This subpart contains the rules that the Department follows under the Freedom of Information Act (FOIA) as amended, 5 U.S.C. 552. The rules should be read together with the FOIA, which provides additional information about access to records and contains the specific exemptions that are applicable for withholding information; the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Guidelines) (see www.justice.gov/oip/foia-resources#s5); and information located at www.foia.state.gov.

(a) In general. (1) The Office of Information Programs and Services (A/GIS/IPS) is responsible for initial action on all FOIA requests for Department records, with two exceptions: requests seeking records under the purview of the Office of Inspector General (OIG), which receives and processes requests for OIG records (see § 171.4 (a)(3)); and requests seeking records under the purview of the Law Enforcement Liaison Division of the Passport Services directorate of the Bureau of Consular Affairs (CA), which receives and processes requests for certain consular records (see § 171.4 (a)(2)).

(2) For requests for which A/GIS/IPS is responsible for initial action, A/GIS/IPS will issue all initial decisions on whether a request is valid (or has subsequently been perfected) and whether to grant or deny requests for a fee waiver or for expedited processing.

(3) After A/GIS/IPS takes initial action, all requests for records coming under the jurisdiction of the following components are processed by those components, although A/GIS/IPS may provide review and coordination support to these components in some situations: the Directorates for Visa Services, Passport Services, and Overseas Citizens Services, in the Bureau of Consular Affairs; the Bureau of Diplomatic Security; the Bureau of Global Talent Management; and the Bureau of Medical Services. Additionally, the Foreign Service Grievance Board (FSGB), as an independent body, processes all FOIA requests seeking access to its records and responds directly to requesters.

(b) Receipt of request. The Department is in receipt of a request when the request is received by A/GIS/IPS, OIG, or PPT, depending on which office is the proper recipient. At that time, the Department must send an acknowledgement letter to the requester that identifies the date of receipt of the request in the proper office (A/GIS/IPS, OIG, or PPT), and the case tracking number. When one of these offices determines that a request was misdirected within the Department, that office must promptly route the request to the proper office(s) within the Department.

(c) Cut-off date and exclusions. In determining which records are responsive to a request, the Department ordinarily will include only records in its possession as of the date of initiation of the search for responsive records, unless the requester has specified an earlier cut-off date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c) is not considered responsive to a request.

(d) Consultation, referral, and coordination. When reviewing records located in response to a request, the component processing the request will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, the component must proceed in one of the following ways:

(1) Consultation. When records originated with the Department, but contain within them information of interest to another agency or other Federal Government office, the component processing the request should typically consult with that other entity prior to making a release determination.

(2) Referral. (i) When the component processing the request believes that a different Department component or other Federal Government agency is better able to determine whether to disclose the record, the component processing the request typically should refer the responsibility for responding to the request regarding that record to that component or agency, as long as the referral is to an entity subject to the FOIA. Ordinarily, the agency that originated the record will be presumed to be best able to make the disclosure determination. However, if the component processing the request and the originating agency jointly agree that the former is in the better position to respond regarding the record, then the record may be handled as a consultation.

(ii) Whenever the component processing the request refers any part of the responsibility for responding to a request to another entity, the component must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name(s) of the entity to which the record was referred, including that entity's FOIA contact information.

(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the component or agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement component responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if a component locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harm. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the component that received the request should coordinate with the originating component or agency to seek its views on the whether the record may be disclosed. The release determination for the record that is the subject of the coordination will be conveyed to the requester by the component that originally received the request.

(e) Timing of responses to consultations and referrals. All consultations and referrals received by the Department will be handled according to the date that the perfected FOIA request was received by the first agency.

(f) Agreements regarding consultations and referrals. The Department may make agreements with other agencies to eliminate, reduce, or streamline the need for consultations or referrals for particular types of records.

(a) In general. The Department ordinarily will respond to requests in the order received. In instances involving misdirected requests that are re-routed pursuant to § 171.11 (b), the response time will commence on the date that the request is received by the proper office that is designated to receive requests (A/GIS/IPS, OIG or PPT), but in any event not later than 10 working days after the request is first received by any of these three offices.

(b) Multi-track processing. The Department has a specific track for requests that are granted expedited processing, in accordance with the standards that are set forth in paragraph (d) of this section. An intake office (A/GIS/IPS, OIG, or PPT) may also designate additional processing tracks that, for example, distinguish between simple and more complex requests based on the estimated amount of work and/or time needed to process the request. Among the factors that may also be considered are the number of records requested, the number of pages involved in processing the request, and the need for consultations or referrals. The Department must advise requesters of the track in which their request falls and, when appropriate, should offer the requesters an opportunity to narrow their request so that it can be placed in a different processing track.

(c) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of unusual circumstances, as defined in the FOIA, and the Department extends the time limit on that basis, the Department must, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved. Where the extension exceeds 10 working days, the Department must, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or a modified request. The Department must make available its designated FOIA contact and FOIA Public Liaison for this purpose (see foia.state.gov/contact/). In the written notice to the requester, the Department must also alert the requester to the availability of the Office of Government Information Services to provide dispute resolution services.

(d) Expedited processing. (1) Requests shall receive expedited processing when a requester demonstrates that a compelling need for the information exists. A compelling need is deemed to exist when the requester can demonstrate one of the following:

(i) Failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

(ii) With respect to a request made by a person primarily engaged in disseminating information, there exists an urgency to inform the public concerning actual or alleged Federal Government activity; or

(iii) Failure to release the information would impair substantial due process rights or harm substantial humanitarian interests.

(2) A request for expedited processing may be made at the time of the initial request for records or at any later time. Requests for expedited processing must be submitted to the office responsible for receiving the FOIA request (A/GIS/IPS, OIG, or PPT). When making a request for expedited processing of an administrative appeal, the request must be submitted to A/GIS/IPS, or OIG in the case of appeals of OIG decisions (see § 171.15). A Department FOIA office that receives a misdirected request for expedited processing must forward it promptly to the correct office responsible for receiving requests (A/GIS/IPS, OIG, or PPT) for its determination. The time period for making the determination on the request for expedited processing commences on the date that the correct office receives the request, provided that the Department will be considered to have received the request for expedited processing no more than 10 working days after the request for expedited processing is received by A/GIS/IPS, OIG, or PPT.

(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (d)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, the Department may waive the formal certification requirement.

(4) A notice of the determination whether to grant expedited processing must be provided to the requester within 10 calendar days of the date of the receipt of the request for expedited processing in the appropriate office (whether A/GIS/IPS, OIG, or PPT). If expedited processing is granted, the request must be given priority, placed in the processing track for expedited requests, and processed as soon as practicable. A denial of a request for expedited processing may be appealed within 90 calendar days of the date of the Department's letter denying the request. A decision in writing on the appeal will be issued within 10 calendar days of the receipt of the appeal.

(a) In general. The Department will, to the extent practicable, communicate with requesters having access to the internet using electronic means, such as email or a web portal.

(b) Acknowledgment of requests. The Department must acknowledge the request in writing and assign it an individualized tracking number if it will take longer than 10 working days to process. The Department must include in the acknowledgment a brief description of the records sought to allow requesters to more easily keep track of their requests. The Department may in its discretion divide a multi-part request into multiple requests in order to facilitate processing.

(c) Estimated dates of completion and interim responses. Upon request, the Department will provide an estimated date by which the Department expects to provide a response to the requester. If a request involves a voluminous amount of material, or searches in multiple locations, the agency may provide interim responses, releasing the records on a rolling basis.

(d) Grants of requests. Once the Department makes a determination to grant a request in full or in part, it must notify the requester in writing. The Department also must inform the requester of any fees charged under § 171.16 and must disclose the requested records to the requester promptly upon payment of any applicable fees. The Department must inform the requester of the availability of the FOIA Public Liaison to offer assistance.

(e) Adverse determinations of requests. If the Department makes an adverse determination denying a request in any respect, it must notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that: the requested record is exempt from disclosure, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing.

(f) Content of denial. The denial must be signed by the head of the component processing the request, or designee, and must include:

(1) The name and title or position of the person responsible for the denial;

(2) A brief statement of the reasons for the denial, including any FOIA exemptions applied in denying the request;

(3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption;

(4) A statement that the denial may be appealed under § 171.15 and a description of the requirements set forth therein; and

(5) A statement notifying the requester of the assistance available from the Department's FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services of the National Archives and Records Administration.

(g) Markings on released documents. Markings on released documents must be clearly visible to the requester. Records disclosed in part must be marked to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted must also be indicated on the record, if technically feasible.

(h) Use of record exclusions. (1) In the event that the Department identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), A/GIS/IPS or OIG must confer with the Department of Justice, Office of Information Policy to obtain approval to apply the exclusion.

(2) Any time the Department invokes an exclusion, it must maintain an administrative record of the process of invocation and approval of the exclusion by OIP.

(a) Definitions. The following definitions apply for purposes of this section:

Confidential commercial information means commercial or financial information obtained by the Department from a submitter that may be exempt from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).

Submitter means any person or entity from which the Department obtains confidential commercial information, directly or indirectly. The term includes corporations, partnerships, and sole proprietorships; state, local, and tribal governments; foreign governments; NGOs; and educational institutions. This term does not include another Federal Government entity.

(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good-faith efforts to designate by appropriate markings at the time of submission any portions of its submission that it considers exempt from disclosure under FOIA Exemption 4. These designations expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.

(c) Notice to submitters. (1) The Department must provide a submitter with prompt written notice whenever records containing its confidential commercial information are requested under the FOIA if the agency determines that it may be required to disclose the records, provided:

(i) The information has been designated in good faith by the submitter as information considered exempt from disclosure under Exemption 4; or

(ii) The Department has reason to believe that the requested information may be exempt from disclosure under Exemption 4 but has not yet determined whether the information is protected from disclosure.

(2) The notice must either describe the confidential commercial information requested or include a copy of the requested records or record portions containing the information.

(d) When notice is not required. The notice requirements of this section do not apply if:

(1) The Department determines that the information is exempt from disclosure under the FOIA and, therefore, will not be disclosed;

(2) The information has been lawfully published or has been officially made available to the public;

(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or

(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such a case, the Department must give the submitter written notice of any final decision to disclose the information a reasonable number of days prior to a specified disclosure date.

(e) Opportunity to object to disclosure. The Department must allow a submitter a reasonable time to respond to the notice described in paragraph (c) of this section and must specify that time period in the notice. If a submitter has any objections to disclosure, it should provide the Department a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential. If a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. The Department is not required to consider any information received after any disclosure decision. Information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.

(f) Notice of intent to disclose. The Department will consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose confidential commercial information. Whenever the Department decides to disclose information over the objection of a submitter, it must give the submitter written notice, which must include:

(1) A statement of the reason(s) why each of the submitter's disclosure objections was not sustained;

(2) A description of the information to be disclosed or copies of the records as the Department intends to release them; and

(3) A specified disclosure date, which must be a reasonable time after the notice.

(g) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the Department must promptly notify the submitter.

(h) Notice to requester. The Department must notify the requester whenever it provides a submitter with notice and an opportunity to object to disclosure; whenever it notifies a submitter of its intent to disclose requested information; and whenever a submitter files a lawsuit seeking to prevent the disclosure of the requested information.

(a) Requirements for making an appeal. (1) Requesters may appeal any adverse determinations made on their FOIA request by the Department. Examples of adverse determinations are provided in § 171.13(e). The requester must make the appeal in writing and to be considered timely it must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days after the date of the adverse determination. The appeal must clearly identify the component's determination that is being appealed and the assigned request number. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, “Freedom of Information Act Appeal.”

(2) To appeal any adverse determinations made by A/GIS/IPS or a component other than OIG, requesters must submit an administrative appeal to the A/GIS/IPS FOIA Appeals Office using any of the following methods: by mail to the Appeals Officer, Office of Information Programs and Services (A/GIS/IPS), Room B-266, U.S. Department of State, 2201 C Street NW, Washington, DC 20520; by fax to (202) 485-1718; or by email to [email protected].

(3) To appeal any adverse determinations made by OIG, requesters must submit an administrative appeal to OIG via email to [email protected], by fax to 703-284-1866, or by mail addressed to the FOIA Officer, Officer of General Counsel, Office of Inspector General, U.S. Department of State, 1700 N Moore Street, Suite 1400, Arlington, VA 22209. Contact information for OIG is available on OIG's FOIA website at www.stateoig.gov/foiaappeals. For those cases in which both A/GIS/IPS and OIG provided written denials to the requester, the requester may administratively appeal to both A/GIS/IPS and OIG and each office will handle its respective portion of the appeal.

(4) To appeal any adverse determinations made by the FSGB, requesters must submit an administrative appeal to A/GIS/IPS using the methods listed above in paragraph (2). A/GIS/IPS will assign a tracking number to the appeal and forward it to the FSGB, which is an independent body, for adjudication.

(b) Adjudication of appeals. (1) The A/GIS/IPS Director or designee will act on behalf of the Assistant Secretary for Administration on all appeals of A/GIS/IPS FOIA determinations under this section. Likewise, the General Counsel of OIG or his/her designee will act on behalf of the Inspector General on all appeals of OIG FOIA determinations under this section.

(2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.

(c) Decisions on appeals. The Department must provide its decision on an appeal in writing. A decision that upholds the Department's determination in whole or in part must include a brief statement of the reason for the affirmance, including any FOIA exemptions applied. The decision must inform the requester that the decision represents the final decision of the Department; must advise the requester of the statutory right to file a lawsuit; and must inform the requester of the dispute resolution services offered by the Office of Government Information Services of the National Archives and Records Administration (OGIS) as a non-exclusive alternative to litigation. If a decision is remanded or modified on appeal, the requester will be notified in writing. The appropriate component will then further process the request in accordance with that appeal determination and respond directly to the requester.

(d) Engaging in dispute resolution services provided by OGIS. Dispute resolution is a voluntary process. If a component agrees to participate in the dispute resolution services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.

(e) When appeal is required. Before seeking review by a court of the Department's adverse determination, a requester generally must first submit a timely administrative appeal.

(a) In general. The Department will charge fees for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. For purposes of assessing fees, the FOIA establishes three categories of requesters: commercial use requesters, non-commercial scientific or educational institutions or news media requesters, and all other requesters.

(b) Definitions. For purposes of this section:

Commercial use request is a request that asks for information for a use or purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. The Department's decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester's intended use of the information. The Department will notify requesters of their placement in this category.

Direct costs are those expenses the Department incurs in searching for, duplicating, and, in the case of commercial use requests, reviewing records in response to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. The term does not include overhead expenses such as the costs of space and of heating or lighting of a facility.

Duplication is reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.

Educational institution is any school that operates a program of scholarly research. A requester in this category must show that the request is made in connection with the requester's role at the educational institution. The Department may seek verification from the requester that the request is in furtherance of scholarly research. The Department will advise requesters of their placement in this category.

Non-commercial scientific institution is an institution that is not operated on a “commercial” basis, as defined in this section, and which is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use. Noncommercial scientific institution requesters will not be charged for search and review time, and the first 100 pages of the duplication will be provided free of charge. The Department will advise requesters of their placement in this category.

Representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. 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 that broadcast news to the public at large and publishers of periodicals that disseminate news and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. A request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use. Freelance journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, the Department shall also consider a requester's past publication record in making this determination. A representative of the news media will not be charged for search and review time, and the first 100 pages of the duplication will be provided free of charge. The Department will advise requesters of their placement in this category.

Review is the examination of a record located in response to a request to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 171.14 but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.

Search is the process of looking for, identifying, and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.

(c) Charging fees. In responding to FOIA requests, the Department will charge the following fees unless a waiver or reduction of fees has been granted under paragraph (j) of this section. Because the fee amounts provided below already account for the direct costs associated with a given fee type, the Department should not add any additional costs to charges calculated under this section.

(1) Search. (i) Requests made by educational institutions, non-commercial scientific institutions, or representatives of the news media are not subject to search fees. Search fees shall be charged for all other requesters, subject to the restrictions of paragraph (j) of this section. The Department may properly charge for time spent searching even if responsive records are not located, or if records are determined to be entirely exempt from disclosure.

(ii) For each hour spent by personnel searching for requested records, the fees shall be as stated at the following website: foia.state.gov/Request/Guide.aspx (section VII, “Fees”) and www.stateoig.gov/foiafees for OIG requested records.

(iii) For requests that require the retrieval of records stored by the Department at a Federal records center operated by the National Archives and Records Administration (NARA), the Department will charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA.

(2) Review. The Department will charge review fees to requesters who make commercial use requests. Review fees will be assessed in connection with the initial review of the record, i.e., the review conducted to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with the Department's re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees shall be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.

(3) Duplication. The Department will charge duplication fees to all requesters, subject to the restrictions of paragraph (d) of this section. The Department must honor a requester's preference for receiving a record in a particular form or format where it is readily reproducible by the Department in the form or format requested. The Department charges the direct costs of producing the copy, including operator time. Where paper documents must be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester must also pay the direct costs associated with scanning those materials. Duplication fees are as stated at the following website: foia.state.gov/Request/Guide.aspx (section VII, “Fees”).

(d) Restrictions on charging fees. (1) The Department will not charge search fees for requests by educational institutions, non-commercial scientific institutions, or representatives of the news media, unless the records are sought for a commercial use.

(2) If the Department fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(i) through (iii) of this section.

(i) If the Department has determined that unusual circumstances as defined by the FOIA apply and the agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit is excused for an additional 10 days.

(ii) If the Department has determined that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the Department may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees, if the following steps are taken. The Department must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA, and the Department must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the Department may charge all applicable fees incurred in the processing of the request.

(iii) If a court has determined that exceptional circumstances exist as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.

(3) Except for requesters seeking records for a commercial use, the Department must provide without charge:

(i) the first 100 pages of duplication (or the cost equivalent for other media); and

(ii) the first two hours of search.

(4) When, after deducting the 100 free pages (or its cost equivalent) and the first two hours of search, the total fee calculated under paragraph (c) of this section is $25.00 or less, no fee will be charged.

(5) Apart from the stated provisions regarding waiver or reduction of fees, see paragraph (j) of this section, the Department may in its sole discretion decide to not assess fees or to reduce them if it is in the best interests of the government not to do so.

(e) Notice of anticipated fees in excess of $25.00. (1) When the Department determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the Department must notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review, or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the Department will advise the requester accordingly. If the request is not for commercial use, the notice will specify that the requester is entitled to the statutory entitlement of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and will advise the requester whether those entitlements have been provided.

(2) In cases in which the Department has notified the requester that the actual or estimated fees are in excess of $25.00, the request will not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates an amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. The Department is not required to accept payments in installments.

(3) If the requester has indicated a willingness to pay some designated amount of fees, but the Department estimates that the total fee will exceed that amount, the Department will toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The Department will inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.

(4) The Department must make available its FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester's needs at a lower cost.

(f) Charges for other services. Although not required to provide special services, if a component chooses to do so as a matter of administrative discretion, the direct costs of providing the service shall be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.

(g) Charging interest. The Department may charge interest on any unpaid bill starting on the 31st day following the date the bill was sent to the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and shall accrue from the date of the billing until payment is received by the Department. The fact that a fee has been received by the Department within the thirty-day grace period, even if not processed, shall stay the accrual of interest. The Department must follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.

(h) Aggregating requests. When the Department reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, the Department may aggregate those requests and charge accordingly. The Department may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, components will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters cannot be aggregated.

(i) Advance payments. (1) For requests other than those described in paragraphs (i)(2) or (i)(3) of this section, the Department cannot require a requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment before copies are sent to the requester) is not advance payment.

(2) When the Department estimates or determines that a total fee to be charged under this section will exceed $250, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. The Department may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.

(3) Where a requester has previously failed to pay FOIA fees to any component within 30 calendar days of the date of its billing, the Department may require the requester to pay the full amount due, plus any applicable interest on that prior request, and to make an advance payment of the full amount of any anticipated fee before the Department begins to process a new request or continues to process a pending request or any appeal from that requester. Where the Department has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity. Additionally, if a requester has failed to pay FOIA fees to another U.S. Government agency in a FOIA case, the Department may require proof that such fee has been paid before processing a new or pending request from that requester.

(4) In cases in which the Department requires advance payment, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the Department's fee determination, the request will be closed.

(j) Requirements for waiver or reduction of fees. (1) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information 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.

(2) The Department must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (j)(2)(i) through (iii) of this section are satisfied:

(i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.

(ii) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:

(A) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.

(B) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public shall be considered. The Department will presume that a representative of the news media satisfies this consideration.

(iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the information is primarily in the commercial interest of the requester, the Department will consider the following factors:

(A) The Department must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration.

(B) If there is an identified commercial interest, the Department must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirement of paragraphs (j)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. The Department ordinarily will presume that when a news media requester has satisfied the requirements of paragraphs (j)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.

(3) Where only some of the records to be released satisfy the requirements for a waiver or reduction of fees, a waiver or reduction must be granted for those records.

(4) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Department and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester must pay any costs incurred up to the date the fee waiver request was received.

The Department must preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code and applicable records disposition schedules, including the General Records Schedule 4.2 of the National Archives and Records Administration. The Department must not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA.