[Code of Federal Regulations]

[Title 45, Volume 3]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR704.1]



[Page 284-290]

 

                        TITLE 45--PUBLIC WELFARE

 

                 CHAPTER VII--COMMISSION ON CIVIL RIGHTS

 

PART 704_INFORMATION DISCLOSURE AND COMMUNICATIONS--Table of Contents

 

Sec. 704.1  Material available pursuant to 5 U.S.C. 552.









Sec.

704.1 Material available pursuant to 5 U.S.C. 552.

704.2 Complaints.

704.3 Other requests and communications.

704.4 Restrictions on disclosure of information.



    Authority: 5 U.S.C. 552, 552a, 552b.



    Source: 67 FR 70482, Nov. 22, 2002, unless otherwise noted.





    (a) Purpose, scope, and definitions. (1) This section contains the 

regulations of the United States Commission on Civil Rights implementing 

the Freedom of Information Act, 5 U.S.C. 552. These regulations inform 

the public with respect to where and how records and information may be 

obtained from the Commission. Officers and employees of the Commission 

shall make Commission records available under 5 U.S.C. 552 only as 

prescribed in this section. Nothing contained in this section, however, 

shall be construed to prohibit officers or employees of the Commission 

from routinely furnishing information or records that are customarily 

furnished in the regular performance of their duties.

    (2) For the purposes of this part the following terms are defined as 

indicated:

    Commission means the United States Commission on Civil Rights;

    FOIA means Freedom of Information Act, 5 U.S.C. 552;

    FOIA Request means a request in writing, for records pursuant to 5 

U.S.C. 552, which meets the requirements of paragraph (d) of this part. 

This part does not apply to telephone or other oral communications or 

requests not complying with paragraph (d)(1)(i) of this section.

    Office of the General Counsel means the General Counsel of the 

Commission or his or her designee;

    Staff Director means the Staff Director of the Commission.

    (b) General policy. In order to foster the maximum participation of 

an informed public in the affairs of Government, the Commission will 

make the fullest possible disclosure of its identifiable records and 

information consistent with such considerations as those provided in the 

exemptions of 5 U.S.C. 552 that are set forth in paragraph (f) of this 

section.

    (c) Material maintained on file pursuant to 5 U.S.C. 552(a)(2). 

Material maintained on file pursuant to 5 U.S.C. 552(a)(2) shall be 

available for inspection during regular business hours at the offices of 

the Commission at 624 9th Street, NW., Washington, DC 20425. Copies of 

such material shall be available upon written request, specifying the 

material desired, addressed to the Office of the General Counsel, U.S. 

Commission on Civil Rights, 624 9th Street, NW., Washington, DC 20425, 

and upon the payment of fees, if any, determined in accordance with 

paragraph (e) of this section.

    (1) Current index. Included in the material available pursuant to 5 

U.S.C. 552(a)(2) shall be an index of:



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    (i) All other material maintained on file pursuant to 5 U.S.C. 

552(a)(2); and

    (ii) All material published by the Commission in the Federal 

Register and currently in effect.

    (2) Deletion of identifying details. Wherever deletions from 

material maintained on file pursuant to 5 U.S.C. 552(a)(2) are required 

in order to prevent a clearly unwarranted invasion of privacy, 

justification for the deletions shall be placed as a preamble to 

documents from which such deletions are made.

    (d) Materials available pursuant to 5 U.S.C. 552(a)(3)--(1) Request 

procedures. (i) Each request for records pursuant to this section shall 

be in writing over the signature of the requester, addressed to the 

Office of the General Counsel, U.S. Commission on Civil Rights, 624 9th 

Street, NW., Washington, DC 20425 and:

    (A) Shall clearly and prominently be identified as a request for 

information under the Freedom of Information Act (if submitted by mail 

or otherwise submitted in an envelope or other cover, be clearly and 

prominently identified as such on the envelope or other cover--e.g., 

FOIA); and

    (B) Shall contain a sufficiently specific description of the record 

requested with respect to names, dates, and subject matter to permit 

such record to be identified and located; and

    (C) Shall contain a statement that whatever costs involved pursuant 

to paragraph (e) of this section will be paid, that such costs will be 

paid up to a specified amount, or that waiver or reduction of fees is 

requested pursuant to paragraph (e) of this section.

    (ii) If the information submitted pursuant to paragraph (d)(1)(i)(B) 

of this section is insufficient to enable identification and location of 

the records, the General Counsel shall as soon as possible notify the 

requester in writing indicating the additional information needed. Every 

reasonable effort shall be made to assist in the identification and 

location of the record sought. Time requirements under the regulations 

in this part are tolled from the date notification under this section is 

sent to the requester until an answer in writing to such notification is 

received from requester.

    (iii) A request for records that is not in writing or does not 

comply with paragraph (d)(1)(i) of this section is not a request under 

the Freedom of Information Act and the 10 day time limit for agency 

response under the Act will not be deemed applicable.

    (iv) Except as otherwise provided in this section, the General 

Counsel shall immediately notify the requester of noncompliance with 

paragraphs (d)(1)(i)(C) and (e) of this section.

    (2) Agency determinations. (i) Responses to all requests pursuant to 

5 U.S.C. 552(a)(3) shall be made by the General Counsel in writing to 

the requester within 10 working days after receipt by the General 

Counsel of such request except as specifically exempted under paragraphs 

(d)(1) (ii), (iii) and (iv) of this section, and shall state:

    (A) Whether and to what extent the Commission will comply with the 

request;

    (B) The probable availability of the records or that the records may 

be furnished with deletions or that records will be denied as exempt 

pursuant to 5 U.S.C. 552(b)(1) through (9);

    (C) The estimated costs, determined in accordance with paragraph (e) 

of this section, including waiver or reduction of fee as appropriate and 

any deposit or prepayment requirement; and

    (D) When records are to be provided, the time and place at which 

records or copies will be available determined in accordance with the 

terms of the request and with paragraph (d)(3) of this section. Such 

response shall be termed a determination notice.

    (ii) In the case of denial of requests in whole or part the 

determination notice shall state:

    (A) Specifically what records are being denied;

    (B) The reasons for such denials;

    (C) The specific statutory exemption(s) upon which such denial is 

based;

    (D) The names and titles or positions of every person responsible 

for the denial of such request; and

    (E) The right of appeal to the Staff Director of the Commission and 

procedures for such appeal as provided under paragraph (g) of this 

section.

    (iii) Each request received by the Office of the General Counsel for 

records pursuant to the regulations in this part



[[Page 286]]



shall be recorded immediately. The record of each request shall be kept 

current, stating the date and time the request is received, the name and 

address of the person making the request, any amendments to such 

request, the nature of the records requested, the action taken regarding 

the request, including waiver of fees, extensions of time pursuant to 5 

U.S.C. 552(a)(6)(B), and appeals. The date and subject of any letters 

pursuant to paragraph (d)(1) of this section or agency determinations 

pursuant to paragraph (d)(2)(i) of this section, the date(s) any records 

are subsequently furnished, and the payment requested and received.

    (3) Time limitations. (i) Time limitations for agency response to a 

request for records established by the regulations in this part shall 

begin when the request is recorded pursuant to paragraph (d)(2)(iii) of 

this section. A written request pursuant to FOIA but sent to an office 

of the Commission other than the Office of the General Counsel shall be 

date stamped, initialed, and redirected immediately to the Office of the 

General Counsel. The required period for agency determination shall 

begin when it is received by the Office of the General Counsel in 

accordance with paragraph (d)(2)(iii) of this section.

    (ii) In unusual circumstances, pursuant to 5 U.S.C. 552(a)(6)(B), 

the General Counsel may, in the case of initial determinations under the 

regulations in this part, extend the 10 working day time limit in which 

the agency is required to make its determination notification. Such 

extension shall be communicated in writing to the requesting party 

setting forth with particularity the reasons for such extension and the 

date on which a determination is expected to be transmitted. Such 

extensions may not exceed 10 working days for any request and may only 

be used to the extent necessary to properly process a particular 

request. Such extension is permissible only where there is a 

demonstrated need:

    (A) To search for and collect the requested records from field 

facilities or other establishments that are separate from the Office of 

the General Counsel;

    (B) To search for, collect, and appropriately examine a voluminous 

amount of separate and distinct records that are demanded in a single 

request; or

    (C) For consultation, which shall be conducted with all practicable 

speed, with another agency having a substantial interest in the 

determination of the request or among two or more components of the same 

agency having substantial subject matter interest therein.

    (e) Fees--(1) Definitions. The following definitions apply to the 

terms when used in this section:

    (i) Direct costs means those expenditures that the Commission 

actually incurs in searching for and duplicating (and in the case of 

commercial requesters, reviewing) documents to respond to a request made 

under paragraph (d) of this section. Direct costs include, for example, 

the salary of the employee(s) performing the work (the basic rate of pay 

for the employee(s) plus 16 percent of that rate to cover benefits) and 

the cost of operating duplicating machinery. Not included in direct 

costs are overhead expenses such as costs of space and heating or 

lighting the facility in which the records are stored.

    (ii) Search means all time spent looking for material that is 

responsive to a request, including page-by-page or line-by-line 

identification within documents. However, an entire document will be 

duplicated if this would prove to be a more efficient and less expensive 

method of complying with a request than a more detailed manner of 

searching. Search is distinguished from review of material in order to 

determine whether the material is exempt from disclosure.

    (iii) Duplication means the process of making a copy of a document 

necessary to respond to a request for disclosure of records. Such copies 

can take the form of paper or machine readable documentation (e.g., 

magnetic tape or disk), among others.

    (iv) Review means the process of examining documents located in 

response to an information request to determine whether any portion of 

any document is permitted to be withheld. It also includes processing 

any documents for disclosure, e.g., doing all that is necessary to 

prepare them for release. Review does not include time spent resolving 

general legal or policy issues



[[Page 287]]



regarding the application of exemptions.

    (v) Commercial use request means a request from or on behalf of one 

who seeks information for a use or purpose that furthers the commercial, 

trade, or profit interests of the requester or the person on whose 

behalf the request is made. In deciding whether a requester properly 

belongs in this category, the General Counsel will determine the use to 

which a requester will put the documents requested. When the General 

Counsel has reasonable cause to doubt such intended use, or where such 

use is not clear from the request itself, the General Counsel will seek 

additional clarification before assigning the request to a specific 

category.

    (vi) Educational institution means a school, an institution of 

higher education, an institution of professional education, or an 

institution of vocational education that operates a program or programs 

of scholarly research.

    (vii) Noncommercial scientific institution means an institution that 

is not operated on a commercial basis 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.

    (viii) Representative of the news media means any person actively 

gathering news for an entity that is organized and operated to publish 

or broadcast news to the public. The term news means information that is 

about current events or that would be of current interest to the public. 

News media entities include television or radio stations broadcasting to 

the public at large, and publishers of periodicals (but only in those 

instances when they can qualify as disseminators of news) who make their 

products available for purchase or subscription by the general public. 

Freelance journalists may be regarded as working for a news organization 

if they can demonstrate a solid basis for expecting publication through 

that organization, even though not actually employed by it.

    (2) Costs to be included in fees. The direct costs included in fees 

will vary according to the following categories of requests:

    (i) Commercial use requests. Fees will include the Commission's 

direct costs for searching for, reviewing, and duplicating the requested 

records.

    (ii) Educational and noncommercial scientific institution requests. 

The Commission will provide documents to requesters in this category for 

the cost of duplication alone, excluding charges for the first 100 

pages. To be eligible for inclusion in this category, requesters must 

show that the request is being made under the auspices of a qualifying 

institution and that the records are sought in furtherance of scholarly 

(if the request is from an educational institution) or scientific (if 

the request is from a noncommercial scientific institution) research.

    (iii) Requests from representatives of the news media. The 

Commission will provide documents to requesters in this category for the 

cost of duplication alone, excluding charges for the first 100 pages. To 

be eligible for inclusion in this category a requester must meet the 

criteria in paragraph (e)(1)(viii) of this section.

    (iv) All other requests. The Commission will charge requesters who 

do not fit into any of the categories in paragraphs (e)(2)(i) through 

(iii) of this section fees that cover the direct costs of searching for 

and duplicating records that are responsive to the requests, except for 

the first two hours of search time and the first 100 pages duplicated. 

However, requests from persons for records about themselves will 

continue to be treated under the fee provisions of the Privacy Act of 

1974 and Sec. 705.10 of this chapter.

    (3) Fee calculation. Fees will be calculated as follows:

    (i) Manual search. At the salary rate (basic pay plus 16 percent) of 

the employee(s) making the search.

    (ii) Computer search. At the actual direct cost of providing the 

search, including computer search time directly attributable to search 

for records responsive to the request, runs, and operator salary 

apportionable to the search.

    (iii) Review (commercial use requests only). At the salary rate 

(basic pay plus 16 percent) of the employee(s) conducting the review. 

Only the review necessary at the initial administrative



[[Page 288]]



level to determine the applicability of any exemption, and not review at 

the administrative appeal level, will be included in the fee.

    (iv) Duplication. At 20 cents per page for paper copy. For copies of 

records prepared by computer (such as tapes or printouts), the actual 

cost of production, including operator time, will be charged.

    (v) Additional services; certification. Express mail and other 

additional services that may be arranged by the requester will be 

charged at actual cost. The fee for certification or authentication of 

copies shall be $3.00 per document.

    (vi) Assessment of interest. The Commission may begin assessing 

interest charges on the 31st day following the day the fee bill is sent. 

Interest will be at the rate prescribed in 31 U.S.C. 3717 and will 

accrue from the date of billing.

    (vii) No fee shall be charged if the total billable cost calculated 

under paragraphs (e)(2) and (3) of this section is less than $10.00.

    (4) Waiver or reduction of fees. (i) Documents will be furnished 

without charge, or at a reduced charge, where disclosure of the 

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 

requester.

    (ii) Whenever a waiver or reduction of fees is granted, only one 

copy of the record will be furnished.

    (iii) The decision of the General Counsel on any fee waiver or 

reduction request shall be final and unappealable.

    (5) Payment procedures--(i) Fee payment. Payment of fees shall be 

made by cash (if delivered in person), check, or money order payable to 

the United States Commission on Civil Rights.

    (ii) Notification of fees. No work shall be done that will result in 

fees in excess of $25.00 without written authorization from the 

requester. Where it is anticipated that fees will exceed $25.00, and the 

requester has not indicated in advance a willingness to pay fees as high 

as are anticipated, the requester will be notified of the amount of the 

projected fees. The notification shall offer the requester an 

opportunity to confer with the General Counsel in an attempt to 

reformulate the request so as to meet the requester's needs at a lower 

cost. The administrative time limits prescribed in 5 U.S.C. 552(a)(6) 

will not begin until after the requester agrees in writing to accept the 

prospective charges.

    (6) Advance payment of fees. When fees are projected to exceed 

$250.00, the requester may be required to make an advance payment of all 

or part of the fee before the request is processed. If a requester has 

previously failed to pay a fee in a timely fashion (i.e., within 30 days 

of the billing date), the requester will be required to pay the full 

amount owed plus any applicable interest, and to make an advance payment 

of the full amount of the estimated fee before a new or pending request 

is processed from that requester. The administrative time limits 

prescribed in 5 U.S.C. 552(a)(6) will not begin until after the 

requester has complied with this provision.

    (7) Other provisions--(i) Charges for unsuccessful search. Charges 

may be assessed for time spent searching for requested records, even if 

the search fails to locate responsive records or the records are 

determined, after review, to be exempt from disclosure.

    (ii) Aggregating requests to avoid fees. Multiple requests shall be 

aggregated when the General Counsel reasonably determines that a 

requester or group of requesters is attempting to break down a request 

into a series of requests to evade fees.

    (iii) Debt Collection Improvement Act of 1996. The Debt Collection 

Improvement Act of 1996 (Pub. L. 104-134), including disclosure to 

consumer reporting agencies and use of collection agencies, will be used 

to encourage payment where appropriate.

    (f) Exemptions (5 U.S.C. 552(b))-(1) General. The Commission may 

exempt from disclosure matters that are:

    (i)(A) Specifically authorized under criteria established by an 

Executive Order to be kept secret in the interest of national defense or 

foreign policy and

    (B) Are in fact properly classified pursuant to such Executive 

Order.



[[Page 289]]



    (ii) Related solely to the internal personnel rules and practices of 

an agency;

    (iii) Specifically exempted from disclosure by statute;

    (iv) Trade secrets and commercial or financial information obtained 

from a person and privileged or confidential;

    (v) Interagency or intra-agency memoranda or letters that would not 

be available by law to a party other than an agency in litigation with 

the agency;

    (vi) Personnel and medical files and similar files the disclosure of 

which would constitute a clearly unwarranted invasion of personal 

privacy;

    (vii) Records or information compiled for law enforcement purposes, 

but only to the extent that the production of such law enforcement 

records or information:

    (A) Could reasonably be expected to interfere with enforcement 

proceedings;

    (B) Could deprive a person of a right to a fair trial or an 

impartial adjudication;

    (C) Could reasonably be expected to constitute an unwarranted 

invasion of personal privacy;

    (D) Could reasonably be expected to disclose the identity of a 

confidential source, including a State, local, or foreign agency or 

authority or any private institution that furnished information on a 

confidential basis;

    (E) Could disclose techniques and procedures for all enforcement 

investigations or prosecutions, or could disclose guidelines for law 

enforcement investigations or prosecutions if such disclosure could 

reasonably be expected to risk circumvention of the law; or

    (F) Could reasonably be expected to endanger the life or physical 

safety of any individual;

    (viii) Contained in or related to examination, operating, or 

condition reports prepared by, on behalf of, or for the use of an agency 

responsible for the regulation or supervision of financial institutions; 

and

    (ix) Geological and geophysical information and data, including 

maps, concerning wells.

    (2) Investigatory records or information. (5 U.S.C. 552(b)(7)).

    (i) Among the documents exempt from disclosure pursuant to paragraph 

(f)(1)(vii) of this section shall be records or information reflecting 

investigations that either are conducted for the purpose of determining 

whether a violation(s) of legal right has taken place, or have disclosed 

that a violation(s) of legal right has taken place, but only to the 

extent that production of such records or information would fall within 

the classifications established in paragraphs (f)(1)(vii)(B) through (F) 

of this section.

    (ii) Among the documents exempt from disclosure under 

paragraphs(f)(1)(vii)(D) and (f)(2)(i) of this section concerning 

confidential sources shall be documents that disclose the fact or the 

substance of a communication made to the Commission in confidence 

relating to an allegation or support of an allegation of wrongdoing by 

certain persons. It is sufficient under this section to indicate the 

confidentiality of the source if the substance of the communication or 

the circumstances of the communication indicate that investigative 

effectiveness could reasonably be expected to be inhibited by 

disclosure.

    (iii) Whenever a request is made that involves access to records 

described in paragraph (f)(1)(vii)(A) of this section and the 

investigation or proceeding involves a possible violation of criminal 

law and there is reason to believe that the subject of the investigation 

or proceeding is not aware of its pendency and disclosure of the 

existence of the records could reasonably be expected to interfere with 

enforcement proceedings, the Commission may, during only such time as 

that circumstance continues, treat the records as not subject to the 

requirements of 5 U.S.C. 552 and this section.

    (3) Any reasonably segregable portion of a record shall be provided 

to any person requesting such record after deletion of the portions that 

are exempt under this section.

    (g) Administrative appeals. (1) These procedures apply whenever a 

requester is denied records under paragraph (d)(2)(i) of this section.

    (2) Parties may appeal decisions under paragraph (d)(2)(i) of this 

section



[[Page 290]]



within 90 days of the date of such decision by filing a written request 

for review addressed to the Staff Director, U.S. Commission on Civil 

Rights, 624 9th Street, NW., Washington, DC 20425, by certified mail, 

including a copy of the written denial, and may include a statement of 

the circumstances, reasons or arguments advanced in support of 

disclosure. Review will be made by the Staff Director on the basis of 

the written record.

    (3) The decision on review of any appeal filed under this section 

shall be in writing over the signature of the Staff Director will be 

promptly communicated to the person requesting review and will 

constitute the final action of the Commission.

    (4) Determinations of appeals filed under this section shall be made 

within 20 working days after the receipt of such appeal. If, on appeal, 

denial of records is in whole or part upheld, the Staff Director shall 

notify the persons making such request of the provisions for judicial 

review of that determination under 5 U.S.C. 552(a)(6).

    (5) An extension of time may be granted under this section pursuant 

to criteria established in paragraph (d)(3)(ii) (A) through (C) of this 

section, except that such extension together with any extension, which 

may have been granted pursuant to paragraph (d)(3)(ii) of this section, 

may not exceed a total of 10 working days.