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(4) The official authorized to receive tion of radio and video tapes, film, still appeals from denials of FOIA requests photography, exhibits, and other deand to detemine whether to grant or sign materials. The office provides Dedeny such appeals is the Assistant Sec partmental coordination of responses retary for Governmental and Public Af under the Freedom of Information Act fairs, USDA, Washington, DC 20250. and the Privacy Act.
(b) The organization and functions of (ii) The Office of Congressional Relathe Office of the Secretary and the Of tions is responsible for liaison with the fice of Governmental and Public Af Congress and the White House on legisfairs (OGPA) is as follows:
lative matters of concerns to USDA (1) The Office of the Secretary pro and the public. vides the overall policy guidance and (iii) The Office of Intergovernmental direction of the activities of the De Affairs is responsible for liaison with partment of Agriculture. Overall policy State Departments of Agriculture and statements and announcements are other State and local government made from this office.
agencies interested in agricultural pro(2) The Office of the Secretary con grams and policies. sists of the Secretary, Deputy Secretary, Under Secretaries, Assistant
8 1.5 Public access to certain mate
rials. Secretaries, and other staff members.
(3) In the absence of the Secretary (a) In accordance with 5 U.S.C. and the Deputy Secretary, responsibil 552(a)(2), each agency within the Deity for the operation of the Department partment shall make the following maof Agriculture is as delegated at 7 CFR terials available for public inspection part 2, subpart A.
and copying (unless they are promptly (4) The Office of Governmental and published and copies offered for sale): Public Affairs provides policy direc (1) Final opinions, including concurtion, review, and coordination of all in ring and dissenting opinions, as well as formation programs of the Department orders, made in the adjudication of of Agriculture. The Office is assigned cases; responsibility for maintaining the flow (2) Those statements of policy and inof information and providing liaison terpretation which have been adopted between the Department of Agriculture by the agency and are not published in and the Congress, the mass commu the FEDERAL REGISTER; and nication media, State and local govern (3) Administrative staff manuals and ments, and the public.
instructions to staff that affect a mem(5) OGPA is headed by the Assistant ber of the public. Secretary for Governmental and Public (b) Each agency of the Department Affairs. In the Assistant Secretary's shall also maintain and make available absence, the agency is headed by the current indexes providing identifying Assistant Secretary's designee.
information regarding any matter is(6) OGPA consists of three offices: sued, adopted, or promulgated after The Office of Information, Office of July 4, 1967, and required by paragraph Congressional Relations, and the Office (a) of this section to be made available of Intergovernmental Affairs. Each of or published. Each agency shall publish the offices is headed by a director.
and make available for distribution (i) The Office of Information is re copies of such indexes and supplements sponsible for maintaining the flow of thereto at least quarterly, unless it deinformation and providing the liaison termines by notice published in the between USDA and the mass commu FEDERAL REGISTER that publication nication media and the public at large. would be unnecessary and impracticaThe office directs and coordinates pub ble. After issuance of such Notice, the lic affairs work with the various USDA agency shall provide copies of any agencies and has final review of all na index upon request at a cost not to extional news releases, broadcast mate ceed the direct cost of duplication. rials, publications, visuals, and other information materials involving De
g 1.6 Requests for records. partmental policy. The office provides (a) Any person who wishes to inspect leadership and facilities in the produc or obtain copies of any record of any
agency of the Department shall submit a request in writing and address the request to the official designated in regulations promulgated by the agency. The requester may in his or her petition ask for a fee waiver if there is likely to be a charge for the requested information. To inspect or obtain copies of records of the Office of the Secretary or the Office of Governmental and Public Affairs, requesters should submit their requests to the Director of Information, Office of Governmental and Public Affairs, U.S. Department of Agriculture, Washington, DC 20250. All such requests for records shall be deemed to have been made pursuant to the Freedom of Information Act, regardless of whether that Act is specifically mentioned. To facilitate processing of a request, the phrase “FOIA REQUEST” should be placed in capital letters on the front of the envelope.
(b) A request must reasonably describe the records to enable agency personnel to locate them with reasonable effort. Where possible, a requester should supply specific information regarding dates, titles, etc., which may help identify the records. If the request relates to a matter in pending litigation, the court and its location should be identified.
(c) If an agency determines that a request does not reasonably describe the records, it shall inform the requester of this fact and extend the requester an opportunity to clarify the request or to confer promptly with knowledgeable agency personnel to attempt to identify the records he or she is seeking. The “date or receipt” in such instances, for purposes of $1.12(a), shall be the date of receipt of the amended or clarified request.
(d) Nothing in this subpart shall be interpreted to preclude an agency from honoring an oral request for information, but, if the requester is dissatisfied with the response, the agency official involved shall advise the requester to submit a written request in accordance with paragraph (a) of this section. The “date of receipt” of such a request for purposes of $1.12(a) shall be the date of receipt of the written request. For recordkeeping purposes, agency sponding to an oral request for infor
mation may ask the requester to also submit his or her request in writing.
(e) If a request for records or a fee waiver, made under this subpart, is denied, the person making the request shall have the right to appeal the denial. Requesters also may appeal agency determinations of a requester's status for purposes of fee levels under section 5 of appendix A. All appeals must be in writing and addressed to the official designated in regulations promulgated by the agency which denied the request. To facilitate processing of an appeal, the phrase "FOIA APPEAL” should be placed in capital letters on the front of the envelope.
(f) Requests that are nonagency-specific, i.e., are not addressed to a specific agency in USDA, or which pertain to more than one USDA agency, or which are sent to the wrong agency of USDA, should be forwarded to the Department's central processing unit for FOIA in the Office of Governmental and Public Affairs, Office of Information, Special Programs Division, U.S. Department of Agriculture, Washington, DC 20250.
(8) The central processing unit will determine which agency or agencies should process the request, and, where necessary, refer the request to the appropriate agency (agencies). The unit will also, where necessary, notify the requester of the referral and of the name of each agency to which the request has been referred.
(h) Each agency shall develop and maintain a record of all written and oral requests and appeals received in that agency, which shall include, in addition to any other information, the name of the requester, brief summary of the information requested, an indication of whether the request or appeal was denied or partially denied, the exemption(s) for making any denials, and the amount of fees associated with the request or appeal.
8 1.7 Aggregating requests.
When an agency reasonably believes that a requester, or a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the agency may aggregate any such requests and charge
accordingly. One element which may be considered in determining whether such a belief would be reasonable is the time period in which the requests have occurred.
$ 1.8 Agency response to requests for
records. (a) 5 U.S.C. 552(a)(6)(A)(i) provides that each agency of the Department to which a request for records or a fee waiver is submitted in accordance with $1.6(a) shall inform the requester of its determination concerning that request within 10 days of its date of receipt (excepting Saturdays, Sundays, and legal public holidays), plus any extension authorized under $1.14. If the agency determines to grant the request, it shall inform the requester of any conditions surrounding the granting of the request (e.g., payment of fees) and the approximate date upon which compliance will be effected. If it grants only a portion of the request, it shall treat the portion not granted as a denial. If the agency determines to deny the request in part or in whole, it shall immediately inform the requester of that decision and of the following:
(1) The reasons for the denial;
(2) The name and title or position of each person responsible for denial of the request;
(3) The requester's right to appeal such denial and the title and address of the official to whom such appeal is to be addressed; and
(4) The requirement that such appeal be made within 45 days of the date of the denial.
(b) In the event the records requested contain some portions which are exempt from mandatory disclosure and others which are not, the official responding to the request shall insure that all nonexempt portions are disclosed, and that all exempt portions are identified according to the specific exemption or exemptions which are applicable.
(c) If the reason for not fulfilling a request is that the records requested are in the custody of another agency outside USDA, the agency shall inform the requester of this fact and shall forward the request to that agency or Department for processing in accordance with its regulations. If the agency has
no knowledge of requested records or if no records exist, the agency shall notify the requester of that fact.
(d) 5 U.S.C. 552(a)(6)(A)(ii) provides that each agency in the Department to which an appeal of a denial is submitted in accordance with $1.6(e) shall inform the requester of its determination concerning that appeal within 20 days (excepting Saturdays, Sundays, and legal public holidays), plus any extension authorized by $1.14, of its date of receipt. If the agency determines to grant the appeal, it shall inform the requester of any conditions surrounding the granting of the request (e.g., payment of fees) and the approximate date upon which compliance will be effected. If it grants only a portion of the appeal, it shall treat the portion not granted as a denial. If it determines to deny the appeal either in part or in whole, it shall inform the requester of that decision and of the following:
(1) The reasons for denial;
(2) The name and title or position of each person responsible for denial of the appeal; and
(3) The right to judicial review of the denial in accordance with 5 U.S.C. 552(a)(4).
(e) If, in compliance with the request, a charge is to be made in accordance with section 8 of appendix A of this subpart, agencies shall inform the requester of the fee amount and of the basis for the charge. Agencies may, in accordance with section 8 of appendix A of this subpart, require payment of the entire fee, or a portion thereof, or full payment of a delinquent fee plus any applicable interest, before it provides the requested records. In instances where a requester refuses to remit payment in advance, an agency may likewise refuse to process the request with written notice to that effect forwarded to the requester. The “date of receipt” of a request for which advance payment has been required shall be the date that payment is received.
(f) In the event compliance with the request involves inspection of records by the requester rather than the forwarding of copies, the agency response shall include the name, mailing address, and telephone number of the person to be contacted to arrange a mutu
ally convenient time for such inspec fied in section 6 of appendix A) to detion.
termine whether any portion of any (8) Whenever duplication fees, or document located is permitted to be search fees for unsuccessful searches withheld. (see section 4(f) of appendix A), are an (b) Review services include processticipated to exceed $25.00, and the re ing any documents for disclosure, e.g., quester has not indicated, in advance, a doing all that is necessary to excise exwillingness to pay fees as high as those empt portions and otherwise prepare anticipated, agencies shall notify the documents for release. requester of the amount of the antici (c) “Review” does not include time pated fee. Similarly, as a matter of pol spent resolving general legal or policy icy, where an extensive and therefore issues regarding the application of excostly successful search is anticipated, emptions. agencies also should notify requesters of the anticipated fees. The notifica g 1.11 Handling information from tion shall offer the requester the oppor
private business. tunity to confer with agency personnel (a) The USDA is responsible for makto reform the request to meet the re ing the final determination with regard quester's needs at a lower fee. In appro to the disclosure or nondisclosure of inpriate cases, an advance deposit in ac formation submitted by a business. cordance with section 8 of appendix A When, in the course of responding to an may be required.
FOIA request, an agency cannot read
ily determine whether the information 8 1.9 Search services.
obtained from a person is privileged or (a) Search services are services of confidential business information, the agency personnel-clerical or super policy of USDA is to obtain and convisory/professional salary level-used sider the views of the submitter of the in trying to find the records sought by information and to provide the submitthe requester. They include time spent ter an opportunity to object to any deexamining records for the purpose of cision to disclose the information. finding information which is within the Whenever a request (including any “descope of the request. They also include mand” as defined in $1.21) is received services to transport personnel to in USDA for information which has places of record storage, or records to been submitted by a business, all agenthe location of personnel for the pur cies of the Department shall: pose of the search, if such services are (1) Provide the business information reasonably necessary.
submitter with prompt notification of (b) Because of the nature of the De a request for that information (unless partment's business and records, the it is readily determined by the agency normal location of a record in a file or that the information requested should other facility will not be considered a not be disclosed or, on the other hand, search. This would be the same that the information is not exempt by quickly locating a piece of material for law from disclosure); purposes of answering a letter or tele (2) Notify the requester of the need to phone inquiry, and is based on the De inform the submitter of a request for partment's obligation to respond to re submitted business information; quests furnishing a reasonable specific (3) Afford business information subdescription of the record.
mitters time in which to object to the (c) “Search” is distinguished, how disclosure of any specified portion of ever, from “review" of material to de the information. The submitter must termine whether materials are exempt explain fully all grounds upon which from disclosure.
disclosure is opposed. For example, if
the submitter maintains that disclo8 1.10 Review services.
sure is likely to cause substantial (a) Review services are services by harm to its competitive position, the agency personnel-clerical or super submitter must explain item-by-item visory/professional-in examining doc why disclosure would cause such harm. uments located in response to a request Information provided by a business that is for a commercial use (as speci submitter pursuant to this paragraph
may itself be subject to disclosure cluding necessary consultation with under FOIA;
the Department of Justice and coordi(4) Provide business information sub- nation with the Office of Governmental mitters with notice of any determina- and Public Affairs) and render all nection to disclose such records prior to essary assistance to enable the agency the disclosure date, in order that the to respond to the appeal within the admatter may be considered for possible ministrative deadline or any extension judicial intervention; and
thereof. (5) Notify business information submitters promptly of all instances in
81.14 Extension administrative which FOIA requesters bring suit seek
deadlines. ing to compel disclosure of submitted (a) In unusual circumstances as specinformation.
ified in this section, either of the ad(b) [Reserved]
ministrative deadlines prescribed in
$1.8 may be extended by an authorized 8 1.12 Date of receipt of requests or ap- agency official. Written notice of the peals.
extension shall be sent to the requester (a) The date of receipt of a request or within the applicable deadline, setting appeal, which contains the phrase forth the reasons for such extension “FOIA REQUEST” or “FOIA AP- and the date a determination is exPEAL” and is addressed in accordance pected to be dispatched. In no event with applicable agency regulations, shall the extension exceed a total of 10 shall be the date it is received in the working days. office responsible for the administra- (b) As used in this section, "unusual tive processing of FOIA requests or ap- circumstances” shall be limited to the peals.
following: (b) The date of receipt of a request or (1) The need to search for and collect appeal which is hand-delivered to the the requested records from field faciliaddress specified in agency regulations ties or other establishments that are shall be the date of such hand-delivery. separate from the office processing the
(c) The date of receipt of a request or request; appeal which does not comply with (2) The need to search for, collect, paragraphs (a) or (b) of this section and appropriately examine a volumishall be the date it is received by the nous amount of separate and distinct official designated in agency regula- records which are demanded in a single tions to make the applicable deter- request; and mination.
(3) The need for consultation, which
shall be conducted with all practicable 8 1.13 Appeals.
speed, with another Department or (a) Each agency shall provide for re- agency having a substantial interest in view of appeals by an official different the determination of the request or from the official or officials designated among two or more components of the to make initial denials.
agency having substantial subject-mat(b) Each agency, upon a determina- ter interest therein. (Note: consultation that it wishes to deny an appeal, tion regarding policy or legal issues beshall send a copy of the records re- tween an agency and the Office of the quested and of all correspondence re- General Counsel, Office of Governlating to the request to the Assistant mental and Public Affairs, or the DeGeneral Counsel, Research and Oper- partment of Justice is not a basis for ations Division, Office of the General extension under this section.) Counsel. When the volume of records is (c) The 10-day extension authorized so large as to make sending a copy im- by this section may be divided between practicable, the agency shall enclose the initial and appellate reviews, but in
informative summary of those no event shall the total extension exrecords. The agency shall not deny an ceed 10 working days. appeal until it receives concurrence (d) Nothing in this section shall prefrom the Assistant General Counsel. clude the agency and the requester
(c) The Assistant General Counsel from agreeing to an extension of time. shall promptly review the matter (in- Any such agreement should be con