[Code of Federal Regulations] [Title 36, Volume 3] [Revised as of July 1, 2001] From the U.S. Government Printing Office via GPO Access [CITE: 36CFR1120.53] [Page 277-279] TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY CHAPTER XI--ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD PART 1120--PUBLIC AVAILABILITY OF INFORMATION--Table of Contents Subpart E--Copies of Records and Fees for Services Sec. 1120.53 Payment of fees. (a) Method of payment. All fee payments shall be in the form of a check or money order payable to the order of the ``U.S. Architectural and Transportation Barriers Compliance Board'' and shall be sent (accompanied by a reference to the pertinent Request Indentification Number(s)) to the address in Sec. 1120.23. (b) Charging interest. The ATBCB may charge interest to those requestors failing to pay fees assessed in accordance with the procedures described in Sec. 1120.51. Interest charges, computed at the rate prescribed in section 3717 of title 31 U.S.C.A., will be assessed on the full amount billed starting on the 31st day following the day on which the bill was sent. (c) Advance payment or assurance of payment. (1) When an ATBCB office determines or estimates that the allowable charges a requestor may be required to pay are likely to exceed $250.00, the ATBCB may require the requestor to make an advance payment or arrangements to pay the entire fee before continuing to process the request. The ATBCB shall promptly inform the requestor (by telephone, if practicable) of the need to make an advance payment or arrangements to pay the fee. That office need not search for, review, duplicate, or disclose records in response to any request by that requestor until he or she pays, or makes acceptable arrangements to pay, the total amount of fees due (or estimated to become due) under this subpart. (2) Where a requestor has previously failed to pay a fee charged in a timely fashion, the ATBCB may require the requestor to pay the full amount owed, plus any applicable interest, as provided in paragraph (b) of this section, and to make an advance payment of the full amount of the estimated fee before any new or pending requests will be processed from that requestor. (3) In those instances described in paragraphs (c)(1) and (2) of this section, the administrative time limits prescribed in Sec. 1120.33(d) will begin only after the ATBCB has received all fee payments due or acceptable arrangements have been made to pay all fee payments due. (d) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). Requestors are advised that the ATBCB shall use the authorities of the Debt Collection Act of 1982, including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to encourage repayment of debts arising from freedom of information act requests. (e) Waiver or reduction of fees. (1) Records responsive to a request under 5 U.S.C. 552 shall be furnished without charge or at a charge reduced below that establsihed under paragraph (d) of Sec. 1120.51 where the Freedom of Information Officer determines, based upon information provided by a requestor in support of a fee waiver request or otherwise made known to the Freedom of Information Officer, that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor. Requests for a waiver or reduction of fees shall be considered on a case-by-case basis. (2) In order to determine whether the first fee waiver requirement is met--i.e., that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government-- Freedom of Information Officer [[Page 278]] shall consider the following four factors in sequence: (i) The subject of the request: Whether the subject of the requested records concerns ``the operations or activities of the government.'' The subject matter of the requested records, in the context of the request, must specifically concern identifiable operations or activities of the federal government--with a connection that is direct and clear, not remote or attenuated. Furthermore, the records must be sought for their informative value with respect to those government operations or activities; a request for access to records for their intrinsic informational content alone will not satisfy this threshold consideration. (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 on specific government operations or activities in order to hold potential for contributing to increase public understanding of those operations and activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be likely to contribute to such understanding, as nothing new would be added to the public record. (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 the public at large, as opposed to the individual understanding of the requestor or a narrow segment of interested persons. A requestor's identity and qualifications--e.g., expertise in the subject area and ability and intention to effectively convey information to the general public-- should be considered. It reasonably may be presumed that a representative of the news media (as defined in Sec. 1120.2(o)) who has access to the means of public dissemination readily will be able to satisfy this consideration. Requests from libraries or other record repositories (or requestors who intend merely to disseminate information to such institutions) shall be analyzed, like those of other requestors to identify a particular person who represents that he actually will use the requested information in scholarly or other analytic work and then disseminate it to the general public. (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 matter in question, as compared to the level of public understanding existing prior to the disclosure, must be likely to be enhanced by the disclosure to a significant extent. Freedom of Information Officer shall not make separate value judgments as to whether information, even though it in fact would contribute significantly to public understanding of the operations or activities of the government, is ``important'' enough to be made public. (3) In order to determine whether the second fee waiver requirement is met--i.e., that disclosure of the requested information is not primarily in the commercial interest of the requestor--the Freedom of Information Officer shall consider the following two factors in sequence: (i) The existence and magnitude of a commercial interest: Whether the requestor has a commercial interest that would be furthered by the requested disclosure. The Freedom of Information Officer shall consider all commercial interests of the requester (with reference to the definition of ``commercial use'' in Sec. 1120.2(l)) or any person on whose behalf the requestor may be acting, but shall consider only those interests which would be furthered by the requested disclosure. In assessing the magnitude of identified commercial interests, consideration shall be given to the role that such FOIA-disclosed information plays with respect to those commercial interests, as well as to the extent to which FOIA disclosures serve those interests overall. Requestors shall be given a reasonable opportunity in the administrative process to provide information bearing upon this consideration. [[Page 279]] (ii) The primary interest in disclosure: Whether the magnitude of the identified commercial interest of the requestor is sufficiently large, in comparison with the public interest in disclosure, that disclosure is ``primarily in the commercial interest of the requestor.'' A fee waiver or reduction is warranted only where, once the ``public interest'' standard set out in paragraph (e)(2) of this section is satisfied, that public interest can fairly be regarded as greater in magnitude than that of the requestor's commercial interest in disclosure. The Freedom of Information Officer shall ordinarily presume that where a news media requestor has satisfied the ``public interest'' standard, that will be the interest primarily served by disclosure to that requestor. Disclosure to data brokers or others who compile and market government information for direct economic return shall not be presumed to primarily serve ``public interest.'' (4) Where only a portion of the requested records satisfies both of the requirements for a waiver or reduction of fees under this paragraph, a waiver or reduction shall be granted only as to that portion. (5) Requests for the waiver or reduction of fees shall address each of the factors listed in paragraphs (e) (2) and (3) of this section, as they apply to each record request. One hundred pages of reproduction shall be furnished without charge. (6) A request for reduction or waiver of fees shall be addressed to the Freedom of Information Officer at the address shown in Sec. 1120.23. The ATBCB office which is responding to the request for records shall initially determine whether the fee shall be reduced or waived and shall so inform the requestor. The initial determination may be appealed by letter addressed to the address shown in Sec. 1120.23. The General Counsel or his or her designee shall decide such appeals. [45 FR 80976, Dec. 8, 1980, as amended at 52 FR 43196, Nov. 10, 1987; 55 FR 2521, Jan. 25, 1990]