For the purposes of this part, the following definitions apply:
(a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as amended.
(b) Agency means any executive department, military department, Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Federal Government, or any independent regulatory agency.
(c) Agency record means any documentary material which is either created or obtained by an agency in the transaction of agency business and under agency control. See §§ 2.21 and 2.25.
(ii) Machine-readable materials such as magnetic tape and disks;
(iii) Electronic records (including e-mail messages);
(iv) Audiovisual material such as still pictures, sound and video recordings; and
(v) All other documentary materials, regardless of physical form, format or characteristics.
(2) This definition generally does not cover records of an individual which are:
(i) Created and maintained primarily for an individual's convenience;
(ii) Not subject to agency creation or retention requirements; and
(iii) Not distributed to other agency employees for their official use.
(d) Bureau means any major component of the Department administering its own FOIA program. A list of these components is contained in Appendix A to this part.
(e) Commercial-use request means a request from or on behalf of a person who seeks information for a use or purpose that furthers the commercial, trade or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester falls into this category, the bureau will consider the identity of the requester and intended use of the records in addition to any other available information about the requester.
(f) Direct costs means those expenses that a bureau actually 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 and benefits of the employee performing the work and the cost of operating duplicating equipment. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the facility in which the records are kept.
(g) Duplication means making a copy of a record, or the information contained in it, to respond to a FOIA request. Copies can take the form of paper, microform, photographs, audiovisual materials, or electronic records (for example, magnetic tape or disk), among others.
(h) Educational institution means a preschool, a public or private elementary or secondary school, or an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, which operates a program of scholarly research. To be in this category, a requester 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.
(i) Expedited processing means giving a FOIA request priority, and processing it ahead of other requests pending in the bureau because a requester has shown a compelling need for the records (see § 2.14 ).
(j) FOIA request means a written request (this includes facsimile (fax) and electronic mail (e-mail)) made by any member of the public for Federal agency records.
(k) Free-lance journalist means an individual who is regarded as working for a news-media entity because he/she can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by that entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.
(l) Frequently requested documents means documents that have been requested at least three times under the FOIA. It also includes documents the agency anticipates would likely be the subject of three or more requests.
(m) Multitrack processing means placing simple requests, requiring relatively minimal review, in one processing track and more voluminous and complex requests in one or more other tracks. Requests in each track are processed on a first-in/first-out basis.
(n) Noncommercial scientific institution means an institution that is not operated for commerce, trade or profit, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To be in this category, a requester 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 scientific research.
(o) Privacy Act request means a written request (paper copy with an original signature) made by an individual for information about himself or herself that is contained in a Privacy Act system of records. The Privacy Act applies only to U.S. citizens and aliens lawfully admitted for permanent residence. Therefore, only those individuals may make Privacy Act requests.
(p) Published research findings means research findings that are either:
(1) Published in a peer-reviewed scientific or technical journal; or
(2) Publicly and officially cited by a Federal agency in support of an agency action that has the force and effect of law.
(q) Reading room materials means records (paper or electronic) that are required to be made available to the public under 5 U.S.C. 552(a)(2), as well as other records that a bureau, at its discretion, makes available to the public for inspection and copying without requiring the filing of a FOIA request.
(r) Representative of the news media means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term `news ' means information that is about current events or that would be of current interest to the public. Examples of news-media entities are newspapers, television or radio stations broadcasting to the public at large, and publishers of periodicals (but only if such entities qualify as disseminators of `news ') who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all inclusive. As methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunication services), such alternative media will be considered to be news-media entities.
(s) Research data means the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not such things as trade secrets, commercial information, personnel and medical information and any similar information which is protected under law.
(t) Review means the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. It also includes the deletion of exempt material or other processing necessary to prepare the record(s) for disclosure, including routine consultation among bureau staff and attorneys regarding the applicability of exemptions; and time spent considering any formal objection to disclosure made by a submitter under § 2.23(f).
(u) Search means the process of looking for and retrieving agency records and information responsive to a request (manually or by automated means).
(v) Submitter means any person or entity outside the Federal Government from whom the Department directly or indirectly obtains commercial or financial information. The term includes, but is not limited to individuals, corporations, and state, local, tribal, and foreign governments.
(w) Workday means a regular Federal workday. It does not include Saturdays, Sundays, or Federal legal public holidays.
[67 FR 64530, Oct. 21, 2002, as amended at 74 FR 17091, Apr. 14, 2009]
Title 43 published on 2011-10-01
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