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(5) Determine which of the requested records legally must be withheld, and why (see $ 2.119(b));

(6) Of the requested records which are exempt from mandatory disclosure but which legally may be disclosed (see § 2.119(a)), determine which records will be withheld, and why;

(7) Issue all initial determination within the allowed period (see $2.112), specifying (individually or by category) which records will be disclosed and which will be withheld, and signed by a person authorized to issue the determination under $2.113(b). Denials of requests shall comply with $ 2.113; and

(8) Furnish the appropriate Freedom of Information Officer a copy of the determination. If the determination denied a request for one or more existing, located records, the responding office shall also furnish the Freedom of Information officer the name, address, and telephone number of the EPA employee(s) having custody of the records, and shall maintain the records in a manner permitting their prompt forwarding to the General Counsel upon request if an appeal from the initial denial is filed. See also $ 2.204(f).

(b) If it appears that some or all of the requested records are not in the possession of the EPA office which has been assigned responsibility for responding to the request but may be in the possession of some other EPA office, the Freedom of Information officer who is monitoring the request shall be so informed immediately.

(c) In determining which records are responsive to a request, the EPA office responding shall ordinarily include those records within the Agency's possession as of the date of the Agency's receipt of the request.

(d) When a request for EPA records encompasses records of another Federal agency, the EPA office shall either: (1) Respond to the request after consulting with the originating agency when appropriate or; (2) promptly transfer responsibility for responding to the request to the originating agency provided that the other agency is subject to the FOIA. Whenever the EPA office refers a request to another agency, it shall notify the requestor of the referral.

ficer (whether at HPA Headquarters or at an EPA region) shall mark the request with the date of receipt, and shall attach to the request a control slip indicating the date of receipt, the date by which response is due, a unique Request Identification Number, and other pertinent administrative information. The request and control slip shall then be forwarded immediately to the EPA office believed to be responsible for maintaining the records requested. (If the records requested are believed to be located at two or more EPA offices, each such office shall be furnished a copy of the request and control slip, with instructions concerning which office shall serve as the lead office for coordinating the response.) The Freedom of Information Officer shall retain a file copy of the request and control slip, and shall monitor the handling of the request to ensure a timely response.

(b) The Freedom of Information Of. ficer shall maintain a file concerning each request received, which shall contain a copy of the request, initial and appeal determinations, and other pertinent correspondence and records.

(c) The Freedom of Information officer shall collect and maintain the information necessary to compile the reports required by 5 U.S.C. 552(d).

8 2.111 Action by office responsible for re

sponding to request. (a) Whenever an EPA office becomes aware that it is responsible for responding to a request, the office shall:

(1) Take action under $ 2.109, if required, to obtain a better description of the records requested;

(2) Locate the records as promptly as possible, or determine that the records are not known to exist, or that they are located at another EPA office, or that they are located at another Federal agency and not possessed by EPA;

(3) When appropriate, take action under $ 2.120(c) to obtain payment or assurance of payment;

(4) If any located records contain business information, as defined in § 2.201(c), comply with Subpart B of this part;

(41 FR 36902, Sept. 1, 1976, as amended at and the date by which the office ex50 FR 51659, Dec. 18, 1985)

pects to be able to issue a determina

tion. The period may be so extended 8 2.112 Time allowed for issuance of ini.

only when absolutely necessary, only tial determination.

for the period required, and only when (a) Except as otherwise provided in one or more of the following unusual this section, not later than the tenth circumstances require the extension: working day after the date of receipt (1) There is a need to search for and by & Freedom of Information Office of collect the requested records from & request for records, the EPA office field facilities or other establishments responsible for responding to the re that are separate from the office procquest shall issue & written determina essing the request: tion to the requestor stating which of (2) There is a need to search for, colthe requested records will, and which lect, and appropriately examine a vowill not be released and the reason for luminous amount of separate and disany denial of a request. If the records tinct records which are demanded in a are not known to exist or are not in

single request; or EPA's possession, the EPA office shall

(3) There is a need for consultation, so inform the requestor. To the extent

which shall be conducted with all requested records which are in EPA's

practicable speed, with another agency possession are published by the Feder

having a substantial interest in the deal government, the response may termination of the request or among inform the requestor that the records

two or more components of EPA. are available for inspection and where

(f) Failure of EPA to issue a determicopies can be obtained.

nation within the 10-day period or any (b) The period of 10 working days authorized extension shall constitute shall be measured from the date the

final agency action which authorizes request is first received and logged in

the requestor to commence an action by the Headquarters or regional Free

in an appropriate Federal district dom of Information Office.

court to obtain the records. (c) There shall be excluded from the period of 10 working days (or any ex

(41 FR 36902, Sept. 1, 1976, as amended at tension thereof) any time which

50 FR 51659, Dec. 18, 1985) elapses between the date that a re

8 2.113 Initial denials of requests. questor is notified by EPA under $ 2.109 that his request does not rea

(a) An initial denial of a request may sonably identify the records sought, be issued only for the following reaand the date that the requestor fur sons: nishes a reasonable identification.

(1) A statutory provision, provision (d) There shall be excluded from the of this part, or court order requires period of 10 working days (or any ex that the information not be disclosed; tension thereof) any time which (2) The record is exempt from manelapses between the date that a re datory disclosure under 5 U.S.C. 552(b) questor is notified by EPA under and EPA has decided that the public § 2.120 that prepayment or assurance interest would not be served by discloof payment of fees is required, and the sure; or date that the requestor pays (or makes (3) Section 2.204(d)(1) requires inisuitable arrangements to pay) such tial denial because a third person must charges.

be consulted in connection with a busi(e) The EPA office taking action ness confidentiality claim. under $ 2.111, after notifying the ap (b) The Deputy Administrator, Aspropriate Freedom of Information sistant Administrators, Regional AdOffice, may extend the basic 10-day ministrators, the General Counsel, the period established under subsection Inspector General, Associate Adminis(a) of this section by a period not to trators, and heads of headquarters exceed 10 additional working days, by staff offices are delegated the authorfurnishing written notice to the re ity to issue initial determinations This questor within the basic 10-day period authority may be redelegated; Providstating the reasons for such extension ed, That the authority to issue initial

of the determination. An initial determination which only denies the existence of records, however, will not include a notice of appeal rights.

(g) A determination shall be deemed issued on the date the determination letter is placed in EPA mailing channels for first class mailing to the requestor, delivered to the U.S. Postal Service for mailing, or personally delivered to the requestor, whichever date first occurs. (41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51659, Dec. 18, 1985; 53 FR 216, Jan. 5, 1988)

denials of requests for existing, located records (other than denials based solely on & 2.204(d)(1)) may be redelegated only to persons occupying positions not lower than division director or equivalent.

(c) [Reserved)

(d)(1) Each initial determination to deny a request shall be written, signed, and dated, and, except as provided in paragraph (d)(2), shall contain a reference to the Request Identification Number, shall identify the records that are being withheld (individually, or, if the denial covers a large number of similar records, by described category), and shall state the basis for denial for each record or category of records being withheld.

(2) No initial determination shall reveal the existence or nonexistence of records if identifying the mere fact of the existence or nonexistence of those records would reveal confidential business information, confidential personal information or classified national security information. Instead of identifying the existence or nonexistence of the records, the initial determination shall state that the request is denied because either the records do not exist or they are exempt from mandatory disclosure under the applicable provision of 5 U.S.C. 552(b). No such determination shall be made without the concurrence of the General Counsel or his designee. The General Counsel has designated the Contracts and Information Law Branch to act on these requests for concurrence. See $ 2.121 for guidance on initial determinations denying, in limited circumstances, the existence of certain law enforcement records or information.

(e) If the decision to deny a request is made by an authorized EPA employee other than the person signing the determination letter, that other person's identity and position shall be stated in the determination letter.

(f) Each initial determination which denies, in whole or in pa request for one or more existing, located EPA records (including determinations described in $ 2.113(d)(2) of this section) shall state that the requester may appeal the initial denial by sending a written appeal to the address shown in $ 2.106(a) within 30 days after receipt

8 2.114 Appeals from initial denials;

manner of making. (a) Any person whose request for one or more existing, located EPA records has been denied in whole or in part by an initial determination may appeal that denial by addressing a written appeal to the address shown in $ 2.106(a).

(b) An appeal should be mailed no later than 30 calendar days after the date the requestor received the initial determination on the request. An untimely appeal may be treated either as a timely appeal or as a new request, at the option of the Freedom of Information Officer.

(c) The appeal letter shall contain a reference to the Request Identification Number(RIN), the date of the initial determination, and the name and address of the person who issued the initial denial. The appeal letter shall also indicate which of the records to which access was denied are the subjects of the appeal. (41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51659, Dec. 18, 1985)

8 2.115 Appeal determinations; by whom

made. (a) The General Counsel shall make one of the following legal determinations in connection with every appeal from the initial denial of a request for an existing, located record:

(1) The record must be disclosed;

(2) The record must not be disclosed, because a statute or a provision of this part so requires; or

(3) The record is exempt from mandatory disclosure but legally may be

disclosed as a matter of Agency discre- denial determination shall also state tion.

the name and position of each EPA of(b) Whenever the General Counsel ficer or employee who directed that has determined under paragraph the appeal be denied. Such a determi. (a)(3) of this section that a record is nation shall further state that the exempt from mandatory disclosure person whose request was denied may but legally may be disclosed, and the obtain de novo judicial review of the record has not been disclosed by EPA denial by complaint filed with the disunder 5 U.S.C. 552, the matter shall be trict court of the United States in the referred to the Assistant Administra- district in which the complainant retor for External Affairs. If the Assist- sides, or has his principal place of ant Administant Administrator deter

business, or in which the Agency mines that the public interest would records are situated, or in the District not be served by disclosure, a determi- of Columbia, pursuant to 5 U.S.C. nation denying the appeal shall be 552(a)(4). issued by the General Counsel. If the

(b) No determination denying an Assistant Administrator determines

appeal shall reveal the existence or that the public interest would be

nonexistence of records if identifying served by disclosure, the record shall

the mere fact of the existence or nonbe disclosed unless the Administrator

existence of those records would (upon a review of the matter request

reveal confidential business informaed by the appropriate Assistant Ad

tion, confidential personal information ministrator, Associate Administrator,

or classified national security informaRegional Administrator, the General Counsel, or the head of a headquar

tion. Instead of identifying the exist

ence or nonexistence of the records, ters staff office) determines that the

the determination shall state that the public interest would not be served by

appeal is denied because either the disclosure, in which case the General

records do not exist or they are Counsel shall issue a determination

exempt from mandatory disclosure denying the appeal. This review by the Assistant Administrator for External

under the applicable provision of 5 Affairs shall not apply to appeals from

U.S.C. 552(b). inital determinations by the Office of (53 FR 217, Jan. 5, 1988) Inspector General to deny requests.

(c) The General Counsel may dele- 8 2.117 Time allowed for issuance of gate his authority under paragraph (a) appeal determination. of this section to a Regional Counsel, (a) Except as otherwise provided in or to any other attorney employed on this section, not later than the twentia full-time basis by EPA, in connection

eth working day after the date of rewith any category of appeals or any ceipt by the Freedom of Information individual appeal.

Officer at EPA Headquarters of an (d) The Assistant Administrator for

appeal from an initial denial of a reExternal Affairs may delegate the au

quest for records, the General Counsel thority under paragraph (b) of this

shall issue a written determination section to the Deputy Assistant Ad

stating which of the requested records ministrator for External Affairs.

(as to which an appeal was made) shall (41 FR 36902, Sept. 1, 1976, as amended at be disclosed and which shall not be 50 FR 51659, Dec. 18, 1985)

disclosed.

(b) The period of 20 working days 8 2.116 Contents of determination denying shall be measured from the date an appeal.

appeal is first received by the Freedom (a) Except as provided in paragraph of Information Officer at EPA Head(b) of this section, each determination quarters, except as otherwise provided denying an appeal from an initial in $ 2.205(a). denial shall be in writing, shall state (c) The Office of General Counsel, which of the exemptions in 5 U.S.C. after notifying the Freedom of Infor552(b) apply to each requested exist- mation Officer at EPA Headquarters, ing record, and shall state the may extend the basic 20-day period esreason(s) for denial of the appeal. A tablished under subsection (a) of this

section by a period not to exceed 10 (1) Requires that the matters be additional working days, by furnishing withheld from the public in such a written notice to the requestor within manner as to leave no discretion on the basic 20-day period stating the rea the issue, or sons for such extension and the date (11) Establishes particular criteria for by which the office expects to be able withholding or refers to particular to issue a determination. The period types of matters to be withheld; may be so extended only when abso (4) Trade secrets and commercial or lutely necessary, only for the period financial information obtained from a required, and only when one or more person and privileged or confidential of the following unusual circum (see Subpart B); stances require the extension:

(5) Interagency or intra-agency (1) There is a need to search for and memorandums or letters which would collect the records from field facilities not be available by law to a party or other establishments that are sepa other than an agency in litigation with rate from the office processing the

the agency; appeal;

(6) Personnel and medical files and (2) There is a need to search for, col similar files the disclosure of which lect, and appropriately examine a vo would constitute a clearly unwarrantluminous amount of separate and dis ed invasion of personal privacy; tinct records which are demanded in a (7)(i) Records or information comsingle request; or

piled for law enforcement purposes, (3) There is a need for consultation, but only to the extent that the prowhich shall be conducted with all duction of such law enforcement practicable speed, with another agency records or information: having a substantial interest in the de

(A) Could reasonably be expected to termination of the request or among interfere with enforcement proceedtwo or more components of EPA.

ings; (d) No extension of the 20-day (B) Would deprive a person of a period shall be issued under subsection right to a fair trial or an impartial ad(c) of this section which would cause judication; the total of all such extensions and of

(C) Could reasonably be expected to any extensions issued under $2.112(e)

constitute an unwarranted invasion of to exceed 10 working days.

personal privacy; 8 2.118 Exemption categories.

(D) Could reasonably be expected to

disclose the identity of a confidential (a) 5 U.S.C. 552(b) establishes nine source, including a State, local, or forexclusive categories of matters which eign agency or authority or any priare exempt from the mandatory dis vate institution which furnished inforclosure requirements of 5 U.S.C. mation on a confidential basis, and, in 552(a). No request under 5 U.S.C. 552 the case of a record or information for an existing, located record in compiled by a criminal law enforceEPA's possession shall be denied by ment authority in the course of a any EPA office or employee unless the criminal investigation, or by an agency record contains (or its disclosure conducting a lawful national security would reveal) matters that are

intelligence investigation, information (1) Specifically authorized under cri furnished by a confidential source; teria established by an Executive (E) Would disclose techniques and Order to be kept secret in the interest procedures for law enforcement invesof national defense or foreign policy tigations or prosecutions, or would disand are in fact properly classified pur close guidelines for law enforcement suant to such Executive Order;

investigations or prosecutions if such (2) Related solely to the internal disclosure could reasonably be expectpersonnel rules and practices of an ed to risk circumvention of the law; or agency;

(F) Could reasonably be expected to (3) Specifically exempted from dis endanger the life or physical safety of closure by statute (other than 5 U.S.C. any individual. 552(b)); Provided, That such statute: (il) (Reserved)

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