III--OFFICE OF MANAGEMENT AND BUDGET
1303--PUBLIC INFORMATION PROVISIONS OF THE
ADMINISTRATIVE PROCEDURES ACT
Authority and functions.
Access to information.
Inspection and copying.
for Search and Reproduction
Fees to be charged--general.
Fees to be charged--categories of requesters.
Miscellaneous fee provisions.
Waiver or reduction of charges.
is furnished for the guidance of the public and in compliance with the
requirements of section 552 of title 5, United States Code, as amended.
1303.2 Authority and functions.
functions of the Office of Management and Budget, as provided by statute
and executive order, are to develop and execute the budget, oversee implementation
of Administration policies and programs, advise and assist the President,
and develop and implement management policies for the government.
brief description of the central organization of the Office of Management
and Budget follows:
Director's Office includes the Director, the Deputy Director, the Deputy
Director for Management, and the Executive Associate Director.
Offices include General Counsel, Legislative Affairs, Communications,
Administration, and Economic Policy.
that provide OMB-wide support include the Legislative Reference and Budget
Management Offices. These offices develop and support the President's
management and budget agenda in the areas of Natural Resources, Energy
and Science, National Security and International Affairs, Health and Personnel,
Human Resources, and General Government and Finance.
offices include the Office of Federal Financial Management, Office of
Federal Procurement Policy, and the Office of Information and Regulatory
Office of Management and Budget is located in Washington, DC, and has
no field offices. Staff are housed in either the Old Executive Office
Building, 17th Street and Pennsylvania Ave, NW, or the New Executive Office
Building, 725 17th Street NW, Washington, DC 20503. Persons desiring to
visit offices or employees of the Office of Management and Budget, in
either building, must write or telephone ahead to make an appointment.
Security in both buildings prevents visitors from entering the building
without an appointment.
1303.10 Access to information.
Office of Management and Budget makes available information pertaining
to matters issued, adopted, or promulgated by OMB, that are within the
scope of 5 U.S.C. 552(a)(2). A public reading area is located in the Executive
Office of the President Library, Room G-102, New Executive Office Building,
725 17th Street NW, Washington, DC 20503. For access, contact the
FOIA Officer at (202) 395-7250. OMB issuances are also available electronically
from the OMB homepage at www.whitehouse.gov/omb.
In addition, OMB maintains the Office of Information and Regulatory Affairs
(OIRA) Records Management Center, Room 10102, New Executive Office Building,
725 17th Street NW, Washington, DC 20503, phone (202) 395-6880. The Records
Management Center contains records related to information collections
sponsored by the Federal government and reviewed by OIRA under the Paperwork
Reduction Act of 1995. The Records Management Center also maintains records
related to proposed Federal agency regulatory actions reviewed by OIRA
under Executive Order 12866 "Regulatory Planning and Review." Telephone
logs and materials from meetings with the public attended by the OIRA
Administrator are also available in the Records Management Center.
FOIA Officer is responsible for acting on all initial requests. Individuals
wishing to file a request under the Freedom of Information Act (FOIA)
should address their request in writing to Donald Hawkins, FOIA Officer,
Office of Management and Budget, 725 17th Street NW, Room 9026, Washington,
DC 20503, phone (202) 395-7250. Requests can also be faxed to Mr. Hawkins
at (202) 395-3504. Requests for information shall be as specific as possible.
receipt of any request for information or records, the FOIA Officer will
determine within 20 days (excepting Saturdays, Sundays and legal public
holidays) after the receipt of such request whether it is appropriate
to grant the request and will immediately provide written notification
to the person making the request. 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 within the Office
of Management and Budget. (Receipt of a request as used herein means the
date the request is received in the office of the FOIA Officer.)
and appeals will be taken out of order and given expedited treatment
whenever it is determined that they involve:
Circumstances in which the lack of expedited treatment could reasonably
be expected to pose an imminent threat to the life or physical safety
of an individual;
An urgency to inform the public about an actual or alleged federal
government activity, if made by a person primarily engaged in disseminating
The loss of substantial due process rights; or
A matter of widespread and exceptional media interest in which there
exist possible questions about the government's integrity which
effect public confidence.
(2) A request
for expedited processing may be made at the time of the initial request
for records or at any later time.
(3) A requester
who seeks expedited processing must submit a statement, certified to be
true and correct to the best of that person's knowledge and belief, explaining
in detail the basis for requesting expedited processing. For example,
a requester within the category described in paragraph (d)(1)(ii) of this
section, if not a full-time member of the news media, must establish that
he or she is a person whose main professional activity or occupation is
information dissemination, though it need not be his or her sole occupation.
A requester within the category (d)(1)(ii) of this section also must establish
a particular urgency to inform the public about the government activity
involved in the request, beyond the public's right to know about government
activity generally. The formality of certification may be waived as a
matter of administrative discretion.
ten days of its receipt of a request for expedited processing, OMB will
decide whether to grant it and will notify the requester of the decision.
If a request for expedited treatment is granted, the request will be given
priority and will be processed as soon as practicable. If a request for
expedited processing is denied, any appeal of that decision will be acted
shall be set forth in writing within 30 days of receipt of a denial and
addressed to the FOIA Officer at the address specified in paragraph (b)
of this section. 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 Deputy Director, or his designee, within 20 days (excepting
Saturdays, Sundays, and legal public holidays). 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 and the names of
the persons who participated in the determination.
(f) In unusual
circumstances, the time limits prescribed in paragraphs (c) and (e) of
this section may be extended for not more than 10 days (excepting Saturdays,
Sundays, or legal public holidays).
may be granted by the FOIA Officer. The extension period may be split
between the initial request and the appeal but in no instance may the
total period exceed 10 working days. Extensions will be by written notice
to the persons making the request and will set forth the reasons for the
extension and the date the determination is expected.
respect to a request for which a written notice under paragraph (f) of
this section extends the time limits prescribed under paragraph (c) of
this section, the agency shall notify the person making the request if
the request cannot be processed within the time limit specified in paragraph
(f) of this section and 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 agency an alternative time
frame for processing the request or a modified request. Refusal by the
person to reasonably 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). When OMB reasonably
believes that a requester, or a group of requestors acting in concert,
has submitted requests that constitute a single request, involving clearly
related matters, OMB may aggregate those requests for purposes of this
paragraph. One element to be considered in determining whether a belief
would be reasonable is the time period over which the requests have occurred.
(h) As used
herein, but only to the extent reasonably necessary to the proper processing
of the particular request, the term "unusual circumstances" means:
need to search for and collect the requested records from establishments
that are separated from the office processing the request;
need to search for, collect, and appropriately examine a voluminous amount
of separate and distinct records which are demanded in a single request;
need for consultation, which shall be conducted with all practicable speed,
with another agency having a substantial interest in the determination
of the request or among two or more components of the agency which have
a substantial subject matter interest therein.
1303.20 Inspection and copying.
When a request
for information has been approved pursuant to Sec. 1303.10, the person
making the request may make an appointment to inspect or copy the materials
requested during regular business hours by writing or telephoning the
FOIA Officer at the address or telephone number listed in Sec. 1303.10(b).
Such materials may be copied and reasonable facilities will be made available
for that purpose. Copies of individual pages of such materials will be
made available at the price per page specified in Sec. 1303.40(d); however,
the right is reserved to limit to a reasonable quantity the copies of
such materials which may be made available in this manner when copies
also are offered for sale by the Superintendent of Documents.
for Search and Reproduction
purpose of these regulations:
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)(A)(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 records, in order to:
both the general public and private sector organizations by conveniently
making available government information;
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;
an information dissemination activity on a self-sustaining basis to the
maximum extent possible; or
revenue to the Treasury for defraying, wholly or in part, appropriated
funds used to pay the cost of disseminating government information.
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.
term direct costs means those expenditures that OMB actually incurs in
searching for and duplicating (and in the case of commercial requesters,
reviewing) documents to respond to a FOIA request. Direct costs include,
for 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.
term 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. OMB 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 requester. For example,
employees should not engage in line-by-line search when merely duplicating
an entire document would prove the less 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).
term 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, audio-visual materials, or electronic
records (e.g., magnetic tape or disk), among others. The requester's specified
preference of form or format of disclosure will be honored if the record
is readily reproducible in that format.
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.
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 requester or the person on whose behalf
the request is made. In determining whether a requester properly belongs
in this category, OMB must determine the use to which a requester will
put the documents requested. Moreover, where an OMB employee has reasonable
cause to doubt the use to which a requester 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
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.
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.
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 or 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 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 not actually employed by it. A publication contract would be the
clearest proof, but OMB may also look to the past publication record of
a requester in making this determination.
1303.40 Fees to be charged--general.
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 Sections
1303.30(b)), such as the NTIS, OMB should inform requesters of the steps
necessary to obtain records from those sources.
searches for records. OMB will charge at the salary rate(s) (i.e., basic
pay plus 16 percent) of the employee(s) making the search.
searches for records. OMB will charge at the actual direct cost of providing
the service. This will include the cost of operating the central processing
unit (CPU) 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.
of records. Only requesters 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 OMB 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 is assessable.
of records. Records will be duplicated at a rate of $.15 per page. For
copies prepared by computer, such as tapes or printouts, OMB shall charge
the actual cost, including operator time, of production of the tape or
printout. For other methods of reproduction or duplication, OMB will charge
the actual direct costs of producing the document(s). If OMB estimates
that duplication charges are likely to exceed $25, it shall notify the
requester of the estimated amount of fees, unless the requester has indicated
in advance his willingness to pay fees as high as those anticipated. Such
a notice shall offer a requester the opportunity to confer with agency
personnel with the object of reformulating the request to meet his or
her needs at a lower cost.
charges. OMB will recover the full costs of providing services such as
those enumerated below when it elects to provide them:
that records are true copies;
records by special methods such as express mail.
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, Office of Management and Budget, Washington,
(g) A receipt
for fees paid will be given upon request. Refund of fees paid for services
actually rendered will not be made.
on assessing fees. With the exception of requesters seeking documents
for a commercial use, OMB will provide the first 100 pages of duplication
and the first two hours of search time without charge. Moreover, OMB will
not charge fees to any requester, including commercial use requesters,
if the cost of collecting a fee would be equal to or greater than the
elements to be considered in determining the "cost of collecting a fee"
are the administrative costs of receiving and recording a requester's
remittance, and processing the fee for deposit in the Treasury Department's
purposes of these restrictions on assessment of fees, the word "pages"
refers to paper copies of "8\1/2\ x 11" or "11 x 14." Thus, requesters
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.
the term "search time" in this context has as its basis, manual search.
To apply this term to searches made by computer, OMB will determine the
hourly cost of operating the central processing unit and the 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, i.e., the operator, OMB will begin assessing
charges for computer search.
1303.50 Fees to be charged--categories of requesters.
four categories of FOIA requesters: commercial use requesters; educational
and non-commercial scientific institutions; representatives of the news
media; and all other requesters. The specific levels of fees for each
of these categories are:
use requesters. When OMB receive 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. Requesters
must reasonably describe the records sought. Commercial use requesters
are not entitled to two hours of free search time nor 100 free pages of
reproduction of documents. OMB may recover the cost of searching for and
reviewing records even if there is ultimately no disclosure of records
(see Sec. 1303.60(b)).
and non-commercial scientific institution requesters. OMB shall provide
documents to requesters in this category for the cost of reproduction
alone, excluding charges for the first 100 pages. To be eligible for inclusion
in this category, requesters must show that the request is being made
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. Requesters must reasonably describe the records sought.
who are representatives of the news media. OMB shall provide documents
to requesters 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 requester must meet the criteria in Sec. 1303.10(j),
and his or her request must not be made for a commercial use. In reference
to this class of requester, a request for records supporting the news
dissemination function of the requester shall not be considered to be
a request that is for a commercial use. Requesters must reasonably describe
the records sought.
other requesters. OMB shall charge requesters 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. Moreover, requests for
records about the requesters filed in OMB's systems of records will continue
to be treated under the fee provisions of the Privacy Act of 1974 which
permit fees only for reproduction. Requesters must reasonably describe
the records sought.
1303.60 Miscellaneous fee provisions.
interest--notice and rate. OMB may begin assessing interest charges on
an unpaid bill starting on the 31st day following the day on which the
billing was sent. The fact that the fee has been received by OMB 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 the billing.
for unsuccessful search. OMB 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 OMB estimates that search charges are
likely to exceed $25, it shall notify the requester of the estimated amount
of fees, unless the requester has indicated in advance his willingness
to pay fees as high as those anticipated. Such a notice shall offer the
requester the opportunity to confer with agency personnel with the object
of reformulating the request to meet his or her needs at a lower cost.
requests. A requester 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 OMB reasonably believes that a requester, or a group
of requestors acting in concert, has submitted requests that constitute
a single request, involving clearly related matters, OMB may aggregate
those requests 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.
payments. OMB may not require a requester to make an advance payment,
i.e., payment before work is commenced or continued on a request, unless:
estimates or determines that allowable charges that a requester may be
required to pay are likely to exceed $250. Then, OMB will notify the requester
of the likely cost and obtain satisfactory assurance of full payment where
the requester has a history of prompt payment of FOIA fees, or require
an advance payment of an amount up to the full estimated charges in the
case of requesters with no history of payment; or
(2) A requester
has previously failed to pay a fee charged in a timely fashion (i.e.,
within 30 days of the date of the billing). Then, OMB may require the
requester to pay the full amount owed plus any applicable interest as
provided above or demonstrate 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 requester.
OMB 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., 20 working
days from receipt of initial requests and 20 working days from receipt
of appeals from initial denial, plus permissible extensions of these time
limits), will begin only after OMB has received fee payments described
in paragraphs (d)(1) and (2) of this section.
of the Debt Collection Act of 1982 (Pub. L. 97-365). OMB should comply
with provisions of the Debt Collection Act, including disclosure to consumer
reporting agencies and use of collection agencies, where appropriate,
to encourage repayment.
1303.70 Waiver or reduction of charges.
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 requester.