Legislation News & Report (TM) 

TheWeekInCongress.com (TM)

White House

TheWeekInCongress.com (TM)

Week Ending April 13, 2006

Freedom of Information Act Procedures

Within the White House is the Privacy and Civil Liberties Oversight Board that was created in the Intelligence Reform and Terrorism Prevention Act of 2004 to ensure that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of laws, regulations, and executive branch policies related to efforts to protect the Nation against terrorism. The Board continually reviews anti-terrorism regulations, policies and laws to ensure privacy and civil liberty protections.

The Board has a chairman, vice chairman requiring Senate confirmation and three regular members not needing confirmation.

This final set of regulations defines how individuals can get information from the Board under the Freedom of Information Act.

The Board may be found at  http://www.Privacyboard.gov and reached at 202 456 1240 and at privacyboard@who.eop.gov . There you should find a public file listing copies of grants and denials of appeals.

Requesting records must be done in writing via e-mail, fax or letter with FOIA REQUEST clearly marked on the envelope or cover page. (Remember mail is often delayed up to three weeks for anthrax and other terror-related testing before delivery). The report then contradicts itself saying that the Board does not accept FOIA requests by e-mail.

Requests must reasonably describe the record sought including when known the organization or individual originating the record, subject matter, type of record, location and any other pertinent locating information. Requesters must identify their reason for the request so that an appropriate fee can be levied.

If a request is not reasonably described or requires producing voluminous records to the extent that the operations of the Board would be impacted the requester can be given the opportunity to limit the scope of the request to fit within the required time limit for producing the records.

A request is to be approved or denied expeditiously as must am approval or denial of a portion of the request.

Requestors are in four categories: commercial use requestors, educational and non-commercial scientific institutions, news media and all others.

Fees will be charged for full recoup of allowable costs including the cost to another organization to search, review and produce the document(s). Manual searches will be charged at the employee’s base pay plus 16%. Computer search costs will take into account the employee time as well as the cost of any programs required to do the search.

“Only requestors who are seeking documents for commercial use may be charged for time spent reviewing records to determine whether they are exempt from mandatory disclosure. Charges may be assessed only for the initial review--that is, the review undertaken the first time the Board analyzes the applicability of a specific exemption to a 

particular record or portion of a record.” Records will be duplicated at fifteen cents per page.

Educational institutions and news media would be charged for reproduction only. All others will pay full price.

## All Rights Reserved. © 2007 TheWeekInCongress.com.(TM)

No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)

MORE INFORMATION

Sec.

1000.1 Definitions.

1000.2 Purpose.

1000.3 Authority and functions of Board.

1000.4 Other information.

1000.5 Public reference.

1000.6 How to request records.

1000.7 Initial determination.

1000.8 Response to FOIA request.

1000.9 Administrative appeal.

1000.10 Charges for search, review, and reproduction.

1000.11 Annual report.

    Authority:  Public Law 108-408; 5 U.S.C. 552 et seq.

Freedom of Information Act

Sec.  1000.1  Definitions.

    Agency means Agency as defined in 5 U.S.C. 552(f)(1). The Privacy 

and Civil Liberties Oversight Board shall not be considered as an 

agency for any other purpose, except as referred to in this Regulation, 

and for Freedom of Information Act (FOIA) purposes.

    Board or PCLOB means the Privacy and Civil Liberties Oversight 

Board.

    Calendar Days means all days, including Saturday, Sunday, or 

Federal holidays.

    Commercial Use Request refers to a request from or on behalf of one 

who seeks information for a use or purpose that furthers the 

commercial, trade, or profit interests of the requestor or the person 

on whose behalf the request is made.

    Compelling need means that a failure to obtain requested Records on 

an expedited basis under this paragraph could reasonably be expected to 

pose an imminent threat to the life or physical safety of an 

individual; or with respect to a request made by a person primarily 

engaged in disseminating information, an urgency to inform the public 

concerning actual or alleged Federal Government activity.

    Computer search means the actual direct cost of providing the 

service. This will include the cost of operating the central processing 

unit for that portion of operating time that is directly attributable 

to Searching for potentially responsive records to a FOIA request and 

the portion of the salary of the operators/programmers attributable to 

the search.

    Days means ``work days'' not including Saturday, Sunday, Federal 

holidays, or other days the Board is closed.

    Direct costs means those expenditures that the Board actually 

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

requestors, reviewing) documents to respond to a FOIA request. Direct 

costs include, for

[[Page 17790]]

example, the salary of the employee performing work (the basic rate of 

pay for the employee 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.

    Duplication means the making of a copy of a document, or of the 

information contained in it, necessary to respond to a FOIA request. 

Such copies can take the form of paper, microform, audiovisual 

materials, or electronic Records (e.g., magnetic tape or disk), among 

others.

    Educational institution refers to a preschool, a public or private 

elementary or secondary school, an institution of graduate higher 

education, an institution of undergraduate higher education, an 

institution of professional education, or an institution of vocational 

education that operates a program or programs of scholarly research.

    FOIA means the Freedom of Information Act (5 U.S.C. 552).

    Head of the agency means the Chairman of the Privacy and Civil 

Liberties Oversight Board or the Chairman's designee.

    Non-commercial scientific institution refers to 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.

    Record means a record as defined in 5 U.S.C. 552(f)(2). A Record 

must exist and be in the Board's custody and control at the time of the 

request to be considered subject to this part and FOIA.

    Representative of the news media refers to any person actively 

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

or broadcast news to the public. The term ``news'' means information 

that is about current events or that would be of current interest to 

the public. As traditional methods of news delivery evolve (e.g., 

electronic dissemination of newspapers through telecommunications 

services and Web sites), such media would be included in this category. 

In the case of freelance journalists, they may be regarded as working 

for a news organization if they can demonstrate a solid basis for 

expecting publication through that organization, even though they are 

not actually employed by it.

    Review means the process of examining documents located in response 

to a request that is for a commercial use to determine whether any 

portion of any document located is exempt from release or otherwise 

permitted to be withheld. It also includes processing any documents for 

disclosure (doing all that is necessary to excise them and otherwise 

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

general legal or policy issues regarding the application of exemptions.

    Search means the process of looking for and retrieving records or 

information responsive to a request. It includes page-by-page or line-

by-line identification of information within records and also includes 

reasonable efforts to locate and retrieve information from Records 

maintained in electronic form or format.

Sec.  1000.2  Purpose.

    These regulations describe how the Board implements the 

requirements of the Freedom of Information Act, 5 U.S.C. 552 et seq., 

and the procedures by which records may be obtained from the Board. 

Official records of the Board made available pursuant to FOIA shall be 

furnished to members of the public only pursuant to statute and as 

prescribed in these regulations.

Sec.  1000.3  Authority and functions of Board.

    The Board advises the President and other senior Executive Branch 

officials to ensure that concerns with respect to privacy and civil 

liberties are appropriately considered in the implementation of all 

laws, regulations, and Executive Branch policies related to efforts to 

protect the Nation against terrorism. This includes advising on whether 

adequate guidelines, supervision, and oversight exist to protect these 

important legal rights of all Americans. The Board was established by 

the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 

No. 108-458).

Sec.  1000.4  Other information.

    Additional information regarding the Board, including its members, 

organization, public statements, and relevant legislation, may be 

located on its Web site: http://www.privacyboard.gov.

Sec.  1000.5  Public reference.

    (a) The Board will make available for public inspection a copy of 

all material required to be made public by 5 U.S.C. 552(a)(2), 

including all documents published by the Board in the Federal Register 

and currently in effect. This material will also be available on the 

Board's Web site, http://www.privacyboard.gov.

    (b) In order to view documents maintained pursuant to Sec.  

1000.5(a), members of the public should contact the Board at (202) 456-

1240 or by e-mail at privacyboard@who.eop.gov.

    (c) The FOIA Officer shall also maintain a file open to the public, 

which shall contain copies of all grants or denials of appeals by the 

Board.

    (d) The public may contact the Board's Chief FOIA Officer and the 

Public Liaison by writing to the address listed in Sec.  1000.6(a) or 

by calling (202) 456-1240.

Sec.  1000.6  How to request records.

    (a) A request for records pursuant to FOIA must be submitted in 

writing. An individual may submit a request via mail: FOIA Officer, 

Privacy and Civil Liberties Oversight Board, The White House, 

Washington, DC 20502; or via fax: (202) 456-1066. To ensure prompt 

receipt, the Board recommends sending a request via fax, as security 

procedures may delay requests sent through the mail. The words ``FOIA 

REQUEST'' should be clearly marked on the envelope or cover page, as 

well as on the actual request. The request must contain a means of 

contacting the requestor via mail and via telephone. The Board does not 

accept FOIA requests by e-mail.

    (b) Each request must reasonably describe the record(s) sought, 

including when known: The organization or individual originating the 

Record; subject matter; type of record; location; and any other 

pertinent information which would assist in promptly locating the 

Record. Requests shall also contain a description of their purpose so 

that a determination may be made regarding the appropriate fee 

structure that should be applied to the request. See Sec.  1000.10(i). 

Requests that do not meet these requirements will not be considered a 

proper request.

    (c) When a request is not considered reasonably descriptive, or 

requires the production of voluminous records, or places an 

extraordinary burden on the FOIA Officer or other members of the Board 

staff that would seriously interfere with its normal functioning, the 

Board shall provide the person an opportunity to limit the scope of the 

request so that it may be processed within that time limit or an 

opportunity to arrange with the Board an alternative time frame for 

processing the request or a modified request. Refusal by the person 

reasonably to modify the request or arrange such an alternative time 

frame shall be considered as a factor in determining whether 

exceptional circumstances exist for purposes of 5 U.S.C. 552(a)(6)(C).

[[Page 17791]]

Sec.  1000.7  Initial determination.

    References to the FOIA Officer shall, unless otherwise stated, 

include the FOIA Officer's designee. The FOIA Officer shall have the 

authority to approve or deny requests received pursuant to these 

regulations. The decision of the FOIA Officer shall be final, subject 

only to administrative appeal as provided in Sec.  1000.9.

Sec.  1000.8  Response to FOIA request.

    (a) When a requested record has been identified and is available, 

the FOIA Officer shall notify the person making the request as to where 

and when the record is available for inspection or the copies will be 

available. The notification shall also advise the person making the 

request of any fees pursuant to Sec.  1000.10.

    (b) The FOIA Officer shall approve or deny, in whole or in part, a 

request for Records as soon as reasonably possible. Such a response 

will be given in writing and will occur within 20 days after the 

Officer receives the request. The FOIA Officer may grant or deny a 

portion of a request if it appears that other, separate elements of the 

request will require additional time to complete. Pursuant to 5 U.S.C. 

552(a)(6)(B), the FOIA Officer may extend these time limits by written 

notice to the person making such request. Such written notice shall set 

forth the unusual circumstances for such extension and the date on 

which a determination is expected to be dispatched. Such a notice shall 

not specify a date that would result in an extension for more than 10 

days, except as provided in Sec.  1000.6(c). Additional time may be 

required because:

    (1) It is necessary to search for, collect, and appropriately 

examine a voluminous amount of separate and distinct records which 

are demanded in a single request;

    (2) It is necessary to consult with another organization having 

a substantial interest in the determination of the request or among 

two or more components of the organization having substantial 

subject matter interest therein; or

    (3) For other reasons discussed in 5 U.S.C. 552(a)(6)(B).

    (c) If the request is denied, the written notification to the 

person making the request shall include the names of the individuals 

who participated in the determination, the reasons for the denial, and 

a notice that an appeal may be lodged with the head of the agency 

within 30 calendar days of receipt of the denial or partial denial.

    (d) The FOIA officer may grant expedited consideration of a FOIA 

request or appeal if the requestor shows a compelling need for such 

expedited consideration. The requestor must submit such a request in 

writing. A demonstration of a compelling need by a person making a 

request for expedited processing shall be made by a statement certified 

by such person to be true and correct to the best of such person's 

knowledge and belief. The FOIA officer will respond to such a request 

within 10 days of receipt of the request.

Sec.  1000.9  Administrative appeal.

    Appeals shall be set forth in writing within 30 calendar days of 

receipt of a denial and addressed to the head of the agency via mail or 

fax pursuant to the contact information listed in Sec.  1000.6(a). The 

words ``FOIA APPEAL'' must be clearly marked on the envelope or cover 

page, as well as the actual appeal. The appeal shall include a 

statement explaining the basis for the appeal. Determinations of 

appeals will be set forth in writing and signed by the head of the 

agency, or his designee, within 20 days of receipt of the appeal. If, 

on appeal, the denial is in whole or in part upheld, the written 

determination will also contain a notification of the provisions for 

judicial review, where a challenge may be filed, and the names of the 

persons who participated in the determination.

Sec.  1000.10  Charges for search, review, and reproduction.

    (a) The Board will charge fees that recoup the full allowable 

direct costs it incurs. This may also include costs incurred by another 

organization to search for, review, and produce potentially responsive 

records. Moreover, it shall use the most efficient and least costly 

methods to comply with requests for records made under FOIA.

    (b) With regard to manual searches for records, the Board will 

charge at the salary rate(s) (i.e., basic pay plus 16 percent) of the 

employee(s) making the search.

    (c) In calculating charges for computer searches for records, the 

Board will charge at the actual direct cost of providing the service. 

This will include the cost of operating the central processing unit for 

that portion of operating time that is directly attributable to 

searching for records potentially responsive to a FOIA request and the 

portion of the salary of the operators/programmers attributable to the 

search.

    (d) Only requestors who are seeking documents for commercial use 

may be charged for time spent reviewing records to determine whether 

they are exempt from mandatory disclosure. Charges may be assessed only 

for the initial review--that is, the review undertaken the first time 

the Board analyzes the applicability of a specific exemption to a 

particular record or portion of a record. Records or portions of 

records withheld in full under an exemption that is subsequently 

determined not to apply may be reviewed again to determine the 

applicability of other exemptions not previously considered. The Board 

may assess the costs for such a subsequent review.

    (e) Records will be duplicated at a rate of $.15 per page, except 

that the Board may adjust that rate from time to time by notice 

published in the Federal Register. For copies prepared by computer, 

such as tapes or printouts, the Board shall charge the actual cost, 

including operator time, of production of the tape or printout. For 

other methods of reproduction or duplication, the Board will charge the 

actual direct costs of producing the document(s). If the Board 

estimates that duplication charges are likely to exceed $25, it shall 

notify the requestor of the estimated amount of fees, unless the 

requestor has indicated in advance his willingness to pay fees as high 

as those anticipated. Such a notice shall offer a requestor the 

opportunity to confer with PCLOB personnel with the object of 

reformulating the request to meet his or her needs at a lower cost.

    (f) Remittances shall be in the form either of a personal check or 

bank draft drawn on a bank in the United States, or a postal money 

order. Remittances shall be made payable to the order of the Treasury 

of the United States and mailed to the FOIA Officer, Privacy and Civil 

Liberties Oversight Board, The White House, Washington, DC 20502.

    (g) A receipt for fees paid will be given upon request. Refund of 

fees paid for services actually rendered will not be made.

    (h) With the exception of requestors seeking documents for a 

Commercial Use, the Board will provide the first 100 pages of 

duplication and the first two hours of search time without charge.

    (1) For purposes of these restrictions on assessment of fees, the 

word ``pages'' refers to 8\1/2\'' x 11'' or 11'' x 14'' paper copies. 

Thus, requestors are not entitled to 100 microfiche or 100 computer 

disks, for example. By contrast, a microfiche containing the equivalent 

of 100 pages or 100 pages of computer printout does meet the terms of 

the restriction.

    (2) Similarly, the term ``Search time'' in this context applies to 

a manual search. To apply this term to searches made by computer, the 

Board will determine the hourly cost of operating the central 

processing unit and the

[[Page 17792]]

operator's hourly salary plus 16 percent. When the cost of search 

(including the operator time and the cost of operating the computer to 

process a request) equals the equivalent dollar amount of two hours of 

the salary of the person performing the search, the Board will begin 

assessing charges for computer searches.

    (i) The Board divides FOIA requestors into four categories: 

Commercial use requestors; educational and non-commercial scientific 

institutions; representatives of the news media; and all other 

requestors. The specific levels of fees for each of these categories 

are:

    (1) Commercial use requestors. When the Board receives a request 

for documents for commercial use, it will assess charges that recover 

the full direct costs of searching for, reviewing for release, and 

duplicating the record sought. Requestors must reasonably describe the 

records sought. Commercial use requestors are entitled neither to two 

hours of free search time nor to 100 free pages of reproduction of 

documents. The Board may recover the cost of searching for and 

Reviewing Records even if there is ultimately no disclosure of Records.

    (2) Educational and non-commercial scientific institution 

requestors. The Board shall provide documents to requestors in this 

category for the cost of reproduction alone, excluding charges for the 

first 100 pages. To be eligible for inclusion in this category, 

requestors must show that the request is being made as authorized by 

and under the auspices of a qualifying institution and that the records 

are not sought for a commercial use, but are sought in furtherance of 

scholarly (if the request is from an Educational Institution) or 

scientific (if the request is from a non-commercial scientific 

institution) research. Requestors must reasonably describe the records 

sought.

    (3) Requestors who are representatives of the news media. The Board 

will provide documents to requestors in this category for the cost of 

reproduction alone, excluding charges for the first 100 pages. To be 

eligible for inclusion in this category, a requestor must satisfy the 

definition of representatives of the news media in Sec.  1000.1, and 

his or her request must not be made for a commercial use. In reference 

to this class of requestor, a request for Records supporting the news 

dissemination function of the requestor shall not be considered to be a 

request that is for a commercial use. Requestors must reasonably 

describe the Records sought.

    (4) All other requestors. The Board shall charge requestors who do 

not fit into any of the categories above fees that recover the full 

reasonable Direct Cost of Searching for and reproducing Records that 

are responsive to the request, except that the first 100 pages of 

reproduction and the first two hours of Search time shall be furnished 

without charge. Requestors must reasonably describe the Records sought.

    (j) The Board may assess interest charges on an unpaid bill 

starting on the 31st Calendar Day following the day on which the 

billing was sent. The fact that the fee has been received within the 

thirty Calendar Day grace period, even if the fee has not been 

processed, will suffice to stay the accrual of interest. Interest will 

be at the rate prescribed in section 3717 of title 31 of the United 

States Code and will accrue from the date of the billing.

    (k) The Board may assess charges for time spent searching, even if 

it fails to locate the Records or if Records located are determined to 

be exempt from disclosure. If the Board estimates that Search charges 

are likely to exceed $25, it shall notify the requestor of the 

estimated amount of fees, unless the requestor has indicated in advance 

his willingness to pay fees as high as those anticipated.

    (l) A requestor may not file multiple requests, each seeking 

portions of a document or documents, solely in order to avoid payment 

of fees. When the Board reasonably believes that a requestor, or a 

group of requestors acting in concert, has submitted requests that 

constitute a single request, involving clearly related matters, it may 

aggregate those requests and charge accordingly.

    (m)(1) The Board may not require a requestor to make payment before 

work is commenced or continued on a request, unless:

    (i) The Board estimates or determines that allowable charges that a 

requestor may be required to pay are likely to exceed $250; or

    (ii) A requestor has previously failed to pay a fee charged in a 

timely fashion (i.e., within 30 Days of the date of the billing).

    (2) When the Board acts under paragraph (m)(1)(i) or (ii) of this 

section, the administrative time limits prescribed in FOIA, 5 U.S.C. 

Sec.  552(a)(6) will begin only after the Board has received fee 

payments described in paragraphs (m)(1)(i) and (ii) of this section.

    (n) Fees otherwise chargeable in connection with a request for 

disclosure of a record shall be waived or reduced where it is 

determined that disclosure 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.

Sec.  1000.11  Annual report.

    The FOIA Officer or the FOIA Officer's designee shall annually, on 

or before February 1, submit a FOIA report addressing the preceding 

fiscal year to the Attorney General. The report shall include those 

matters required by 5 U.S.C. 552(e)(1). The Board will make the annual 

report available to the public pursuant to 5 U.S.C. 552(e)(2).

Mark A. Robbins,

Executive Director, Privacy and Civil Liberties Oversight Board.

[FR Doc. E7-5812 Filed 4-9-07; 8:45 am]