|
[Code of Federal Regulations]
[Title 5, Volume 3, Parts 1200 to
end]
[Revised as of January 1, 1997]
From the U.S. Government Printing
Office via GPO Access
[CITE: 5CFR2502]
[Page 385]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XV--OFFICE OF ADMINISTRATION, EXECUTIVE OFFICE OF THE
PRESIDENT
PART 2502--AVAILABILITY OF RECORDS--Table of Contents
Subpart A--Production or Disclosure of Records Under the
Freedom of Information Act, 5 U.S.C. 552
Sec.
2502.1 Definitions.
2502.2 Purpose
and scope.
2502.3 Organization and
functions.
2502.4 Public reference facilities and current
index.
2502.5 Records of other
Agencies.
2502.6 How to request records--form and
content.
2502.7 Initial determination.
2502.8 Prompt
response.
2502.9 Responses--form and
content.
2502.10 Appeals to the Deputy Director from initial denials.
Charges for Search and Reproduction
2502.11 Definitions.
2502.12 Fees to be
charged--general.
2502.13 Fees to be charged--categories of
requestors.
2502.14 Miscellaneous fee provisions.
2502.15 Waiver or reduction of charges.
2502.16 Information to be disclosed.
2502.17 Exemptions.
2502.18 Deletion of exempted
information.
2502.19 Annual report.
Subpart B--Production in Response to Subpoenas or
Demands of Courts or Other Authorities
2502.30 Purpose and scope.
2502.31 Production
prohibited unless approved by Deputy
Director.
2502.32 Procedure in the event of a demand
for disclosure.
2502.33 Procedure in the event of an adverse
ruling.
Authority: 5 U.S.C. 552, as amended by Pub. L. 93-502 and Pub. L.
99-570.
Source: 45 FR 47112, July 14, 1980, unless otherwise noted.
[Code of Federal Regulations]
[Title 5, Volume 3, Parts 1200 to
end]
[Revised as of January 1, 1997]
From the U.S. Government Printing
Office via GPO Access
[CITE: 5CFR2502]
[Page 385-394]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XV--OFFICE OF ADMINISTRATION, EXECUTIVE OFFICE OF THE
PRESIDENT
PART 2502--AVAILABILITY OF RECORDS--Table of Contents
Subpart A--Production or Disclosure of Records Under the Freedom of
Information Act, 5U.S.C. 552
Sec. 2502.1 Definitions.
- Office or OA means the Office of Administration, Executive Office of
the President;
- Agency means agency as defined in 5 U.S.C. 552(e);
- Workday means those days when the Office is open for the conduct of
government business, and does not include Saturdays, Sundays and legal public
holidays;
- FOIA means Freedom of Information Act, 5 U.S.C. 552, as amended.[45
FR 47112, July 14, 1980, as amended at 49 FR 28233, July 11, 1984]
Sec. 2502.2 Purpose and scope.
This subpart contains the regulations of the Office of Administration,
Executive Office of the President, implementing 5 U.S.C. 552. The regulations
of this subpart describe the procedures by which records may be obtained from
all organizational units within the Office of Administration. Official records
of the Office made available pursuant to the requirements of 5 U.S.C. 552 shall
be furnished to members of the public only as prescribed by this subpart. To
the extent that it is not prohibited by other laws the Office also will make
available records which it is authorized to withhold under 5 U.S.C. 552
whenever it determines that such disclosure is in the public interest.
[45 FR 47112, July 14, 1980. Redesignated at 49 FR 28233, July 11,
1984]
Sec. 2502.3 Organization and functions.
The Office of Administration (OA) was created by Reorganization Plan No.
1 of 1977 and Executive Order 12028. Its primary function is to provide common
administrative and support services for the various agencies and offices of the
Executive Office of the President. It consists of:
- Office of the Director
- Office of the Deputy Director
- Office of the Executive Secretary
- Office of the General Counsel
- Six Directors and their staffs, who are responsible for the following
divisions:
- Administrative Operations
- Facilities Management
- Financial Management
- Information Resources Management
- Library and Information Services
- Personnel Management
The Office has no field organization. Offices are presently located in
the Old Executive Office Building, 17th
[[Page 386]]
and Pennsylvania Avenue NW., 20500, and in the New Executive Office
Building, 725 17th Street NW., Washington, DC 20503. Regular office hours are
from 9:00 a.m. to 5:30 p.m., Monday through Friday. Both buildings are under
security control. Persons desiring access are encourged to make advance
arrangements by telephone with the office they plan to visit.
[49 FR 28233, July 11, 1984; 49 FR 29769, July 24, 1984, as amended at
56 FR 5741 and 5742, Feb. 13, 1991]
Sec. 2502.4 Public reference facilities and current
index.
(a) The Office maintains a public reading area located in the Executive
Office of the President Library, Room G-102, New Executive Office Building, 725
17th Street NW., Washington, DC, and makes available for public inspection and
copying a copy of all material required by 5 U.S.C. 552(a)(2), including all
documents published by OA in the Federal Register and currently in effect.
(b) The FOIA Officer or his or her designee shall maintain files
containing all materials required to be retained by or furnished to the FOIA
Officer under this subpart. The material shall be filed by chronological number
of request within each calendar year, indexed according to the exceptions
asserted, and, to the extent feasible, indexed according to the type of records
requested.
(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
Office.
[49 FR 28233, July 11, 1984, as amended at 56 FR 5742, Feb. 13,
1991]
Sec. 2502.5 Records of other Agencies.
Requests for records that originated in another Agency and are in the
custody of the Office of Administration, will be referred to that Agency for
processing, and the person submitting the request shall be so notified. The
decision made by that Agency with respect to such records will be honored by
the Office of Administration.
[45 FR 47112, July 14, 1980. Redesignated at 49 FR 28233, July 11,
1984]
Sec. 2502.6 How to request records--form and content.
(a) A request made under the FOIA must be submitted in writing,
addressed to: FOIA Officer, Office of Administration, 725 17th Street NW.,
Washington, DC 20503. The words ``FOIA REQUEST'' should be clearly marked on
both the letter and the envelope. Due to security measures at the Old and New
Executive Office Buildings, requests made in person should be delivered to Room
G-1, at the above address.
(b) Any Office employee or official who receives a FOIA Request shall
promptly forward it to the FOIA Officer, at the above address. Any Office
employee or official who receives an oral request made under the FOIA shall
inform the person making the request of the provisions of this subpart
requiring a written request according to the procedures set out herein.
(c) Each request must reasonably describe the record(s) sought,
including when known: Agency/individual originating the record, date, subject
matter, type of document, location, and any other pertinent information which
would assist in promptly locating the record(s).
(d) When a request is not considered reasonably descriptive, or requires
the production of voluminous records, or places an extraordinary burden on the
Office of Administration, seriously interfering with its normal functioning to
the detriment of the business of the Government, the Office may require the
person or agent making the FOIA request to confer with an Office representative
in order to attempt to verify, and, if possible, narrow the scope of the
request.
(e) Upon receipt of the FOIA request, the FOIA Officer will make an
initial determination of which officials and offices may be involved in the
search and reviewing procedures. The FOIA Officer will circulate the request to
all offices so identified and any others the FOIA Officer later determines
should be notified.
[49 FR 28233, July 11, 1984, as amended at 56 FR 5742, Feb. 13,
1991]
[[Page 387]]
Sec. 2502.7 Initial determination.
The General Counsel or his or her designee shall have the authority to
approve or deny requests received pursuant to these regulations. The decision
of the General Counsel shall be final, subject only to administrative review as
provided in Sec. 2502.10.
[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28234,
July 11, 1984; 56 FR 5742, Feb. 13, 1991]
Sec. 2502.8 Prompt response.
(a) The General Counsel or his or her designee shall either approve or
deny a request for records within 10 working days after receipt of the request
unless additional time is required for one of the following reasons:
(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; or
(2) It is necessary to consult with another agency having a substantial
interest in the determination of the request or among two or more components of
the agency having substantial subject matter interest therein.
(b) When additional time is required for one of the reasons stated in
paragraph (a) of this section, the General Counsel or his or her designee shall
acknowledge receipt of the request within the 10 workday period and include a
brief explanation of the reason for the delay, indicating the date by which a
determination will be forthcoming. An extended deadline adopted for one of the
reasons set forth above may not exceed 10 additional workdays.
[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28234,
July 11, 1984]
Sec. 2502.9 Responses--form and content.
(a) When a requested record has been identified and is available, the
General Counsel or his or her designee 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 assessed under Sec. 2502.13 hereof.
(b) A denial or partial denial of a request for a record shall be in
writing signed by the General Counsel or his or her designee and shall include:
(1) The name and title of the person making the determination;
(2) A reference to the specific exemption under the Freedom of
Information Act authorizing the withholding of the record, and a brief
explanation of how the exemption applies to the record withheld; or
(3) A statement that, after diligent effort, the requested records have
not been found or have not been adequately examined during the time allowed by
Sec. 2502.9, and that the denial will be reconsidered as soon as the search or
examination is complete;
(4) A statement that no agency records are responsive to the
request.
(5) A statement that the denial may be appealed to the Deputy Director
within 30 days of receipt of the denial or partial denial.
If a requested record cannot be located from the information supplied,
or is known to have been destroyed or otherwise disposed of, the person making
the request shall be so notified and the legal authority for disposition shall
be cited.
[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28234,
July 11, 1984; 56 FR 5742, Feb. 13, 1991]
Sec. 2502.10 Appeals to the Deputy Director from initial
denials.
(a) When the General Counsel or his or her designee had denied a request
for records in whole or in part, the person making the request may, within 30
days of its receipt, appeal the denial to the Deputy Director. The appeal must
be in writing, addressed to the Deputy Director, Office of Administration, 725
17th Street NW., Washington, DC 20503 and clearly labeled as a ``Freedom of
Information Act Appeal''.
(b) The Deputy Director will act upon the appeal within 20 workdays of
its receipt. The Deputy Director may extend the 20 day period of time by any
number of workdays which could have been claimed and consumed by the General
Counsel or his or her designee under Sec. 2502.9 but which were not claimed and
consumed in making the initial determination. The Office of Administration's
action on an appeal shall be in
[[Page 388]]
writing, signed by the Deputy Director of the Office.
(c) If the decision is in favor of the person making the request, the
Deputy Director shall order records promptly made available to the person
making the request.
(d) A denial in whole or in part of a request on appeal shall set forth
the exemption relied on and a brief explanation of how the exemption applied to
the records withheld and the reasons for asserting it, if different from that
described by the General Counsel or his or her designee under Sec. 2502.10. The
denial shall state that the person making the request may, if dissatisfied with
the decision on appeal, file a civil action in the district in which the person
resides or has his principal place of business, in the district where the
records are located, or in the District of Columbia.
(e) No personal appearance, oral argument or hearing will ordinarily be
permitted in connection with an appeal to the Office of Administration.
(f) On appeal, the Office may reduce any fees previously assessed.
[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28234,
July 11, 1984; 56 FR 5742, Feb. 13, 1991]
Charges for Search and Reproduction
Sec. 2502.11 Definitions.
For the purpose of this part:
(a) All the terms defined in the Freedom of Information Act apply.
(b) A statute specifically providing for setting the level of fees for
particular types of records (5 U.S.C. 552(a)(4)(vi)) means any statute that
specifically requires a government agency, such as the Government Printing
Office (GPO) or the National Technical Information Service (NTIS), to set the
level of fees for particular types of agencies in order to:
(1) Serve both the general public and private sector organizations by
conveniently making available government information;
(2) Ensure that groups and individuals pay the cost of publications and
other services that are for their special use so that these costs are not borne
by the general taxpaying public;
(3) Operate an information dissemination activity on a self-sustaining
basis to the maximum extent possible; or
(4) Return overdue revenue to the Treasury for defraying, wholly or in
part, appropriated funds used to pay the cost of disseminating government
information.
Statutes, such as the User Fee Statute, which only provide a general
discussion of fees without explicitly requiring that an agency set and collect
fees for particular documents do not supersede the Freedom of Information Act
under section (a)(4)(A)(vi) of that statute.
(c) The term direct costs means those expenditures that OA 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
example, the salary of the employee performing the 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.
(d) The term search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line identification
of material within documents. OA employees should ensure that searching for
material is done in the most efficient and least expensive manner so as to
minimize costs for both the agency and the requestor. For example, employees
should not engage in a line-by-line search when merely duplicating an entire
document would prove the least expensive and quicker method of complying with a
request. Search should be distinguished, moreover, from review of material in
order to determine whether the material is exempt from disclosure (see
paragraph (f) of this section). Searches may be done manually or by computer
using existing programming.
(e) The term duplication refers to the process of making a copy of a
document necessary to respond to a FOIA request. Such copies can take the form
of paper copy, microform, audio-visual materials, or machine readable (e.g.
magnetic tape or disk), among others.[[Page 389]]The copy provided must be in a
form that is reasonably usable by the requestors.
(f) The term review refers to the process of examining documents located
in response to a request that is for a commercial use (see paragraph (g) of
this section) to determine whether any portion of any document located is
permitted to be withheld. It also includes processing any documents for
disclosure, (e.g., 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.
(g) The term `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. In determining whether the requestor properly
belongs in this category, OA must determine the use to which a requestor will
put the documents requested. Moreover, where an OA employee has reasonable
cause to doubt the use to which a requestor will put the records sought, or
where that use is not clear from the request itself, the employee should seek
additional clarification before assigning the request to a specific category.
(h) The term 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.
(i) The term non-commercial scientific institution refers to an
institution that is not operated on a commercial basis (as that term is
referenced in paragraph (g) of this section) 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.
(j) The term 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. Examples of
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 and subscription by the general public. These examples
are not intended to be all-inclusive. Moreover, as traditional methods of news
delivery evolve (e.g., electronic dissemination of newspapers through
telecommunications services), such alternative media would be included in this
category. In the case of free lance 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 not actually
employed by it. A publication contract would be the clearest proof, but OA may
also look to the past publication record of a requestor in making this
determination.
[56 FR 5742, Feb. 13, 1991]
Sec. 2502.12 Fees to be charged--general.
OA should charge fees that recoup the full allowable direct costs it
incurs. Moreover, it shall use the most efficient and least costly methods to
comply with requests for documents made under the FOIA. When documents that
would be responsive to a request are maintained for distribution by agencies
operating statutory-based fee schedule programs (see definition in Sec.
2502.11(b)), such as the NTIS, OA should inform requestors of the steps
necessary to obtain records from those sources.
(a) Manual searches for records. OA will charge at the salary rate(s)
(i.e., basic pay plus 16 percent) of the employee(s) making the search.
(b) Computer searches for records. OA will charge at the actual direct
cost of providing this 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 responsive to a FOIA request and
operator/programmer salary apportionable to the search.
[[Page 390]]
(c) Review of records. 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; i.e., the review undertaken the first time OA 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 costs for
such a subsequent review are assessable.
(d) Duplication of records. Records will be duplicated at a rate of $.15
per page. For copies prepared by computer such as tapes or printouts, OA shall
charge the actual cost, including operator time, of production of the tape or
printout. For other methods of reproduction or duplication, OA will charge the
actual direct costs of producing the document(s). If OA estimates that
duplication charges are likely to exceed $25.00, 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 agency personnel with the
object of reformulating the request to meet his or her needs at a lower
cost.
(e) Other charges. OA will recover the full costs of providing services
such as those enumerated below when it elects to provide them:
(1) Certifying that records are true copies;
(2) Sending records by special methods such as express mail.
(f) Remittances shall be in the form 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 or delivered to the FOIA Officer, Office of Administration, 725 17th
Street, NW., Washington, DC 20503.
(g) A receipt for fees paid will be given upon request. Refund of fees
paid for services actually rendered will not be made.
(h) Restrictions on assessing fees. With the exception of requestors
seeking documents for a commercial use, OA will provide the first 100 pages of
duplication and the first two hours of search time without charge. Moreover, OA
will not charge fees to any requestor, including commercial use requestors, if
the cost of collecting a fee would be equal to or greater than the fee
itself.
(1) The elements to be considered in determining whether the ``cost of
collecting a fee'' are the administrative costs of receiving and recording a
requestor's remittance, and processing the fee for deposit in the Treasury
Department's special account.
(2) For purposes of these restrictions on assessment of fees, the word
``pages'' refers to copies of ``8\1/2\ x 11'' or ``11 x 14.'' Thus, requestors
are not entitled to 100 microfiche or 100 computer disks, for example. A
microfiche containing the equivalent of 100 pages or 100 pages of computer
printout does meet the terms of the restriction.
(3) Similarly, the term ``search time'' in this context has as its
basis, manual search. To apply this term to searches made by computer, OA will
determine the hourly cost of operating the central processing unit and the
operator's hourly salary plus 16 percent. When the cost of a search (including
the operator time and the cost of operating the computer to process the
request) equals the equivalent dollar amount of two hours of the salary of the
person performing the search, i.e., the operator, OA will begin assessing
charges for a computer search.
[56 FR 5742, Feb. 13, 1991]
Sec. 2502.13 Fees to be charged--categories of
requestors.
There are four categories of FOIA requestors: 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:
(a) Commercial use requestors. When OA 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[[Page 391]]describe the records sought. Commercial
use requestors are not entitled to two hours of free search time nor 100 free
pages of reproduction of documents. OA may recover the cost of searching for
and reviewing records even if there is ultimately no disclosure of records (see
Sec. 2502.14).
(b) Educational and non-commercial scientific institution requestors. OA
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 education institution) or
scientific (if the request is from a non-commercial scientific institution)
research. Requestors must reasonably describe the records sought.
(c) Requestors who are representatives of the news media. OA 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, a requestor must meet the criteria in Sec. 2502.11(j), and
his or her request must not be made for commercial use. In reference to this
class of requestors 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.
(d) All other requestors. OA 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 the records that are responsive to the
request, except that the first 100 pages and the first two hours of search time
shall be furnished without charge. Moreover, requests for records about the
requestors filed in OA's system of records will continue to be treated under
the fee provisions of the Privacy Act of 1974 which permit fees only for
reproduction. Requestors must reasonably describe the records sought.
[56 FR 5742, Feb. 13, 1991]
Sec. 2502.14 Miscellaneous fee provisions.
(a) Charging interest--notice and rate. OA may begin assessing interest
on an unpaid bill starting on the 31st day of the month following the date on
which billing was sent. The fact that the fee has been received by OA within
the thirty day grace period, even if not 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 billing.
(b) Charges for an unsuccessful search. OA 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 OA estimates that search
charges are likely to exceed $25.00, 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
the requestor the opportunity to confer with agency personnel with the object
of reformulating the request to meet his or her needs at a lower cost.
(c) Aggregation results. A requestor may not file multiple requests at
the same time, each seeking portions of a document or documents solely in order
to avoid payment of fees. When OA reasonably believes that a requestor, or on
rare occasions, a group of requestors acting in concert is attempting to break
a request down into a series of requests for the purpose of evading the
assessment of fees, OA may aggregate any such request and charge accordingly.
One element to be considered in determining whether a belief would be
reasonable is the time period over which the requests have occurred.
(d) Advance payments. OA may not require a requestor to make an advance
payment, i.e., payment before work is commenced or continued on a request
unless:
(1) OA estimates or determines that allowable charges that a requestor
may be required to pay are likely to exceed $250.00. Then, OA will notify the
requestor of the likely cost and obtain satisfactory assurance of full payment
where the requestor has a history of prompt payment of FOIA fees, or require an
advance payment of an
[[Page 392]]
amount up to the full estimated charges in the case of requestors with
no history of payment; or
(2) A requestor has previously failed to pay a fee charged in a timely
fashion (i.e., within thirty days of the date of the billing). OA may require
the requestor to pay the full amount owed plus any applicable interest as
provided above or demonstate that he or she has in fact paid the fee, and to
make an advance payment of the full amount of the estimated fee before the
agency begins to process a new request, or a pending request from that
requestor.
When OA acts under paragraph (d) (1) or (2) of this section, the
administrative time limits prescribed in the FOIA, 5 U.S.C. 552(a)(6) (i.e.,
ten working days from receipt of initial request and 20 working days from
receipt of appeals from initial denial, plus permissible extensions of these
time limits) will begin only after OA has received fee payments described
above.
(e) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). OA
should comply with the provisions of the Debt Collection Act, including
disclosure to consumer reporting agencies and use of collection agencies, where
appropriate, to encourage repayment.
[56 FR 5744, Feb. 13, 1991]
Sec. 2502.15 Waiver or reduction of charges.
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.
[56 FR 5744, Feb. 13, 1991]
Sec. 2502.16 Information to be disclosed.
(a) In general, all records of the Office of Administration are
available to the public, as required by the Freedom of Information Act.
However, the Office claims the right, where it is applicable, to withhold
material under the provisions specified in the Freedom of Information Act as
amended (5 U.S.C. 552(b)).
(b) Records from Non-U.S. Government Source. (1) Upon receipt of a
request for a record that was obtained from a non-U.S. Government source, or
for a record containing information clearly identified as having been provided
by a non-U.S. Government source, including a contract proposal or contract
material, the Office will contact the source of the requested record or
information requesting advice as to whether release of the record would
adversely affect the source's competitive position or invade anyone's privacy.
Subsequent to receipt of such advice, the Office will independently examine the
requested document and will notify the requester of the final decision.
(2) OA personnel will generally consider two exemptions in the FOIA in
deciding whether to withhold from disclosure material from a non-U.S.
Government source. Exemption 4 permits withholding of ``trade secrets and
commercial or financial information obtained from a person and privileged or
confidential.'' Exemption 6 permits withholding certain information, the
disclosure of which ``would constitute a clearly unwarranted invasion of
personal privacy.'' The source whose material has been requested will be asked
to supply convincing justification for any material it wishes withheld under
the Act, in accordance with the following general guidelines.
(i) For consideration under exemption 4, the supplier of the record or
information should identify material that would be likely to cause substantial
harm to its present or future competitive position if it were released. If a
contractor, the provider should assume that the material will be released to a
competitor, even if that is not always the case. A contractor must provide
detailed information on why release would be harmful, e.g., the general custom
or usage in the business; the number and situation of the persons who have
access to the information; the type and degree of risk of financial injury that
release would cause; and the length of time the information will need to be
kept confidential.
(A) In this respect, the Office of Administration will--as a general
rule--look favorably upon recommendations for withholding information
about[[Page 393]]ideas, methods, and processes that are unique; about
equipment, materials, or systems that are potentially patentable; or about a
unique use of equipment which is specifically outlined.
(B) OA will not withhold information that is known through custom or
usage in the relevant trade, business, or profession, or information that is
generally known to any reasonably educated person. Self-evident statements or
reviews of the general state of the art will not ordinarily be withheld.
(C) OA will withhold all cost data submitted except the total estimated
cost for each year of the contract. Where appropriate, OA will release unit
pricing data except where that information would disclose confidential
information such as profit margins. It will release these total estimated costs
and ordinarily release explanatory material and headings associated with the
cost data, withholding only the figures themselves. If a contractor believes
some of the explanatory material should be withheld, that material must be
identified and a justification be presented as to why it should not be
released.
(ii) Exemption 6 is not a blanket exemption for all personal
information. The Office will balance the need to keep a person's private
affairs from unnecessary public scrutiny with protection of the public's right
to information on Government records.
(A) As a general practice, the Office will release information about any
person named in a contract itself or about any person who signed a contract as
well as information given in a proposal about any officer of a corporation
submitting that proposal. Except for names and other identifying details, the
Office usually releases all information in resumes concerning employees,
including education and experience. Efforts will be made to identify
information that should be deleted and offerors are urged to point out such
material for guidance. Any information in the proposal which might constitute
an unwarranted invasion of personal privacy if released should be identified
and a justification for non-release provided in order to receive proper
consideration.
(B) The Office can protect the names of and identifying details about
other staff members who are described in a contract proposal if it is clear
that identification of these employees would assist competitors in raiding and
hiring them away. In this regard, names and other identifying details could be
protected under Exemption 4 (harmful to competitive position) and also under
Exemption 6 (it would be an unwarranted invasion of personal privacy to release
them). In such a case, the Office would withhold names, home addresses,
salaries, telephone numbers, social security numbers, marital status and, if
these served to identify them, perhaps some details about past employment or
professional activities of these persons.
[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28234,
July 11, 1984. Redesignated and amended at 56 FR 5744, Feb. 13, 1991]
Sec. 2502.17 Exemptions.
(a) 5 U.S.C. 552 exempts from all of its publication and disclosure
requirements nine categories of records which are described in 552(b). These
categories include such matters as national defense and foreign policy
information, investigatory files, internal procedures and communications,
materials exempted from disclosure by other statutes, information given in
confidence and matters involving personal privacy.
(b) Executive Order 12028 (December 4, 1977) provides that the Office of
Administration shall upon request, assist the White House office in performing
its role of providing those administrative services which are primarily in
direct support of the President. Due to this role of providing direct support
of the President, members of the public should presume that communications
between the Director of the Office of Administration and the President (and
their staffs) are confidential or ordinarily will not be released; they will
usually fall, at a minimum, within Exemption 5 of the Act.
(c) The records of the Office of Administration which are part of
systems of records subject to the Privacy Act of 1974 are exempt from
disclosure to the
[[Page 394]]
public except as provided by 5 CFR part 2504.
[45 FR 47112, July 14, 1980. Redesignated at 49 FR 28235, July 11, 1984,
and further redesignated at 56 FR 5744, Feb. 13, 1991]
Sec. 2502.18 Deletion of exempted information.
Where requested records contain matters which are exempted under 5
U.S.C. 552(b) but which matters are reasonably segregable from the remainder of
the records, they shall be disclosed by the Office with deletions. To each such
record, the Office shall attach a written justification for making deletions. A
single such justification shall suffice for deletions made in a group of
similar or related records.
[45 FR 47112, July 14, 1980. Redesignated at 49 FR 28235, July 11, 1984,
and further redesignated 56 FR 5744, Feb. 13, 1991]
Sec. 2502.19 Annual report.
The General Counsel or his or her designee shall annually on or before
March 1, submit a Freedom of Information report covering the preceding calendar
year to the Speaker of the House of Representatives and President of the
Senate. The report shall include those matters required by 5 U.S.C. 552(d).
[45 FR 47112, July 14, 1980. Redesignated and amended at 49 FR 28235,
July 11, 1984. Redesignated at 56 FR 5744, Feb. 13, 1991]
[Code of Federal Regulations]
[Title 5, Volume 3, Parts 1200 to
end]
[Revised as of January 1, 1997]
From the U.S. Government Printing
Office via GPO Access
[CITE: 5CFR2502]
[Page 394-395]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XV--OFFICE OF ADMINISTRATION, EXECUTIVE OFFICE OF THE
PRESIDENT
PART 2502--AVAILABILITY OF RECORDS--Table of Contents
Subpart B--Production in Response to Subpoenas or Demands of Courts
or Other Authorities
Sec. 2502.30 Purpose and scope.
This subpart contains the regulations of the Office concerning
procedures to be followed when a subpoena, order or other demand (hereinafter
in this subpart referred to as a ``demand'') of a court or other authority is
issued for the production or disclosure of: (a) Any material contained in the
files of the Office of Administration; (b) Any information relating to
materials contained in the files of the Office; or (c) Any information or
material acquired by any person while such person as an employee of the Office
of Administration as a part of the performance of his official duties or
because of his official status. Sec. 2502.31 Production prohibited
unless approved by the Deputy Director. No employee or former employee
of the Office of Administration shall, in response to a demand of a court or
other authority, produce any material contained in the files of the Office of
Administration or disclose any information or produce any material acquired as
part of the performance of his official status without the prior approval of
the Deputy Director. [45 FR 47112, July 14, 1980, as amended at 56 FR 5744, Feb.
13, 1991] Sec. 2502.32 Procedure in the event of a demand for
disclosure. (a) Whenever a demand is made upon an employee or former
employee of the Office of Administration for the production of material or the
disclosure of information described in Sec. 2502.31, he shall immediately
notify the Deputy Director. If possible, the Deputy Director shall be notified
before the employee or former employee concerned replies to or appears before
the court or other authority. (b) If response to the demand is required before
instructions from the Deputy Director are received, an attorney designated for
that purpose by the Office of Administration shall appear with the employee or
former employee upon whom the demand has been made, and shall furnish the court
or other authority with a copy of the regulations contained in this part and
inform the court or other authority that the demand has been or is being, as
the case may be, referred for prompt consideration by the Deputy Director. The
court or other authority shall be requested respectfully to stay the demand
pending receipt of the requested instructions from the Deputy Director. [45 FR
47112, July 14, 1980, as amended at 56 FR 5744, Feb. 13, 1991] Sec.
2502.33 Procedure in the event of an adverse ruling. If the court or
other authority declines to stay the effect of the demand in response to a
request made in accordance with Sec. 2502.32(b) pending receipt of instructions
from the Deputy [[Page 395]] Director, or if the court or other authority rules
that the demand must be complied with irrespective of the instructions from the
Deputy Director not to produce the material or disclose the information sought,
the employee or former employee upon whom the demand has been made shall
respectfully decline to comply with the demand. (United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951)). [45 FR 47112, July 14, 1980, as amended at 56 FR
5744, Feb. 13, 1991] | 
