RD Instruction 2018-F

PART 2018 - GENERAL

Subpart F - Availability of Information

## TABLE OF CONTENTS

[Sec]{.underline}. [Page]{.underline}

2018.251 General purpose and scope. 1

2018.252 Delegation of authority and available assistance. 1

2018.253 Denials. 1

2018.254 Penalties and court review. 2

2018.255 Fees. 2

\(a\) Instances in which fees may not be charged. 2

\(b\) Levels of fees for each category of requesters. 3

\(c\) Fee waivers and reductions. 5

\(d\) Types of services for which fees may be charged. 6

\(e\) Payments of fees and charges. 14

\(f\) Effect of the Debt Collection Act on fees. 14

\(g\) Deficiencies and refunds. 15

2018.256 Public inspection and copying. 15

2018.257 Requests for records. 16

2018.258 Availability of identifiable material. 18

\(a\) Information subject to mandatory release. 18

\(b\) Information subject to consultation with the

Freedom of Information Officer. 19

\(c\) Legal basis for withholding information (exemptions

from disclosure). 21

\(d\) Credit reports. 30

\(e\) Availability of materials and records to other

Government agencies. 30

2018.259 Determination and appeals. 30

\(a\) Determinations. 30

\(b\) Appeals. 31

\(c\) Extension of Administrative deadlines. 32

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RD Instruction 2018-F

Table of Contents (Con.)

2018.260 Compulsory process. 32

2018.261 Annual report. 32

2018.262 - 2018.300 \[Reserved\] 34

Exhibit A - The Freedom of Information Act, 5 U.S.C. 552, As

amended by Public Law No. 104-231, 110 Stat. 3048.

## oOo 

RD Instruction 2018-F

PART 2018 - GENERAL

Subpart F - Availability of Information

§ 2018.251 [General purpose and scope]{.underline}.

The Congressional policy behind the Freedom of Information Act (FOIA)
(see Exhibit A of this subpart, which is available in any Rural
Development office) was to encourage public access to Federal agency
information, unless specifically exempted by the Act, and to provide an
avenue for any person to pursue their statutory rights by eliminating
administrative barriers, the removal of which would normally require
expensive litigation. The FOIA, however, does not apply to the Congress,
the Federal Courts, or units within the Executive Office of the
President, whose sole function is to advise and assist the President.
The FOIA is intended to provide access to documents or other
information-bearing materials which: (1) were created or obtained by the
Rural Development; (2) are, at the time of the request, within both the
possession and control of the Rural Development; and (3) restricted only
as set forth in §§2018.255 and 2018.258 of this subpart.

§ 2018.252 [Delegation of authority and available
assistance]{.underline}.

Subject to the provisions of § 2018.259 of this subpart, the Freedom of
Information Officer (FOIO), Freedom of Information/Privacy Act
Specialist, Management Analyst in the National Office, each State
Director, each State Administrative Officer/State Administrative Program
Chief, Rural Development Manager, and Community Development Manager are
authorized to act, respectively, at the National, State, Area, and Local
level on behalf of Rural Development on all requests for materials and
records. State Administrative Management Program Directors in each State
Office will provide administrative and technical support regarding FOIA
and Privacy Act matters to field offices. All employees are advised that
assistance is readily available upon request from their State Office and
the National Office.

§ 2018.253 [Denials]{.underline}.

Contact the FOIO, National Office, before making a written denial of any
request for information if you are not familiar with the specific
exemption to be cited as a basis for the denial. When information is
denied from disclosure pursuant to the FOIA or Privacy Act, the
following three criteria must be met when responding to the requester:

\(a\) Identify the nature of the denied information.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DISTRIBUTION: WSAL Administrative Services

General

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RD Instruction 2018-F

§ 2018.253 (Con.)

\(b\) Cite an appropriate FOIA/Privacy Act exemption for its denial.

\(c\) Provide for an appeal of the denial to the appropriate Agency
Head.

§ 2018.254 [Penalties and court review]{.underline}.

Upon receipt of a complaint based upon a final denial of information by
the agency, a U.S. District Court can order the production of any agency
records that were improperly withheld from the requester and may also
award attorney\'s fees and costs. In the event the Rural Development
employee fails to comply with the District Court\'s order to release
records, the court may find the employee in contempt of court.

§ 2018.255 [Fees]{.underline}.

The fees set forth are based upon guidelines prescribed by the Office of
Management and Budget (OMB), published at 52 FR 10012 (March 27, 1987),
and the fee waivers set forth are based upon guidelines prescribed by
the Office of Legal Policy, U.S. Department of Justice, dated April 2,
1987. This section adopts the Fee Schedule and procedures prescribed by
the Office of the Secretary, U.S. Department of Agriculture (USDA),
Appendix A to 7 CFR, part 1, Subpart A, published at 52 FR 49386
(December 31, 1987), 62 FR 33980 and 64 FR 3395.

\(a\) [Instances in which fees may not be charged]{.underline}.

\(1\) No charge shall be made for the first 100 pages of duplicated
information (8-1/2\" x 14\" or smaller-size paper), or the first two
hours of manual search time, or the equivalent value of computer search
time as defined in paragraph (d)(l)(ii) of this section, except on
requests seeking documents for a commercial use, as specified in
paragraph (b)(l) of this section.

\(2\) No charge shall be made\--even to commercial use requesters\--if
the cost of collecting a fee would be equal to or greater than the fee
itself. For Rural Development, this figure has been calculated to be
\$25.00.

\(3\) Fees may not be charged for time spent by a Rural Development
employee in resolving legal or policy issues, or in monitoring a
requester\'s inspection of Rural Development records. No charge shall be
made for normal postage costs.

\(4\) No charge shall be made when filling requests from other
Departments or Government agencies for official use, provided quantities
requested are reasonable in number.

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RD Instruction 2018-F

§ 2018.255(a) (Con.)

\(5\) When members of the public provide their own copying equipment, no
copying fee will be charged (although search and review fees may still
be assessed).

\(6\) Fees may not be charged when any notices, decisions, orders, or
other materials are required by law to be served on a party in any
proceeding or matter before any Department agency.

\(b\) [Levels of fees for each category of requesters]{.underline}.
Under the FOIA, as amended, there are four categories of requesters:
commercial use requesters; educational and non-commercial scientific
institutions; representatives of the news media; and all other
requesters. The Act prescribes specific levels of fees for each
category:

\(1\) [Commercial use requesters]{.underline}.

\(i\) For commercial use requesters, Rural Development shall assess
charges which recover the full direct costs of searching for, reviewing
for release, and duplicating the records sought. Commercial use
requesters are not entitled to the free search time or duplication
referenced in paragraph (a)(l) of this section. Rural Development may
recover the cost of searching for and reviewing records for commercial
use requesters even if there is ultimately no disclosure of records.

\(ii\) A commercial use requester is defined as 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, Rural Development must determine whether the requester
will put the documents to a commercial use. Where there is 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, Rural
Development may seek additional clarification from the requester.

> \(2\) [Educational and non-commercial scientific institution
> requesters]{.underline}.

\(i\) Fees for this category of requesters shall be limited to the cost
of providing duplication service alone, minus the charge for the first
100 reproduced pages. No charge shall be made for search or review
services. To qualify for this

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RD Instruction 2018-F

§ 2018.255(b)(2)(i) (Con.)

category, requesters must show that the request is being made as
authorized by and under the auspices of an eligible institution and that
the records are not sought for a commercial use, but are sought in
furtherance of scholarly research (if the request is from an educational
institution) or scientific research (if the request is from a non-
commercial scientific institution).

\(ii\) 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, and an institution
of vocational education, which operates a program or programs of
scholarly research.

\(iii\) The term \"non-commercial scientific institution\" refers to an
institution that is not operated on a \"commercial\" (see paragraph
(b)(l) of this section) basis, 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.

\(3\) [Requesters who are representatives of the news
media]{.underline}.

\(i\) Fees for this category of requester shall also be limited to the
cost of providing duplicating service alone, minus the charge for the
first 100 reproduced pages. No charge shall be made for providing search
or review services. Requests in this category must not be made for a
commercial use.

\(ii\) 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 which disseminate news and who make their
products available for purchase or subscription by the general public.
\"Freelance\" journalists 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.

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RD Instruction 2018-F

§ 2018.255(b) (Con.)

\(4\) [All other requesters]{.underline}. Fees for requesters who do not
fit into any of the above categories shall be assessed for the full
reasonable direct cost of searching for and duplicating documents that
are responsive to a request. No charge, however, shall be made to
requesters in this category for the first 100 duplicated pages, or the
first two hours of manual search time, or the equivalent value of
computer search time as defined in paragraph (d)(l)(ii) of this section.

\(c\) [Fee waivers and reductions]{.underline}. Rural Development shall
waive or reduce fees on requests for information if disclosure of the
information is deemed to be 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.

\(1\) In determining when fees shall be waived or reduced, the following
six factors should be considered:

\(i\) The subject of the request, i.e., whether the subject of the
requested records concerns \"the operations or activities of the
government.\"

\(ii\) The informative value of the information to be disclosed, i.e.,
whether the disclosure is \"likely to contribute\" to an understanding
of Government operations or activities.

\(iii\) The contribution to public understanding of the subject by the
general public is likely to result from disclosure, i.e., whether
disclosure of the requested information will contribute to \"public
understanding.\"

\(iv\) The significance of the contribution to public understanding.
i.e., whether the disclosure is likely to contribute \"significantly\"
to public understanding of Government operations or activities.

\(v\) The existence and magnitude of a commercial interest, i.e.,
whether the requester has a commercial interest that would be furthered
by the requested disclosure; and, if so,

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RD Instruction 2018-F

§ 2018.255(c)(1) (Con.)

\(vi\) the primary interest in disclosure, i.e., whether the magnitude
of the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is \"primarily in the commercial interest of the requester,\"
in which case, Rural Development shall not waive or reduce the fee.

\(2\) Rural Development may, at its discretion, waive or reduce fees
associated with a request for disclosure regardless of whether a waiver
or reduction has been requested if the Agency determines that disclosure
will primarily benefit the general public.

\(3\) Rural Development may also waive or reduce fees under the
following conditions:

\(i\) Where the furnishing of information or a service without charge or
at a reduced rate is an appropriate courtesy to a foreign country or
international organization, or where comparable fees are set on a
reciprocal basis with a foreign country or an international
organization.

\(ii\) Where the recipient is engaged in a nonprofit activity designed
for the public safety, health, or welfare.

\(iii\) Where it is determined that payment of the full fee by a State
or local government or nonprofit group would not be in the interest of
the program involved.

\(4\) Fees shall be waived, however, without discretion in all
circumstances where the amount of the fee is \$25.00 or less.

\(d\) [Types of services for which fees may be charged]{.underline}.

\(1\) [Search services]{.underline}. Search services are services of
Agency personnel\--clerical or professional\--used in trying to find the
records, that are responsive to a request. Search services includes both
manual and electronic searches and time spent examining records for the
purpose of finding information that is within the scope of the request.
Search services also include services to transport personnel to places
of record storage, or records to the location of personnel for the
purpose of the search, if such services are reasonably necessary.
(Revised 04-26-06, PN 397.)

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RD Instruction 2018-F

§ 2018.255(d)(1) (Con.)

\(i\) [Manual searches]{.underline}. Manual searches shall be charged
for in one of the two following manners in the given order:

\(A\) When feasible, at the salary rate of the employee conducting the
search, plus 16 percent of the employee's basic pay; or

\(B\) Where a homogeneous class of personnel is used exclusively, at the
rate of \$10.00 per hour for clerical time, and \$20.00 per hour for
supervisory or professional time. Charges should be computed to the
nearest quarter hour required for the search.

\(ii\) [Mainframe computer searches]{.underline}. Mainframe computer
searches and services shall be charged for at the rate of \$27.00 per
minute, or at the rates established in the Users Manual or Handbook
published by the computer center at which the work will be performed.
Searches using computers other than mainframes shall be charged for at
the manual search rate.

\(iii\) [Unsuccessful searches]{.underline}. Charges for unsuccessful
searches, or searches which fail to locate records or which locate
records which are exempt from disclosure, shall be assessed at the same
fee rate as searches which result in disclosure of records.

\(2\) [Review services]{.underline}. Review services are services
performed by Agency personnel, clerical or supervisory/professional, in
examining documents located in response to a request that is for a
commercial use, as specified in paragraph (b)(l) of this section, to
determine whether any portion of any document located is permitted to be
withheld. Review services include processing any documents for
disclosure, e.g., doing all that is necessary to excise exempt portions
and otherwise prepare documents for release. \"Review\" does

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RD Instruction 2018-F

§ 2018.255(d)(2) (Con.)

not include time spent resolving general legal or policy issues
regarding the application of exemptions. The fee for providing review
services shall be the hourly salary rate (i.e., basic pay plus 16
percent) of the employee conducting the review to determine whether any
information is exempt from mandatory disclosure.

\(3\) [Other direct costs]{.underline}. Costs incurred, e.g., manually
creating records by compiling information, computer programming,
computer runs, shipping records from one office to another by commercial
carrier in order to timely answer the request, will be assessed the
requester based on actual cost to the Government.

> \(4\) [Authentification (with USDA seal affixed)]{.underline}. An
> additional charge of \$10.00 for each document copy authenticated.
> When a request is received for an authenticated copy of a document
> which the Agency determines to make available to the requesting party,
> the Agency shall cause a correct copy to be prepared and sent to the
> Office of the General Counsel (OGC) which shall certify the same and
> cause the seal of the Department to be affixed, except that the
> Judicial Officer, or the Hearing Clerk when directed by the Judicial
> Officer, may authenticate copies of documents in the records of the
> Hearing Clerk.

\(5\) [Certifications]{.underline}. An additional charge of \$5 for each
certified document copy. The certification should read: \"I certify this
is a true copy of the original\" (with signature and title affixed). The
officials authorized to make this certification are the FOIO, State
Directors, District Directors, and County Supervisors.

\(6\) [Staff manual items]{.underline}. A charge of \$.20 for each
sheet, if photocopied. Rural Development offices do not stock such
materials for public sale, but should such extra materials will be
available, they may be furnished without charge.

\(7\) \[Reserved\]

\(8\) \[Reserved\]

\(9\) \[Reserved\]

\(10\) [Passive solar home plans]{.underline}. A charge of \$5 per set
(8 sheets).

\(11\) \[Reserved\]

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RD Instruction 2018-F

§ 2018.255(d) (Con.)

\(12\) [Computer-generated reports]{.underline}. Several computer
programs have been developed to provide reports containing releasable
data that are frequently requested under the FOIA and are subject to fee
charges for the reimbursement of Rural Development cost. The most common
computer reports and their fee schedules are as follows:

\(i\) [B&I Closed Active Loan Lender Report]{.underline}.

This report provides a listing of B&I closed loans in state sequence
reflecting lender name, town, and tax identification number as well as
total number and amount of loans by lender. The data is available from
the Rural Community Facility Tracking System (RCFTS).

State Report - \$50.00

Nationwide Report - \$350.00

\(ii\) [B&I Borrower and Lender Information Report]{.underline}.

This report provides a listing of B&I loans in state sequence reflecting
borrower name, town, loan amount by type of assistance, interest rate,
type of interest, maturity period and loan status, as well as lender
name, type, town and state. The data is available from the RCFTS.

State Report - \$150.00

Nationwide Report - \$650.00 (Revised 04-26-06, PN 397.)

\(iii\) [B&I Job Information Report]{.underline}.

This report provides an alphabetical listing of B&I loans by borrower
name in state sequence, reflecting loan amounts, loan status,
operational date, jobs created, jobs saved, total jobs, jobs verified,
and date verified. The data is available from the RCFTS.

State Report - \$75.00

Nationwide Report - \$500.00

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RD Instruction 2018-F

§ 2018.255(d)(12) (Con.)

\(iv\) [B&I Loan Status Summary Report]{.underline}.

This report provides a listing of B&I loans in state sequence reflecting
borrower name and location, fund request, status code and date, amount
of assistance, and lender name, town, and state. The data is available
from the RCFTS Tracking System.

State Report - \$75.00

Nationwide Report - \$500.00

\(v\) [B&I Loans Obligated By Year]{.underline}.

This report provides a listing of B&I loans obligated within a specified
time frame within a fiscal year in state sequence, which reflects
borrower name and location, amount of assistance, and lender name, town,
and state. The data is available from the RCFTS Tracking System.

Nationwide Report - \$35.00

\(vi\) [List of Obligated/Unclosed Accounts]{.underline}.

This report is a listing of obligated/unclosed accounts sorted by
geographic state/county and may be limited to selected loan programs
(fund code). The report includes information on interest rate, date of
obligation, amount of obligation, and amount vouchered.

Note: Individual borrower data will no longer be released. Loan-related
information without an individual borrower name, or other identifying
information (e.g., social security number, home telephone number, home
address), may be released when grouped by geographic or other
statistical categories, unless the FOIA requester will be able to
identify the name of the individual borrower from the information
provided. Loan-related information retrieved by a commercial business
name is not affected by this change.

County Report - \$75.00

State Report - \$125.00

Nationwide Report - \$400.00

\(vii\) [Guaranteed Loans Lender Listing]{.underline}.

This report is a listing of all active lenders in loan type and State
Office sequence. The report shows the lender\'s name and address and the
total amount of the lender\'s active loans.

State Report - \$75.00

Nationwide Report - \$350.00

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RD Instruction 2018-F

§ 2018.255(d)(12) (Con.)

\(viii\) [Community Facilities Report by Applicant Type]{.underline}.

This report provides an alphabetical listing of Community Facility loans
segregated by Public Body and Non-Profit Corporation in state sequence.
The report shows borrower name, facility location, purpose of funds,
funds borrower contributed, jobs created, jobs saved, population, median
income, interest rate, and amount of funds and date obligated. The
report also includes fund amounts contributed by the Environmental
Protection Agency (EPA), private commercial, state/county, Regional
Commission, and other sources. The data is available from the RCFTS.

State Report - \$50.00

Nationwide Report - \$500.00

\(ix\) [Water and Waste Report by Applicant Type]{.underline}.

This report provides an alphabetical listing of Water and Waste loans
segregated by Public Body and Non-Profit Corporation in state sequence.
The report shows borrower name, facility location, purpose of funds,
funds borrower contributed, user residential, user non-residential, user
grant benefited, population, median income, interest rate, and amount of
loan and grant funds and date obligated. The report also includes fund
amounts contributed by the EPA, private commercial, state/county,
Regional Commission, and other sources. The data is available from the
RCFTS.

State Report - \$50.00

Nationwide Report - \$500.00

\(x\) [List of Borrower Accounts]{.underline}.

This report is available with options to select all insured borrower
accounts or specific program accounts, e.g., Farmer Program borrower
accounts, Rural Housing borrower accounts or Community Program borrower
accounts. Accounts may also be selected for the nation, state, or
county. The report is sorted by geographic state/county and can be
specified by a period of time based on date of loan. The report shows
loan type, loan number, interest rate, and a date and amount of loan.
(Revised 04-26-06, PN 397.)

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RD Instruction 2018-F

§ 2018.255(d)(12)(x) (Con.)

Note: Individual borrower data will no longer be released. Loan-related
information without an individual borrower name, or other identifying
information (e.g., social security number, home telephone number, home
address), may be released when grouped by geographic or other
statistical categories, unless the FOIA requester will be able to
identify the name of the individual borrower from the information
provided. Loan-related information retrieved by a commercial business
name is not affected by this change.

\(A\) [Farm, Housing, or Community Program Borrower\
]{.underline} [Accounts]{.underline}.

County Report:

Farm or Housing - \$100.00

Community Program - \$150.00

## 

State Report:

Farm or Housing - \$200.00

Community Program - \$250.00

Nationwide Report:

Farm or Housing - \$1,000.00

Community Program - \$750.00

\(B\) [All Borrower Accounts]{.underline}.

County Report - \$150.00

State Report - \$300.00

Nationwide Report - \$2,500.00

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RD Instruction 2018-F

§ 2018.255(d) (Con.)

\(13\) [Photocopies, 8 1/2\" x 14\" or smaller]{.underline}. A charge of
\$.20 for a single page only if done for the convenience of the
requester. No fee will be charged for photocopying done for the
convenience of the Government or when the requester provides the copying
equipment, materials, and services.

\(14\) [Photocopies in excess of 8 1/2\" x 14\"]{.underline}. A charge
of \$.50 per linear foot of the longest side of the copy or portions
thereof only if done for the convenience of the requester. No fee will
be charged for photocopying done for the convenience of the Government
or when the requester provides the copying equipment, materials, and
services.

\(15\) [Audio and videotape reproductions]{.underline}. For
reproductions of audio or videotapes, requesters must supply their own
recording tape, and will be assessed a fee of \$25.00 an hour for
copying work requested. There is a one-hour minimum charge. Payment is
required at the time videotapes or audiotapes are accepted by the
requester.

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RD Instruction 2018-F

§ 2018.255(d) (Con.)

\(16\) [Photographic reproductions of Rural Development-owned
microfiche]{.underline}. A charge of \$3.50 for the first fiche image
and \$1.00 for each additional fiche image will be assessed for
photographic reproductions of Rural Development-owned microfiche.

\(e\) [Payments of fees and charges]{.underline}.

\(1\) Payments should be billed for the fullest extent possible at the
time the requested materials are furnished. Payments should be made by
requesters within 30 days of the date of the billing. Payments shall be
made by check, draft, or money order made payable to the Treasury of the
United States, although payments may be made in cash, particularly where
services are performed in response to a visit to the office.

\(2\) Where the estimated fees to be charged exceed \$250.00. Rural
Development may require an advance payment of an amount up to the full
estimated charges (but not less than 50 percent) from the requester
before any of the requested materials are reproduced. In instances where
a requester has previously failed to pay a fee, Rural Development may
require the requester to pay the full amount owed, as well as the full
estimated fee associated with any new request, before the Agency begins
to process that new or subsequent request.

\(3\) When the fee is collected, a receipt will be issued to the payer
on Form RD 104-1, \"Public Information Transmittal and/or Receipt.\"
Collections received along with a transmittal explaining the proper
disposition of the funds should be sent to:

United States Department of Agriculture

National Finance Center

Administrative Collections

Post Office Box 790342

St. Louis, Missouri 63179-0342

\(4\) Lock box personnel at the U.S. Bank, located in St. Louis,
Missouri, will deposit the remittance and forward a photocopy of the
check(s) with all supporting documentation via Express Mail to the USDA,
National Finance Center. (Revised 04-26-06, PN 397.)

\(f\) [Effect of the Debt Collection Act on Fees]{.underline}. In
attempting to collect fees levied under the FOIA, Rural Development
shall abide by the provisions of the Debt Collection Act of 1982 (P.L.
97-365) in disclosing information to consumer reporting agencies and in
the use of collection agencies, where appropriate, to encourage payment.

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RD Instruction 2018-F

§ 2018.255 (Con.)

\(g\) [Deficiencies and refunds]{.underline}.

\(1\) When the amount covered by an advance payment is less than the
final total cost of filling a request, the amount of the deficiency, if
\$1 or more, will be collected not later than at the time the request is
filled. Overpayment of \$1 or more will be refunded, but refunds of
amounts less than \$1 will not be made unless specifically asked for in
writing.

\(2\) When a check is passed for which there is to be a full or partial
refund, explain the situation, state the check amount, how the check is
to be made out, the address it is to be sent, and send to:

United States Department of Agriculture

##  National Finance Center

##  Administrative Collections

Post Office Box 790342

St. Louis, Missouri 63179-0342 (Revised 04-26-06, PN 397.)

§ 2018.256 [Public inspection and copying]{.underline}.

\(a\) Facilities for inspection and copying by the public and for
obtaining copies of materials will be provided by the FOIO in the
National Office, the State Director in each State Office, the Rural
Development Manager in each Area Office, and the Community Development
Manager in each Local Office. Such facilities will usually consist of a
table and chairs in a convenient location in an office which can be used
without undue interference with normal office procedure.

\(b\) A person who has requested such materials will be promptly
notified that he/she may inspect and copy such materials and, upon
payment of applicable fees, obtain copies thereof on business days
during regular business hours. If any of the Rural Development materials
requested are not located at the office to which the request was made,
the request will be forwarded to the office where such materials are
available for a direct reply and the requester so notified. Personal
inspection of documents in lieu of copying should be encouraged.

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## (03-03-04) PN 371 

RD Instruction 2018-F

§ 2018.257 [Requests for records]{.underline}.

\(a\) To speed processing, requests for information should be made by
mail or fax to the appropriate Local, Area or State Office where the
records are likely to be located, but requests may be mailed/faxed to
the Freedom of Information Officer, Support Services Division, General
Services Branch, Rural Development, U.S. Department of Agriculture, 1400
Independence Avenue, SW, MC 0742, Washington, D.C. 20250-0742. Requests
for staff manual items, forms, and descriptive publications that are
readily available need not be put in writing. The phrase \"FOIA
REQUEST\" should be placed in capital letters on the front of the
envelope for any written requests. The requester will be given the
information promptly and in writing. When a determination to release has
been made, but the information to be furnished cannot be given promptly,
the requester will be given a written notice indicating when the
information will be available. (Revised 06-13-07, PN 410.)

\(b\) All written requests will be date stamped upon their receipt.

\(c\) No provision in 5 U.S.C. 552 requires that an agency compile a new
record in order to fulfill a request for records. Such compilation may
be undertaken voluntarily if the agency determines this action to be in
the public interest or in the interest of Rural Development.

\(d\) A request shall not be denied on the sole ground that the record
has not been properly identified if the description, together with the
knowledge Agency personnel have of the contents of their files, enables
the record to be located.

\(e\) A request relating to a matter in pending litigation should
indicate the name of the court and its address.

\(f\) Requests shall be reasonably specific. If they fall within
reasonably specific categories, but constitute an undue burden, the
Rural Development official making the determination may contact the
requester to discuss the request and attempt to reduce it to manageable
proportions. However, the fact that filling a request constitutes an
undue burden is not grounds for denying a request.

## 16

## (Revision 2) 

RD Instruction 2018-F

§ 2018.257 (Con.)

\(g\) A single copy of any document or blank form will be supplied
whenever possible. Copies of forms provided to the public shall also be
limited to one copy per form. Persons requiring any large quantities
should be encouraged to use other sources for reproduction. If
photocopies must be made, the Rural Development employee will maintain
control of partially exempt documents being copied to eliminate
unauthorized disclosure of material.

\(h\) If data have been compiled and are available in the form of a
record, the data shall be made available as provided herein. If
administratively feasible, records may be created for the prescribed
fee; however, records are not normally required to be created by
compiling selected items from the files, and records are not normally
required to be created to provide the requester with such data as
ratios, proportions, percentages, per capitas, frequency distributions,
trends, correlations, comparisons, and forecasts.

\(i\) Copies of a requested record need not be furnished if the record
is known to have been published in the Federal Register or is available
for purchase from the Superintendent of Documents of GPO. The requester
will be advised to order from GPO at the following address:
Superintendent of Documents, U.S. Government Printing Office,
Washington, D.C. 20402. Such records may be furnished if an agency
office has a copy. A requester may purchase a complete set of RD
Instructions from GPO by asking for Title 7 CFR Parts 1500 to end.

\(j\) If the material requested is the primary concern of another
agency, the requester may be informed of that fact and asked to contact
the other agency. If the requester insists that Rural Development
provide the information, Rural Development must process the request and
can deny access only on the basis of the FOIA exemptions. If Rural
Development has no knowledge concerning the requested records, it shall
notify the requester of that fact.

\(k\) Records of specified form or character are required to be
destroyed after the lapse of time specified in the Records Disposal Act
of 1943, 44 U.S.C. 366-380, and in accordance with Rural Development
disposal schedules approved by the General Services Administration.
Under no circumstances shall records be destroyed while they are the
subject of a pending request, appeal, or lawsuit under the FOIA or the
Privacy Act. When final action has been taken on these requests such
materials may be destroyed in accordance with Schedule 14, General
Records Schedule, FPMR 101-11.4.

## 17

## 

(03-03-04) PN 371

RD Instruction 2018-F

§ 2018.258 [Availability of identifiable material]{.underline}.

\(a\) [Information subject to mandatory release]{.underline}.

\(1\) The FOIA authorizes agencies to disclose information that \"is in
the public interest because furnishing the information can be considered
as primarily benefiting the general public.\" The applications of a
public interest often requires a balancing of the individual\'s right of
privacy against the preservation of the basic purpose of FOIA to open
agency action to the light of public scrutiny. Thus, there is a sound
basis in both logic and law for agencies to focus on any public interest
served by nondisclosure, to determine the \"net\" public interest
involved, and to determine whether perhaps any public interest factors
favoring disclosure are outweighed by the very significant and tangible
public interest factors favoring nondisclosure. Examples of public
interest assertions by requesters to obtain Agency records are as
follows:

\(i\) Public scrutiny of Agency records dealing with controversial
political issues or to disclose the \"Secret Law\" of an agency.

\(ii\) Ensure Agency performance of statutory responsibilities or to
expose possible Government wrongdoing.

\(iii\) Obtain Agency records for use of investigative reporters of the
news media.

\(iv\) Obtain Agency records for use in historical work or academic
studies.

\(v\) Obtain Agency records for use by public interest groups or for use
in consumer group activities.

\(vi\) Discover evidence for use in adjudicatory proceedings before an
Agency or to discover evidentiary basis for Agency rulemaking in order
to challenge that rulemaking.

\(2\) The FOIA\'s broad disclosure mandate is subject to nine exemptions
which are to be construed narrowly. The exemptions are permissive in
nature and the Agency generally may disclose exempt information unless
it is under a legal duty arising outside of FOIA not to disclose.
Examples of information subject to mandatory release are as follows:

## 18

##  

RD Instruction 2018-F

§ 2018.258(a)(2) (Con.)

\(i\) RD Instructions, AN\'s, unnumbered letters, blank copy of forms,
descriptive publications, and the like.

\(ii\) Statistical data in any form.

\(iii\) Final Agency opinions, decisions and actions, including contract
awards and bid abstracts, unless such opinions, decisions, and actions
contain information which clearly constitutes an unwarranted invasion of
personal privacy, in which case such materials must be redacted.

\(iv\) Pleadings, motions, orders, testimony, and other documentary
evidence introduced in pending or closed litigation once such items are
a matter of public record.

\(v\) Information available in public records, or customarily released
by the applicant or recipient, or approved in writing for release by the
applicant or recipient to whom the records pertain.

\(vi\) Names of past and present employees\' position titles,
occupational series, grades, duty stations, and salaries, including
performance bonuses, awards, meritorious or distinguished executive
ranks, and allowances and differentials.

\(vii\) Employees\' position descriptions, job elements and those
performance standards, but not actual performance appraisals, that the
release of which would not interfere with law enforcement programs or
severely inhibit Agency effectiveness. Performance elements and
standards or work expectations may be withheld when they are so
intertwined with performance appraisals that their disclosure would
reveal an individual\'s performance appraisal

\(viii\) SF-278, \"Executive Branch Personnel Public Financial
Disclosure Report\" of Agency employees in Executive Level, Schedule C,
and SES positions.

\(b\) [Information subject to consultation with the FOIO]{.underline}.

\(1\) The following information about an individual applicant or
borrower requested by third parties will not be released until after
consultation with the FOIO:

## 19

## 

(03-03-04) PN 371

RD Instruction 2018-F

§ 2018.258(b)(1) (Con.)

\(i\) Applications, family budgets, and Farm and Home Plans containing
personal and financial data such as an identity of an employer,
education level, and detailed representation of income, debts, living
expenses, and financial statements.

\(ii\) Credit reports and references.

\(iii\) Character reference letters.

\(iv\) Verification of income or employment.

\(v\) Appraisals and inspection reports.

\(vi\) Audits, OGC opinions, and investigatory or law enforcement
records.

\(vii\) Inter-agency or intra-agency documents of a predecisional and
deliberative nature containing opinions and recommendations prior to a
final decision.

\(viii\) Solicited or unsolicited information given the Agency under an
expressed \"promise of confidentiality.\"

\(2\) The following information about a business or public entity will
not be released to third parties until after consultation with the FOIO:

\(i\) Contract proposals and their evaluation.

\(ii\) RH 515 project market surveys performed by a private commercial
business.

\(iii\) Personal financial statements of officers, stockholders, etc.,
or their personal history.

\(iv\) Business appraisals and liquidation plans.

\(v\) Acquisition offers to purchase business.

\(vi\) Dunn and Bradstreet financial reports.

\(vii\) Financial and market surveys, projections and operating budgets.

## 20

##  

RD Instruction 2018-F

§ 2018.258(b)(2) (Con.)

\(viii\) Appraisals of personal property pledged by guarantors.

\(ix\) Inter-agency or intra-agency documents of a predecisional and
deliberative nature containing opinions and recommendations prior to a
final decision.

\(x\) Product pricing and unique manufacture processes, procedures, and
techniques.

\(xi\) Solicited or unsolicited information given Rural Development
under an expressed \"promise of confidentiality.\"

\(c\) [Legal basis for withholding information (exemptions from
disclosure)]{.underline}. The Agency cannot refuse to provide records to
a requester because of the identity of the requester or the requester\'s
purpose in seeking the records. It can refuse to make the requested
records available only when the records sought fall within at least one
of the nine statutory exemptions from the FOIA\'s disclosure provisions.

\(1\) [General]{.underline}. There are six specific statutory exemptions
most applicable to documents in the possession of Rural Development.
These statutory exemptions, with their appropriate citations, are as
follows:

\(2\) [5 U.S.C. 552 (b)(2)]{.underline}. Records \"related solely to the
internal personnel rules and practices of an agency.\" This exemption
covers:

\(i\) internal matters of a relatively trivial nature in which there is
no genuine public interest; and

\(ii\) more substantial internal matters the disclosure of which would
allow circumvention of a statute or regulation. Exemption No. 2 of the
FOIA 15 U.S.C. 552 (2)\].

\(3\) [5 U.S.C. 552 (b)(3)]{.underline}. Matters which are
\"specifically exempted from disclosure by statute, (other than section
552b of \[Title 5\]), provided that such statute (A) requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of material to be withheld.\"
Exemption No. 3 of the FOIA \[5 U.S.C. 552 (b)(3)\].

21

(03-03-04) PN 371

RD Instruction 2018-F

§ 2018.258(c)(3) (Con.)

\(i\) It has been determined that the Privacy Act (5 U.S.C. 552a) and
the Trade Secrets Act (18 U.S.C. 1905) are not appropriate 5 U.S.C. 552
(b)(3) statutes.

\(ii\) Internal Revenue Service tax code (26 U.S.C. 6103)
\"Confidentiality and disclosure of tax returns and tax return
information\" is an appropriate 5 U.S.C. 552 (b)(3) statute.

\(4\) [5 U.S.C. 552 (b)(4)]{.underline}. \"Trade secrets and commercial
or financial information obtained from any person and privileged or
confidential.\" This exemption does not itself preclude discretionary
disclosure of business information unless, however, the Trade Secrets
Act (18 U.S.C. 1905) prevents such discretionary disclosure. This
exemption covers material which would not customarily be made public by
the person from whom it was obtained. Requested records will be
considered \"confidential\" within the meaning of this exemption if
their disclosure is likely to either (1) impair the government\'s
ability to obtain necessary information in the future, or (2) cause
substantial harm to the competitive business position of the person or
the business on which the information was supplied. A pledge of
confidentiality from the Agency, or the fact that the information at
issue is not customarily available to the public, will not qualify
requested materials as \"confidential\" under this exemption. Rural
Development is responsible for making the final determination with
regard to the disclosure or nondisclosure of information submitted by a
business. If it cannot be readily determined whether the information
obtained from a person is privileged or confidential business
information, it is the policy of Rural Development to obtain and
consider the views of the submitter of the information, and to provide
the submitter an opportunity to object to any decision to disclose the
information. Whenever a request (including any \"demand\" as defined in
§2018.260 of this subpart) is received for information which has been
submitted by a business, Rural Development shall:

\(i\) Provide the business information submitter with prompt
notification of a request for that information (unless it is readily
determined by the Agency that the information requested should not be
disclosed or, on the other hand, that the information is not exempt by
law from disclosure).

\(ii\) Notify the requester that Rural Development will inform the
submitter of a request for submitted business information.

## 22

##  

RD Instruction 2018-F

§ 2018.258(c)(4) (Con.)

\(iii\) Afford business information submitters time in which to object
to the disclosure of, any specified portion of the information. The
submitter must explain fully all grounds upon which disclosure is
opposed. For example, if the submitter maintains that disclosure is
likely to cause substantial harm to its competitive position, the
submitter must explain document-by-document and item-by-item why
disclosure would cause such harm. Information provided by a business
submitter pursuant to this paragraph may itself be subject to disclosure
under FOIA. The unique nature of this exemption applies particularly to
contract proposals, market surveys, and business appraisals. The Agency
rarely denies business information without first consulting the business
information submitter and in most cases requires their justification for
Rural Development to exercise this exemption. The following contains
specific guidance from the Office of General Counsel (OGC) on what Rural
Development should demand from the business regarding their
justification for our assertion of this exemption:

\(A\) Please review your copies of the requested documents to determine
whether any portion of them is covered by an exemption to the FOIA. If
any information in these documents was supplied by others, please
ascertain whether any third parties have an objection to the release of
the documents. Absent advice to the contrary, the Rural Development will
presume that such third parties have been informed of this FOIA request
and/or have no objection to release.

\(B\) All objections to release must be stated in terms of exemptions
from release of documents provided in the FOIA itself or Department of
Agriculture regulations (7 CFR 1.1 - 1.23). Statements of objections
must apply to specific documents and parts thereof. Statements of broad
objection to release of all documents requested will not be viewed as
appropriate.

## 23

## 

## (03-03-04) PN 371 

RD Instruction 2018-F

§ 2018.258(c)(4)(iii) (Con.)

\(C\) In general, where some portions of a document are exempt from
mandatory release and some portions are not, all nonexempt portions are
to be released. Those portions not released are to be identified
according to the nature of the information contained and the specific
applicable exemption or exemptions. You should indicate which portions
of documents (if any) are considered exempt from mandatory release. If
these are approved, the remainder of the document can then be released.

\(D\) The criteria for properly invoking an exemption under 5 U.S.C. 552
(b)(4) requires establishing that: (1) The information is confidential;
(2) Actual competition exists; and (3) Substantial competitive harm is
likely to result from disclosure. Any commercial or financial
information considered privileged or confidential must be identified
with particularity.

\(E\) To withhold information, Rural Development needs an affidavit(s)
to support any claimed exemptions. Such an affidavit(s) should address
[in detail]{.underline} and nonconclusory terms, [inter]{.underline}
[alia]{.underline}, the following series of questions. While some
questions may not be applicable to the situation, they are provided for
your general guidance and as an indication of the quality and type of
information that must be received in support of a 5 U.S.C. 552(b)(4)
exemption claim.

([1]{.underline}) Confidentiality.

([i]{.underline}) Does your firm continue in the same or substantially
similar business to which the commercial or financial information is
relevant?

([ii]{.underline}) How would divulging each item of commercial or
financial information reveal the basis or method of operation of your
business?

([iii]{.underline}) Due to the age of the information, what information
remains to be of continued commercial vitality and value?

## 24

##  

RD Instruction 2018-F

§ 2018.258(c)(4)(E) (iii)([1]{.underline}) (Con.)

([iv]{.underline}) Are any subcontractors listed in the subject
documents currently associated with your business? Is all commercial or
financial information associated with any such subcontractors current?

([v]{.underline}) How would disclosure of the information affect the
Government\'s ability to obtain similar data from your firm in the
future?

([2]{.underline}) Existence of competition.

([i]{.underline}) Describe the current market in which your business is
involved.

([ii]{.underline}) Who are successful businesses involved in the market
described above?

> ([iii]{.underline}) Please indicate the specifics of how the
> information will harm your competitive position as a result of
> disclosure to the requester.

([3]{.underline}) Substantial competitive injury.

([i]{.underline}) Describe the nature of your business and how
particular commercial or financial information could be used by a
competitor to your injury.

([ii]{.underline}) Would release of the information allow competitors
advantageous insight into your firm\'s business operations? If so, in
what way?

([iii]{.underline}) Could a competitor construct a theoretical model of
your firm\'s cost and profit?

## 25

## 

(03-03-04) PN 371

RD Instruction 2018-F

§ 2018.258(c)(4)(iii) (Con.)

\(F\) The affidavit(s) should not be limited to a narrative response to
the above questions. All information related to the issue of
confidentiality and competition should be included. The responses should
be precise, detailed, and address, so far as possible, each item of
commercial or financial data individually. Any requests for which the
remaining eight exemptions apply should be stated and expressed in a
similar manner.

\(G\) The FOIA imposes strict time limits on Government agencies. In
view of those limits, any objection to release of the above referenced
documents is expected within fifteen days from the date of this letter.
Failure to receive any objections within that time will be construed as
an absence of objection to release to the requester. If there is no
objection to release, a statement to that effect will be appreciated and
will speed the response to the requester.

\(iv\) Provide business information submitters with notice of any
determination to disclose such records prior to the disclosure date, in
order that the matter may be considered for possible judicial
intervention. Exemption 5 U.S.C. 552(b)(4) cases often give rise to
so-called \"Reverse FOIA\" actions, in which the submitter of the
requested materials seeks judicial intervention to prevent the Agency
from releasing business information to the requester.

\(v\) Notify business information submitters promptly of all instances
in which Rural Development FOIA requesters bring suit seeking to compel
disclosure of submitted information. Exemption No. 4 of the FOIA \[5
U.S.C. 552 (b)(4)\].

26

RD Instruction 2018-F

§ 2018.258(c) (Con.)

\(5\) [5 U.S.C. 552 (b)(5)]{.underline}. \"Inter-agency or intra-agency
memorandums or letters which would not be available by law to a party
other than an agency in litigation with the agency.\" This exemption
protects internal memorandums and letters of a predecisional and
deliberative nature, the release of which would inhibit the free
exchange of ideas within Rural Development prior to a final decision. It
cannot be used to withhold material merely because it is embarrassing or
to withhold purely factual material or final decisions. Exemption No. 5
of the FOIA \[5 U.S.C. 552 (b)(5)\].

\(i\) Included within the scope of this exemption is the \"executive\"
privilege (protecting advice, recommendations, and opinions which are
part of the deliberative, consultative, decision-making processes of
government), the attorney \"work-product\" privilege (protecting
documents prepared by an attorney in anticipation of particular
proceedings, where disclosure would reveal the attorney\'s litigation
strategy or theory of the case), and the \"attorney-client\" privilege
(protecting confidential communications between an attorney and his
client).

\(ii\) The \"executive\" privilege, is the most frequently encountered
application of this exemption by Rural Development. Predecisional versus
post-decisional, and fact versus opinion are unique distinctions of this
exemption. Courts have held that pre-decisional recommendations, which
would ordinarily be exempt, lose the protection of the \"executive,
privilege if an agency, in making a final decision, chooses expressly to
adopt them or incorporate them by reference. Conversely, facts that
would ordinarily be available to the public have been withheld where
they are selected or summarized in a way that reflects the deliberative
process, or where their disclosure would impair the Agency\'s ability to
obtain information which is essential to the Agency\'s decision-making
process.

\(iii\) Rarely does this exemption apply to an entire document,
requiring instead that the Agency delete only those parts which are
exempt from mandatory disclosure. The FOIA states that an agency may not
withhold an entire document because some portion of its contents is
exempt from disclosure. This is particularly true of running case
records, problem case reports, and the like.

## 27

## 

(03-03-04) PN 371

RD Instruction 2018-F

§ 2018.258(c) (Con.)

\(6\) [5 U.S.C. 552 (b)(6)]{.underline}. \"Personnel and medical files
and similar files, the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.\" This exemption excludes from
disclosure requirements all personnel and medical files and all private
or personal information contained in other files which, if disclosed to
the public, would amount to a clearly unwarranted invasion of personal
privacy. Rural Development interprets \"person\" to include only
individuals and \"files\" to include personnel files and loan and grant
files. This exemption does not include Rural Development personnel\'s
grade, title, salary, and work location. Personal information which
would not be available by law to a third party may be released if a
written authorization to do so is granted by the first party waiving
provisions of the Privacy Act of 1974. (Exhibit D of RD Instruction
2015-E may be used for this purpose). Exemption No. 6 of the FOIA \[5
U.S.C. 552 (b)(6)\].

\(i\) This exemption requires agencies and courts to balance individual
privacy interests against the public\'s right to information. Although
courts have noted that the language of the exemption appears to tilt the
balance in favor of disclosure, information which reveals \"intimate\"
or \"personal\" details concerning a living person can be withheld where
the privacy interest is balanced against little or no public interest in
disclosure.

\(ii\) Examples of less commonly known documents meeting the conditions
of this exemption notwithstanding a public interest are as follows:

\(A\) Intimate or personal details about individuals beyond those
described in §2018.258(a)(2)(vi) and (vii) of this subpart, regarding
garnishment of wages on alimony orders and child support, except when
requested by State and local government officials authorized to issue
compulsory requests for information.

\(B\) Performance Appraisals\--Performance elements and standards may
also be withheld when they are so intertwined with performance
appraisals that their disclosure would reveal an individual\'s
performance appraisal.

## 28

##  

RD Instruction 2018-F

§ 2018. 258(c)(6)(ii) (Con.)

\(C\) OGE Form 450, \"Executive Branch Confidential Financial Disclosure
Report\" and the OGE Optional Form 450-A, Confidential Certificate of No
New Interest" \-- The Agency shall hold each form confidential. Only
designated employees authorized to review and retain the forms are
responsible for maintaining the forms in confidence, and shall not allow
access to or allow information to be disclosed from a form.

\(D\) Segregated, selective, or discriminate list of individual
borrowers such as delinquent loans, borrowers receiving servicing
letters, borrowers names submitted to collection agencies, and borrowers
facing foreclosure, bankruptcy, or the like. Such a request for
information regarding individuals debt servicing relationship with the
Agency must be denied on the basis that individual borrowers have
legitimate expectations of privacy regarding their servicing
relationship with the Agency, an expectation which the Agency is
authorized to maintain under this exemption.

\(7\) [5 U.S.C. 552 (b)(7)]{.underline}. \"Records or information
compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records or information: (A) could
reasonably be expected to interfere with enforcement proceedings; (B)
would deprive a person of a right to a fair trial or an impartial
adjudication; (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy; (D) could reasonably be
expected to disclose the identity of a confidential source, including a
State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case of
a record or information compiled by a criminal law enforcement authority
in the course of a criminal investigation, or by an agency conducting a
lawful national security intelligence investigation, information
furnished by a confidential source; (E) would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or prosecutions
if such disclosure could reasonably be expected to risk circumvention of
the law, or (F) could reasonably be expected to endanger the life or
physical safety of any individual.\" For example, records which divulge
Office of Inspector General (OIG) audits and investigative reports,
which are to be released only by OIG, may be exempt. Requests for such
records should be referred to OIG. Exemption No. 7 of the FOIA \[5
U.S.C. 552 (b)(7)\].

## 29

## 

(03-03-04) PN 371

RD Instruction 2018-F

§ 2018.258 (Con.)

\(d\) [Credit reports]{.underline}. Credit reports are to be released to
the subject or the subject\'s designated representative, and to no other
party, except for those portions which can be released without causing a
clearly unwarranted invasion of personal privacy or under compulsory
process.

\(e\) [Availability of materials and records to other Government
agencies]{.underline}.

\(1\) [Other USDA agencies]{.underline}. Release of Information to other
USDA agencies on a \"need to know\" basis may be made as it is not
subject to the Privacy Act if such information will be used in the
performance of official duties.

\(2\) [Other Federal agencies]{.underline}. Rural Development desires
the fullest cooperation with other Federal agencies. Accordingly, any
information that is available to the public may be released to other
Federal agencies. Information subject to the Privacy Act may be
disclosed to Federal agencies in accordance with the act 5 U.S.C.
552a(b).

\(3\) [State and local governmental agencies]{.underline}. State and
local governmental agencies will be treated in the same manner as the
general public. Also, any information may be made available to State and
local governmental agencies only in accordance with the Privacy Act.

§ 2018.259 [Determinations and appeals]{.underline}.

\(a\) [Determinations]{.underline}. A determination to release or deny
must be made within 20 working days after receipt of the request and,
upon a determination to grant the request, if the requested data is not
enclosed in the reply, the approximate date that compliance will be
effected shall be indicated in the reply. If a denial is contemplated,
the FOIO should be consulted, especially if the denial is for
information with which you are not familiar. The names and titles or
positions of each person responsible for the denial of a request must be
set forth as a part of the written denial or they must sign the denial.
A no records response should be handled as a denial. The notice of
denial or no records response shall specify:

## 30

##  

RD Instruction 2018-F

§ 2018.259(a) (Con.)

\(1\) the nature of the information being withheld;

\(2\) the reasons for the denial citing the applicable exemption(s)
under the FOIA;

\(3\) the right of the requester to appeal the denial or **no records**
response to the appropriate agency from the following addresses:
Administrator, Rural Housing Service, Room 5014, MC 0701, 1400
Independence Avenue, SW, South Building, Washington, DC 20250-0701;
Rural Business-Cooperative Service, Room 5801, MC 3201, 1400
Independence Avenue, SW, South Building , Washington, DC 20250-3201; and
Administrator, Rural Utilities Service, Room 5135, MC 1510, 1400
Independence Avenue, SW, South Building, Washington, DC 20050-1510;

\(4\) that appeal should be made in writing within 45 days from the date
of the denial letter or **no records** response letter from the agency;
and

> \(5\) that the phrase \"FOIA APPEAL\" is to be placed in capital
> letters on the front of the envelope containing the appeal.

\(b\) [Appeals]{.underline}.

\(1\) The appropriate Agency Head will notify the requester in writing,
within not more than 20 working days after receiving the written appeal,
of the Rural Development's final determination. Upon a determination to
grant the appeal, if requested data is not enclosed, the requester shall
be informed of the approximate date compliance will be effected. Upon a
determination to deny the appeal, the Administrator will send a copy of
the records requested, when practical, and copies of all related
correspondence to the OGC, Attention: General Law Division. When the
volume of records is so large as to make sending a copy of the records
requested impractical, the appropriate Agency Head will enclose a
representative sample of those records. In accordance with 7 CFR 1.19,
Rural Development may, in individual cases, except when disclosure is
specifically prohibited by Executive Order, statute, or applicable
regulations, make available records exempt from mandatory disclosure
under 5 U.S.C. 552 (b) whenever it determines that such disclosure would
be in the public interest.

## 31

## 

(03-03-04) PN 371

RD Instruction 2018-F

§ 2018.259(b) (Con.)

\(2\) The appropriate Agency Head\'s notice of a final denial will
include a statement that judicial review is available in accordance with
5 U.S.C. 552 (a)(4). The notice of final denial will also inform the
requester of the reason(s) for the denial and names and titles or
positions of each person responsible for the denial of the appeal.

\(c\) [Extension of Administrative deadlines]{.underline}.

\(1\) In unusual circumstances administrative deadlines may be extended
by an authorized Rural Development official pursuant to §2018.252 of
this subpart. Written notice of the extension shall be sent to the
requester within the applicable deadline setting forth the reasons for
such extension and the date a determination is expected to be
dispatched. In no event shall the extension exceed a total of 10 working
days.

\(2\) Nothing in this instruction shall preclude Rural Development and
the requester from agreeing on an extension of time. Any such agreement
shall be confirmed in writing and shall specify clearly the total time
agreed upon.

§ 2018.260 [Compulsory process]{.underline}.

\(a\) When a subpoena or other compulsory process requires the
production or disclosure of any records, materials, or information the
employee will review and follow the regulations at 7 CFR 1.210 through
1.219 and consult with OGC and the State Director or Administrator for
guidance. Generally, a subpoena for records should be handled as a FOIA
request.

\(b\) No public statements or press releases relating to particular
litigation being conducted by the Department of Justice are to be made
or issued without prior consent of the FOIO who will obtain permission
from the General Law Division, OGC.

§ 2018.261 [Annual report]{.underline}.

\(a\) Each State Director shall submit a report on the following items
to the FOIO, General Services Branch, National Office, by October 31 for
the previous fiscal year. The report is to cover all activity within his
or her jurisdiction. Items to be contained in the report are as follows:

## 32

##  

RD Instruction 2018-F

§ 2018.261(a) (Con.)

\(1\) the number of requests for records received by the agency and the
number of requests which the agency processed;

\(2\) the number of determinations made by the agency not to comply with
requests for records made to such agency and the reasons for each such
determination;

\(3\) a complete list of all statutes that Rural Development relied upon
to authorize the agency to withhold information under 5 U.S.C.
552(b)(3), a description of whether a court has upheld the decision of
the agency to withhold information under each statute, and a concise
description of the scope of any information withheld;

\(4\) the number of requests for records pending before the agency as of
September 30 of the preceding year, and the median number of days that
such requests had been pending before the agency as of that date;

\(5\) the number of requests for records received by the agency and

the number of requests which the agency processed;

\(6\) the median number of days taken by the agency to process

different types of requests;

\(7\) the total amount of fees collected by the agency for processing
the requests; and

\(8\) the number of full-time staff of the agency devoted to processing
requests for records under this section, and the total amount expended
by the agency for processing such requests.

\(b\) The FOIO in the National Office will:

\(1\) Summarize all State Office FOIA fiscal year reports and include as
a part thereof all activities described in paragraph (a) of this section
which were confined solely to the National Office.

\(2\) Report the number of appeals made by requesters and the reason
(exemptions or authority invoked) for the action taken upon each appeal
that resulted in a denial of information. The report shall also indicate
the number of appeals that were completely upheld, partially reversed,
completely reversed, or pending.

## 33

## 

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§ 2018.261(b) (Con.)

\(3\) Submit the complete Rural Development FOIA fiscal year report to
the Office of the Secretary, Attention: Office of Information, by
November 30 of each year.

\(4\) The FOIA fiscal year report shall be made available to the public
by computer telecommunications.

§§ 2018.262 - 2018.300 \[Reserved\]

ATTACHMENT: Exhibit A

## 34 

## RD Instruction 2018-F

## Exhibit A

## Page 1

(Revision 1)

## The Freedom of Information Act

## 5 U.S.C. § 552, As Amended By

## Public Law No. 104-231, 110 Stat. 3048

Below is the full text of the Freedom of Information Act in a form
showing all amendments to the statute made by the \"Electronic Freedom
of Information Act Amendments of 1996.\"

§ 552. Public information; agency rules, opinions, orders, records, and
proceedings

\(a\) Each agency shall make available to the public information as
follows:

\(1\) Each agency shall separately state and currently publish in the
Federal Register for the guidance of the public\--

\(A\) descriptions of its central and field organization and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby, the
public may obtain information, make submittals or requests, or obtain
decisions;

\(B\) statements of the general course and method by which its functions
are channeled and determined, including the nature and requirements of
all formal and informal procedures available;

\(C\) rules of procedure, descriptions of forms available or the places
at which forms may be obtained, and instructions as to the scope and
contents of all papers, reports, or examinations;

\(D\) substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency; and

\(E\) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of the
terms thereof, a person may not in any manner be required to resort to,
or be adversely affected by, a matter required to be published in the
Federal

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(Revision 1)

Register and not so published. For the purpose of this paragraph, matter
reasonably available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by reference therein
with the approval of the Director of the Federal Register.

\(2\) Each agency, in accordance with published rules, shall make
available for public inspection and copying:

\(A\) final opinions, including concurring and dissenting opinions, as
well as orders, made in the adjudication of cases;

\(B\) those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register;

\(C\) administrative staff manuals and instructions to staff that affect
a member of the public;

\(D\) copies of all records, regardless of form or format, which have
been released to any person under paragraph (3) and which, because of
the nature of their subject matter, the agency determines have become or
are likely to become the subject of subsequent requests for
substantially the same records; and

\(E\) a general index of the records referred to under subparagraph (D);

unless the materials are promptly published and copies offered for sale.
For records created on or after November 1, 1996, within one year after
such date, each agency shall make such records available, including by
computer telecommunications or, if computer telecommunications means
have not been established by the agency, by other electronic means. To
the extent required to prevent a clearly unwarranted invasion of
personal privacy, an agency may delete identifying details when it makes
available or publishes an opinion, statement of policy, interpretation,
staff manual, instruction, or copies of records referred to in
subparagraph (D). However, in each case the justification for the
deletion shall be explained fully in writing, and the extent of such
deletion shall be indicated on the portion of the record which is made
available or published, unless including that indication would harm an
interest protected by the exemption in subsection (b) under which the
deletion is made. If technically feasible, the extent of the deletion
shall be indicated at the place in the record where the deletion was
made. Each agency shall also maintain and make available for public
inspection and copying current indexes providing identifying information
for the public as to any

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(Revision 1)

matter issued, adopted, or promulgated after July 4, 1967, and required
by this paragraph to be made available or published. Each agency shall
promptly publish, quarterly or more frequently, and distribute (by sale
or otherwise) copies of each index or supplements thereto unless it
determines by order published in the Federal Register that the
publication would be unnecessary and impracticable, in which case the
agency shall nonetheless provide copies of an index on request at a cost
not to exceed the direct cost of duplication. Each agency shall make the
index referred to in subparagraph (E) available by computer
telecommunications by December 31, 1999. A final order, opinion,
statement of policy, interpretation, or staff manual or instruction that
affects a member of the public may be relied on, used, or cited as
precedent by an agency against a party other than an agency only if:

\(i\) it has been indexed and either made available or published as
provided by this paragraph; or

\(ii\) the party has actual and timely notice of the terms

thereof.

(3)(A) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, upon request for
records which (i) reasonably describes such records and (ii) is made in
accordance with published rules stating the time, place, fees (if any),
and procedures to be followed, shall make the records promptly available
to any person.

\(B\) In making any record available to a person under this paragraph,
an agency shall provide the record in any form or format requested by
the person if the record is readily reproducible by the agency in that
form or format. Each agency shall make reasonable efforts to maintain
its records in forms or formats that are reproducible for purposes of
this section.

\(C\) In responding under this paragraph to a request for records, an
agency shall make reasonable efforts to search for the records in
electronic form or format, except when such efforts would significantly
interfere with the operation of the agency\'s automated information
system.

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(Revision 1)

\(D\) For purposes of this paragraph, the term \"search\" means to
review, manually or by automated means, agency records for the purpose
of locating those records which are responsive to a request.

(4)(A)(i) In order to carry out the provisions of this section, each
agency shall promulgate regulations, pursuant to notice and receipt of
public comment, specifying the schedule of fees applicable to the
processing of requests under this section and establishing procedures
and guidelines for determining when such fees should be waived or
reduced. Such schedule shall conform to the guidelines which shall be
promulgated, pursuant to notice and receipt of public comment, by the
Director of the Office of Management and Budget and which shall provide
for a uniform schedule of fees for all agencies.

\(ii\) Such agency regulations shall provide that:

\(I\) fees shall be limited to reasonable standard charges for document
search, duplication, and review, when records are requested for
commercial use;

\(II\) fees shall be limited to reasonable standard charges for document
duplication when records are not sought for commercial use and the
request is made by an educational or noncommercial scientific
institution, whose purpose is scholarly or scientific research; or a
representative of the news media; and

\(III\) for any request not described in (I) or (II), fees shall be
limited to reasonable standard charges for document search and
duplication.

\(iii\) Documents shall be furnished without any charge or at a charge
reduced below the fees established under clause (ii) if disclosure of
the 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.

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\(iv\) Fee schedules shall provide for the recovery of only the direct
costs of search, duplication, or review. Review costs shall include only
the direct costs incurred during the initial examination of a document
for the purposes of determining whether the documents must be disclosed
under this section and for the purposes of withholding any portions
exempt from disclosure under this section. Review costs may not include
any costs incurred in resolving issues of law or policy that may be
raised in the course of processing a request under this section. No fee
may be charged by any agency under this section\--

\(I\) if the costs of routine collection and processing of the fee are
likely to equal or exceed the amount of the fee; or

\(II\) for any request described in clause (ii)(II) or (III) of this
subparagraph for the first two hours of search time or for the first one
hundred pages of duplication.

\(v\) No agency may require advance payment of any fee unless the
requester has previously failed to pay fees in a timely fashion, or the
agency has determined that the fee will exceed \$250.

\(vi\) Nothing in this subparagraph shall supersede fees chargeable
under a statute specifically providing for setting the level of fees for
particular types of records.

\(vii\) In any action by a requester regarding the waiver of fees under
this section, the court shall determine the matter de novo, provided
that the court\'s review of the matter shall be limited to the record
before the agency.

\(B\) On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal place of
business, or in which the agency records are situated, or in the
District of Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency
records improperly withheld from the complainant. In such a case the
court shall determine

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the matter de novo, and may exa the contents of mine such agency records
in camera to determine whether such records or any part thereof shall be
withheld under any of the exemptions set forth in subsection (b) of this
section, and the burden is on the agency to sustain its action. In
addition to any other matters to which a court accords substantial
weight, a court shall accord substantial weight to an affidavit of an
agency concerning the agency\'s determination as to technical
feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).

\(C\) Notwithstanding any other provision of law, the defendant shall
serve an answer or otherwise plead to any complaint made under this
subsection within thirty days after service upon the defendant of the
pleading in which such complaint is made, unless the court otherwise
directs for good cause shown. Repealed by Pub. L. 98-620, Title IV,
402(2), Nov. 8, 1984, 98 Stat. 3335, 3357.\]

\(D\) The court may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred in any case under
this section in which the complainant has substantially prevailed.

\(E\) Whenever the court orders the production of any agency records
improperly withheld from the complainant and assesses against the United
States reasonable attorney fees and other litigation costs, and the
court additionally issues a written finding that the circumstances
surrounding the withholding raise questions whether agency personnel
acted arbitrarily or capriciously with respect to the withholding, the
Special Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or employee
who was primarily responsible for the withholding. The Special Counsel,
after investigation and consideration of the evidence submitted, shall
submit his findings and recommendations to the administrative authority
of the agency concerned and shall send copies of the findings and
recommendations to the officer or employee or his representative. The
administrative authority shall take the corrective action that the
Special Counsel recommends.

RD Instruction 2018-F

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\(F\) In the event of noncompliance with the order of the court, the
district court may punish for contempt the responsible employee, and in
the case of a uniformed service, the responsible member.

\(5\) Each agency having more than one member shall maintain and make
available for public inspection a record of the final votes of each
member in every agency proceeding.

(6)(A) Each agency, upon any request for records made under paragraph
(1), (2), or (3) of this subsection, shall\--

\(i\) determine within twenty days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of any such request whether to
comply with such request and shall immediately notify the person making
such request of such determination and the reasons therefor, and of the
right of such person to appeal to the head of the agency any adverse
determination; and

\(ii\) make a determination with respect to any appeal within twenty
days (excepting Saturdays, Sundays, and legal public holidays) after the
receipt of such appeal. If on appeal the denial of the request for
records is in whole or in part upheld, the agency shall notify the
person making such request of the provisions for judicial review of that
determination under paragraph (4) of this subsection.

(B)(i) In unusual circumstances as specified in this subparagraph, the
time limits prescribed in either clause (i) or clause (ii) of
subparagraph (A) may be extended by written notice to the person making
such request setting forth the unusual circumstances for such extension
and the date on which a determination is expected to be dispatched. No
such notice shall specify a date that would result in an extension for
more than ten working days, except as provided in clause (ii) of this
subparagraph.

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\(ii\) With respect to a request for which a written notice under clause
(i) extends the time limits prescribed under clause (i) of subparagraph
(A), the agency shall notify the person making the request if the
request cannot be processed within the time limit specified in that
clause 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 subparagraph (C).

\(iii\) As used in this subparagraph, \"unusual circumstances\" means,
but only to the extent reasonably necessary to the proper processing of
the particular requests\--

\(I\) the need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;

\(II\) the need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or

\(III\) the 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 having substantial subject matter interest therein.

\(iv\) Each agency may promulgate regulations, pursuant to notice and
receipt of public comment, providing for the aggregation of certain
requests by the same requestor, or by a group of requestors acting in
concert, if the agency reasonably believes that such requests actually
constitute a single request, which would otherwise satisfy the unusual
circumstances specified in this subparagraph, and the requests involve
clearly related matters. Multiple requests involving unrelated matters
shall not be aggregated.

RD Instruction 2018-F

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(C)(i) Any person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request if
the agency fails to comply with the applicable time limit provisions of
this paragraph. If the Government can show exceptional circumstances
exist and that the agency is exercising due diligence in responding to
the request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records. Upon any
determination by an agency to comply with a request for records, the
records shall be made promptly available to such person making such
request. Any notification of denial of any request for records under
this subsection shall set forth the names and titles or positions of
each person responsible for the denial of such request.

\(ii\) For purposes of this subparagraph, the term \"exceptional
circumstances\" does not include a delay that results from a predictable
agency workload of requests under this section, unless the agency
demonstrates reasonable progress in reducing its backlog of pending
requests.

\(iii\) Refusal by a person to reasonably modify the scope of a request
or arrange an alternative time frame for processing the request (or a
modified request) under clause (ii) after being given an opportunity to
do so by the agency to whom the person made the request shall be
considered as a factor in determining whether exceptional circumstances
exist for purposes of this subparagraph.

(D)(i) Each agency may promulgate regulations, pursuant to notice and
receipt of public comment, providing for multi-track processing of
requests for records based on the amount of work or time (or both)
involved in processing requests.

\(ii\) Regulations under this subparagraph may provide a person making a
request that does not qualify for the fastest multi-track processing an
opportunity to limit the scope of the request in order to qualify for
faster processing.

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\(iii\) This subparagraph shall not be considered to affect the
requirement under subparagraph (C) to exercise due diligence.

(E)(i) Each agency shall promulgate regulations, pursuant to notice and
receipt of public comment, providing for expedited processing of
requests for records\--

\(I\) in cases in which the person requesting the records demonstrates a
compelling need; and

\(II\) in other cases determined by the agency.

\(ii\) Notwithstanding clause (i), regulations under this subparagraph
must ensure\--

\(I\) that a determination of whether to provide expedited processing
shall be made, and notice of the determination shall be provided to the
person making the request, within 10 days after the date of the request;
and

\(II\) expeditious consideration of administrative appeals of such
determinations of whether to provide expedited processing.

\(iii\) An agency shall process as soon as practicable any request for
records to which the agency has granted expedited processing under this
subparagraph. Agency action to deny or affirm denial of a request for
expedited processing pursuant to this subparagraph, and failure by an
agency to respond in a timely manner to such a request shall be subject
to judicial review under paragraph (4), except that the judicial review
shall be based on the record before the agency at the time of the
determination.

\(iv\) A district court of the United States shall not have jurisdiction
to review an agency denial of expedited processing of a request for
records after the agency has provided a complete response to the
request.

\(v\) For purposes of this subparagraph, the term \"compelling need\"
means\--

RD Instruction 2018-F

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\(vi\) A demonstration of a compelling need by a person making a request
for expedited processing shall be made by a statement certified by such
person to be true and correct to the best of such person\'s knowledge
and belief.

\(F\) In denying a request for records, in whole or in part, an agency
shall make a reasonable effort to estimate the volume of any requested
matter the provision of which is denied, and shall provide any such
estimate to the person making the request, unless providing such
estimate would harm an interest protected by the exemption in subsection
(b) pursuant to which the denial is made.

\(b\) This section does not apply to matters that are:

(1)(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and (B) are in fact properly classified pursuant to such
Executive order;

\(2\) related solely to the internal personnel rules and practices of an
agency;

\(3\) specifically exempted from disclosure by statute (other than
section 552b of this title), provided that such statute (A) requires
that the matters be withheld from the public in such a manner as to
leave no discretion on the issue, or (B) establishes particular criteria
for withholding or refers to particular types of matters to be withheld;

\(4\) trade secrets and commercial or financial information obtained
from a person and privileged or confidential;

\(5\) inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;

\(6\) personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;

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\(7\) records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records
or information (A) could reasonably be expected to interfere with
enforcement proceedings, (B) would deprive a person of a right to a fair
trial or an impartial adjudication, (C) could reasonably be expected to
constitute an unwarranted invasion of personal privacy, (D) could
reasonably be expected to disclose the identity of a confidential
source, including a State, local, or foreign agency or authority or any
private institution which furnished information on a confidential basis,
and, in the case of a record or information compiled by a criminal law
enforcement authority in the course of a criminal investigation or by an
agency conducting a lawful national security intelligence investigation,
information furnished by a confidential source, (E) would disclose
techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law, or (F) could reasonably be
expected to endanger the life or physical safety of any individual;

\(8\) contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or

\(9\) geological and geophysical information and data, including maps,
concerning wells.

Any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are
exempt under this subsection. The amount of information deleted shall be
indicated on the released portion of the record, unless including that
indication would harm an interest protected by the exemption in this
subsection under which the deletion is made. If technically feasible,
the amount of the information deleted shall be indicated at the place in
the record where such deletion is made.

(c)(1) Whenever a request is made which involves access to records
described in subsection (b)(7)(A) and\--

\(A\) the investigation or proceeding involves a possible violation of
criminal law; and

RD Instruction 2018-F

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\(B\) there is reason to believe that (i) the subject of the
investigation or proceeding is not aware of its pendency, and (ii)
disclosure of the existence of the records could reasonably be expected
to interfere with enforcement proceedings, the agency may, during only
such time as that circumstance continues, treat the records as not
subject to the requirements of this section.

\(2\) Whenever informant records maintained by a criminal law
enforcement agency under an informant\'s name or personal identifier are
requested by a third party according to the informant\'s name or
personal identifier, the agency may treat the records as not subject to
the requirements of this section unless the informant\'s status as an
informant has been officially confirmed.

\(3\) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to foreign
intelligence or counterintelligence, or international terrorism, and the
existence of the records is classified information as provided in
subsection (b)(1), the Bureau may, as long as the existence of the
records remains classified information, treat the records as not subject
to the requirements of this section.

\(d\) This section does not authorize the withholding of information or
limit the availability of records to the public, except as specifically
stated in this section. This section is not authority to withhold
information from Congress.

(e)(1) On or before February 1 of each year, each agency shall submit to
the Attorney General of the United States a report which shall cover the
preceding fiscal year and which shall include\--

\(A\) the number of determinations made by the agency not to comply with
requests for records made to such agency under subsection (a) and the
reasons for each such determination;

(B)(i) the number of appeals made by persons under subsection (a)(6),
the result of such appeals, and the reason for the action upon each
appeal that results in a denial of information; and

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\(ii\) a complete list of all statutes that the agency relies upon to
authorize the agency to withhold information under subsection (b)(3), a
description of whether a court has upheld the decision of the agency to
withhold information under each such statute, and a concise description
of the scope of any information withheld;

\(C\) the number of requests for records pending before the agency as of
September 30 of the preceding year, and the median number of days that
such requests had been pending before the agency as of that date;

\(D\) the number of requests for records received by the agency and the
number of requests which the agency processed;

\(E\) the median number of days taken by the agency to process different
types of requests;

\(F\) the total amount of fees collected by the agency for processing
requests; and

\(G\) the number of full-time staff of the agency devoted to processing
requests for records under this section, and the total amount expended
by the agency for processing such requests.

\(2\) Each agency shall make each such report available to the public
including by computer telecommunications, or if computer
telecommunications means have not been established by the agency, by
other electronic means.

\(3\) The Attorney General of the United States shall make each report
which has been made available by electronic means available at a single
electronic access point. The Attorney General of the United States shall
notify the Chairman and ranking minority member of the Committee on
Government Reform and Oversight of the House of Representatives and the
Chairman and ranking minority member of the Committees on Governmental
Affairs and the Judiciary of the Senate, no later than April 1 of the
year in which each such report is issued, that such reports are
available by electronic means.

RD Instruction 2018-F

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\(4\) The Attorney General of the United States, in consultation with
the Director of the Office of Management and Budget, shall develop
reporting and performance guidelines in connection with reports required
by this subsection by October 1, 1997, and may establish additional
requirements for such reports as the Attorney General determines may be
useful.

\(5\) The Attorney General of the United States shall submit an annual
report on or before April 1 of each calendar year which shall include
for the prior calendar year a listing of the number of cases arising
under this section, the exemption involved in each case, the disposition
of such case, and the cost, fees, and penalties assessed under
subparagraphs (E), (F), and (G) of subsection (a)(4). Such report shall
also include a description of the efforts undertaken by the Department
of Justice to encourage agency compliance with this section.

\(f\) For purposes of this section, the term:

\(1\) \"agency\" as defined in section 551(1) of this title includes any
executive department, military department, Government corporation,
Government controlled corporation, or other establishment in the
executive branch of the Government (including the Executive Office of
the President), or any independent regulatory agency; and

\(2\) \"record\" and any other term used in this section in reference to
information includes any information that would be an agency record
subject to the requirements of this section when maintained by an agency
in any format, including an electronic format.

\(g\) The head of each agency shall prepare and make publicly available
upon request, reference material or a guide for requesting records or
information from the agency, subject to the exemptions in subsection
(b), including\--

\(1\) an index of all major information systems of the agency;

\(2\) a description of major information and record locator systems
maintained by the agency; and

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\(3\) a handbook for obtaining various types and categories of public
information from the agency pursuant to chapter 35 of title 44, and
under this section.

Section 12. Effective Date \[not to be codified\].

\(a\) Except as provided in subsection (b), this Act shall take effect
180 days after the date of the enactment of this Act \[March 31, 1997\].

\(b\) Sections 7 and 8 shall take effect one year after the date of the
enactment of this Act \[October 2, 1997\].

## oOo

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