CFR Subpart A

CFR Subpart A
in effect

5 C.F.R. § 1820.2 Requirements for making FOIA requests.

(a) Submission of requests. (1) A request for OSC records under the FOIA must be made in writing. The request must be sent: (i) By email to: foiarequest@osc.gov or other electronic means described on the FOIA page of OSC's website (https://osc.gov/FOIA); (ii) Electronically to: The National FOIA Portal for the entire federal government at www.foia.gov; or (iii) By mail to: U.S. Office of Special Counsel, FOIA Officer, 1730 M Street NW, Suite 218, Washington, DC 20036-4505. (2) Both the request letter and envelope or email subject line should be clearly marked “FOIA Request.” (3) A FOIA request will not be considered to have been received by OSC until it reaches the FOIA Officer. (b) Description of records sought. Requests must state in the letter, email, or other prescribed electronic method the words “FOIA Request” or “FOIA/Privacy Request.” The request must also describe the records sought in enough detail for them to be located with a reasonable amount of effort. When requesting records about an OSC case file, the case file number, name, and type (for example, prohibited personnel practice (PPP), Hatch Act, USERRA, Hatch Act advisory opinion, or whistleblower disclosure) should be provided, if known. Whenever possible, requests should describe any particular record sought, such as the date, title or name, author, recipient, and subject matter. OSC requires proof of identification from requestors seeking their own case files. OSC requires a signed release of information from requestors seeking another individual's case file. (c) Agreement to pay fees. By making a FOIA request the requestor agrees to pay all applicable fees chargeable under § 1820.7 unless the Special Counsel waives fees, the requestor is exempt, or the requestor otherwise qualifies for a waiver of fees.

5 C.F.R. § 1820.3 Consultations and referrals.

When OSC receives a FOIA request for a record in its possession, it may determine that another Federal agency or entity is better able to decide whether the record is exempt from disclosure under the FOIA. If so, OSC will either respond to the request for the record after consulting with the other Federal agency or entity or refer the responsibility for responding to the request to the other Federal agency or entity deemed better able to determine whether to release it. OSC will ordinarily respond promptly to consultations and referrals from other Federal agencies or entities.

5 C.F.R. § 1820.4 Timing of responses to requests.

(a) In general. OSC ordinarily will respond to FOIA requests in order of receipt. In determining which records are responsive to a request, OSC ordinarily will include only records in its possession on the date that it begins its search. OSC will inform the requestor if it uses any other date. (b) Multitrack processing. (1) OSC may use two or more processing tracks to distinguish between simple and more complex requests based on the amount of work and/or time estimated to process the request. (2) When using multitrack processing, OSC may provide requestors in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the faster track(s). (c) Expedited processing. (1) OSC will take requests and appeals out of order and provide expedited treatment whenever OSC has established to its satisfaction that: (i) Failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (ii) An urgency exists to inform the public about an actual or alleged federal government activity and the requestor is primarily engaged in disseminating information; or (iii) The requestor with a personal interest in a case for which they face an imminent filing deadline with the Merit Systems Protection Board or other administrative tribunal or court of law in an individual right of action, or in a USERRA case referred to OSC under title 38 of the U.S. Code. Expedited status granted under this provision will apply only to the following requested records: PPP case closure and notice of appeal rights letters sent to the complainant by OSC and the official complaint form submitted to OSC by a USERRA complainant or the original referred USERRA complaint if referred to OSC under title 38 of the U.S. Code. (2) A request for expedited processing must be made in writing and sent to OSC's FOIA Officer. The expedited request is deemed received when it reaches the FOIA Officer. (3) A requestor who seeks expedited processing must submit a statement, certified to be true and correct to the best of that individual's knowledge and belief, explaining in detail the basis for requesting expedited processing. OSC may waive a certification as a matter of administrative discretion. (4) OSC shall decide whether to grant a request for expedited processing and notify the requestor of its decision within ten (10) calendar days of the FOIA Officer's receipt of the request. If OSC grants the request for expedited processing, it will process the request as soon as practicable. If OSC denies the request for expedited processing, OSC shall rule expeditiously on any administrative appeal of that decision. (d) Aggregated requests. OSC may aggregate multiple requests by the same requestor, or by a group of requestors acting in concert, if it reasonably believes that such requests actually constitute a single request that would otherwise create “unusual circumstances” as defined in § 1820.5, and that the requests involve clearly related matters.

5 C.F.R. § 1820.5 Responses to requests.

(a) General. Ordinarily, OSC has twenty (20) business days from receipt to determine whether to grant or deny a FOIA request. (1) In unusual circumstances, OSC may extend the twenty (20) business-day deadline by written notice to the requestor setting forth the unusual circumstances justifying the extension. OSC shall notify the requestor if OSC cannot process the request in 20 days and provide the requestor an opportunity to modify the request so that OSC can process the request within the 20-day time limit. OSC and the requestor can also negotiate an alternative time frame for processing the request or modified request. OSC's FOIA Public Liaison is available to assist in the resolution of any disputes between the requestor and OSC. OSC must also advise the requestor of the requestor's right to seek dispute resolution services from the National Archives and Records Administration's (NARA) Office of Government Information Services (OGIS). OSC may consider a requestor's refusal to reasonably modify the request or to negotiate an alternative time frame as a factor in determining whether unusual and/or exceptional circumstances exist. (2) Unusual circumstances means— (i) The need to search for and collect the requested records from OSC field offices, NARA storage facilities, or other locations away from OSC's FOIA office; (ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records demanded in a single request; or (iii) The need for consultation and/or referral with another OSC unit where the information concerns two or more components of OSC or with a Federal entity that has an interest in the information requested. (3) Exceptional circumstances means— (i) OSC has a backlog of pending requests and is making reasonable progress in reducing the backlog; and (ii) OSC estimates a search yield of more than 5000 pages. (b) OSC will notify the requestor in writing of its determination to grant or deny in full or in part a FOIA request. (c) Adverse determinations. Adverse determinations, or denials of requests, consist of: A determination to withhold any requested record in whole or in part; that a requested record does not exist or cannot be located; that a record is not readily reproducible in the form or format sought by the requestor; that the request does not seek a record subject to the FOIA; a determination on any disputed fee matter; or a denial of a request for expedited treatment. A notification to a requestor of an adverse determination on a request shall include: (1) A brief statement of the reason(s) for the denial of the request, including any FOIA exemption applied by OSC in denying the request; and (2) A statement that the denial may be appealed under § 1820.6(a), with a description of the requirements of that subsection. (d) Dispute resolution program. OSC shall inform FOIA requestors at all stages of the FOIA process of the availability of dispute resolution services provided by the FOIA Public Liaison or by NARA's OGIS.

5 C.F.R. § 1820.6 Appeals.

(a) Appeals of adverse determinations. A requestor may appeal an adverse determination to OSC's Office of General Counsel. The appeal must be in writing, and must be submitted either: (1) By email to: foiaappeal@osc.gov, or other electronic means as described on the FOIA page of OSC's website (https://osc.gov/FOIA); or (2) By mail to: U.S. Office of Special Counsel, Office of General Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505. (b) Submission and content. The Office of General Counsel must receive the appeal within ninety (90) calendar days of the date of the adverse determination letter. The appeal letter and envelope or email subject line should be clearly marked “FOIA Appeal.” The appeal must clearly identify the OSC determination (including the assigned FOIA request number, if known) being appealed. OSC will not ordinarily act on a FOIA appeal if the request becomes a matter of FOIA litigation. (c) Responses to appeals. Ordinarily, OSC must issue a written appeal decision within twenty (20) business days from receipt of the appeal. A decision affirming a denial in whole or in part shall inform the requestor of the provisions for judicial review of that decision, and of the availability of dispute resolution services. If OSC's appeal decision reverses or modifies its denial, OSC's notice will state that OSC will reprocess the request in accordance with that appeal decision.

5 C.F.R. § 1820.7 Fees.

(a) In general. OSC provides the first two hours of search time and the first 100 pages of duplication free of charge to all requestors. In exceptional circumstances, OSC may charge fees. At the discretion of the Special Counsel, OSC may exempt certain requestors from search and duplication fees, including PPP complainants and subjects; Hatch Act complainants and subjects; Hatch Act advisory opinion requestors; whistleblowers; and USERRA complainants. OSC charges commercial users for search, review, and duplication fees under the FOIA in accordance with paragraph (c) of this section, except where a waiver or reduction of fees is granted under paragraph (h) of this section. OSC charges duplication fees, but not search fees, to educational or non-commercial scientific institutions; and to representative of the news media or news media requestors. OSC charges both search fees and duplication fees to all other requestors. If an exempted requestor abuses its exempt fee status to file numerous, duplicative, and/or voluminous FOIA requests, OSC may suspend the requestor's exempt status and charge search and duplication fees. OSC may require up-front payment of fees before sending copies of requested records to a requestor. Requestors must pay fees by submitting to OSC's FOIA Officer a check or money order made payable to the Treasury of the United States. See generally Uniform Freedom of Information Act Fee Schedule and Guidelines (hereinafter OMB Fee Guidelines), 52 FR 10,012, 10,017-18 (Mar. 27, 1987). (b) Definitions. For purposes of this section: All other requestors means all requestors who do not fall into the categories of commercial use, educational institution, noncommercial scientific institution, and representatives of the news media. Commercial use request means a request from or on behalf of an individual who seeks information for a use or purpose that furthers commercial, trade, or profit interests, which can include furthering those interests through litigation. If OSC determines that the requestor seeks to put the records to a commercial use, either because of the nature of the request or because OSC has reasonable cause to doubt a requestor's stated use, OSC shall provide the requestor with a reasonable opportunity to clarify. Direct costs mean those expenses that OSC incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating equipment. Direct costs do not include overhead expenses such as rent, heating, or lighting the record storage facility. Duplication means the reasonable direct cost of making copies of documents. Educational institution means any school that operates a program of scholarly research. See OMB Fee Guidelines, 52 FR at 10,019. To be in this category, a requestor 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 are sought to further scholarly research. Non-commercial scientific institution means an entity 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 and are not for commercial use. Representative of the news media or news media requestor means any individual 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. A non-exhaustive list of news media entities includes print newspapers, electronic outlets for print newspapers, broadcast and cable television networks and stations, broadcast and satellite radio networks and stations, internet-only outlets, and other alternative media as methods of news delivery evolve. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization, whether print or electronic. A requestor seeking to qualify as a news media requestor must not be seeking the requested records for a commercial use. The requestor's news-dissemination function is not considered to be a commercial use. Review means the process of examining a record located in response to a request in order to determine whether any portion of the record is exempt from release. Review includes redacting exempt material, and otherwise evaluating and preparing the records for release. Review includes time spent obtaining and considering any formal objection to release made by a business submitter under § 1820.8(f). Review does not include time spent resolving general legal or policy issues about the application of exemptions. OSC may charge for review costs in connection with commercial use requests even if a record ultimately is not released. Search means the process of looking for and retrieving records or information responsive to a FOIA request, as well as page-by-page or line-by-line identification of responsive information within records. (c) Fees. OSC charges the following fees for responding to FOIA requests: (1) Search. (i) The first two hours of search are free. OSC may charge for time spent searching even if it fails to locate responsive records, or even if OSC determines that located records are exempt from release. (ii) OSC charges $5.50 per quarter hour spent by clerical personnel in searching for and retrieving a requested record; $9.00 per quarter hour of search time spent by professional personnel; and $17.50 per quarter hour for search assistance from managerial personnel. (iii) OSC charges the direct costs of conducting electronic searches, including the costs of operator or programmer staff time apportionable to the search. (iv) OSC may charge additional costs in accordance with the applicable billing schedule established by NARA for requests requiring the retrieval of records from any Federal Records Center. (2) Duplication. OSC charges all non-exempt requestors duplication fees after the first 100 pages. OSC's duplication fee for a standard paper photocopy of a record will be 25 cents per page. For copies produced by computer, such as discs or printouts, OSC will charge the direct costs, including staff time, of producing the copy. For other forms of duplication, OSC will charge the direct costs of that duplication. (3) Review. OSC charges review fees to commercial use requestors. OSC will not charge for review at the administrative appeal level. (d) Notice of anticipated fees in excess of $25.00. OSC shall notify the requestor of the actual or estimated fees when OSC determines or estimates that fees charged under this section would exceed $25.00, unless the requestor has indicated a willingness to pay fees at that level or if OSC waived fees before undertaking the search. OSC will not conduct a search or process responsive records until OSC and the requestor reach an agreement on the fees. If a requestor wants to pay a lower amount than $25.00, the fee notice will offer the requestor an opportunity to work with OSC to reformulate or narrow the request to try to lower the anticipated fees. (e) Charges for other services. OSC will notify requestors in advance if OSC intends to charge additional fees to provide special services, such as shipping records by other than ordinary mail. (f) Aggregating separate requests. OSC may aggregate requests and charge appropriate fees where OSC reasonably believes that a requestor or a group of requestors seek to avoid fees by dividing a request into a series of requests. OSC may presume that multiple such requests made within a 30-day period were divided in order to avoid fees. OSC will aggregate requests separated by more than 30 days only where a reasonable basis exists for determining that aggregation is warranted under the circumstances involved. (g) Advance payments. (1) For requests other than those described in paragraphs (g)(2) and (3) of this section, OSC will not require the requestor to make an advance payment before work is begun or continued on a request. Payment owed for work already completed (that is, pre-payment after processing a request but before copies are sent to the requestor) is not an advance payment. (2) OSC may require advance payment up to the amount of the entire anticipated fee before beginning to process the request if OSC determines or estimates that a total fee to be charged under this section will exceed $250.00. (3) OSC may require the requestor to make an advance payment in full of the anticipated fee where a requestor has previously failed to pay a properly charged FOIA fee within 30 business days of the date of billing. (h) Requirements for waiver or reduction of fees. (1) OSC will furnish records responsive to a request without charge or at a charge reduced below that established under paragraph (c) of this section where OSC determines, based on all available information, that the requestor has demonstrated that: (i) Release of the requested records is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and (ii) Release of the records is not primarily in the commercial interest of the requestor. (2) To determine whether the first fee waiver requirement is met, OSC will consider the following factors: (i) Whether the subject of the requested records concerns a direct and clear connection to “the operations or activities of the government,” not remote or attenuated. (ii) Whether the release is “likely to contribute” to an understanding of government operations or activities. The requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The release of records already in the public domain is unlikely to contribute to such understanding. (iii) Whether release of the requested records will contribute to “public understanding.” The release must contribute to the understanding of a reasonably broad audience of individuals interested in the subject. OSC shall consider a requestor's expertise in the subject area and ability and intention to effectively convey information to the public. A representative of the news media presumptively satisfies this consideration. (iv) Whether the release is likely to contribute “significantly” to public understanding of government operations or activities. The requestor must demonstrate that the release would significantly enhance the public's understanding of the subject in question. (3) To determine whether the second fee waiver requirement is met, OSC will consider the following factors: (i) Whether the requestor has a commercial interest that would be furthered by the requested release. OSC shall consider any commercial interest of the requestor (with reference to the definition of “commercial use” in paragraph (b)(1) of this section), or of any individual on whose behalf the requestor may be acting, that would be furthered by the requested release. Requestors shall be given an opportunity to provide explanatory information about this consideration. (ii) Whether any identified commercial interest in the disclosure, is equal to or less than that of any identified public interest. OSC ordinarily shall presume that a news media requestor has satisfied the public interest standard. Release to data brokers or others who primarily compile and market government information for direct economic return shall be presumed not to primarily serve the public interest. (4) Where only a portion of the records to be released satisfies the requirements for a waiver of fees, a waiver shall be granted for that portion. (5) Requests for the waiver or reduction of fees should address the factors listed in paragraphs (h)(1), (2), and (3) of this section, insofar as they apply to each request. OSC fee reduction or waiver decisions may consider the cost-effectiveness of its allocation of administrative resources. (i) No assessment of fees. OSC may not assess any search fees if it misses the statutory 20-business-day deadline to respond to the request, except under paragraphs (i)(1) and (2) of this section. (1) If OSC determined that unusual circumstances apply and OSC provided a timely written notice to the requestor, OSC may extend the 20-day deadline by 10 business days. OSC may not assess any search fees, however, if it misses the extended deadline. (2) OSC may charge search fees if the search yield would exceed 5,000 pages, and if OSC provides a timely written notice to the requestor. (ii) [Reserved]

5 C.F.R. § 1820.8 Business information.

(a) In general. Business information obtained by OSC from a submitter may be released only pursuant to this section. (b) Definitions. For purposes of this section: Business information means trade secrets and commercial or financial information obtained by OSC from a submitter that may be protected from release under FOIA Exemption 4. 5 U.S.C. 552(b)(4). Submitter means any individual or entity from whom OSC obtains business information, directly or indirectly. (c) Designation of business information. A submitter of business information must use good-faith efforts to designate, by appropriate markings, any portion of its submission that it considers to be protected from release under FOIA Exemption 4. (d) Notice to submitters. OSC shall provide a submitter with prompt written notice of a FOIA request or administrative appeal that appears to seek confidential business information wherever required under paragraph (e) of this section, except as provided in paragraph (h) of this section, in order to give the submitter an opportunity to object to release of any specified portion of those records under paragraph (f) of this section. The notice shall either describe the confidential business information requested or include copies of the requested records or record portions containing the information. (e) When notice is required. Notice shall be given to a submitter whenever: (1) The submitter designated the records in good faith as considered protected from release under FOIA Exemption 4; or (2) OSC has reason to believe that the records or portions of records may be protected from release under FOIA Exemption 4. (f) Opportunity to object to release. OSC 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. The submitter must submit any objections to release in a detailed written statement. The statement must specify all grounds for withholding any portion of the records under any exemption of the FOIA and, in the case of Exemption 4, it must show why the information contained in the record is privileged or confidential. Submitters who fail to respond timely to the notice are deemed to have consented to release of the records. Information provided by a submitter under this paragraph may itself be subject to release under FOIA. (1) Notice of intent to release. OSC shall consider a submitter's objections and specific grounds for non-release in deciding whether to release business information. If OSC decides to release business information over the objection of a submitter, OSC shall provide written notice including the reason(s) why OSC overruled the submitter's objections; a description of the business information to be released; and a reasonable specified release date. (2) [Reserved] (g) Exceptions to notice requirements. The notice requirements of paragraphs (d) and (e) of this section shall not apply if: (1) OSC determines that the information should not be released; (2) The information has been lawfully published or has been officially made available to the public; (3) Release of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or (4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous—except that, in such a case, OSC shall, within a reasonable time prior to a specified release date, give the submitter written notice of any final decision to release the information. (h) Notice of FOIA lawsuit. OSC shall promptly notify a submitter if a requestor files a lawsuit seeking to compel the release of the submitter's business information. (i) Corresponding notice to requestors. OSC shall notify requestor(s): that it provided submitters the opportunity to object to release under paragraph (d) of this section; if OSC subsequently releases the requested records under paragraph (g) of this section; and whenever a submitter files a lawsuit seeking to prevent OSC's release of business information.

5 C.F.R. § 1820.9 Other rights and services.

This subpart does not create a right or entitlement for any individual to any service or to the release of any record other than those available under FOIA.

Starting a business? Corpus forms LLCs in all 50 states and DC.