of current Sec. 1.555(f)(2). No substantive changes
would be made in the provisions regarding the requirements to receive a
fee waiver. Proposed Sec. 1.561(n)(2) through (4) would also add
clarifying language to each criterion considered in a fee waiver
determination. The proposed rule would expand the fee waiver
information provided in VA's regulations and should be helpful to
requesters seeking waivers.
Proposed Sec. 1.561(n)(5) would add a provision that if some of
the records being released in response to a request meet the criteria
for a fee waiver, then the assessment of a fee would be waived with
regard to that portion of the records. This provision is administrative
in nature and would advise requesters that it is possible to be
provided a partial fee waiver. We intend that this provision would
provide requesters as much information as possible regarding the
parameters of fee waivers.
Proposed Sec. 1.561(n)(6) is an administrative provision that
requires requesters to provide the information requested by VA and
provides notice regarding the administrative factors that enter into a
component's fee waiver determination. It underscores that the component
has some degree of discretion to consider such factors with regard to
fee waiver requests. We believe that this addition would provide
requesters with a more comprehensive understanding of the fee waiver
process.
Proposed Sec. 1.561(n)(7) would replace and restate current Sec.
1.555(f)(4) regarding appeals from adverse fee waiver determinations.
Proposed Sec. 1.561(n)(7) makes no substantive change to the
provision.
Proposed Sec. 1.561(n)(8) would add a provision that when
considering a fee waiver request, VA may require proof of identity.
This provision would provide flexibility for components addressing fee
waiver requests by allowing them to ensure that the proper party is
providing the necessary information. This is an administrative
provision and is intended to provide components with the flexibility to
exercise options such as verification of identity in appropriate cases.
1.562 Other Rights and Services
Proposed Sec. 1.562 would add a provision to advise requesters
that nothing in this section shall be construed to entitle an
individual to information to which the individual would not be entitled
under the FOIA. This provision is an administrative addition, intended
to underscore that these regulations govern release of information
under the FOIA and should be construed in that context only.
Changes to 38 CFR Part 2
2.6 Secretary's Delegations of Authority to Certain Officials (38
U.S.C. 512)
Proposed Sec. 2.6(e)(10) would add the Assistant General Counsel
that has jurisdiction over FOIA matters to the list of those
individuals authorized to make final Departmental decisions on appeals
under the FOIA, the Privacy Act, and 38 U.S.C. 5701, 5705, and 7332.
This proposed amendment would allow for greater flexibility in
addressing and processing appeals under the FOIA. At a time when
requests and appeals filed under various confidentiality statutes are
expanding, additional signature authority would enable VA to process
more appeals and expedite the appeals process.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
The Regulatory Flexibility Act
The Secretary of Veterans Affairs hereby certifies this proposed
rule would not have a significant economic impact on a substantial
number of small entities as they are defined in the Regulatory
Flexibility Act, 5 U.S.C. 601-612. This proposed rule generally
pertains to requests for information submitted by individuals. Further,
it would be extremely rare, if ever, that a request for information by
a small entity would have a significant impact on the business of the
small entity. Therefore, pursuant to 5 U.S.C. 605(b), this proposed
rule is exempt from the initial and final regulatory flexibility
analyses requirements of sections 603 and 604.
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a ``significant regulatory action,'' requiring review
by the Office of Management and Budget, as any regulatory action that
is likely to result in a rule that may: (1) Have an annual effect on
the economy of $100 million or more or adversely affect in a material
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities; (2) create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency; (3) materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raise novel legal or policy issues arising
out of legal mandates, the President's priorities, or the principles
set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy
implications of this proposed rule have been examined and it has been
determined not to be a significant regulatory action under Executive
Order 12866.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any year. This proposed rule would have no such effect on
State, local, and tribal governments, or on the private sector.
Catalog of Federal Domestic Assistance
There is no Catalog of Federal Domestic Assistance number for the
program affected by this proposed rule.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on September 9, 2010, for publication.
List of Subjects
38 CFR Part 1
Administrative practice and procedure, Archives and records,
Cemeteries, Claims, Courts, Crime, Flags, Freedom of information,
Government contracts, Government employees, Government property,
Infants and children, Inventions and patents, Parking, Penalties,
Privacy, Reporting and recordkeeping requirements, Seals and insignia,
Security measures, Wages.
[[Page 63130]]
38 CFR Part 2
Authority delegations (Government agencies).
Dated: October 4, 2010.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, VA proposes to amend 38 CFR
parts 1 and 2 as follows:
PART 1--GENERAL PROVISIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 38 U.S.C. 501(a), and as noted in specific sections.
2. In Part 1, revise the undesignated center heading immediately
preceding Sec. 1.550 to read as follows:
Procedures for Disclosure of Records Under the Freedom of Information
Act
2a. In Part 1, following the newly revised undesignated center
heading remove the Note and authority citation preceding Sec. 1.550.
3. Revise Sec. 1.550 to read as follows:
Sec. 1.550 Purpose.
(a) Sections 1.550 through 1.562 contain the rules followed by VA
in processing requests for records under the Freedom of Information Act
(FOIA), 5 U.S.C. 552. These regulations should be read together with
the FOIA, which provides the underlying legal basis for the regulations
and other information regarding requests for records in the custody of
a Federal agency. Information routinely provided to the public (press
releases, for example) may be provided without following these
sections. In addition, as a matter of policy, VA may make discretionary
releases of records or information exempt from disclosure under the
FOIA when permitted to do so in accordance with current law and
governmental policy.
(b) Requests for records about an individual protected by the
Privacy Act, 5 U.S.C. 552a, including one's own records and records
that pertain to an individual and that may be sensitive, will be
processed under the FOIA and the Privacy Act. In addition to the
following FOIA regulations, see Sec. Sec. 1.575 through 1.584 for
regulations applicable to Privacy Act records.
(c) Requests for records relating to a claim administered by VA
pursuant to 38 U.S.C. 5701 will be processed under the FOIA and 38
U.S.C. 5701. In addition to the following FOIA regulations, see
Sec. Sec. 1.500 through 1.527 for regulations implementing 38 U.S.C.
5701.
(d) Requests for records relating to healthcare quality assurance
reviews pursuant to 38 U.S.C. 5705 will be processed under the FOIA and
38 U.S.C. 5705. In addition to the following FOIA regulations, see 38
CFR 17.500 through 17.511 for regulations implementing 38 U.S.C. 5705.
(e) Requests for records relating to treatment for the conditions
specified in 38 U.S.C. 7332, such as drug abuse, alcoholism or alcohol
abuse, infections with the Human Immunodeficiency Virus (HIV), or
sickle cell anemia, will be processed under the FOIA and 38 U.S.C.
7332. In addition to the following FOIA regulations, see Sec. Sec.
1.460 through 1.499 of this part for regulations implementing 38 U.S.C.
7332.
Authority: Sections 1.550 to 1.562 issued under 72 Stat. 1114;
38 U.S.C. 501, 552, 552a, 5701, 5705, 7332.
4. Add Sec. 1.551 to read as follows:
Sec. 1.551 Definitions.
As used in Sec. Sec. 1.550 through 1.562, the following
definitions apply:
Agency means any executive department, military department,
government corporation, government controlled corporation, or other
establishment in the executive branch of the Federal government, or
independent regulatory entity.
Appeal means a requester's written disagreement with an adverse
determination under the FOIA.
Beneficiary means a veteran or other individual who has received
benefits (including medical benefits) or has applied for benefits
pursuant to title 38, United States Code.
Benefits records means an individual's records, which pertain to
programs under any of the benefits laws administered by the Secretary
of Veterans Affairs.
Business day means the time during which typical Federal government
offices are open for normal business. It does not include Saturdays,
Sundays, or Federal legal public holidays. The term ``day'' means
business day unless otherwise specified.
Business information means confidential or privileged commercial or
financial information obtained by VA from a submitter that may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
Component means each distinct VA entity, including Administrations,
staff offices, services, or facilities.
Expedited processing means giving a FOIA request priority for
processing ahead of other pending requests because VA has determined
that the requester has shown an exceptional need or urgency for the
records as provided in these regulations.
Fees. For fees and fee-related definitions, see Sec. 1.561(b).
FOIA Officer means the individual within a VA component whose
responsibilities include addressing and granting or denying requests
for records under the FOIA.
Perfected request means a written FOIA request that meets the
requirements set forth in Sec. 1.554 of this part and for which there
are no remaining issues about the payment of applicable fees or any
other matter that requires resolution prior to processing.
Reading room means space made available, as needed, in VA
components where records are available for review pursuant to 5 U.S.C.
552(a)(2). Ordinarily, the VA component providing a public reading room
space will be the component that maintains the record.
Record means a document, a portion of a document, and information
contained within a document, and can include information derived from a
document or a database. Such documents may be maintained in paper,
electronic, and other forms, but do not include objects, such as tissue
slides, blood samples, or computer hardware.
Request means a demand for records under the FOIA as described
below. The term request includes any action emanating from the initial
demand for records, including an appeal related to the initial demand.
Requester means, generally, any individual, partnership,
corporation, association, or foreign or state or local government,
which has made a demand to see or receive a copy of an agency record.
Sensitive medical or mental health records mean documents
containing information that, with a reasonable degree of medical
certainty, are likely to have a serious adverse effect on an
individual's mental or physical health if revealed to him or her.
Submitter means any person or entity (including corporations,
state, local and tribal governments and foreign governments) from whom
VA obtains trade secrets or confidential commercial or financial
information either directly or indirectly.
VA means the Department of Veterans Affairs.
VA Central Office (VACO) means the headquarters of the Department
of Veterans Affairs. The mailing address is 810 Vermont Avenue, NW.,
Washington, DC 20420.
[[Page 63131]]
Written or in writing means communications such as letters,
photocopies of letters, electronic mail, and facsimiles (faxes), and
does not include any form of oral communication.
5. Revise Sec. Sec. 1.552 and 1.553 to read as follows:
Sec. 1.552 General provisions.
(a) Additional information. The following Internet link will
provide access to VA's information that is electronically available
under the FOIA: http://www.foia.va.gov/.
(b) Public Liaisons. VA has made available to the requester FOIA
Public Liaisons to assist in the resolution of disputes between the
agency and the requester. Contact information for VA's FOIA Public
Liaisons can be found on VA's FOIA homepage. See Sec. 1.552(a) for the
pertinent Internet address.
(c) FOIA Annual Report. Under 5 U.S.C. 552(e), VA is required to
prepare an annual report regarding its FOIA activities. The report
includes information about FOIA requests and appeals. Copies of VA's
annual FOIA report may be obtained from the Department's Chief FOIA
Officer or by visiting VA's FOIA Web site. See Sec. 1.552(a) for the
pertinent Internet address.
Sec. 1.553 Public reading rooms.
(a) VA maintains a public reading room electronically at its FOIA
home page on the Internet, which contains the records that the FOIA
requires to be regularly made available for public inspection and
copying. See Sec. 1.552(a) for the pertinent Internet address. Each VA
component is responsible for determining which of its records are
required to be made available and for making its records available
electronically. VA also makes available for public inspection and
copying current subject-matter indices of its reading room records that
are available electronically. Each index shall be updated regularly, at
least quarterly, with respect to newly included records.
(b) VA may delete some of the information in the records that it is
making publicly available. Information in a public reading room record
will be redacted, for example, if its release would be a clearly
unwarranted invasion of an individual's personal privacy.
(c) Some VA components may also maintain physical public reading
rooms. Information regarding these components and their contact
information is available on VA's FOIA home page on the Internet. See
Sec. 1.552(a) for the pertinent Internet address. If you do not have
access to the Internet and wish to obtain information regarding
publicly available information or components that have a physical
reading room, you may write the Department's Chief FOIA Officer at the
following address: Department of Veterans Affairs, FOIA Service
(005R1C), 810 Vermont Avenue, NW., Washington, DC 20420.
Sec. 1.553a [Removed]
6. Remove Sec. 1.553a.
7. Revise Sec. 1.554 to read as follows:
Sec. 1.554 Requirements for making requests.
(a) Requests by letter and facsimile (fax). The FOIA request must
be in writing. VA accepts facsimiles (faxes) as written FOIA requests.
If the request concerns documents protected by records to which another
confidentiality statute applies, the request must contain an image of
the requester's handwritten signature. To make a request for VA
records, write directly to the FOIA Officer for the VA component that
maintains the records. If requesting records from a particular medical
facility or regional office, for example, the request should be sent to
the FOIA Office at the address listed for that component. If seeking
records from a component within VA's Central Office, the request should
be sent to the Central Office address of the FOIA Office listed for
that component. A list of FOIA contacts is available on the Internet. A
legible return address must be included with your FOIA request; you may
wish to include other contact information as well, such as a telephone
number and an electronic mail (e-mail) address. If you are not sure
where to send your request, you should seek assistance from the FOIA
Contact for the office that you believe manages the programs whose
records you are requesting or send the request to the Director, FOIA
Service (005R1C), 810 Vermont Avenue, NW., Washington, DC 20420, who
will refer it for action to the FOIA contact at the appropriate
component. For the quickest possible handling, the request letter and
the envelope of any FOIA request should be marked ``Freedom of
Information Act Request.'' You may find it helpful to refer to VA's
FOIA home page on the Internet when making your request; available
reference material includes VA's FOIA Reference Guide and the text of
the FOIA. See Sec. 1.552(a) for the pertinent Internet address.
(b) Requests by e-mail. VA will accept an e-mail request. If the
request concerns documents protected by records to which another
confidentiality statute applies, the email transmission must contain an
image of the requester's handwritten signature, such as an attachment
that shows the individual's handwritten signature. In order to assure
prompt processing, e-mail FOIA requests must be sent to official VA
FOIA mailboxes established for the purpose of receiving FOIA requests.
An e-mail FOIA request that is sent to an individual VA employee's
mailbox, or to any other entity, will not be considered a perfected
FOIA request. Mailbox addresses designated to receive e-mail FOIA
requests are available on VA's FOIA home page. See Sec. 1.552(a) for
the pertinent Internet address.
(c) Making a request for another individual's records. If you are
requesting records about another individual, it will be helpful under
certain circumstances to provide proof that you are authorized to
obtain the records, such as a legally sufficient prior written
authorization for the release of information signed by that individual,
proof that the individual is deceased (e.g., a copy of a death
certificate), or proof that the requester is the authorized
representative of the individual or the individual's estate. This
information will assist in determining whether and to what degree the
records may be released.
(d) Description of records sought. (1) You must describe the
records that you seek in enough detail to allow VA personnel to locate
them with a reasonable amount of effort. To the extent possible, you
should include specific information about each record sought, such as
the date, title or name, author, recipient, and subject matter of the
document. Generally, the more information you provide about the record
you are seeking, the more likely VA personnel will be able to locate
any responsive records. Wide-ranging requests that lack specificity, or
contain descriptions of very general subject matters, with no
description of specific records, may be considered ``not reasonably
described'' and thus not subject to further processing.
(2) Requests for voluminous amounts of records may be placed in a
complex track of a multitrack processing system pursuant to Sec.
1.556(b); such requests also may meet the criteria for ``unusual
circumstances,'' which are processed in accordance with Sec. 1.556(c)
and may require more than twenty (20) business days to process despite
the agency's exercise of due diligence.
(3) If the FOIA Officer determines that your request does not
reasonably describe the records sought, the FOIA Officer will tell you
why the request is insufficient. The FOIA Officer will also provide an
opportunity to discuss your request by documented telephonic
communication or written
[[Page 63132]]
correspondence in order to modify it to meet the requirements of this
section and place your request into a more expedient track.
(4) The time limit for VA to process your FOIA request will not
start it determines that you have reasonably described the records that
you seek in the FOIA request. If VA seeks additional clarification
regarding your request and does not receive your written response
within thirty (30) calendar days of the date of its communication with
you, VA will conclude that you are no longer interested in pursuing
your request and will close its files on your request.
(e) Agreement to pay fees. The time limit for processing your
request will be tolled while any fee issue is unresolved. If the FOIA
Officer anticipates that the fees for processing your request will
exceed the amount that you that you have stated that you are willing to
pay or will amount to more than $25.00 or the amount set by OMB fee
guidelines, whichever is higher, the FOIA Officer will notify you. In
such cases, the FOIA Officer may require you to agree in writing to pay
the estimated fee. In addition, if the estimated fee amount exceeds
$250.00 or you previously have failed to pay a FOIA fee in a timely
manner, the FOIA Officer may require you to pay the FOIA fee in
advance, before beginning to process your FOIA request. If the FOIA
Officer does not receive your written response within ten (10) business
days of the date of the FOIA Officer's communication with you, she or
he will conclude that you are no longer interested in pursuing your
request and will close your request. If you request a fee waiver under
Sec. 1.561, you nonetheless may state your willingness to pay a fee up
to an identified amount in the event that the fee waiver is denied;
this will allow the component to process your FOIA request while
considering your fee waiver request. If you are required to pay a fee
in advance, and you paid the fee, and if VA later determines that you
overpaid or that you are entitled to a full or partial fee waiver, a
refund will be made. (For more information on the collection of fees
under the FOIA, see Sec. 1.561.)
(f) You must meet all of the requirements of this section in order
for your request to be perfected.
Sec. 1.554a [Removed]
8. Remove Sec. 1.554a.
9. Revise Sec. Sec. 1.555 through 1.557 to read as follows:
Sec. 1.555 Responsibility for responding to requests.
(a) General. Except as stated in paragraphs (c) and (d) of this
section, the FOIA Officer of the component that first receives a
request for records is responsible for either processing the request or
referring it to the designated FOIA Officer for the appropriate
component. Offices within the component that is responsible for
processing the FOIA request shall provide the FOIA Officer all
documents responsive to the request that are in their possession as of
the date the search for responsive records begins.
(b) Authority to grant or deny requests. Each component shall
designate a FOIA Officer who is responsible for making determinations
pursuant to the FOIA.
(c) Consultations and referrals. When a component receives a
request for a record, the FOIA Officer shall determine whether the
request would be more properly addressed by another component of VA or
by another entity within the Federal government. If the FOIA Officer of
the component that receives the request determines that the component
is best able to address the request, then the component shall do so. If
the FOIA Officer determines that the component that receives the FOIA
request is not best able to process the request, then she or he shall:
(1) Process the request after consulting with the component or
agency best able to determine whether to disclose the record and with
any other component or agency that has a substantial interest in it; or
(2) Refer the request for the record and the responsibility for
responding to that request to the VA component or Federal agency best
able to address the request. Ordinarily, VA will presume that the
component or agency that created the record is best able to determine
whether to disclose it.
(d) Classified information. The FOIA Officer will refer requests
for records containing classified information to the component or
agency that classified the information for processing.
(e) Notice of referral. Whenever a FOIA Officer refers all or part
of a request and responsibility for processing the request to another
component or agency, the FOIA Officer will notify the requester in
writing of the referral and provide the requester the name and contact
information of the entity to which the request has been referred, after
consulting with the entity to which the request is to be referred to
ensure that the request is being referred to the correct entity. If
only part of the request was referred, the FOIA Officer will inform the
requester and identify the referred part at the time of the referral or
in the final response.
Sec. 1.556 Timing of responses to requests.
(a) General. Components ordinarily shall respond to requests
according to their order of receipt and within the time frames
established under the FOIA.
(b) Multitrack processing. (1) VA will use two processing tracks to
distinguish between the complexity of a request for records: Simple and
complex, based upon the amount of work and/or time needed to process
the request, including consideration of the number of pages involved.
(2) The FOIA Officer shall advise the requester of the track into
which the request has been placed and of the criteria of the faster
track. The FOIA Officer will provide requesters in the slower track the
opportunity to limit the scope of their requests in order to qualify
for processing in the faster track. The FOIA Officer may contact the
requester either by telephone or in writing, whichever the FOIA Officer
determines is most efficient and expeditious; telephonic communication
will be documented.
(c) Unusual circumstances. (1) FOIA Officers may encounter
``unusual circumstances,'' where it is not possible to meet the
statutory time limits for processing the request. In such cases, the
FOIA Officer will extend the twenty (20)-business day time limit for
ten (10) more business days and notify the requester in writing of the
unusual circumstances and of the date by which it expects to complete
processing of the request. Where the extension is for more than ten
(10) business days, the FOIA Officer will provide the requester with an
opportunity to either modify the request so that it may be processed
within the time limits or to arrange an alternative time period with
the FOIA Officer for processing the request or a modified request.
Unusual circumstances consist of the following:
(i) The need to search for and collect the requested records from
field facilities or other components other than the office processing
the request;
(ii) The need to search for, collect and examine a voluminous
amount of separate and distinct records that are the subject of a
single request; or
(iii) The need for consultation with two or more components or
another agency having a substantial interest in the subject matter of a
request.
(2) Where the FOIA Officer reasonably believes that certain
requests from the same requester, or a group of requesters acting in
concert, actually constitute the same request that would otherwise
[[Page 63133]]
satisfy the unusual circumstances specified in this paragraph, and the
requests involve clearly related matters, the FOIA Officer may
aggregate those requests. Multiple requests involving unrelated matters
will not be aggregated.
(d) Expedited processing. (1) Requests will be processed out of the
order in which they were received by the component responsible for
processing the FOIA request and given expedited treatment when VA
determines that there is a compelling need to process the FOIA request
promptly and out of order. A compelling need exists when VA determines
that:
(i) The 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;
(ii) There is an urgency to inform the public concerning actual or
alleged Federal government activity, if the request is made by a person
primarily engaged in disseminating information;
(iii) In the discretion of the FOIA Officer, the regulations
warrant such treatment; or
(iv) Where there is widespread and exceptional interest in which
possible questions exist about the government's integrity which affect
public confidence.
(2) A requester who is seeking expedited processing must submit a
statement, certified to be true to the best of that person's knowledge
and belief, providing a detailed basis for how there is a compelling
need. VA may waive the requirement for certification of the statement
of compelling need as a matter of administrative discretion.
(3) Within ten (10) calendar days of its receipt of a request for
expedited processing, the FOIA Officer shall determine whether to grant
the request and will provide the requester written notice of the
decision. If the FOIA Officer grants a request for expedited
processing, the FOIA Officer shall give the request priority and
process it as soon as practicable. If the FOIA Officer denies the
request for expedited processing, the requester may appeal the denial,
which appeal shall be addressed expeditiously.
Sec. 1.557 Responses to requests.
(a) Acknowledgement of requests. When a request for records is
received by a component designated to receive requests, the component's
FOIA Officer will assign a request number for future reference and send
the requester a written acknowledgement of receipt.
(b) Processing of requests. Upon receipt of a perfected request by
the appropriate component, the FOIA Officer will make a reasonable
effort to search for records responsive to the request. The FOIA
Officer ordinarily will include as responsive those records in its
possession and control as of the date the search for responsive records
began. This includes searching for records in electronic form or
format, unless to do so would interfere significantly with the agency's
automated information systems. If fees for processing the request are
due under Sec. 1.561, the FOIA Officer shall inform the requester of
the amount of the fee as provided in Sec. 1.554(e) and Sec. 1.561.
Where a FOIA Officer grants the request in part, the FOIA shall mark,
redact, or annotate the records to be released to show the amount of
information deleted and the exemption under which the deletion is made
unless doing so would harm an interest protected by an applicable
exemption. The location of the information deleted also will be
indicated on the record, if technically feasible. The FOIA Officer will
also provide the records in the form or format requested by the
individual, if readily reproducible in that form or format.
(c) Time limits for processing requests. Ordinarily, a component
will have twenty (20) business days from the date of VA's receipt of
the request to make a determination whether to grant a request in its
entirety, grant in part, or deny a request in its entirety. If the
request must be referred to another component, it will be referred as
quickly as possible, but no later than ten (10) business days after the
referring office receives the FOIA request.
(d) Adverse determinations of requests. Whenever a component makes
an adverse determination denying a request in any respect, the
component FOIA Officer shall promptly notify the requester of the
adverse determination in writing. Adverse determinations include the
following: A determination to withhold a requested record in whole or
in part; a determination that the requested record does not exist or
cannot be located; a determination that a record is not readily
reproducible in the form or format sought by the requester; a
determination that what has been sought is not a record subject to the
FOIA; a determination on any disputed fee matter, including the denial
of a fee waiver; and a denial of a request for expedited treatment. The
adverse determination notice must be signed by the component head or
the component's FOIA Officer, and will include the following:
(1) The name and title or position of the person responsible for
the adverse determination;
(2) A brief statement of the reason(s) for the denial, including
any FOIA exemptions applied by the FOIA Officer in denying the request;
(3) The amount of information withheld in number of pages or other
reasonable form of estimation; an estimate is not necessary if the
volume is indicated on redacted pages disclosed in part or if providing
an estimate would harm an interest provided by an applicable exemption;
and
(4) Notice that the requester may appeal the adverse determination
and a description of the requirements for an appeal under Sec. 1.559
of this part.
10. Add Sec. Sec. 1.558 through 1.562 to read as follows:
* * * * *
Sec.
1.558 Business information.
1.559 Appeals.
1.560 Maintenance and preservation of records.
1.561 Fees.
1.562 Other rights and services.
* * * * *
Sec. 1.558 Business information.
(a) General. Business information received by VA from a submitter
will be considered under the FOIA pursuant to this section and in
accordance with the requirements set forth in Sec. 1.557 of this part.
(b) Designation of business information. A submitter of business
information may designate that specific records or portions of records
submitted are business information, at the time of submission or within
a reasonable time thereafter. The submitter must use good faith efforts
in designating records that the submitter claims could be expected to
cause substantial competitive harm and thus warrant protection under
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). The submitter may mark the
record submission as confidential or use the words ``business
information'' or describe the specific records that contain business
information. Such designation will be considered, but will not control,
the FOIA Officer's decision on disclosing the material. A designation
will remain in effect for a period of not more than 10 years after
receipt by VA, unless the submitter provides acceptable justification
for a longer period. A submitter may designate a shorter period by
including an expiration date.
(c) Notices to submitters. (1) The FOIA Officer shall promptly
notify a submitter in writing of a FOIA request seeking the submitter's
business information whenever the FOIA Officer has reason to believe
that the information may be protected under
[[Page 63134]]
FOIA Exemption 4, 5 U.S.C. 552(b)(4), regarding business information.
The written notice will provide the submitter an opportunity to object
to disclosure of any specified portion of the records within the time
period specified in the notice. The notice will either describe in
detail the business information requested (e.g., an entire contract
identified by a unique number) or shall provide copies of the requested
record(s) or record portions containing the business information. When
notification of a voluminous number of submitters is required, the FOIA
Officer may notify the submitters by posting or publishing the notice
in a place reasonably likely to accomplish notification.
(2) If the FOIA Officer determines to release business information
over the objection(s) of a submitter, the FOIA Officer will notify the
submitter pursuant to paragraph (e) of this section.
(3) Whenever the FOIA Officer notifies a requester of a final
decision, the FOIA Officer will also notify the submitter by separate
correspondence. This notification may be contained in VA's FOIA
decision.
(4) Exceptions to this notice provision are contained in paragraph
(f) of this section.
(d) Opportunity to object to disclosure. When notification to a
submitter is made pursuant to paragraph (c)(1) of this section, the
submitter may object to the disclosure of any specified portion(s) of
the record(s). The submitter's objection(s) must be in writing,
addressed to the FOIA Officer, and must be received by the reasonable
date specified in the FOIA Officer's notice in order for VA to consider
such objections. If the submitter has any objection to disclosure of
the record(s) requested, or any specified portion(s) thereof, the
submitter must identify the specific record(s) or portion(s) of records
for which objection(s) are made. The objection will specify in detail
all grounds for withholding any record(s) or portion(s) of the
record(s) upon which disclosure is opposed under any exemption of the
FOIA. In particular, if the submitter is asserting that the record is
protected under Exemption 4, 5 U.S.C. 552(b)(4), it must show why the
information is a trade secret or commercial or financial information
that is privileged or confidential. The submitter must explain in
detail how and why disclosure of the specified records would likely
cause substantial competitive harm in the case of a required submission
or state whether the records would customarily be disclosed by the
submitter upon a request from the public in the case of a voluntary
submission. The submitter's objections must be contained within a
single written response; oral responses or subsequent, multiple
responses generally will not be considered. If a submitter does not
respond to the notice described in paragraph (c)(1) of this section
within the specified time limit, the submitter will be considered to
have no objection to disclosure of the information.
(e) Consideration of objection(s) and notice of intent to disclose.
The FOIA Officer will consider all pertinent factors, including but not
limited to a submitter's timely objection(s) to disclosure and the
specific grounds provided by the submitter for non-disclosure in
deciding whether to disclose business information. Information provided
by the submitter after the specified time limit and after the component
has made its disclosure decision generally will not be considered. In
addition to meeting the requirements of Sec. 1.557, when a FOIA
Officer decides to disclose business information over the objection of
a submitter, the FOIA Officer will provide the submitter with written
notice, which includes:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date of not less than ten (10) days from
the date of the notice (to allow the submitter time to take necessary
legal action).
(f) Exceptions to notice requirements. The notice requirements set
forth in paragraphs (c) and (g) of this section will not apply if:
(1) The FOIA Officer determines that the information should not be
disclosed;
(2) The information lawfully has been published or has been
officially made available to the public; or
(3) Disclosure of the information is required by statute, other
than the FOIA, or by a regulation issued in accordance with the
requirements of Executive Order 12600 or any other Executive Order.
(g) Notice to requesters. When VA receives a request for records
that may contain confidential commercial information protected by FOIA
Exemption 4,5 U.S.C. 552(b)(4), regarding business information, the
requester will be notified that the request is being processed under
the provisions of this regulation and, as a consequence, there may be a
delay in receiving a response. The notice to the requester will not
include any of the specific information contained in the records being
requested.
Sec. 1.559 Appeals.
(a) Informal resolution prior to appeal. Before filing an appeal,
you may wish to communicate with the contact person listed in the FOIA
response or the component's FOIA Officer to see if the issue can be
resolved informally. Informal resolution of your concerns may be
appropriate, for example, where the agency has not responded to your
request or where you believe the search conducted was not adequate; in
this example, additional information may assist in resolving the
matter.
(b) How to file and address a written appeal. You may appeal an
adverse determination denying your request, in any respect, to the VA
Office of the General Counsel (024), 810 Vermont Avenue, NW.,
Washington, DC, 20420. Any appeals concerning any Office of Inspector
General records should be referred to the VA Office of Inspector
General, Office of Counselor (50), 810 Vermont Avenue, NW., Washington,
DC 20420. The FOIA appeal must be in writing. VA accepts facsimiles
(faxes) as written FOIA appeals. If the appeal concerns documents
protected by records to which another confidentiality statute applies,
the appeal must contain an image of the requester's handwritten
signature, such as an attachment that shows the individual's
handwritten signature. Information regarding where to fax your FOIA
appeal is available on VA's FOIA home page on the Internet. See Sec.
1.552(a) for the pertinent Internet address. A legible return address
must be included with your FOIA appeal; you may include other contact
information as well, such as a telephone number and an electronic mail
(e-mail) address.
(c) How to file an e-mail appeal. VA will accept a FOIA appeal by
e-mail. If the request concerns documents protected by records to which
another confidentiality statute applies, the email transmission must
contain an image of the requester's handwritten signature, such as an
attachment that shows the individual's handwritten signature. In order
to assure prompt processing, e-mail FOIA appeals must be sent to
official VA FOIA mailboxes established for the purpose of receiving
FOIA appeals; an e-mail FOIA appeal that is sent to an individual VA
employee's mailbox, or to any other entity, will not be considered a
perfected FOIA appeal. Mailbox addresses designated to receive e-mail
FOIA appeals are available on VA's FOIA home page. See Sec. 1.552(a)
for the pertinent Internet address.
(d) Time limits and content of appeal. Your appeal to the VA OGC
(024), or VA Office of Inspector General (50), as appropriate, must be
postmarked no later than sixty (60) calendar days of the
[[Page 63135]]
date of the adverse determination. Your appeal must clearly identify
the determination that you are appealing, including any assigned
request number. Other information should also be included, such as the
name of the FOIA officer, the address of the component, the date of
component's determination, if any, and the precise subject matter of
your appeal. If you are appealing only a portion of the component's
determination, you must specify which part of the determination you are
appealing. You should include copies of your request and VA's response,
if any. An appeal is not perfected until VA either receives the
information identified above or the appeal is otherwise sufficiently
defined. Appeals should be marked ``Freedom of Information Act
Appeal.'' The General Counsel, Deputy General Counsel, or Assistant
General Counsel with jurisdiction over information disclosure matters
(024) will act on behalf of the Secretary on all appeals under this
section, except those pertaining to the Office of Inspector General.
The designated official in the Office of Inspector General will act on
all appeals pertaining to Office of Inspector General records. A
determination by the General Counsel, Deputy General Counsel, or
Assistant General Counsel, or designated official within the Office of
Inspector General, will be the final VA action.
(e) Responses to appeals. The Office of the General Counsel or the
Office of Inspector General, as appropriate, will provide you a
decision on your appeal in writing that includes a brief statement of
the reasons for its determination, including, if applicable, any FOIA
exemptions applied.
(f) Court review. You must first appeal the adverse determination
in accordance with this section before seeking review by a court.
Sec. 1.560 Maintenance and preservation of records.
(a) Each component will preserve all correspondence pertaining to
FOIA requests as well as copies of pertinent records, until disposition
is authorized under title 44, U.S.C., or the National Archives and
Records Administration's General Records Schedule 14.
(b) The FOIA Officer must maintain copies of records that are the
subject of a pending request, appeal, or lawsuit under the FOIA. A copy
of all records shall be provided promptly to the Office of the General
Counsel upon request.
Sec. 1.561 Fees.
(a) General. Components will charge for processing requests under
the FOIA in accordance with paragraph (c) of this section, except where
fees are limited under paragraph (e) of this section or where a waiver
or reduction of fees is granted under paragraph (n) of this section.
The FOIA Officer will collect all applicable fees before releasing
copies of requested records to a requester. Requesters must pay fees by
check or money order made payable to the Treasury of the United States.
Note that fees associated with requests from VA beneficiaries,
applicants for VA benefits, or other individuals, for records
retrievable by their names or individual identifiers processed under 38
U.S.C. 5701 (records associated with claims for benefits) and 5 U.S.C.
552a (the Privacy Act), will be assessed fees in accordance with the
applicable regulatory fee provisions relating to VA benefits and VA
Privacy Act records.
(b) Definitions. For purposes of assessing or determining fees, the
following definitions apply:
(1) All other requests means a request that does not fit into any
of the categories in this section.
(2) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers his or her
commercial, trade, or profit interests, to include furthering those
interests through litigation. To the extent possible, the FOIA Officer
shall determine the use to which a requester will put the requested
records. When the intended use of the records is unclear from the
request or when there is reasonable cause to doubt the use to which the
requester will put the records sought, the FOIA Officer will provide
the requester a reasonable opportunity to submit further clarification.
(3) Direct costs mean expenses that VA incurs in responding to a
FOIA request, including searching for and duplicating (and in the case
of commercial use requesters, reviewing) records to respond to a FOIA
request. Direct costs include, for example, the salary of the employee
performing the work (the basic rate of pay for the employee, plus 16
percent of that rate to cover benefits costs) and the cost of operating
duplication machinery. Direct costs do not include overhead expenses,
such as the costs of space or heating and lighting of the facility
where the records are kept.
(4) Duplication means making a copy of a record necessary to
respond to a FOIA request; copies may take the form of paper,
microform, audiovisual 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.
(5) Educational institution means a pre-school, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education, or
an institution of vocational education, which operates a program or
programs of scholarly research. To be in this category, the FOIA
Officer must make a determination that the request is authorized by and
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 the individual goal of the requester or a
commercial goal of the institution.
(6) Non-commercial scientific institution means an institution that
is not operated on a ``commercial'' basis (as that term is defined in
paragraph (b)(2) of this section) and that is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry. To be in this
category, a requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are sought to further scientific research and are not sought
for a commercial use.
(7) 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 the raw materials into a
distinct work, and distributes that work to an audience. The term news
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only if such entities qualify as
disseminators of ``news'') who make their products available for
purchase or subscription or free distribution to the general public.
These examples are not all-inclusive. As methods of news delivery
evolve (for example, the adoption of the electronic dissemination of
newspapers through telecommunications services), such alternative media
that otherwise meet the criteria for news media shall be considered to
be news-media entities. Freelance journalists may be regarded as
working for a news-media entity if they can demonstrate a solid basis
for expecting publication through that entity, even though not actually
employed by it. A publication contract would be the clearest proof, but
the requester's publication history may also
[[Page 63136]]
be considered. To be in this category, a requester must not be seeking
the requested records for a commercial use; a records request
supporting the requester's news-dissemination function shall not be
considered to be for a commercial use.
(8) Review means examining a record including audiovisual,
electronic mail, data bases, documents and the like in response to a
commercial use request to determine whether any portion of it is exempt
from disclosure. Review includes the deletion of exempt material or
other processing necessary to prepare the record(s) for disclosure.
Review time includes time spent contacting any submitter and
considering or responding to any objections to disclosure made by a
submitter under Sec. 1.558(d) but does not include time spent
resolving general legal or policy issues regarding the application of
exemptions. Review costs are recoverable even if, after review, a
record is not disclosed.
(9) Search means the process of looking for and retrieving records
that are responsive to a request, including line-by-line or page-by-
page identification of responsive information within records. Search
also includes reasonable efforts to locate and retrieve information
from records maintained in electronic form or format. The component
will conduct searches in the most efficient and least expensive manner
reasonably possible. For example, line-by-line searches will not be
conducted when duplicating an entire document is a less expensive and
quicker method of complying with a request.
(c) Categories of requesters and fees to be charged each category.
There are four categories of FOIA requesters: Commercial use
requesters, educational and non-commercial scientific institutional
requesters, representatives of the news media, and all other
requesters. Unless a waiver or reduction of fees is granted under
paragraph (n) of this section or is limited in accordance with
paragraph (e) of this section, specific levels of fees will be charged
for each category as follows:
(1) Commercial use requesters. Subject to the limitations in
paragraph (e) of this section, commercial use requesters will be
charged the full direct costs of the search, review, and duplication of
records sought. Commercial use requesters are not entitled to 2 hours
of free search time or the first 100 pages of reproduced documents free
of charge. The FOIA Officer may charge a commercial use requester for
time spent searching even if they do not locate any responsive
record(s) or if they withhold the record(s) located as entirely exempt
from disclosure.
(2) Educational and non-commercial scientific institution
requesters. Subject to the limitations in paragraph (e) of this
section, educational and non-commercial scientific institution
requesters will be charged for the cost of reproduction only, excluding
charges for the first 100 pages.
(3) Representative of the news media. Subject to the limitations in
paragraph (e) of this section, representatives of the news media will
be charged for the cost of reproduction only, excluding charges for the
first 100 pages.
(4) All other requesters. Subject to the limitations in paragraph
(e) of this section, a requester who does not fit into any of the
categories in this section will be charged fees to recover the full,
reasonable direct cost of searching for and reproducing records
responsive to a request, except that the first 2 hours of search time
and the first 100 pages of reproduction will be furnished without cost.
The FOIA Officer may charge all other requesters for time spent
searching even if the component does not locate any responsive
record(s) or if they withhold the record(s) located as entirely exempt
from disclosure.
(d) Fees to be charged. The following fees will be used when
calculating the fee owed pursuant to a request or appeal. The fees also
apply to making documents available for public inspection and copying
under Sec. 1.553 of this part.
(1) Search. (i) Search fees. When a FOIA Officer determines that a
search fee applies, the fee will be based on the hourly salary of VA
personnel performing the search, plus 16 percent of the salary. The
type and number of personnel involved in addressing the request or
appeal depends on the nature and complexity of the request and
responsive records. Fees are charged in quarter hour increments.
(ii) Computer search. In cases where a computer search is required,
the requester will be charged the direct costs of conducting the
search, although certain requesters (as provided in paragraph (e)(1) of
this section) will be charged no search fee and certain other
requesters (as provided in paragraph (e)(4) of this section) will be
entitled to the cost of 2 hours of employee search time without charge.
When a computer search is required, VA will combine the hourly cost of
operating the computer with the employee's salary, plus 16 percent of
the salary. When the cost of the search (including the employee time,
to include the cost of developing a search methodology, and the cost of
the computer to process a request) equals the dollar amount of 2 hours
of the salary of the employee performing the search, VA will begin to
assess charges for a computer search.
(2) Duplication. When a duplication fee applies, the FOIA Officer
will charge a fee of 15 cents per one-sided page for a paper photocopy
of a record; no more than one copy will be provided. For copies
produced by computer, such as tapes and discs, the FOIA Officer will
charge the direct costs of producing the copy, including employee time.
For other forms of duplication, the FOIA Officer will charge the direct
costs of that duplication.
(3) Review. When review fees apply, review fees will be charged at
the initial level of review only, when the component responsible for
processing the request determines whether an exemption applies to a
record or portion of a record. For review at the appeal level, no fee
will be charged for an exemption that has already been applied and is
determined to still apply. However, record or record portions withheld
under an exemption that is subsequently determined not to apply may be
reviewed again to determine whether any other exemption not previously
considered applies; the costs of that review are chargeable. Review
fees will be charged at the same rates as those charged for search
under paragraph (d)(1) of this section.
(e) Limitations on charging fees. (1) No search fee will be charged
for requests by educational institutions, non-commercial scientific
institutions, or representatives of the news media.
(2) No search or review fee will be charged for a quarter hour
period unless more than half of that period is required for search or
review.
(3) No search fee (or duplication fee, when records are not sought
for commercial use and the request is made by an educational or
noncommercial scientific institution whose purpose is scholarly or
scientific research, or a representative of the news media) will be
charged in accordance with this section if the agency fails to comply
with the time limit under Sec. 1.556(a), and if no unusual or
exceptional circumstances apply to the processing of the request
pursuant to Sec. 1.556(c). Duplication and search fees may still be
charged to commercial use requesters. Duplication fees may still be
charged for ``all other'' requesters.
(4) Except for requesters seeking records for a commercial use, the
following will be provided without charge:
[[Page 63137]]
(i) The first 100 pages of duplication (or the cost equivalent).
(ii) The first 2 hours of search time (or the cost equivalent).
(5) Whenever a total fee calculated under paragraph (d) of this
section is less than $25.00, no fee will be charged.
(6) VA may provide free copies of records or free services in
response to an official request from other government agencies and
Congressional offices and when a component head or designee determines
that doing so will assist in providing medical care to a VA patient or
will otherwise assist in the performance of VA's mission.
(f) The following table summarizes the chargeable fees for each
category of requester.
----------------------------------------------------------------------------------------------------------------
Category Search fees Review fees Duplication fees
----------------------------------------------------------------------------------------------------------------
(1) Commercial Use................... Yes.................... Yes.................... Yes.
(2) Educational Institution.......... No..................... No..................... Yes (100 pages free).
(3) Non-Commercial Scientific No..................... No..................... Yes (100 pages free).
Institution.
(4) News Media....................... No..................... No..................... Yes (100 pages free).
(5) All other........................ Yes (2 hours free)..... No..................... Yes (100 pages free).
----------------------------------------------------------------------------------------------------------------
(g) Fee schedule. If it is determined that a fee will be charged
for processing your FOIA request, VA will charge you to search for,
review, and duplicate the requested records according to your fee
category (see Sec. 1.561(c)) and the following fee schedule. In
addition, VA will charge you for any special handling or services
performed in connection with processing your request and/or appeal. The
following fees will be used by VA; these fees apply to services
performed in making documents available for public inspection and
copying under Sec. 1.553 as well. The duplicating fees also are
applicable to records provided in response to requests made under the
Privacy Act. Fees will not be charged under either the FOIA or the
Privacy Act where the total amount of fees for processing the request
is $25.00 or less or where the requester has met the requirements for a
statutory fee waiver.
(1) Search and review (review applies to commercial-use requesters
only). Fees are based on the average hourly salary (base salary plus DC
locality payment), plus 16 percent for benefits, of employees in the
following three categories. Fees will be increased annually consistent
with Congressionally approved pay increases. Fees are charged in
quarter-hour increments.
(i) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and
below).
(ii) Professional--Based on GS-11, Step 7, pay (all employees at
GS-8 through GS-12).
(iii) Managerial--Based on GS-14, Step 2, pay (all employees at GS-
13 and above).
Note: Fees for the current fiscal year are posted on VA's FOIA
home page (see Sec. 1.552(a) for the pertinent Internet address).
(2) Schedule of fees:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(i) Duplication of standard size (8\1/2\'' $0.15 per page
x 11''; 8\1/2\'' x 14''; 11'' x 14'')
paper records.
(ii) Duplication of non-paper items (e.g., Direct cost to VA.
x-rays), paper records which are not of a
standard size (e.g., architectural
drawings/construction plans or EKG
tracings), or other items which do not
fall under category (1), in paragraph
(c)(1) of this section.
(iii) Record search by manual (non- Basic hourly salary rate of
automated) methods. the employee(s), plus 16
percent
* Note--If a component uses
a single class of personnel
for a search, e.g., all
clerical or professional,
an average rate for the
grades of employees
involved in the search may
be used.
(iv) Record search using automated Direct cost to perform
methods, such as by computer. search.
(v) Record review (for Commercial Use Basic hourly rate of
Requesters only). employees performing review
to determine whether to
release records and to
prepare them for release,
plus 16 percent.
(vi) Other activities, such as: Attesting Direct cost to VA.
under seal or certifying that records are
true copies; sending records by special
methods; forwarding mail; compiling and
providing special reports, drawings,
specifications, statistics, lists,
abstracts or other extracted information;
generating computer output; providing
files under court process where the
federal government is not a party to, and
does not have an interest in, the
litigation.
------------------------------------------------------------------------
(h) Notification of fee estimate or other fee issues. (1) Threshold
for charging fees: Except for situations covered by Sec. 1.556(k), VA
will not charge you if the fee is $25.00 or less.
(2) When a FOIA Officer determines or estimates that the fees to be
charged under this section will amount to more than $25.00 or the
amount set by OMB fee guidelines, whichever is higher, the FOIA Officer
will notify you in writing of the actual or estimated amount of the
fees, and ask you to provide written assurance of the payment of all
fees or fees up to a designated amount, unless you have indicated a
willingness to pay fees as high as those anticipated. Any such
agreement to pay the fees shall be memorialized in writing. In
addition, when a requester does not provide sufficient information upon
which VA can identify a fee category (see paragraphs (c)(1) through (4)
of this section), or an issue otherwise arises regarding fee
assessment, the FOIA Officer may seek clarification from the requester.
In either case, the timeline for responding to the request will be
tolled and no further work will be done on it until the fee issue has
been resolved. If VA does not receive a written response from you
within ten (10) days after contacting you regarding a fee issue, it
will assume that you no longer wish to pursue the request and will
close the file on your request.
(i) Charges for other services. Apart from the other provisions of
this section, when special service, such as certifying
[[Page 63138]]
that records are true copies or sending them by other than ordinary
mail, is requested, and the FOIA Officer chooses to provide such a
service as a matter of administrative discretion, the direct costs of
providing the service ordinarily will be charged.
(j) Charging interest. The FOIA Officer may charge interest on any
unpaid bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue until payment is received by the component.
Components will follow the provisions of the Debt Collection Act of
1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its
administrative procedures, including the use of consumer reporting
agencies, collection agencies, and offset.
(k) Aggregating requests. Whenever a FOIA Officer reasonably
believes that a requester or group of requesters acting together is
attempting to divide a request into a series of requests for the
purpose of avoiding fees, the FOIA Officer may aggregate those requests
and charge accordingly. FOIA Officers may presume that multiple
requests of this type made within a 30-day period have been made in
order to avoid fees. Where requests are separated by a longer period,
the FOIA Officer will aggregate them only where there exists a solid
basis for determining that aggregation is warranted under all the
circumstances involved. Multiple requests involving unrelated matters
will not be aggregated.
(l) Advance payments. (1) For requests other than those described
in paragraphs (l)(2) and (l)(3) of this section, a FOIA Officer shall
not require the requester to make an advance payment--in other words, a
payment made before work is begun or continued on a request. Payment
owed for work already completed (i.e., a prepayment before copies are
sent to a requester) is not an advance payment.
(2) Where a FOIA Officer determines or estimates that a total fee
to be charged under this section will be more than $250.00, it may
require the requester to make an advance payment of an amount up to the
amount of the entire anticipated fee before beginning to process the
request.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to any component within thirty (30) days of the date
of billing, a FOIA Officer may require the requester to pay the full
amount due, plus any applicable interest as specified in this section,
and to 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 from that requester.
(4) When a requester has a history of prompt payment, the FOIA
Officer may accept a satisfactory assurance of full payment from a
requester rather than an advance payment.
(5) In cases in which a FOIA Officer requires advance payment or
payment is due under this section, the timeline for responding to the
request will be tolled and further work will not be done on it until
the required payment is received.
(m) 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. Where records responsive to requests
are maintained for distribution by agencies operating such statutorily-
based fee schedule programs, the FOIA Officer will inform requesters of
the steps for obtaining records from those sources so that they may do
so most economically.
(n) Requirements for waiver or reduction of fees. (1) Waiving or
reducing fees. Fees for processing your request may be waived if the
requester meets the criteria listed in this section. The requester must
submit adequate justification for a fee waiver; without adequate
justification, the request will be denied. The FOIA Officer may, at the
FOIA Officer's discretion, communicate with you to request additional
information if necessary regarding your fee waiver request. If such
additional information is not received within ten (10) business days,
VA will assume that the requester does not agree to pay the required
fees and the file will be closed pending receipt of your notice that
you will pay the required fee. Requests for fee waivers are decided on
a case-by-case basis; receipt of a fee waiver in the past does not
establish entitlement to a fee waiver each time a request is submitted.
(2) Records responsive to a request will be furnished without
charge or at a charge reduced below that established under paragraph
(d) of this section where a FOIA Officer determines, based on all
available evidence, that the requester has demonstrated that:
(i) 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
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(3) To determine whether the first fee waiver requirement is met,
the FOIA Officer will consider the following factors:
(i) The subject of the request: Whether the subject of the
requested records concerns ``the operations or activities of the
government.'' The subject of the requested records must concern
identifiable operations or activities of the federal government, with a
connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about government
operations or activities in order to be ``likely to contribute'' to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be as
likely to contribute to such understanding where nothing new would be
added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' 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 and ability and intention to effectively convey
information to the public shall be considered. It shall be presumed
that a representative of the news media will satisfy this
consideration.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a significant extent. The FOIA Officer
will not make value judgments about whether information that would
contribute significantly to public understanding of the operations or
activities of the government is important enough to be made public.
(4) To determine whether the second fee waiver requirement is met,
the FOIA Officer will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether
the
[[Page 63139]]
requester has a commercial interest that would be furthered by the
requested disclosure. The FOIA Officer shall consider any commercial
interest of the requester (with reference to the definition of
``commercial use'' in paragraph (b)(2) of this section), or of any
person on whose behalf the requester may be acting, that would be
furthered by the requested disclosure. Requesters shall be given an
opportunity in the administrative process to provide explanatory
information regarding this consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. The FOIA Officer
ordinarily shall presume that where a news media requester has
satisfied the public interest standard, the public interest will be the
interest primarily served by disclosure to that 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.
(5) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a fee waiver will be granted only
for those records which so qualify.
(6) Requests for the waiver or reduction of fees should address the
factors listed in paragraph (n)(3) and (4) of this section, insofar as
they apply to each request. FOIA Officers will exercise their
discretion to consider the cost-effectiveness of their investment of
administrative resources in this decision-making process, however, in
deciding to grant waivers or reductions of fees.
(7) An appeal from an adverse fee determination will be processed
in accordance with Sec. 1.559.
(8) When considering a request for fee waiver, VA may require proof
of identity.
Sec. 1.562 Other rights and services.
Nothing in this part shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
(Authority: Sections 1.550 to 1.562 issued under 72 Stat. 1114; 38
U.S.C. 501)
PART 2--DELEGATIONS OF AUTHORITY
11. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 302, 552a; 38 U.S.C. 501, 512, 515, 1729,
1729A, 5711; 44 U.S.C. 3702, and as noted in specific sections
noted.)
12. Revise paragraph (e)(10) of Sec. 2.6 to read as follows:
Sec. 2.6 Secretary's delegations of authority to certain officials
(38 U.S.C. 512).
* * * * *
(e) * * *
(10) The General Counsel, Deputy General Counsel, and the Assistant
General Counsel for Professional Staff Group IV are authorized to make
final Departmental decisions on appeals under the Freedom of
Information Act, the Privacy Act, and 38 U.S.C. 5701, 5705 and 7332.
Authority: 38 U.S.C. 512
* * * * *
[FR Doc. 2010-25362 Filed 10-13-10; 8:45 am]
BILLING CODE 8320-01-P