Federal Register: October 14, 2010 (Volume 75, Number 198)
DOCID: fr14oc10-28 FR Doc 2010-25362
DEPARTMENT OF VETERANS AFFAIRS
Veterans Affairs Department
CFR Citation: 38 CFR Parts 1 and 2
RIN ID: RIN 2009-AN72
NOTICE: PROPOSED RULES
DOCID: fr14oc10-28
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY:
Release of Information From Department of Veterans Affairs Records
DATES: Comments must be received on or before December 13, 2010.
DOCUMENT SUMMARY:
The Department of Veterans Affairs (VA) proposes to amend its regulations governing the submission and processing of requests for information under the Freedom of Information Act (FOIA) in order to implement provisions of the EFOIA Act and the Openness in Government Act, and to reorganize and clarify existing regulations. The proposed regulations would establish the procedures and rules necessary for VA to process requests for information under the FOIA, including matters such as how to file a request or appeal, how requests for business information are handled, and how issues regarding fees are resolved. The intended effect of these regulations is to implement legislative changes made to the FOIA, as noted above, and to provide the public clear instructions and useful information regarding the filing and processing of FOIA requests.
SUMMARY:
Release of Information from Department of Veterans Affairs Records
SUPPLEMENTAL INFORMATION
The FOIA, codified at 5 U.S.C. 552, requires an agency to publish public guidance regarding its implementation of the statute, such as rules of procedure and substantive rules of general applicability. The Privacy Act of 1974, as amended, codified at 5 U.S.C. 552a, requires an agency to publish its rules and procedures implementing that statute. Section 501(a) of title 38, U.S.C., authorizes the Secretary of Veterans Affairs to prescribe rules and regulations to carry out the laws administered by VA, including when information may be released from claimant records under 38 U.S.C. 5701, what activities fall within 38 U.S.C. 5705 regarding confidentiality of medical quality assurance records, whether and to whom information pertaining to those activities may be released, and when information may be released from records covered by 38 U.S.C. 7332 regarding the identity, diagnosis, or treatment of drug abuse, alcoholism or alcohol abuse, infection with the human immunodeficiency virus, and sickle cell anemia.
We propose to amend VA's regulations pertaining to release of information under 5 U.S.C. 552. VA's current FOIA regulations are codified at 38 CFR 1.550 through 1.557, including reserved Sec. Sec. 1.558 and 1.559. This proposed rule would implement the FOIA in Sec. Sec. 1.550 through 1.562. The proposed rule would in large part cover the same issues as are covered in VA's current regulations, such as how to submit a request for records, how VA addresses a request for records, and fees for addressing record requests under the FOIA. We propose to update these regulations to accommodate current means of communication with VA, streamline the existing procedures based on our experience administering the FOIA, incorporate changes in the procedural requirements of the FOIA since promulgation of current regulations, make VA's procedures easier for the public to understand, and generally reorganize and renumber the applicable provisions.
In addition, we propose to add new provisions to explicitly implement the EFOIA Act, Public Law 104231, and the Openness in Government Act, Public Law 110175. For additional resources on any of the procedural requirements of the FOIA, EFOIA Act, or Openness in Government Act in particular, see the detailed information available at the U.S. Department of Justice (DOJ) website. For example, a copy of the FOIA can be located at http://www.justice.gov/oip/amendedfoia redlined.pdf. The current edition of the VA FOIA Reference Guide can be located at http://www.foia.va.gov/docs/RequesterHandbook.pdf, and specific information about implementing the FOIA and its amendments can be found in guidance issued by DOJ through its FOIA Updates and FOIA Post publications, located at http://www.usdoj.gov/oip/foiupd.htm and http://www.justice.gov/oip/foiapost/mainpage.htm. Changes to 38 CFR Part 1
1.550 Purpose
Current Sec. 1.550 is entitled ``General'' and provides a general
statement of VA policy regarding disclosure of information to the
extent permitted by law, including when VA would otherwise be
authorized to withhold the information, if the disclosure is for a
useful purpose or when disclosure will not affect the proper conduct of official
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agency business or constitute an invasion of personal privacy. Current
Sec. 1.550 does not provide all of the general information that may be
useful to the public regarding a request for VA records, including
information necessitated by recent FOIA amendments and VA policy updates.
We propose to amend Sec. 1.550 to generally provide more detail regarding VA's FOIA program. Proposed Sec. 1.550(a) would encourage requesters to read the VA FOIA regulations in conjunction with the FOIA. Based on our experience administering the FOIA, we believe that FOIA requesters will benefit from a greater awareness of the context in which their requests are addressed. In keeping with the legal and policy considerations associated with the administration of the FOIA, proposed Sec. 1.550(a) would authorize release of information on a discretionary basis and without regard to otherwise applicable restrictions in VA's FOIA regulations when current law and governmental policy permit such disclosures. Proposed Sec. 1.550(b) through (e) would advise requesters that other regulations also apply to requests for particular types of records, such as Privacy Act records. 1.551 Definitions
With the exception of current Sec. 1.554a, regarding pre disclosure notification, and current Sec. 1.555, regarding fees, VA's current FOIA regulations do not contain definitions. Accordingly, we propose to add a definitions section in which we would consolidate all applicable definitions. By providing more definitions of terms commonly used in the FOIA process, proposed Sec. 1.551(a) would clarify the regulations, provide greater understanding for requesters, and assist in the implementation of VA's FOIA regulations. These definitions are proposed for clarification purposes only. No substantive effect is intended.
1.552 General Provisions
Proposed Sec. 1.552(a) would create a section that would refer requesters to an Internet link through which they may obtain access to VA's information that is electronically available under the FOIA and information regarding VA's processing of FOIA requests.
Section 552(a)(6)(B)(ii), as amended by the Openness in Government Act, requires Federal agencies to make available a Public Liaison to assist in disputes arising between the agency and individual requesters. Proposed Sec. 1.552(b) would identify VA's Public Liaisons and provide contact information.
Section 552(e)(1) through (3) requires agencies to prepare an Annual Report that provides details regarding the agency's administration of its FOIA program. Proposed Sec. 1.552(c) would advise the public of this requirement and provide information concerning the procedures for obtaining a copy of VA's Annual Report. 1.553 Public Reading Rooms
Proposed Sec. 1.553 would replace current Sec. 1.552(a). Current Sec. 1.552(a), in part, provides (1) that statements of policy and interpretations adopted by VA but not published in the Federal Register, and administrative staff manuals and staff instructions that affect any member of the public, unless promptly published and copies offered for sale, will be indexed by VA; (2) that such indexes will be published, quarterly or more frequently, and distributed or that VA will provide copies at a cost not to exceed the direct cost of duplication and both the index and the materials indexed will be made available to the public for inspection and copying; and (3) that public reading facilities will be maintained by VA Central Office and VA field facilities for this purpose.
Proposed Sec. 1.553(a) would advise the public that VA maintains a public reading room electronically at its FOIA home page on the Internet, which contains records and a current subject matter index of reading room records (updated quarterly or more frequently) that the FOIA requires to be regularly made available for public inspection and copying. In so doing, proposed Sec. 1.553(a) would implement section 552(a)(2) of the FOIA, as amended by the EFOIA Act, which requires that for records created after November 1, 1996, agencies make such information available by electronic means. Proposed Sec. 1.553(a) would also prescribe that each VA component is responsible for determining which of its records are required to be made available electronically. Proposed Sec. 1.553(a) would generally update VA's FOIA program with regard to public access to records by advising the public of the electronic availability of records. The information provided in this provision would be a useful starting point for an individual seeking access to VA records.
Section 552(a)(2), requires agencies to make available certain documents for public inspection and copying. Current Sec. 1.552(b) implements 552(a)(2), stating that when publishing or making available to the public any opinion, order, statement of policy, interpretation, staff manual or instruction to staff, identifying details will be deleted, and the deletion justified in writing, to the extent required to prevent a clearly unwarranted invasion of personal privacy. Similarly, proposed Sec. 1.553(b) would prescribe that VA may delete some of the information that it is making publicly available, including, for example, when its release would result in an unwarranted invasion of an individual's privacy. In substance, proposed Sec. 1.553(b) restates the provisions of current Sec. 1.552(b).
Proposed Sec. 1.553(c) would implement Sec. 552(a)(2), which requires that the agency make public reading room material available for inspection and copying. It would provide that some VA components may maintain physical public reading rooms where individuals may obtain publicly available information. In part, current Sec. 1.552(a) implements the same requirement, providing for the maintenance of public reading facilities. Proposed Sec. 1.553(c), therefore, would replace that portion of current Sec. 1.552(a) that implements this requirement. It would also provide that contact information regarding VA components having physical public reading rooms is available on VA's Internet home page. Proposed Sec. 1.553(c) would facilitate an individual's access to a physical public reading room by providing easily accessible information regarding the availability of reading rooms within VA, thereby facilitating an individual's access to reading room material.
1.554 Requirements for Making Requests
Proposed Sec. 1.554 would replace current Sec. 1.553. Current Sec. 1.553(a) prescribes that except for records made publicly available, requests for records will be processed under current Sec. 1.553(b) (discussed below) and any other law applicable to the confidentiality of information. Current Sec. 1.553(a) also provides that VA will consider making records available that it is permitted to withhold under the FOIA if it determines that such disclosure could be in the public interest.
Current Sec. 1.553(b) prescribes the requirements for submitting a
FOIA request, including that the request must be in writing over the
signature of the requester, that it must contain a reasonable
description of the record sought so that it may be located with
relative ease, and that it should be made to the office having
jurisdiction of the record desired. Proposed Sec. Sec. 1.554(a) and
1.554(b) would replace current Sec. 1.553(a) and (b) and clarify the procedure for submission of requests for
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records under the FOIA. The proposed provisions would prescribe that VA
will accept a facsimile (fax) or electronic mail (email) FOIA request
if it contains an image of the requester's handwritten signature. These
amendments are necessary to clearly identify the acceptable methods of
submitting requests and expand the methods by which requests may be
made. They would also provide more flexibility for individuals in
submitting a FOIA request to VA and would authorize requests in keeping
with updated technology. Proposed Sec. 1.554(a) also would clarify
other administrative details with respect to making a FOIA request,
such as referring the requester to VA's list of FOIA contacts, advising
the requester to direct the request to the proper office, and referring the requester to VA's FOIA Reference Guide.
As a general rule, a record covered by the Privacy Act, 5 U.S.C. 552a, will only be released at the request of, or with the prior authorization by, the subject of the record. Proposed Sec. 1.554(c) would add a provision advising requesters that if they wish to receive information about another individual, the requester should provide proof of his or her authorization to receive that information to cover instances where, after weighing personal privacy interest against the public interest under 5 U.S.C. 552(b)(6), FOIA does not require disclosure. Based on our experience in administering the FOIA, we believe that by providing more detailed information regarding the submission of FOIA requests and making such information available electronically, proposed Sec. 1.554(a) through (c) would facilitate the submission of FOIA requests and would expedite the FOIA process, including by directing the request to the proper address.
Section 552(a)(3)(A) provides that upon a request for records that ``reasonably describes'' the records and is made in accordance with the agency's rules and procedures, the agency shall make such records available. Proposed Sec. 1.554(d)(1) would clarify VA's implementation of the requirement that the request reasonably describe the records sought. Specifically, proposed Sec. 1.554(d)(1) would expand current Sec. 1.553(b) by requiring that requesters provide, to the extent possible, sufficient detail in requests to allow VA to formulate a response. It would also advise requesters that requests that lack specificity may not be considered ``reasonably described.'' Based on our experience in administering the FOIA, we believe these proposed amendments will make the FOIA process more efficient in that it would clarify for requesters the required level of detail for their requests, thereby allowing VA personnel to locate any responsive records more easily. The amendments would generally clarify the request process.
Proposed Sec. 1.554(d)(2) would advise the requester that requests for voluminous amounts of records may be considered ``complex'' or may meet the criteria for ``unusual circumstances'' as set forth in proposed Sec. 1.556; both concepts are discussed in detail below regarding proposed Sec. 1.556.
Proposed Sec. 1.554(d)(3) would expand current Sec. 1.553(b) by prescribing an opportunity for requesters to modify their requests if they do not reasonably describe the records or otherwise do not meet the regulatory requirements for requests. Proposed Sec. 1.554(d)(3) would allow VA to address a request even if the request does not initially meet regulatory requirements. Based on VA's experience, handling any insufficiencies or ambiguities in the request at the outset would avoid delay in addressing the request and provide the requester an avenue for early resolution of the request.
Under section 552(a)(3)(A), a FOIA request must reasonably describe the record sought. Upon receipt, VA must respond to the request, ordinarily, within 20 days (excepting Saturdays, Sundays, and Federal legal public holidays). Proposed Sec. 1.554(d)(4) would prescribe that the time limit for addressing a FOIA request does not begin to run until VA determines that the requester has reasonably described the records and that, if clarification is sought and not received within ten business days, VA will close its file on the request. In our experience, the enforcement of this provision would assist in VA's administration of the FOIA by clarifying VA's process and providing a firm deadline by which an individual must respond to a request for clarifying information. In so doing, VA would place responsibility on the requester to follow request procedures, as required by section 552(a)(3)(A), and promptly reply to VA requests for clarifying information. VA cannot process a request that does not reasonably describe the records. Attempts to address such a request would be futile and may delay action on other requests that meet the requirements. It is imperative, therefore, that the requester reasonably describes the record that is the subject of the request.
Section 552(a)(4)(A) sets forth the requirements regarding the payment of fees for processing record requests. Proposed Sec. 1.554(e) would provide preliminary information regarding the payment of fees (fees are discussed in more detail in proposed Sec. 1.561). It is included at an introductory level to notify requesters of the general fee guidelines. Proposed Sec. 1.554(e) would restate current Sec. 1.555(b)(2) regarding notification of an anticipated fee in excess of $25.00 or the amount that the requester has indicated a willingness to pay. It would also restate current Sec. 1.555(g)(4)(i) and (ii) regarding advance payment where the estimated fee is $250.00 or higher or the requester has previously failed to pay a fee in a timely manner.
Proposed Sec. 1.554(e) would also implement section 552(a)(6)(A)(ii), as amended by the Openness in Government Act, which authorizes an agency to toll the response due date if it is awaiting information from the requester or if clarification is being sought regarding fee issues. Proposed Sec. 1.554(e) would prescribe tolling of the time limit for responding to a FOIA request if necessary to clarify issues regarding a fee assessment. It would also amend the provisions in current Sec. 1.555 by advising requesters that the responding VA component has authority to require written assurance that the fee will be paid, and that if the component's FOIA Officer does not receive a response either to a request for more information or, under certain circumstances, a request for an advance payment, he or she may close the file. Further, proposed Sec. 1.554(e) would advise requesters that even if they are seeking a fee waiver, they may indicate a willingness to pay a fee up to a certain amount. These amendments are necessary to clarify VA policy regarding the assessment of FOIA processing fees and how fee issues may affect the processing of an individual's request. Based on our experience, we believe that setting out the parameters of the FOIA process, including with respect to fees, will encourage resolution of administrative issues early in the processing of a request, thus streamlining the process and avoiding unnecessary delay.
Proposed Sec. 1.554(f) would prescribe that a request must meet the requirements of proposed Sec. 1.554 in order to be considered a perfected request. We propose this amendment to ensure that FOIA requesters understand that VA requirements must be met before the Department devotes resources to processing any request.
1.555 Responsibility for Responding to Requests
Proposed Sec. 1.555 would replace current Sec. 1.553a. Proposed Sec. 1.555(a)
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would provide at the outset that the component's FOIA Officer may
process the request or refer it to the appropriate VA office, that
office will provide the FOIA Officer with all documents in their
possession, and that the search cutoff date generally is the date that
the search begins, i.e., no documents created after that date will be
considered responsive to the FOIA request. If another date is used, the
requester will be advised. In our experience, this amendment is
necessary to clarify the processing of requests within the agency. This
amendment, for example, would resolve questions about the FOIA
Officer's authority to access records potentially responsive to a FOIA
request and would establish a cutoff date for searches. Removing any
ambiguity that exists with regard to the application of the FOIA or
VA's processing of FOIA requests would allow the system to operate more effectively and efficiently.
Proposed Sec. 1.555(b) would replace current Sec. 1.553a(a) and provide that the individual in each component who will be responsible for granting or denying a request is the ``FOIA Officer'' rather than the ``proper employee designated.'' This amendment would clarify that the individual responsible for addressing FOIA requests is the FOIA Officer and is intended to encourage consistency throughout the agency in handling FOIA requests.
Proposed Sec. 1.555(c) and (d) would replace current Sec. 1.553a and prescribe that the FOIA Officer will transfer to, or consult with, another component or agency regarding, a request, including a request that involves classified information, when another component or agency is better able to address the request. Proposed Sec. 1.555(e) would provide that the FOIA Officer will notify the requester when all or part of the request has been referred to another component or agency. We propose this amendment to provide as much information as possible to requesters about the processing of their requests. Informing requesters of the administrative actions that may occur with respect to their requests will assist in the effective administration of the FOIA program.
1.556 Timing of Responses to Requests
Proposed Sec. 1.556 would replace current provisions and add provisions regarding the treatment of FOIA requests. Proposed Sec. 1.556(a) would add a provision stating generally that VA components will respond to FOIA requests according to their order of receipt.
Proposed Sec. 1.556(b)(1) would prescribe VA's use of a multitrack processing system in which, once received, FOIA requests are placed in one of two tracks based upon the work and time required to process the request. Proposed Sec. 1.556(b)(2) would require VA processors to advise requesters of the track to which their request is assigned (simple or complex). Under the proposed rule, VA would provide the requester the opportunity to discuss his or her request with the processing VA component in order to qualify for the faster processing track. These proposed provisions implement sections 552(a)(6)(D)(i) and (ii), which authorize agency rulemaking regarding multitrack processing of records requests and the opportunity to qualify for the faster track. Multitrack processing would enable VA to organize its FOIA request intake in such a way as to provide a greater understanding of the nature and extent of the work required to address various requests. In addition, it would allow personnel to organize their workload in accordance with varying degrees of complexity of the requests presented. Lastly, it would allow requesters to modify their requests to enable VA to address the request more expeditiously. In our experience, requesters often frame requests in a way that would include more material than may be necessary to answer their inquiry. Allowing requesters to work with VA to clarify a request before the agency expends resources on gathering documents that the requester does not want would allow a quicker resolution for the requester and would allow the agency to allocate resources to other requests.
Proposed Sec. 1.556(c) would amend current Sec. 1.553a(d) in that it would set forth the circumstances under which VA may determine that unusual circumstances exist with regard to addressing a FOIA request. The definition of ``unusual circumstances'' is prescribed at 5 U.S.C. 552(a)(6)(B), and includes, for example, the need to collect records from a facility other than the office processing the request. Proposed Sec. 1.556(c) would add a provision that if VA requires an extension of more than 10 business days to address the request, the requester may modify the request so that it may be processed within applicable time limits or arrange an alternative time period with the VA component that is processing the request. Similar to proposed Sec. 1.556(b)(2), proposed Sec. 1.556(c) would prescribe consultation with the requester to allow for modification of the request or arrange an alternative time period within which VA must process the request. This provision encourages early clarification of the request and should promote expeditious processing. Our experience is that communication with the requester in cases such as this is beneficial to all parties, as it clarifies issues for the agency and notifies the requester that the agency is interested in processing the request as expeditiously as possible.
Proposed Sec. 1.556(c)(1)(i) through (iii) would replace current Sec. 1.553a(d)(1) through (3) and incorporate statutory requirements in section 552(a)(6)(B)(i) through (iv) regarding the meaning of ``unusual circumstances.''
Proposed Sec. 1.556(c)(2) would authorize the aggregation of requests if VA determines that certain requests are from the same requester, or a group of requesters acting in concert, actually constitute the same request and that as such, the requests would otherwise meet the requirements for ``unusual circumstances,'' as defined in section 552(a)(6)(B)(iii). This provision would allow VA to address the substance of a request rather than the form of the request; in other words, when a request, in substance, meets the unusual circumstances requirements, the agency would address it as such. The proposed revision in this regard would result in a more equitable distribution of FOIA requests and request workload as it would allow the agency to consider the nature of the request in determining how to characterize it.
Section 552(a)(6)(E)(i) through (vi) requires VA rulemaking regarding the procedures for expedited processing of requests. We propose to implement these procedures in Sec. 1.556(d). Proposed Sec. 1.556(d)(1) would prescribe the circumstances that represent a ``compelling need'' for the information, a requirement that must be met in order to meet the requirement for expedited review under the FOIA. Proposed Sec. 1.556(d)(2) restates section 552(a)(6)(E)(vi), which provides that a requester seeking expedited processing must submit a certified statement to the processing agency regarding the request for expedited review. Proposed Sec. 1.556(d)(3) restates section 552(a)(6)(E)(ii), which requires agencies to make a determination regarding a request for expedited processing within 10 days of the receipt of the request.
1.557 Responses to Requests
Proposed Sec. 1.557(a) would require the processing VA component
to acknowledge receipt of the request and assign a docket number to the request. This provision is intended as an
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administrative tool that components would use to organize incoming
requests and to provide the requester with pertinent information should he or she wish to contact VA for information.
Proposed Sec. 1.557(b) would implement the provisions of section 552(a)(3)(B) through (C) to the extent that the proposed rule would require a component properly in receipt of a request to conduct a reasonable search for records, including records in electronic form or format, and to provide those records in the form or format requested by the individual, if readily reproducible in that form or format. In this regard, proposed Sec. 1.557(b) would essentially restate the FOIA provisions. In addition, proposed Sec. 1.557(b) would clarify that any responsive records would be those in the component's possession and control as of the date the search for responsive records begins and would provide for notification to the requester if a fee is due under proposed Sec. 1.561. Adding this interpretation of the search date and initial fee assessment requirements would eliminate any ambiguity with regard to the time frame of the search and any resulting fee.
Proposed Sec. 1.557(b) also would implement section 552(b), which requires deletion of certain exempt portions of records and identification of the FOIA exemption under which the deletion is made. This proposed revision would also restate, in part, current Sec. 1.554(a), which prescribes that records will be provided after deletion of material exempt under the FOIA, as discussed in current Sec. 1.554(a).
Proposed Sec. 1.557(c) would restate section 552(a)(6)(A) and replace current Sec. 1.553a(b). The proposed rule would prescribe a 20day deadline in which a VA component will act upon a request and a 10day limit for referring a request to another component.
Proposed Sec. 1.557(d) would implement section 552(a)(6)(F), which requires agencies to provide requesters a statement regarding the amount of information withheld and the FOIA exemption under which information is withheld, unless providing such a statement would harm an interest protected by the applicable exemption, and would replace current Sec. 1.557(a). The proposed rule would provide specific examples of the types of determinations that are adverse to requesters, restate the requirement to include the name of the individual responsible for the denial, and prescribe a statement of the reasons for the denial and notice regarding the right to appeal under proposed Sec. 1.559. Placing the information that will be included in an adverse determination in one provision will clarify the FOIA process and benefit all parties involved. Our intent in proposing this provision is to provide VA components clear and consistent direction regarding the requirements for adverse determinations and to ensure that requesters receive notice concerning the reasons for the determination and their appeal options.
1.558 Business Information
Section 552(b)(4) exempts from release matters that are trade secrets and commercial or financial information obtained from a person that is privileged and confidential. Executive Order 12,600 establishes the procedures to be followed when the agency believes that responsive records include such information. Ordinarily, these provisions apply when a request is received for information submitted by an individual doing business with VA who has provided to VA its business information, or information that he or she considers commercial or confidential; this individual is referred to as the ``submitter'' of the information. The ``submitter'' typically designates the information as protected, as discussed further below.
Proposed Sec. 1.558 would replace current Sec. 1.554a in addressing the issues raised by business information; it would replace the term ``confidential commercial'' information used in current Sec. 1.554a with ``business'' information. This revision would provide individuals specific information at the outset concerning whether their request would involve such information. Proposed Sec. 1.558(a) would replace current Sec. 1.554a(a) and provide an introductory statement regarding the consideration of business information pursuant to proposed Sec. 1.558. Proposed Sec. 1.558(b) essentially would replace current Sec. 1.554a(d), which outlines the requirements for a submitter to designate records as business information. Proposed Sec. 1.558(b) varies from current Sec. 1.554a(d) in that it would allow for the business information designation to take place within a reasonable time after submission of the information to VA. Current Sec. 1.554a(d) contains the same language but qualifies the ``reasonable time'' as not later than 60 days after receipt of the information by VA. In addition, proposed Sec. 1.558(b) would add a provision stating that the designation will be considered by the VA component processing the request, but will not control the FOIA Officer's determination. Based on VA's experience in administering current FOIA provisions, VA believes that these revisions would allow flexibility with regard to the submitter's designation and would clarify the role of the designation for the submitter, i.e., the submitter should understand at the outset that while records may be designated as business information, the designation itself does not necessarily determine the outcome of the VA component's decision, which will be made in compliance with applicable laws.
Proposed Sec. 1.558(c)(1) would replace current Sec. 1.554a(c) and prescribe the requirements for notice to a submitter of business information whenever a request for that information is being processed under the FOIA. Proposed Sec. 1.558(c)(1) would differ from current Sec. 1.554a(c) by requiring the submitter to provide objections to the disclosure within the ``time period specified'' in the notice, as opposed to within 10 working days, as prescribed in current Sec. 1.554a(c). This revision is repeated in proposed Sec. 1.558(d). This revision would allow VA the flexibility to meet statutory time limits and/or change the number of days in which a response is required as a policy matter without requiring a change in its regulations. Proposed Sec. 1.558(c)(1) also would delete the current requirement for the notice to be mailed by certified mail, return receipt requested. Our experience is that certified mail may unnecessarily delay the notification process when there are other suitable alternatives. Proposed Sec. 1.558(c)(1) would add a provision allowing the FOIA Officer to post the notification in a place reasonably likely to accomplish the required notice when the notice concerns a large number of submitters. This proposed provision would allow the FOIA Officer greater flexibility and expedite notice by allowing electronic or other public notification of multiple submitters simultaneously.
Proposed Sec. 1.558(d) would replace current Sec. 1.554a(f) and eliminate ``or designee'' when referring to the submitter. We intend that this change will bring VA's FOIA regulations into compliance with Executive Order 12600, which established Federal policy regarding agency communication only with the submitter of information.
Proposed Sec. 1.558(d) would require that the submitter's
objections be contained in a single written response and that oral or
multiple subsequent written responses ordinarily would not be
considered. Based on our experience administering the FOIA with regard
to business information, we believe that this revision would create a
more efficient process by requiring a cohesive statement from the submitter rather than allowing continued or successive
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submissions. Additionally, eliminating oral responses would better develop the administrative record for all parties.
Proposed Sec. 1.558(d) would also provide that if the submitter does not respond to VA's notification within the specified time limit, the submitter will be considered to have no objection to the disclosure. This provision would impose a duty to respond within the time limit in order to ensure that the submitter's objections, if any, can be properly considered in an efficient and timely manner. This proposed provision would also eliminate the requirement that the submitter provide objections within 10 days after receipt by the submitter of notification of a request for the submitter's information. Instead, the proposed rule would allow the FOIA Officer to set forth a ``specified time limit'' within which to respond.
Proposed Sec. 1.558(d) would eliminate the language in current Sec. 1.554a(f), which prescribes that information provided by the submitter would itself be subject to the FOIA. Our experience is that the existing notice in current Sec. 1.554a(f) has a chilling effect on submitters detailing their objections to disclosure and discussing the likelihood of disclosure causing substantial competitive harms. Additionally, any submission of information to the government may be subject to the FOIA, thus making that language superfluous.
Proposed Sec. 1.558(e) would replace current Sec. 1.554a(f)(3) regarding the FOIA Officer's consideration of the submitter's objections in making a determination whether to release information. While current Sec. 1.554a(f)(3), for example, states that VA will consider a submitter's comments if received within a 10day time limit, proposed Sec. 1.558(e) states that information provided by the submitter after the ``specified time limit'' will not be considered. While a specific time frame is not expressly stated in the proposed regulation, the regulation does provide for consideration of comments within a time frame specified by the FOIA Officer.
Proposed Sec. 1.558(e) also would replace current Sec. 1.554a(f)(3) with regard to the information contained in the written notice to the submitter. The proposed regulation makes no substantive changes to this provision.
Proposed Sec. 1.558(f) would replace current Sec. 1.554a(i)(1) through (3), identifying when the predisclosure notification requirements need not be followed. It would add to the provisions in current Sec. 1.554a(i)(3) that predisclosure notification is not required if the disclosure is required by regulation issued in accordance with Executive Order 12600 or any other Executive Order. In this regard, the proposed rule would ensure that Executive Orders are included, as appropriate, as a basis for the disclosure of information. Proposed Sec. 1.558(f) would delete references to current Sec. 1.554a(i)(4) through (6) because VA's experience is that these provisions have not been utilized, and the revised provisions would, if necessary, cover the instances referred to in the referenced sections.
Proposed Sec. 1.558(g) would replace current Sec. 1.554a(g)(1) and would make no change to that provision. Current Sec. 1.554a(g)(2) regarding notice to a requester when a submitter is given an opportunity to provide comments about the disclosure would be deleted because under the proposed rule requesters would be on notice regarding VA's contacts with submitters. Proposed Sec. 1.558(g) would prescribe notice to a requester that the request is being processed under Sec. 1.558, including the provisions in Sec. 1.558(c) and (e) prescribing notice to submitters regarding opportunity to comment. Current Sec. 1.554a(g)(3) regarding notice to a submitter and requester of a final decision on disclosure of business information would also be deleted as unnecessary. Submitters would instead be given notice of an impending agency decision on disclosure of business information under proposed Sec. 1.558(e). The requester would be notified when a final agency decision is issued pursuant to proposed Sec. 1.557.
1.559 Appeals
Section 552(a)(6)(A) provides that when an agency component responds to an initial request for records, it shall provide the requester with the right to appeal any adverse determination to the head of the agency.
Proposed Sec. 1.559 would replace current Sec. 1.557(b). Current Sec. 1.557(b) states only that the final agency decisions in appeals will be made by the VA General Counsel or Deputy General Counsel. Proposed Sec. 1.559(a) would allow for an informal resolution of the request prior to an appeal in appropriate cases. We believe that in appropriate cases, requesters may benefit from contact with the FOIA Officer or VA component addressing the request and an attempt to resolve outstanding issues with regard to the request. The requester may seek informal resolution, for example, when he or she has not received a response to the request. Direct communication between the FOIA Officer and the requester could resolve the issue and therefore make an appeal unnecessary.
Proposed Sec. 1.559(b) would establish authority for the VA Office of Inspector General (OIG) to handle appeals related to OIG records. This would allow the OIG to establish its independence regarding its own records.
Proposed Sec. 1.559(b) through (c) would provide details regarding how to file an appeal and the form that an appeal may take and a reference to additional information available online.
Proposed Sec. 1.559(d) would establish a 60day time limit from
the date of any adverse determination concerning the FOIA request for
the requester to file an appeal. Current regulations do not address the
timeliness of an appeal. Based upon our experience, we believe that
prescribing a period within which an appeal may be filed provides an
effective tool for establishing workload and allocating resources. We
have determined that a 60day time limit would be reasonable given the
convenient means by which an individual may quickly file an appeal. We
note that the proposed 60day appeal period would be the same as the
appeal period established by the Department of Justice for its FOIA
appeals. We also believe that the requester should have the
responsibility to follow through with the appeal if he or she wishes
the request to be addressed and that the 60day appeal period would
provide ample time to exercise that responsibility. Further, the appeal
process would be more seamless and effective if requesters included
necessary information in their appeal notices, such as the information
listed in proposed Sec. 1.559(d). Based on our experience, we believe
that encouraging requesters to initially provide as much information as
possible would ease the administrative burdens of gathering relevant
information and processing the appeal. Proposed Sec. 1.559(d) would
also provide that an appeal is not perfected until either the
information requested is received or VA determines that the appeal is
otherwise sufficiently defined. In our experience, appeals occasionally
are so lacking in detail that it requires an excessive amount of time
to identify the issues or records involved. Requesters would provide
more clarity and therefore would require less laborintensive inquiries
by VA if they initially provided the information that is necessary to
process the appeal. Proposed Sec. 1.559(d) would also delegate
authority to decide appeals to the VA Assistant General Counsel who has
jurisdiction over FOIA matters. This amendment would add the Assistant
General Counsel that has jurisdiction over records disclosure matters to the list of individuals authorized to make
[[Page 63126]]
such final agency determinations thus streamlining the appeal process
while continuing to provide the thorough legal analyses currently afforded FOIA appeals.
Proposed Sec. 1.559(e) would prescribe the content of a decision on appeal. Prescribing these requirements would facilitate consistency in decisionmaking and fully inform requesters regarding their right to a complete appellate decision from the agency.
Proposed Sec. 1.559(f) would require a requester to file an appeal prior to seeking court review. This provision would provide the opportunity for resolution of the requester's concerns prior to initiating litigation and ensure that the matter is ready for judicial review.
1.560 Maintenance and Preservation of Records
The Federal Records Act, 44 U.S.C. chapter 31, addresses record preservation and destruction by Federal agencies. Section 3102 of title 44, U.S.C., requires that the head of an agency establish and maintain a records management system.
Proposed Sec. 1.560(a) would require that VA components maintain FOIA requests and copies of pertinent records in accordance with NARA's General Records Schedule.
Proposed Sec. 1.560(b) would require that the FOIA Officer maintain copies of records that are the subject of a pending request, appeal, or lawsuit under the FOIA. It would also prescribe that a copy of the records shall be provided to the Office of the General Counsel upon request.
These provisions would underscore the importance of maintaining records as appropriate and prescribe consistent compliance within VA. They would emphasize that administrative recordkeeping is an important function in the FOIA program and that in order for VA components to build an administrative record, if required, information must be preserved as appropriate.
1.561 Fees
In accordance with section 552(a)(4)(A), an agency is required to promulgate regulations specifying the schedule of fees applicable to processing requests under the FOIA and establishing procedures and guidelines for determining when fees will be waived or reduced. In addition, agencies must implement the 1987 Fee Schedule and Guidelines published by the Office of Management and Budget (OMB). See The Freedom of Information Reform Act of 1986; Uniform FOIA Fee Schedule and Guidelines, 52 FR 59 (27 March 1987).
Proposed Sec. 1.561 replaces current Sec. 1.555. In part, proposed Sec. 1.561(a) would replace current Sec. 1.555(b)(1) in providing a general introduction and rules regarding fees. Proposed Sec. 1.561(a) would add that the VA component would collect prescribed fees before releasing copies of the information to the requester and would include a provision regarding payment of fees. Lastly, proposed Sec. 1.561(a) would direct a requester's attention to other VA statutes that contain provisions related to access to records and the fees for such access. These amendments would provide introductory comments regarding VA's fee provisions and are intended to clarify and highlight VA's general framework for the assessment of fees.
Proposed Sec. 1.561(b) would replace current Sec. 1.555(a) and would contain the definitions of terms used regarding FOIA fees. Proposed Sec. 1.561(b)(1) would restate that portion of current Sec. 1.555(d)(4) that defines ``all other requesters'' as any requester that does not fit within any other category; the proposed inclusion of this definition in this section would ensure that all pertinent definitions are included.
Proposed Sec. 1.561(b)(2) would replace current Sec. 1.555(a)(1) and would restate the definition of ``commercial use request.'' The proposed regulation would make no substantive change to current Sec. 1.555(a)(1).
Proposed Sec. 1.561(b)(3) would replace current Sec. 1.555(a)(2) and would restate the definition of ``direct costs.'' The proposed regulation would make no substantive change to current Sec. 1.555(a)(2).
Proposed Sec. 1.561(b)(4) would replace current Sec. 1.555(a)(3) and would restate the definition of ``duplication.'' The proposed regulation would make no substantive change to current Sec. 1.555(a)(3).
Proposed Sec. 1.561(b)(5) would replace current Sec. 1.555(a)(4) and would restate the definition of ``educational institution.'' The proposed regulation would make no substantive change to current Sec. 1.555(a)(4).
Proposed Sec. 1.561(b)(6) would replace current Sec. 1.555(a)(5) and in large part, restate the definition of ``noncommercial scientific institution.'' The proposed regulation would make no substantive change to the provisions of current Sec. 1.555(a)(5) with the exception of the addition that the requester must show that the request is authorized by and made under the auspices of a qualifying institution. This amendment would clarify the requirement for submitting such a request and would place responsibility on the requester to establish that it fits within this fee category. Our experience indicates that this requirement will assist in resolving the status of a fee requester at the outset and will clarify the requirements for such requesters.
Proposed Sec. 1.561(b)(7) would replace current Sec. 1.555(a)(6). It would restate current Sec. 1.555(a)(6), but also implement the change in the definition of news media in section 552(a)(4)(A)(ii), which defines ``representative of the news media'' as described immediately below. The proposed rule would prescribe that a member of the news media is one who gathers information of potential interest to the public, uses his or her editorial skills to turn the raw material into a distinct work, and distributes that work to an audience. We propose to add language that alternative media sources may be considered news media if they otherwise meet the definition of news media. We believe this proposed language would underscore that the entity seeking classification as a news media must also meet the other criteria set forth in the definition of news media. Proposed Sec. 1.561(b)(7) would also delete a reference to freelance journalists' option to seek a reduction or waiver of fees. We believe placing the reference here would be superfluous, as waiver or fee reduction is discussed in the introductory paragraph of proposed Sec. 1.561(b)(7). In accordance with section 552(a)(4)(A)(ii), proposed Sec. 1.561(b)(7) would add language that a representative of the news media must not be seeking records for a commercial use.
Proposed Sec. 1.561(b)(8) would replace current Sec. 1.555(a)(7). The proposed rule would essentially restate current Sec. 1.555(a)(7) and would add examples of the types of records that are subject to review in a FOIA request. We believe that providing examples would provide more clarity for requesters concerning the potential assessment of fees.
Proposed Sec. 1.561(b)(9) would replace the definition of search in current Sec. 1.555(a)(8). The proposed rule would make no substantive change to current Sec. 1.555(a)(8) with the exception of the deletion of the last sentence in current Sec. 1.555(a)(8) regarding excluding review time. We believe that this language is unnecessary, as we have previously defined the term search in the context of the FOIA.
Proposed Sec. 1.561(c) would replace current Sec. 1.555(d)
regarding categories of requesters and fees charged each category. The
introductory language of proposed Sec. 1.561(c) and (c)(1) (commercial use requesters) restates the
[[Page 63127]]
introductory language of current Sec. 1.555(d) and(d)(1) (commercial
use requesters), with the exception of adding language noting that the
provisions apply unless a waiver or reduction of fees applies. We
believe these proposed additions would clarify application of the fee
provisions by directing the requester's attention to the exceptions
that apply to the assessment of fees. In addition, proposed Sec.
1.561(c)(1) would delete language from current Sec. 1.559(d)(1) that
states that a requester must reasonably describe the record requested.
We believe that this language is superfluous in light of the full
discussion of reasonably described records in proposed Sec. 1.554(d).
Proposed Sec. 1.561(c)(2) and (3) would replace current Sec. 1.555(d)(2) and (3), respectively. Proposed Sec. 1.561(c)(2) and (3) would refer the requester to the potential waiver or reduction of fees and would reiterate the charges assessed to an educational institution and a representative of the news media. It would delete language in current Sec. 1.559(d)(2) and (3) regarding the requirements that must be met to be categorized as an educational and noncommercial scientific institution or a representative of the news media. The criteria for classification of these types of requesters would be clearly set forth in the definitions section.
Proposed Sec. 1.561(c)(4) would replace current Sec. 1.555(d)(4). Proposed Sec. 1.561(c)(4) essentially restates the provisions of current Sec. 1.555(d)(4) as to the charges that are assessed for an all other requester and its reference to the waiver or reduction of fees. Proposed Sec. 1.561(c)(4) would delete language from current Sec. 1.555(d)(4) that refers to requests for records retrievable by personal identifiers and the treatment of such requests. In doing so, the proposed rule would more clearly distinguish between requests made under the FOIA and requests made under other authority. Based on our experience, we believe that such distinctions are helpful in that requesters can determine which procedures are applicable to their requests and will be able to more clearly identify the action that is required. In addition, proposed Sec. 1.550 provides information concerning the various disclosure statutes and the distinctions between those statutes. Including that information here would be superfluous.
Proposed Sec. 1.561(d) would clarify the types of fees that VA may charge for processing requests. The introductory paragraph in proposed Sec. 1.561 would provide a general statement notifying requesters that the fees to be charged are defined in proposed Sec. 1.561. Proposed Sec. 1.561(d)(1)(i) would clarify how a search fee is assessed and would advise that fees are charged in quarter hour increments. This provision would better advise requesters concerning the potential for a fee assessment and how VA will assess the fee. This information may also be helpful to requesters seeking to identify more precisely the records that are the subject of their request.
Proposed Sec. 1.561(d)(1)(ii), in part, would replace current Sec. 1.555(c)(2). It would reiterate how fees are assessed in cases requiring a computer search and make no substantive change in that regard. As an administrative matter, it would add a reference to the proposedrule provisions that discuss when a fee would not be charged and when 2 hours of free search time would be granted.
Proposed Sec. 1.561(d)(2) and (3) would add provisions clarifying when duplication and review fees, respectively, apply, and how such fees are calculated. These provisions would provide VA and requesters clear rules for determining the level of fees that may be assessed, depending upon the request submitted. Proposed Sec. 1.561(d)(3), for example, would prescribe in detail when a fee may be charged for consideration of an exemption and when it may not. We believe that this type of detail would be useful to requesters as a means of explaining why certain charges are made or not made and accordingly, would potentially assist in VA's administration of the FOIA.
Proposed Sec. 1.561(e)(1) and (2) would implement administrative provisions regarding the assessment of fees. In accordance with proposed Sec. 1.561(e)(2), for example, more than half of a quarter hour period must be spent on search and review for the requester to be charged for that quarterhour. This proposed provision represents VA's determination that it is administratively worthwhile only to collect a fee representing more than one half of a quarterhour increment.
Proposed Sec. 1.561(e)(3) would implement section 552(a)(4)(A)(viii) by prescribing that certain fees may not be charged to various types of requesters if the agency fails to meet the time limits set forth in agency regulations. The proposed provision clarifies that duplication fees may still be charged to commercial use requesters and ``all other'' requesters.
Proposed Sec. 1.561(e)(4), in part, would replace current Sec. 1.555(c) and prescribe that the agency will provide the first 100 one sided pages and the first 2 hours of search time without charge. We do not intend any substantive change to this provision.
Proposed Sec. 1.561(e)(5), in part, would replace current Sec. 1.555(c), which provides that no fee will be charged if the cost of collecting the fee is equal to or greater than the fee itself. Proposed Sec. 1.561(e)(5) would clarify that if the total fee calculated is less than $25.00, no fee will be charged. Prescribing a dollar amount in this provision should clarify the regulation for requesters and remove any ambiguity that may exist in current regulations regarding permissible fees.
Proposed Sec. 1.561(e)(6) would prescribe that VA may provide free copies of records or free services in response to requests from other government agencies or congressional offices when to do so would assist in providing medical care to a patient or to further VA's mission. This provision would allow the agency the flexibility to respond to certain requests promptly without addressing issues that may arise with regard to fees.
Proposed Sec. 1.561(f) would add a chart that contains the categories of fee requesters and a summary of the types of fees that VA may charge. Proposed Sec. 1.561(f) would provide a convenient administrative tool for VA officials and requesters, which would summarize information previously set forth in the proposed regulations and would not make any substantive changes.
Proposed Sec. 1.561(g) would replace current Sec. 1.555(e). Current Sec. 1.555(e) consists of a schedule of fees in chart form. Proposed Sec. 1.561(g) would add an introductory paragraph regarding the assessment of fees and would restate generally when the payment of fees is required. The proposed provision, for example, notes that VA would charge for special services used in responding to a FOIA request, that the fee schedule applies to requests under the Privacy Act as well, and that in cases in which the processing fee is less than $25.00, or in cases in which the requirements for a waiver have been met, the fee would be waived.
Section 552(a)(4)(A)(i) requires agencies to promulgate regulations prescribing a schedule of fees applicable to processing FOIA requests. The fees must conform to OMB guidelines regarding a uniform schedule of fees for all agencies. Proposed Sec. 1.561(g)(1) would implement the OMB guidance and prescribe the criteria that VA would use to calculate search and review fees when such fees are based upon VA employees' salaries.
Proposed Sec. 1.561(g)(2) would also provide a fee schedule in chart form that describes the type of activity for which the fee is being assessed and the composition of the fee being assessed. [[Page 63128]]
Proposed Sec. 1.561(h), in part, would replace current Sec. 1.555(b)(2) and would add that the requester will be notified of the assessment of a fee over $25.00 or the amount set by OMB fee guidelines, whichever is higher. This provision would allow VA flexibility with regard to notifying requesters of fee assessments should the limit be changed in the future. It would also advise requesters of the potential for such a change. Proposed Sec. 1.561(h) would add that any agreement made by the requester to pay a fee on a later date shall be in writing. Based on our experience, we believe that this requirement would help to avoid any ambiguity with regard to fee issues. Proposed Sec. 1.561(h) would also expand the language in current Sec. 1.555(b)(2) and authorize the FOIA Officer's contact with the requester regarding clarification of fee issues. Proposed Sec. 1.561(h) would provide that the timeline for responding to the request shall be tolled until the fee issue is resolved. This proposed provision would implement section 552(a)(6)(A)(ii)(II), which authorizes tolling of the time limit if necessary to clarify issues regarding fee assessment. Proposed Sec. 1.561(h) would also provide that if VA does not receive a response regarding a request for clarification of the fee issue within 10 days, it will close the file on the records request. We believe that setting a clear limit on the response time will avoid delay that results when a requester's intentions are unclear. Such a limit will also prevent VA from having to maintain cases on its docket that the requester has no interest in pursuing. Thus, it would be reasonable to place responsibility on the requester to follow through with the request that he or she initiated if the records sought are still desired.
Section 552 authorizes recovery of direct costs of search, duplication, and review in certain cases. Proposed Sec. 1.561(i) would add a provision that when the agency chooses to provide a special service sought by the requester, such as certifying records, the direct cost of that service will be charged to the requester. This provision would allow the agency the flexibility to work with the requester to grant special services of this nature if possible, but allows the agency to recoup the costs of those services. This proposed provision would be promulgated pursuant to 31 U.S.C. 9701, which permits agencies to prescribe regulations establishing a charge for things of value provided by the agency.
Proposed Sec. 1.561(j) would restate the provisions of current
Sec. 1.555(g) in all pertinent respects with regard to charging
interest on an unpaid bill. It also would replace current Sec.
1.555(g)(5) regarding application of the Debt Collection Act of 1982 (Pub. L. 97365). It would delete the requirement that the
determination to charge interest will be made by a VA Central Office
official or field facility head or designee. Based on our experience,
we believe that this requirement does not make the process more
efficient. By deleting the current delegation of authority provision,
we intend to provide flexibility for other individuals to make the
determination to charge interest but only according to the criteria
prescribed in VA's regulations. The proposed rule would also delete
references to VA procedures that ensure that a requester who has
remitted payment is credited with the payment. We believe this
provision to be superfluous, as any payment would ordinarily be credited as a matter of administrative regularity.
Proposed Sec. 1.561(k) would restate the provisions of current Sec. 1.555(g)(3) in all pertinent respects with regard to aggregating requests. Proposed Sec. 1.561(k) would use the term ``component'' rather than ``responsible Central Office official or field facility head or designee.'' Based on our experience, we believe that this requirement would allow more flexibility in determining whether a request should be aggregated according to the criteria in VA's regulations. It also would allow those most familiar with the FOIA process to make the determination, which we believe would add more administrative regularity to the process.
Proposed Sec. 1.561(l)(1) would restate the introductory language set forth in current Sec. 1.555(g)(4). Proposed Sec. 1.561(l)(1) would add that payment for work already completed is not an advance payment. This language is an administrative provision intended to clarify what constitutes an advance payment.
Proposed Sec. 1.561(l)(2) would restate the provisions of current Sec. 1.555(g)(4)(i) in all pertinent respects with regard to advance payments. It would delete current provisions providing an option for the VA to notify the requester of the likely fee and obtain satisfactory assurance of full payment. Based on our experience, deleting this language would avoid any ambiguity with regard to the fee and would clarify that the component may require payment in advance. We believe this would assist in the administration of this provision.
Proposed Sec. 1.561(l)(3) would generally restate the provisions in current Sec. 1.555(g)(4)(ii). However, proposed Sec. 1.561(l)(3) would delete the option that a requester may demonstrate that a fee owed has been paid in order to allow VA to process the request. In our experience, the circumstances under which fee issues arise do not concern a requester who has already paid the fee. Typically, unresolved fee issues occur in the context of a fee that has not been paid. In order to address the typical situations in this regard, we propose the deletion of the language above as unnecessary.
Proposed Sec. 1.561(l)(4) would add a provision that if a requester has a history of prompt payment, the FOIA Officer may accept assurance of full payment from the requester rather than require an advance payment.
Proposed Sec. 1.561(l)(5) would restate current Sec. 1.555(g)(4)(iii) with no substantive change.
Proposed Sec. 1.561(m) would replace and restate current Sec. 1.555(b)(4). Proposed Sec. 1.561(m) would make no substantive change to current Sec. 1.555(b)(4).
Proposed Sec. 1.561(n)(1) would add language regarding the waiver or reduction of fees in general. It would direct the requester's attention to the requirements for fee waiver requests, and would require that the requester submit adequate justification for the fee waiver request and advise that without adequate justification, the waiver request will be denied. Proposed Sec. 1.561(n)(1) also would provide the opportunity for the FOIA Officer to request additional information from the requester regarding the fee waiver request and close the file on the records request if VA does not receive the requested information within 10 days. This provision would advise the requester that it is important to submit adequate justification for the fee waiver request, which would avoid delay and fee waiver denials based simply on lack of adequate data. It would also provide for consistency in the administrative decisionmaking process by establishing a firm deadline for the submission of additional support. These provisions essentially would create a more efficient fee waiver request process, which would benefit both VA in its administration of the FOIA and requesters seeking records. In addition, pr
FOR FURTHER INFORMATION CONTACT
Catherine Nachmann, Staff Attorney, Office of the General Counsel (024), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 4617684. (This is not a toll free number.)