Title 45—Public Welfare--Volume 1
PART 1184—IMPLEMENTATION OF THE FREEDOM OF INFORMATION ACT
§ 1184.1   What are the purpose and scope of this part?
(a) This part describe how the Institute of Museum and Library Services (IMLS) processes requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended. The regulations in this part apply only to records that are both:
(1) Created or obtained by IMLS; and
(2) Under the agency's control at the time of the FOIA request.
(b) The rules in this part should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Act Schedule and Guidelines published by the Office of Management and Budget (the “OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under 45 CFR part 1182 as well as under this part.
§ 1184.2   What are IMLS's general policies with respect to FOIA?
(a) Presumption of openness. IMLS administers the FOIA with a presumption of openness. Under this presumption, IMLS makes discretionary disclosures of records whenever such disclosure would not foreseeably harm an interest protected by a FOIA exemption or otherwise be prohibited by law.
(b) Records available at the IMLS FOIA Electronic Reading Room. IMLS makes records available on its website Reading Room in accordance with 5 U.S.C. 552(a)(2), as amended, as well as other records that have been requested three or more times or that, because of the nature of their subject matter, are likely to be the subject of FOIA requests. IMLS establishes categories of records that can be disclosed regularly and proactively identifies and discloses additional records of interest to the public. To save time and money, and maximize efficiency, IMLS strongly urges individuals who seek information from IMLS to review documents available at the IMLS FOIA Electronic Reading Room before submitting a FOIA request.
(c) Definitions. For purposes of this part, IMLS adopts all of the terms defined in the Freedom of Information Act, and the OMB Guidelines, unless otherwise defined in this part.
(1) Commercial use request. A request by or on behalf of anyone who seeks information for a use or purpose that furthers his or her commercial, trade, or profit interests, which can include furthering those interests through litigation.
(2) Direct costs. Those expenses that IMLS actually incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee, plus 16.1 percent of that rate to cover benefits) and the cost of operating duplication machinery. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the facility in which the records are kept.
(3) Duplication. The making of a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records (for example, magnetic tape or disk), among others.
(4) Educational institution. Any school that operates a program of scholarly research. A requester in this category must show that the request is authorized by, and is made under the auspices of, a qualifying institution and that the records are not sought for a commercial use, but rather are sought to further scholarly research.
(5) Fee waiver. The waiver or reduction of processing fees if a requester can demonstrate that certain statutory standards are satisfied including that the information is in the public interest and is not requested for a commercial interest.
(6) FOIA Public Liaison. An IMLS official who is responsible for assisting in reducing delays, increasing transparency and understanding of the status of FOIA requests, and assisting in the resolution of disputes.
(7) Non-commercial scientific institution. An institution that is not operated on a “commercial” basis, as defined in paragraph (c)(1) of this section, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and not for a commercial use.
(8) Representative of the news media. Representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. A request for records supporting the news-dissemination function of the requester will not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity will be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, agencies can also consider a requester's past publication record in making this determination. Agencies will advise requesters of their placement in this category.
(9) Requester Category. One of the three categories that IMLS places requesters in for the purpose of determining whether a requester will be charged fees for search, review and duplication, and include commercial requesters; non-commercial scientific or educational institutions or news media requesters, and all other requesters.
(10) Review. The examination of a record located in response to a request to determine whether any portion of it is exempt from disclosure. Review time includes all of the processing that is necessary to prepare any record for disclosure, including, as applicable, redacting portions of the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential business information submitter under § 1184.9 but it does not include time spent resolving general legal or policy issues regarding the applicability of exemptions.
(11) Search. The process of looking for and retrieving records or information responsive to a FOIA request. Search time includes page-by-page or line-by-line identification of information within records; and the reasonable efforts expended to locate and retrieve information from both hard copy and electronic records.
(12) Working day. A regular Federal work day constitutes a working day. It does not include Saturdays, Sundays, or Federal holidays.
§ 1184.3   How do I request records?
(a) Where to send a request. You may make a FOIA request for IMLS records by completing the online prompts in the FOIA Online Portal via FOIA.gov or via https://www.imls.gov/about/foia-request/form or by sending an email to foia@imls.gov or by submitting a request in writing via regular U.S. Mail addressed directly to the FOIA Public Liaison, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, Suite 4000, Washington, DC 20024-2135. Requests may also be sent in writing via facsimile to the FOIA Officer at (202) 653-4625.
(b) Form of request. Your FOIA request need not be in any particular format, but it must be in writing, include your name and mailing address, and should be clearly identified as a Freedom of Information Act or “FOIA” request. You must describe the records you seek with sufficient specificity to enable the agency to identify and locate the records, including, if possible, dates, subjects, titles, or authors of the records requested. Before submitting a request, you may contact IMLS's FOIA contact or FOIA Officer to discuss the records you seek and to receive assistance in describing the records. If upon receiving your request IMLS determines that it does not reasonably describe the requested records, IMLS will advise you what additional information is required to perfect your request, or why your request is otherwise insufficient. You should also indicate if you have a preferred form or format in which you would like to receive the requested records.
(c) Electronic format records. IMLS will provide the responsive records in the form or format you request if the records are readily reproducible by IMLS in that form or format. IMLS will make reasonable efforts to maintain its records in forms or formats that are reproducible for the purpose of disclosure. IMLS may disclose records in electronic format if the records can be downloaded or transferred intact through electronic media currently in use by the agency. In responding to a request for records, IMLS will make reasonable efforts to search for the records in electronic form or format, except where such efforts would significantly interfere with the operation of the agency's automated information system(s).
(d) Date of receipt. IMLS considers a request that complies with paragraphs (a) and (b) of this section to be a perfected request. The agency considers a request to be received on the date that the request is perfected.
§ 1184.4   When will I receive a response to my request?
(a) Responses within 20 working days. IMLS will ordinarily grant, partially grant, or deny your request for records within 20 working days after receiving a perfected request.
(b) Extensions of response time in “unusual circumstances”. (1) Where the time limits for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, the FOIA Officer will notify you as soon as practicable in writing of the unusual circumstances and may extend the response period for up to ten (10) working days.
(2) Where the extension is for more than ten (10) working days, the FOIA Officer will provide you with an opportunity either to modify the request so that it may be processed within the time limits or to arrange an agreed upon alternative time period for processing the request or a modified request.
(c) Expedited processing. (1) IMLS must process requests and appeals on an expedited basis whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information.
(2) A request for expedited processing may be made at any time. When making a request for expedited processing of an administrative appeal, the request should be submitted as required by § 1184.6.
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (c)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, IMLS may waive the formal certification requirement.
(4) IMLS must notify the requester within 10 calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request must be given priority, placed in the processing track for expedited requests, and must be processed as soon as practicable. If a request for expedited processing is denied, IMLS must act on any appeal of that decision expeditiously.
§ 1184.5   How will my request be processed?
(a) Acknowledgment of requests. IMLS will assign a tracking number to your request and will, as soon as practicable, advise you in writing of this tracking number, and, as appropriate, a brief description of the request, and relevant IMLS contact information, including the name and contact information of the FOIA Public Liaison.
(b) Clarifications. If there is any uncertainty, IMLS will attempt to communicate with you to clarify the scope of your request.
(c) Estimated dates of completion and interim responses. Upon request, IMLS will provide an estimated date by which the agency expects to provide a response to the requester. If a request involves a voluminous amount of material, or searches in multiple locations, IMLS may provide interim responses, releasing the records on a rolling basis.
(d) Referrals of requests. Whenever IMLS refers all or any part of the responsibility for responding to a request to another agency, IMLS will notify you of the name of the agency to which the request has been referred.
(e) Grants of requests. When responsive records are located, IMLS will apply a presumption of disclosure and openness. If IMLS decides to grant your request in whole or in part, the agency will notify you in writing. The notice will include any applicable fee and the agency will disclose records to you promptly upon payment of applicable fees. IMLS will mark or annotate any records disclosed in part to show the amount, the location, and the FOIA exemptions under which the redaction is made, unless doing so would harm an interest protected by an applicable exemption.
(f) Denials of requests. Denials of your FOIA request, either whole or in part, will be made in writing by the FOIA Public Liaison. IMLS will inform you of the reasons for the denial, including any FOIA exemption(s) applied by the agency in denying the request, and notify you of your right to appeal the determination as described in § 1184.6. IMLS will, as appropriate, provide a brief description of the information being withheld. In addition, IMLS will provide information about the mediation services provided by the Office of Government Information Services of the National Archives and Records Administration.
§ 1184.6   How can I appeal a denial of my request?
(a) Submission of an appeal. If your FOIA request has been denied in whole or in part, or if the agency has not found any records in response to your request, you may file an appeal no later than ninety (90) calendar days following the date of the notification of denial. Your appeal must include a description of the initial request, the reason for the appeal, and why you believe the agency's response was incorrect. Your appeal must be in writing, signed, and filed with the IMLS Director, c/o Office of the General Counsel, 955 L'Enfant Plaza North SW, Suite 4000, Washington, DC 20024-2135. Appeals may also be sent via email to foia@imls.gov, or via facsimile to (202) 653-4625.
(b) Decisions on appeal. The Director of IMLS will make a determination with respect to your appeal within twenty (20) working days after the agency has received the appeal, except as provided in § 1184.4(b). If the decision on appeal is favorable to you, the Director of IMLS will take action to assure prompt dispatch of the records to you. If the decision on appeal is adverse to you, in whole or in part, you will be informed by the Director of IMLS of the reasons for the decision and of the provisions for judicial review set forth in the FOIA. As appropriate, IMLS will advise you in a response to an appeal that the 2007 FOIA amendments created the Office of Government Information Services to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation.
§ 1184.7   How will fees be charged?
(a) In general. IMLS will use the most efficient and least costly methods to comply with FOIA requests. IMLS will charge fees to recover all allowable direct costs incurred, and may charge fees for searching for and reviewing requested records even if the records are determined to be exempt from disclosure or cannot be located. IMLS will charge fees in accordance with the category of the FOIA requester.
(1) Commercial use requests. IMLS will assess charges to recover the full direct cost of searching for, reviewing and duplicating the requested records. IMLS may recover the cost of searching for and reviewing records even if there is ultimately no disclosure.
(2) Requests from educational and non-commercial scientific institutions. IMLS will charge for duplication costs.
(3) Requests by representatives of the news media. IMLS will charge for duplication costs.
(4) All other requests. IMLS will assess charges to recover the full direct cost for searching for and duplicating the requested records.
(5) Status of Requester. IMLS' decision regarding the categorization of a requester will be made on a case-by-case basis based upon the requester's intended use of the requested records.
(b) General fee schedule. The following fees will be charged in accordance with paragraph (a) of this section.
(1) Manual search fee. The fee charged will be the salary rate(s) (i.e., basic pay plus 16.1 percent) of the employee(s) conducting the search.
(2) Computer search fee. The fee charged will be the actual direct cost of providing the service including the cost of operating the central processing unit for the operating time that is directly attributed to searching for records responsive to a request and the operator/programmer salary apportionable to the search.
(3) Review fee. The fee charged will equal the salary rate(s) (i.e., basic pay plus 16.1 percent) of the employee(s) conducting the review.
(4) Duplication fee. Copies of records photocopied on an 8 1/2 × 11 inch sheet of paper will be provided at $.10 per page. For duplication of other materials, the charge will be the direct cost of duplication.
(c) Restrictions on charging fees. (1) Except for records provided in response to a commercial use request, the first 100 pages of duplication and the first two (2) hours of search time will be provided at no charge.
(2) Fees will not be charged to any requester, including commercial use requesters, if the total amount calculated under this section is less than $25.
(d) Fees likely to exceed $25. If the total fee charges are likely to exceed $25, IMLS will notify you of the estimated amount of the charges, including a breakdown of the fees for search, review and/or duplication, unless you have indicated in advance that you are willing to pay higher fees and will offer you an opportunity to confer with the FOIA Public Liaison to revise the request to meet your needs at a lower cost.
(e) Waiver or reduction of fees. (1) IMLS will disclose records without charge or at a reduced charge if the agency determines that 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.
(2) IMLS will use the following factors to determine whether a fee will be waived or reduced:
(i) The subject of the request. 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. Whether the disclosure is “likely to contribute” to an understanding of government operations or activities;
(iii) The contribution to an understanding of the subject by the general public likely to result from disclosure. Whether disclosure of the requested information will contribute to “public understanding”;
(iv) The significance of the contribution to public understanding. Whether disclosure is likely to contribute “significantly” to public understanding of government operations or activities;
(v) The existence and magnitude of a commercial interest. Whether you have a commercial interest that would be furthered by the disclosure; and if so
(vi) The primary interest in disclosure. Whether the magnitude of your commercial interest is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the your commercial interest.
(f) Assessment and collection of fees. (1) If you fail to pay your bill within thirty (30) days, interest will accrue from the date the bill was mailed, and will be assessed at the rate prescribed in 31 U.S.C. 3717.
(2) If IMLS reasonably believes that you are attempting to divide a request into a series of requests to avoid the assessment of fees, the agency may aggregate such requests and charge accordingly.
(3) Advance payment. (i) Advance payment of fees will generally not be required. IMLS may request an advance payment of the fee, however, if:
(A) The charges are likely to exceed $250; or
(B) You have failed previously to pay a fee in a timely fashion.
(ii) When IMLS requests an advance payment, the time limits described in section (a)(6) of the FOIA will begin only after IMLS has received advanced full payment in full.
(g) Failure to comply. In the absence of unusual or exceptional circumstances, IMLS will not assess fees if the agency fails to comply with any time limit set forth in this part, unless the agency has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request.
(h) Waivers. IMLS may waive fees in other circumstances solely at its discretion, consistent with 5 U.S.C. 552.
§ 1184.8   How can I address concerns regarding my request?
(a) FOIA Public Liaison. If you have questions or concerns regarding your request, your first point of contact should be the FOIA Public Liaison, who is responsible for reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.
(b) Additional resource. The National Archives and Records Administration (NARA), Office of Government Information Services (OGIS) offers non-compulsory, non-binding mediation services to help resolve FOIA disputes. If you seek information regarding OGIS and/or the services it offers, please contact OGIS directly at Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, MD 20740-6001, Email: ogis@nara.gov, Phone: (202) 741-5770 or toll free (877) 684-6448, Fax: (202) 741-5769. This information is provided as a public service only. By providing this information, IMLS does not commit to refer disputes to OGIS, or to defer to OGIS' mediation decision in particular cases.
§ 1184.9   What are IMLS' policies regarding disclosure of confidential business information?
(a) In general. Confidential business information obtained by IMLS from a submitter will be disclosed under FOIA only under this section.
(b) Definitions. For purposes of this section, the following definitions apply:
(1) Confidential business information. Commercial or financial information obtained by IMLS from a submitter that may be protected from disclosure under Exemption 4 of FOIA.
(2) Submitter. Any person or entity from whom IMLS obtains confidential business information, directly or indirectly. The term includes corporations; state, local, and tribal governments; and foreign governments.
(c) Designation of confidential business information. A submitter of confidential business information will use good-faith efforts to designate, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Exemption 4. These designations will expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.
(d) Notice to submitters. When required under paragraph (e) of this section, subject to the exceptions in paragraph (h) of this section, IMLS will provide a submitter with prompt written notice of a FOIA request or administrative appeal that seeks its confidential business information, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information. The notice will either describe the confidential business information requested or include copies of the requested records or record portions containing the information. When notification of a voluminous number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish it.
(e) Where notice is required. IMLS will give notice to a submitter wherever:
(1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(2) IMLS has reason to believe that the information may be protected from disclosure under Exemption 4.
(f) Opportunity to object to disclosure. IMLS will allow a submitter a reasonable time to respond to the notice described in paragraph (d) of this section and will specify that time period within the notice. If a submitter has any objection to disclosure, it must submit a detailed written statement to IMLS. The statement must specify all grounds for withholding any portion of the information under any exemption of FOIA and, in the case of Exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential. If a submitter fails to respond to the notice within the time specified, the submitter will be considered to have no objection to disclosure of the information. Information provided by the submitter that is not received by IMLS until after the agency's disclosure decision has been made will not be considered by IMLS. Information provided by a submitter under this paragraph may itself be subject to disclosure under FOIA.
(g) Notice of intent to disclose. IMLS will consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose confidential business information. If IMLS decides to disclose confidential business information over the objection of a submitter, IMLS will give the submitter written notice, which will include:
(1) A statement of the reason(s) why each of the submitter's disclosure objections was not sustained;
(2) A description of the confidential business information to be disclosed; and
(3) A specified disclosure date, which will be a reasonable time subsequent to the notice.
(h) Exceptions to notice requirements. The notice requirements of paragraphs (d) and (g) of this section will not apply if:
(1) IMLS determines that the information should not be disclosed;
(2) The information lawfully has been published or has been officially made available to the public;
(3) Disclosure of the information is required by statute (other than FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or
(4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous—except that, in such a case, IMLS will, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.
(i) Notice of FOIA lawsuit. If a requester files a lawsuit seeking to compel the disclosure of confidential business information, IMLS will promptly notify the submitter of the filing of the lawsuit.
(j) Corresponding notice to requesters. If IMLS provides a submitter with notice and an opportunity to object to disclosure under paragraph (d) of this section, IMLS will also notify the requester(s). If IMLS notifies a submitter of its intent to disclose requested information under paragraph (g) of this section, IMLS will also notify the requester(s). If a submitter files a lawsuit seeking to prevent the disclosure of confidential business information, IMLS will notify the requester(s) of the filing of the lawsuit.
§ 1184.10   Disclaimer.
Nothing in the regulations in this part will be construed to entitle any person, as a right, to any service or to the disclosure of any record to which such person is not entitled under FOIA.