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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules
Officer whenever a FOIA request is denied.
a What a requester can appeal. A
requester may appeal the withholding of a document or denial of a fee waiver request. A requester may contest the type or amount of fees that were charged, or may appeal any other type of adverse determination under the FOIA. A requester may also appeal because USAID failed to conduct an adequate search for the documents requested. However, a requester may not file an administrative appeal for the lack of a timely response. A requester may administratively appeal any portion denied when their request is granted in part and denied in part.
b Requirements for making an appeal. A requester may appeal any adverse determinations to the components FOIA office. The requester must make the appeal in writing. To be considered timely, the appeal must be postmarked, or in the case of electronic submissions, transmitted, within 90
calendar days after the date of the response. The appeal should clearly identify the component FOIA offices determination that is being appealed and the assigned request number. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, Freedom of Information Act Appeal.
c Adjudication of appeals. 1 The Deputy Director of the Bureau for Management Services or designee will conduct de novo review and make the final determination on the appeals related to all Agency records other than OIG records. The Deputy Inspector General will conduct de novo review and make the final determination on the appeals relating to OIG records.
2 An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
d Decisions on appeals. A decision on an appeal must be made in writing.
A decision that upholds the component FOIA offices determination will contain a statement that identifies the reasons for the affirmance, including any FOIA
exemptions applied. The decision will provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration OGIS as a nonexclusive alternative to litigation.
Mediation is a voluntary process. If the components FOIA office agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an
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attempt to resolve the dispute. If the component FOIA offices decision is remanded or modified on appeal, the requester will be notified of that determination in writing. The components FOIA office will thereafter further process the request in accordance with that appeal determination and respond directly to the requester.
e When appeal is required. Before seeking review by a court of the component FOIA offices adverse determination, a requester generally must first submit a timely administrative appeal.
f Where to file an appeal. An appeal other than appeals related to OIG
records may be filed by sending a letter to: FOIA Appeals Officer, Bureau for Management, Deputy Director, Office of Management Services, U.S. Agency for International Development, USAID
Annex, M/MS, Room 10.8 OD, Washington, DC 20523; or by email at foia@usaid.gov. An appeal relating to OIG records may be filed by sending a letter to: Deputy Inspector General, Office of Inspector General, U.S. Agency for International Development, Suite 6.06D, RRB, 1300 Pennsylvania Avenue NW, Washington, DC 20523
4601; or by email at foiaoig@usaid.gov.
There is no charge for filing an administrative appeal.
212.12

Mediation and dispute services.

The Office of Government Information Services of the National Archives and Records Administration OGIS is a Freedom of Information Act FOIA
resource for the public and the government. Congress has charged OGIS
with reviewing FOIA policies, procedures and compliance of Federal agencies and to recommend changes to the FOIA. OGIS mission also includes providing dispute resolution services between Federal agencies and requesters. OGIS works as a nonexclusive alternative to litigation. When the components FOIA office makes a determination on a request, the components FOIA office shall offer the services of the FOIA Public Liaison, and will notify requesters of the mediation services provided by OGIS. Specifically, the components FOIA office will include in the components FOIA
offices notification to the requester:
a The right of the requester to seek assistance from the FOIA Public Liaison of the components FOIA office, and in the case of an adverse determination;
b The right of the requester to seek dispute resolution services from the FOIA Public Liaison of the components FOIA office or the Office of Government Information Services.

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Subpart IPreservation of Records 212.13

Policy and procedures.

The components FOIA office shall preserve all correspondence relating to the requests it receives under this subpart, and all records processed pursuant to such requests, until such time as the destruction of such correspondence and records is authorized pursuant to Title 44 of the United States Code or the General Records Schedule 4.2 of the National Archives and Records Administration NARA. Under no circumstances shall records be sent to a Federal Records Center, transferred to the permanent custody of NARA, or destroyed while they are the subject of a pending request, appeal, or civil action under the FOIA.
Subpart JFees 212.14

Fees to be chargedgeneral.

a In general. The components FOIA
office shall charge for processing requests under the FOIA in accordance with the provisions of this section and with the Office of Management and Budget OMB Guidelines. In order to resolve any fee issues that arise under this section, the components FOIA
office may contact a requester for additional information. The components FOIA office shall ensure that search, review, and duplication are conducted in the most efficient and the least expensive manner. The components FOIA office ordinarily will collect all applicable fees before sending copies of records to a requester.
Requesters must pay fees by check or money order made payable to the Treasury of the United States.
b Definitions. For purposes of this section:
1 Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. The component FOIA offices decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requesters intended use of the information.
2 Direct costs are those expenses that the Agency incurs in searching for and duplicating and, in the case of commercial use requests, reviewing records in order to respond to a FOIA
request. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility.
3 Duplication is reproducing a copy of a record, or of the information
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