[Federal Register Volume 84, Number 62 (Monday, April 1, 2019)]
[Rules and Regulations]
[Pages 12122-12130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06101]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 1
RIN 2900-AQ27
Release of Information From Department of Veterans Affairs'
Records
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs' (VA)
regulations governing the submission and processing of requests for
information under the Freedom of Information Act (FOIA) and the Privacy
Act to reorganize, streamline, and clarify existing regulations.
DATES: This rule is effective May 1, 2019.
FOR FURTHER INFORMATION CONTACT: Catherine Nachmann, Attorney, Office
of General Counsel (024), Department of Veterans Affairs, 810 Vermont
Avenue NW, Washington, DC 20420, (202) 461-7742 (this is not a toll-
free number).
SUPPLEMENTARY INFORMATION: On April 5, 2018, VA published a proposed
rule in the Federal Register [83 FR 14613]. We proposed to amend VA's
regulations pertaining to release of information under 5 U.S.C. 552 and
implementation of the FOIA, codified at 38 CFR 1.550 through 1.562. We
proposed to update VA's FOIA regulations to implement amendments in the
FOIA Improvement Act of 2016, Public Law 114-185, and those governing
release of information from claimant records protected under the
Privacy Act of 1974, namely 38 CFR 1.577 (c) and (e) and 1.580. In
addition to complying with statutory changes, we proposed to amend the
regulations to clarify sections as needed and streamline VA processes
regarding release of information, thus making it easier for the
requester to follow the agency's procedures.
We received comments from four commenters that both supported the
proposed rule and recommended modifications of the proposed rule; one
comment was received in duplicate. To clarify, we received total of
four comment submissions from four separate commenters. We address each
of the recommendations below as we sequentially discuss the relevant
provisions.
The first commenter suggested that VA add the definition of FOIA
public liaison to the ``definitions'' section, based on the liaison's
increased role in the FOIA process. The commenter suggested that VA use
the following definition: ``FOIA public liaison means a supervisory
agency FOIA official who assists in the resolution of any disputes
between the requester and the agency.'' We agree that adding the
definition of FOIA public liaison in the definitions section will
assist requesters in identifying individuals potentially involved in
the FOIA process; accordingly, we accept this suggestion and will add
``FOIA public liaison'' to Sec. 1.551. We note that the proposed rule
included reference to FOIA public liaison in Sec. 1.556 and Sec.
1.557; in addition, current Sec. 1.551 references the availability of
FOIA public liaisons to assist in resolution of disputes between the
agency and the requester. Incorporating the definition, therefore,
merely elaborates upon the term as presented in VA's FOIA regulations.
Accordingly, the addition of this definition is within the scope of the
FOIA regulations and is a logical outgrowth of the proposed rule.
The commenter also advised that VA's definition of ``request'' may
be confusing because it provides that the term request includes ``any
action emanating from the initial demand for records, including an
appeal related to the initial demand.'' We agree that use of the term
``appeal'' within the definition of ``request'' may be confusing;
accordingly, we revised the definition in Sec. 1.551. The revision of
the definition is a clarification of the current definition and is not
a significant alteration of the proposed rule.
The second commenter expressed dissatisfaction with the current VA
FOIA web page and suggested that VA engage in usability testing and
other means of testing user experience. We note in response that VA
Office of Privacy and Identity Protection is revising the VA FOIA web
page and in doing so, will address the concerns expressed by the
commenter. Regarding usability testing, VA will test the FOIA site to
ensure that it is working properly, although VA does not have a
specific program to regularly test the site. In the event an issue is
identified when VA tests the site, however, the issue will be addressed
and resolved. The commenter also suggested that we write the
regulations in plain language; we agree and endeavor to write in plain
language to the extent possible.
The third commenter objected to the absence of changes to Sec.
1.553; the commenter argued that VA should revise the section in its
entirety. The commenter stated that proactive disclosures are not
discretionary disclosures because they are triggered by statute, and
supplied sample language as provided in the DOJ OIP FOIA regulation
template. We note that these comments are beyond the scope of the
proposed rule; as a matter of courtesy, we stress nonetheless that
current Sec. 1.553 specifically addresses the disclosure of records
required by the FOIA. The section then separately addresses disclosure
of records at VA discretion. Accordingly, we believe that Sec. 1.553
is in keeping with the letter and spirit of the FOIA and requires no
revision.
The third commenter also observed that proposed Sec. 1.554(d) and
the sections following it do not comply with the Department of Justice
(DOJ) Office of Information Policy (OIP) template regarding
requirements for making a request. The commenter also pointed out that
Sec. 1.554 does not contain language offering the services of a FOIA
Public Liaison. In response to the allegation here and throughout this
commenter's submission pertaining to VA's adherence to the OIP
regulation template, VA responds that, as noted on the DOJ website, the
OIP regulation template provides guidelines and sample language for
agencies as they address the key elements of each section. The template
does not require agencies to use the identical format or language in
drafting its own agency regulations. Currently, we are revising VA's
FOIA regulations to make them
[[Page 12123]]
consistent with the FOIA Improvement Act of 2016; simultaneously, we
are revising some provisions based on our experience in implementing
the existing regulations. While we appreciate the usefulness of the
template in certain circumstances, we conclude that our proposed rule
represents a revision of and improvement to the current regulations
consistent with current law and policy and that revising to mimic the
template verbatim is not necessary.
As to the commenter's statement that VA does not include language
in Sec. 1.554 regarding the services of a FOIA Public Liaison, we
point out that the availability of FOIA Public Liaisons is described in
Sec. 1.552; further, requesters are advised of the availability of
FOIA Public Liaisons in their initial agency determinations pursuant to
Sec. Sec. 1.554 (d) and (e). VA also intends to make information
regarding FOIA Public Liaisons available on its FOIA home page and in
internal agency guidance as necessary. Overall, we are satisfied that
the notification of the availability of FOIA Public Liaisons as
contained in the current regulation is consistent with the FOIA.
The third commenter further suggested that the requester's right to
request records in a particular form or format should be included Sec.
1.554 rather than Sec. 1.557 (``Responses to requests''), based on the
location of the information in the OIP template. First, we note that
the comment is beyond the scope of the proposed rule. In addition, we
refer to our response above regarding the requirement to follow the OIP
template verbatim. Lastly, as a matter of courtesy, we note in response
that as currently written, VA FOIA regulations address the issue of the
form or format of responsive records in a manner that sufficiently
advises the requester of his or her right to receive records in a
specific format. Accordingly, we decline to revise the regulation based
on this comment.
In addition, this commenter noted that Sec. 1.554 does not contain
a paragraph dedicated to ``customer service,'' to include notifying
requesters of the availability of FOIA Public Liaisons. In response, we
refer first to our discussion above regarding FOIA Public Liaisons. As
to customer service generally, we conclude that VA regulations provide
sufficient customer service in various forms; the regulations, for
example, provide guidance regarding how and where to send a FOIA
request, information that the request must contain, and information
pertaining to the FOIA process. The regulations also describe the FOIA
Officers' duties, including an obligation to communicate with the FOIA
requester. In view of the totality of VA's FOIA regulations, we believe
that no additional revisions are necessary in this regard.
The first commenter suggested that VA include in Sec. 1.554(c) a
description of the distinction between requests under the FOIA and
those under the Privacy Act, as follows: ``The Freedom of Information
Act applies to the third-party requests for documents concerning the
general activities of the Government and of VA in particular. When a
U.S. citizen or an individual lawfully admitted for permanent residence
requests access to his or her own records, it is considered a Privacy
Act request. Such records are maintained by VA under the individual's
name or personal identifier. Although requests are considered either
FOIA requests or Privacy Act requests, agencies process requests in
accordance with both laws, which provides the greatest degree of lawful
access while safeguarding an individual's personal privacy.'' We agree
that including such a distinction in VA FOIA regulations is useful, but
we believe that it is more appropriately placed at the beginning of VA
FOIA regulations. Accordingly, we added the language in Sec. 1.550
(b).
The first commenter also noted that the language of proposed Sec.
1.556 (c)(1), i.e., ``Where an extension of more than 10 business days
is needed . . .'' does not comply with the FOIA, as the FOIA does not
permit an extension beyond 30 business days simply by notifying the
requester and giving him or her the opportunity to modify the request.
The commenter offered the following language in its place: ``Where the
extension exceeds 10 working days, the agency must, as described by the
FOIA, provide the requester with an opportunity to modify the request
or arrange an alternative time period for processing the original or
modified request.''
The language used by VA in the current regulation was not intended
to imply that an extension beyond 30 days was consistent with the FOIA.
Given that the proposed language could be read that way, however, we
agree with the commenter's suggested revision and we revised the
section consistent with the language provided. We believe the revised
language merely clarifies the intended meaning of the section and is
not a significant change to the proposed rule.
Further, the first commenter suggested that under Sec. 1.556
(c)(iii), it was unclear whether the term ``components'' referred to VA
components. The commenter suggested that we insert ``VA'' prior to
``components'' in order to clarify. We agree with the comment and
inserted ``VA'' for clarification. The revision represents a
clarification only and is not a significant change to the proposed
rule.
The third commenter suggested that VA add the following language in
Sec. 1.557(a) after providing that the FOIA Officer will advise the
requester of the receipt of the FOIA request and a FOIA request number:
``. . . if it will take longer than 10 working days to process.
Agencies must include in the acknowledgment a brief description of the
records sought to allow requesters to more easily keep track of their
requests. . . .'' VA agrees that providing information to the FOIA
requester is useful in the FOIA request process; VA regulation Sec.
1.557(a) provides that the VA FOIA Officer will advise the requester of
the receipt of the request and will provide the requester with the
assigned FOIA request number to allow the requester to track the
request. We believe that as it stands, Sec. 1.557(a) complies with
both the letter and the spirit of the FOIA and provides adequate
information to the requester. Accordingly, we do not believe that
additional modification to the language is necessary.
In addition, the third commenter suggested that VA remove of Sec.
1.557(b) based on its non-compliance with the FOIA improvement Act of
2016. We find this comment to be outside the scope of the proposed
rule. In response nevertheless, we conclude that Sec. 1.557(b) is
consistent with both the letter and the spirit of the FOIA and that no
deletion is required. The commenter otherwise objects generally to
Sec. 1.557's lack of conformance to the OIP template for agency FOIA
regulations and suggests that parts of the section be moved elsewhere.
In this regard, we refer to our response above regarding OIP regulation
template guidance.
The first commenter suggested that VA add language in subsection
1.557(d), ``grants of requests in full,'' regarding appeal rights and
information about OGIS. Upon review, we agree that including the
additional information is useful. Accordingly, we added appeal and
mediation rights to subsection 1.557(d). This revision is an extension
or outgrowth in this regard, and does not represent a substantial
alteration of the proposed rule.
The first commenter also noted that in section 1.557 (e)(5), the
word ``public'' is missing from the phrase ``FOIA Public Liaison.'' VA
corrected this oversight. The revision is not a significant change to
the proposed rule.
[[Page 12124]]
The third commenter suggested that the term ``business
information'' as used in Sec. 1.551 should be replaced with
``confidential commercial information'' because the latter term
``supplanted'' the term ``business information'' in 2003. In response,
we point out that when VA revised its regulations in 2011, we
purposefully replaced the term ``confidential commercial information''
with ``business information.'' We concluded at that time that the
change used plain language and permitted individuals to get a clear
idea at the outset whether their request would involve such
information. We still believe that the use of ``business information''
more effectively allows individuals to find relevant provisions in VA's
regulations. Accordingly, we believe that revising the term to
``confidential commercial information'' in this section is not
necessary.
The third commenter also stated that the VA is not compliant with
FOIA Improvement Act of 2016 in Sec. 1.559 unless it includes language
in the appeals section that refers to the availability of dispute
resolution services with OGIS. In addition, the first commenter noted
that written appeal notices should also notify the requester of dispute
resolution services offered by OGIS; the commenter suggested adding the
following language to section (e), Responses to appeals: ``Dispute
resolution is a voluntary process. If an agency agrees to participate
in the dispute resolution services provided by OGIS, it will actively
engage as a partner to the process in an attempt to resolve the
dispute.''
In response, we point out that VA appeal letters contain language
notifying the requester of the option to pursue dispute resolution
services with OGIS, although the regulations do not contain specific
direction to do so. We believe that inclusion of the language in final
agency decisions satisfies the requirements under the FOIA and that
more specific direction as to the requester's option regarding dispute
resolution services is more appropriate for inclusion in a policy
document.
The third commenter stated that VA's section regarding FOIA fees,
Sec. 1.561, should begin by acknowledging that VA fee regulations must
comply with OMB Fee Guidelines. In response, we note that VA's FOIA fee
section addresses the requirements imposed by FOIA and OMB fee
guidelines. We believe specific reference to the OMB fee guidelines at
the outset of the regulation is superfluous; accordingly, we decline
the commenter's suggestion in this regard.
The first commenter suggested that VA add the definition of ``fee
waiver'' to the ``definitions'' provided in Sec. 1.561; the commenter
noted that even experienced requesters can be confused between
requester category and fee waiver. We agree that addition of the
definition is beneficial and revised the ``definitions'' section to
include ``fee waiver.'' The revision is a natural outgrowth of the
proposed rule in that it simply enlarges information already provided
in the proposed rule.
Further, the first commenter noted that Sec. 1.561(f) consists of
a table summarizing FOIA requester fee categories, and that the table
lists five categories. The commenter further noted that the
corresponding Sec. 1.561(c)(2)-(4), identifying fee requester
categories, consists of four categories. The commenter suggested that
we combine the entries in the chart for Educational Institution and
Non-Commercial Scientific Institution to create consistency between the
section and the table. We agree with this suggestion and believe that
the revision will resolve any confusion that the current structure
could cause. Accordingly, we revised Sec. 1.561(f) to combine the
categories in the table, per the suggestion. We note that the revision
is not significant in that Educational Institution and Non-Commercial
Scientific Institution are in the same fee category. The revision is a
logical outgrowth and not a significant revision of the proposed rule.
Lastly, with regard to Sec. 1.561(n), the first commenter noted
that the FOIA does not require that requesters seeking a fee waiver or
reduction respond to the agency with additional information within 10
days or their fee waiver or reduction request will be closed. The
commenter observed that other agencies that have a similar regulation
allow 30 days and recommended that VA do the same.
Upon consideration of this comment, VA notes that section (n)(1)
relates to fee waiver or reduction requests. The section provides that
the requester must provide adequate justification for the waiver or
reduction. The additional 10 business days that the FOIA Officer may
afford the requester under this section is based on the FOIA Officer's
exercise of his or her discretion upon consideration of the information
provided in support of the fee waiver request. Given that the requester
is responsible for submitting justification at the outset, we believe
that in those instances where additional information is needed, an
additional 10 business days is sufficient. Accordingly, we decline to
revise the regulation based on this comment.
Finally, the third commenter noted that Sec. 1.580(c) fails to
cite statutory authority for the change articulated in the proposed
rule and questions why VA is ``. . . allowed to NOT respond to Privacy
Act requests for access . . . and then amend errors that are causing
bad decisions affecting Veterans--and not call it an OGC appealable
denial of access?''
In response, we first point out that the authority cited in the
current regulation, 38 U.S.C. 501, supports VA's revision. Section 501
provides that the Secretary has the authority to prescribe rules and
regulations that are necessary or appropriate to carry out the laws
administered by VA. In addition, the regulation does not ``allow VA to
NOT respond . . .'' Rather, the regulation clarifies that Sec. 1.580
applies to a written denial of a request rather than the absence of a
denial. The requester has the right to appeal a written denial of
access to OGC.
The fourth and final commenter suggested that VA add language to
Sec. 1.577 that is similar to the language of Sec. 1.554(d)(3),
providing that if the requester does not reasonably describe the
records being sought, VA will provide the requester the opportunity to
modify the request to meet the elements required for a perfected
request.
We accept the commenter's suggestion and added language similar to
that in Sec. 1.577 with regard to requests under the Privacy Act.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary of Veterans Affairs hereby certifies that this final
rule will not have a significant economic impact on a substantial
number of small entities as they are defined in the Regulatory
Flexibility Act, 5 U.S.C. 601-612. This final rule concerns the
procedures for requesting information from VA and the payment of
certain fees for processing such requests. The fees prescribed by this
final rule will generally comprise only an insignificant portion of a
small entity's expenditures. Therefore, this final rule is exempt,
pursuant to 5 U.S.C. 605(b), from the initial and final regulatory
flexibility analysis requirements of sections 603 and 604.
Executive Orders 12866, 13563 and 13771
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits
[[Page 12125]]
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). E.O. 13563 emphasizes the
importance of quantifying both costs and benefits of reducing costs, of
harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory
Planning and Review, defines ``significant regulatory action'' to mean
any regulatory action that is likely to result in a rule that may:
``(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) Create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) Materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
Raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in this Executive
order.''
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this regulatory action and determined that the
action is not a significant regulatory action under Executive Order
12866. VA's impact analysis can be found as a supporting document at
http://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its impact analysis are available on VA's website at
http://www.va.gov/orpm by following the link for VA Regulations
Published from FY 2004 through FYTD. This proposed rule is not expected
to be an E.O. 13771 regulatory action because this proposed rule is not
significant under E.O. 12866.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in an expenditure by
state, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any year. This final rule would have no such effect on
state, local, and tribal governments, or on the private sector.
Catalog of Federal Domestic Assistance
There is no Catalog of Federal Domestic Assistance number for the
program affected by this final rule.
List of Subjects in 38 CFR Part 1
Administrative practice and procedure, Archives and records,
Cemeteries, Claims, Courts, Crime, Flags, Freedom of information,
Government contracts, Government employees, Government property,
Infants and children, Inventions and patents, Parking, Penalties,
Privacy, Reporting and recordkeeping requirements, Seals and insignia,
Security measures, and Wages.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Robert L.
Wilkie, Secretary, Department of Veterans Affairs, approved this
document on March 14, 2019, for publication.
Dated: March 26, 2019
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons stated in the preamble, VA amends 38 CFR part 1 as
follows:
PART 1--GENERAL PROVISIONS
0
1. The authority citation for part 1 continues to read as follows:
Authority: 38 U.S.C. 501(a), and as noted in specific sections.
0
2. In Sec. 1.519, revise paragraph (c) to read as follows.
Sec. 1.519 Lists of names and addresses.
* * * * *
(c) The Associate Deputy Assistant Secretary for Information
Resources Management is authorized to release lists of names and
addresses to organizations which have applied for such lists in
accordance with paragraph (a) of this section, if he or she finds that
the purpose for which the organization desires the names and addresses
is directly connected with conduct of programs and the utilization of
benefits under title 38 U.S.C. Lists of names and addresses authorized
to be released pursuant to this paragraph shall not duplicate lists
released to other elements, segments, or chapters of the same
organization.
* * * * *
0
3. In Sec. 1.550, revise paragraph (b) to read as follows:
Sec. 1.550 Purpose.
* * * * *
(b) Requests for records about an individual, protected under the
Privacy Act, 5 U.S.C. 552a, including one's own records and records
that pertain to an individual and that may be sensitive, will be
processed under the FOIA and the Privacy Act. The FOIA applies to
third-party requests for documents concerning the general activities of
the Government and of VA in particular. When a U.S. citizen or an
individual lawfully admitted for permanent residence requests access to
his or her own records, it is considered a Privacy Act request. Such
records are maintained by VA under the individual's name or personal
identifier. Although requests are considered either FOIA requests or
Privacy Act requests, agencies process requests in accordance with both
laws, which provides the greatest degree of lawful access while
safeguarding an individual's personal privacy. In addition to the
following FOIA regulations, see 1.575 through 1.584 for regulations
applicable of Privacy Act records.
* * * * *
0
4. In Sec. 1.551, add in alphabetical order a definition for ``FOIA
public liaison'' and revise the definition of ``request'' to read as
follows:
Sec. 1.551 Definitions.
* * * * *
FOIA Public Liaison means a supervisory agency FOIA official who
assists in the resolution of any disputes between the requester and the
agency.
* * * * *
Request means a written demand for records under the FOIA as
described Sec. 1.554(a). The term request includes any action
emanating from the initial demand for records, including any subsequent
action related to the request.
* * * * *
0
5. In Sec. 1.552, revise paragraph (a) to read as follows:
Sec. 1.552 General provisions.
(a) Additional information. Information regarding VA's FOIA and
Privacy Act process generally, including how to file FOIA requests, and
information made available by VA under the FOIA, is available at the
following internet address: http://www.oprm.va.gov/foia/.
* * * * *
0
6. In Sec. 1.554, revise paragraphs (a) through (c), (d)(2) and (4),
and (e) to read as follows:
[[Page 12126]]
Sec. 1.554 Requirements for making requests.
(a) Requests by letter and facsimile (fax). The FOIA request must
be in writing and may be by letter or fax. To assist in processing, the
request letter, envelope, or fax cover sheet of any FOIA request should
be marked ``Freedom of Information Act Request.'' Information helpful
for filing a request, such as a list of VA FOIA contacts, VA's FOIA
Reference Guide, and the text of the FOIA, are available on VA's FOIA
homepage on the internet. See Sec. 1.552(a) for the pertinent internet
address. VA has a decentralized FOIA system, meaning that each VA
component, i.e., administrations and staff offices, the Veterans Health
Administration (VHA) medical centers, Veterans Benefits Administration
(VBA) regional offices, or offices located within the VA Central Office
in Washington, DC (e.g., the Office of the Secretary), maintain their
own FOIA processes and respond to FOIA requests directly. Accordingly,
requesters must write directly to the FOIA Officer for the VA component
that maintains the records. If requesting records from a particular
medical facility, regional office, or Central Office component, the
request should be sent to the FOIA Office at the address listed for
that component. A legible return address must be included with the FOIA
request; the requester may wish to include other contact information as
well, such as a telephone number and email address. If the requester is
not sure where to send the request, he or she should seek assistance
from the FOIA Contact for the office believed to manage the programs
whose records are being requested or, if these efforts fail, he or she
should send the request to the Director, FOIA Service (005R1C), 810
Vermont Avenue NW, Washington, DC 20420, who will refer it for action
to the FOIA contact at the appropriate component.
(b) Requests by email. VA accepts email FOIA requests. To assure
prompt processing, email FOIA requests must be sent to official VA FOIA
mailboxes established for the purpose of receiving FOIA requests. An
email FOIA request that is sent to an individual VA employee's mailbox,
or to any other entity, will not be considered a perfected FOIA
request. Mailbox addresses designated to receive email FOIA requests
are available on VA's FOIA homepage. See Sec. 1.552(a) for the
pertinent internet address.
(c) The content of a request. Whether submitting the request by
letter, fax, or email, the following applies: If the requester is
seeking records about himself or herself or to which a confidentiality
statute applies (38 U.S.C. 5701, e.g.), the requester must comply with
the verification of identity requirements set forth in Sec. 1.577 of
this part, which applies to requests for records maintained under the
Privacy Act. If the requester is seeking records not covered by the
Privacy Act, but which the requester believes may pertain to him or
her, the requester may obtain greater access to the records by
complying with the verification of identity requirements set forth in
Sec. 1.577 of this part, by providing the image of the requester's
signature (such as an attachment that shows the requester's handwritten
signature), or by submitting a notarized, signed statement affirming
his or her identity or a declaration made in compliance with 28 U.S.C.
1746. The suggested language for a statement under 28 U.S.C. 1746 is
included on VA's FOIA homepage; see Sec. 1.552(a) for the pertinent
internet address. If the requester is seeking records pertaining to
another individual under the FOIA, whether by letter, fax, or email,
the requester may obtain greater access to the records if he or she
provides satisfactory authorization to act on behalf of the record
subject to receive the records or by submitting proof that the record
subject is deceased (e.g., a copy of a death certificate or an
obituary). Each component has discretion to require that a requester
supply additional information to verify that a record subject has
consented to disclosure.
(d) * * *
(2) Requests for voluminous amounts of records may be placed in a
complex track of a multitrack processing system pursuant to Sec.
1.556(b); such requests also may meet the criteria for ``unusual
circumstances,'' which are processed in accordance with Sec. 1.556(c)
and may require more than 20 business days to process despite the
agency's exercise of due diligence.
* * * * *
(4) The time limit for VA to process the FOIA request will not
start until the FOIA Officer determines that the requester has
reasonably described the records sought in the FOIA request. If the
FOIA Officer seeks additional clarification regarding the request and
does not receive the requester's written response within 30 calendar
days of the date of its communication with the requester, he or she
will conclude that the requester is no longer interested in pursuing
the request and will close VA's files on the request.
(e) Agreement to pay fees. The time limit for processing a FOIA
request will be tolled while any fee issue is unresolved. Depending on
the circumstances, the FOIA Officer will notify the requester of the
following: That the FOIA Officer anticipates that the fees for
processing the request will exceed the amount that the requester has
stated a willingness to pay or will amount to more than $25.00 or the
amount set by Office of Management and Budget fee guidelines, whichever
is higher; whether the FOIA Officer is requiring the requester to agree
in writing to pay the estimated fee; or whether advance payment of the
fee is required prior to processing the request (i.e., if the estimated
fee amount exceeds $250 or the requester previously has failed to pay a
FOIA fee in a timely manner). If the FOIA Officer does not receive the
requester's written response to the notice regarding any of these items
within 10 business days of the date of the FOIA Officer's written
communication with the requester, the FOIA Officer will close the
request. If requesting a fee waiver under Sec. 1.561, the requester
nonetheless may state his or her willingness to pay a fee up to an
identified amount in the event that the fee waiver is denied; this will
allow the component to process the FOIA request while considering the
fee waiver request. If the requester pays a fee in advance, and VA
later determines that the requester overpaid or is entitled to a full
or partial fee waiver, a refund will be made. (For more information on
the collection of fees under the FOIA, see Sec. 1.561.)
* * * * *
0
7. In Sec. 1.556, revise paragraphs (c)(1) and (d)(3) to read as
follows:
Sec. 1.556 Timing of responses to requests.
* * * * *
(c) * * *
(1) FOIA Officers may encounter ``unusual circumstances,'' where it
is not possible to meet the statutory time limits for processing the
request. In such cases, the FOIA Officer will extend the 20-business
day time limit for 10 more business days and notify the requester in
writing of the unusual circumstances and the date by which it expects
to complete processing of the request. Where the extension exceeds 10
working days, the agency must, as described by the FOIA, provide the
requester with an opportunity to modify the request or arrange an
alternative time period for processing the original or modified
request; notice of the availability of the VA FOIA Public Liaison, and
the right to seek dispute resolution services from the Office of
Government Information Services.
[[Page 12127]]
Unusual circumstances consist of the following:
(i) The need to search for and collect the requested records from
field facilities or components other than the office processing the
request;
(ii) The need to search for, collect and examine a voluminous
amount of separate and distinct records that are the subject of a
single request; or
(iii) The need for consultation with another agency or among two or
more VA components or another agency having a substantial interest in
the subject matter of a request.
* * * * *
(d) * * *
(3) Within 10 calendar days of its receipt of a request for
expedited processing, the FOIA Officer shall determine whether to grant
the request and will provide the requester written notice of the
decision. If the FOIA Officer grants a request for expedited
processing, the FOIA Officer shall give the request priority and
process it as soon as practicable. If the FOIA Officer denies the
request for expedited processing, the requester may appeal the denial,
which appeal shall be addressed expeditiously.
0
8. In Sec. 1.557:
0
a. Revise paragraphs (a) and (c);
0
b. Redesignate paragraph (d) as paragraph (e);
0
c. Add new paragraph (d); and
0
d. Revise newly redesignated paragraph (e).
The revisions and addition read as follows:
Sec. 1.557 Responses to requests.
(a) Acknowledgement of requests. When a request for records is
received by a component designated to receive requests, the component's
FOIA Officer will assign a FOIA request number; the FOIA Officer will
send the requester written acknowledgement of receipt of the request
and will advise the requester of the assigned FOIA request number and
how the requester may obtain the status of his or her request.
* * * * *
(c) Time limits for processing requests. A component must advise
the requester within 20 business days from the date of VA's receipt of
the request whether the request is granted in its entirety, granted in
part, or denied in its entirety and provide the reasons therefor. If
the request must be referred to another component, the response time
will begin on the date that the request was received by the appropriate
component, but in any event not later than 10 business days after the
referring office receives the FOIA request; the referring component has
an affirmative duty to refer the FOIA request within 10 business days.
(d) Grants of requests in full. When a component makes a
determination to grant a request in full, it shall notify the requester
in writing. The component also shall inform the requester of any fees
charged under Sec. 1.561. The component also must inform the requester
of his or her right to appeal and to seek mediation or the assistance
of the appropriate VA FOIA Public Liaison and provide the contact
information for the Liaison.
(e) Adverse determinations of requests. When a component makes an
adverse determination denying the request in any respect, the component
FOIA Officer shall promptly notify the requester of the adverse
determination in writing. Adverse determinations include decisions that
a requested record is exempt from release in whole or in part, does not
exist or cannot be located, is not readily reproducible in the form or
format sought by the requester, or is not a record subject to the FOIA;
adverse determinations also include denials regarding requests for
expedited processing and requests involving fees, such as requests for
fee waivers. The adverse determination notice must be signed by the
component head or the component's FOIA Officer, and shall include the
following:
(1) The name and title or position of the person responsible for
the adverse determination;
(2) A brief statement of the reason(s) for the denial, including
any FOIA exemptions applied by the FOIA Officer in denying the request;
(3) The amount of information withheld in number of pages or other
reasonable form of estimation; an estimate is not necessary if the
volume is indicated on redacted pages disclosed in part or if providing
an estimate would harm an interest provided by an applicable exemption;
(4) Notice that the requester may appeal the adverse determination
and a description of the requirements for an appeal under Sec. 1.559
of this part; and
(5) Notice that the requester may seek assistance or dispute
resolution services from the VA FOIA Public Liaison or dispute
resolution services from the Office of Government Information Services.
0
9. In Sec. 1.558, revise paragraphs (c)(3) and (e) to read as follows:
Sec. 1.558 Business information.
* * * * *
(c) * * *
(3) Whenever the FOIA Officer notifies the submitter of VA's intent
to disclose over the submitter's objections, the FOIA Officer will also
notify the requester by separate correspondence.
* * * * *
(e) Consideration of objection(s) and notice of intent to disclose.
The FOIA Officer will consider all pertinent factors, including but not
limited to, the submitter's timely objection(s) to disclosure and the
specific grounds provided by the submitter for non-disclosure in
deciding whether to disclose business information. Information provided
by the submitter after the specified time limit and after the component
has made its disclosure decision generally will not be considered. In
addition to meeting the requirements of Sec. 1.557, when a FOIA
Officer decides to disclose business information over the objection of
a submitter, the FOIA Officer will provide the submitter with written
notice, which includes:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date of not less than 10 days from the
date of the notice (to allow the submitter time to take necessary legal
action).
* * * * *
0
10. In Sec. 1.559, revise paragraphs (b) through (d) to read as
follows:
Sec. 1.559 Appeals
* * * * *
(b) How to file and address a written appeal. The requester may
appeal an adverse determination denying the request, in any respect,
except for those concerning Office of Inspector General records, to the
VA Office of the General Counsel (024), 810 Vermont Avenue NW,
Washington, DC 20420. Any appeals concerning Office of Inspector
General records must be sent to the VA Office of Inspector General,
Office of Counselor (50), 810 Vermont Avenue NW, Washington, DC 20420.
The FOIA appeal must be in writing and may be by letter or facsimile
(fax); whichever method is used, the appeal must comply with all
requirements of this paragraph and paragraph (d). Information regarding
where to fax the FOIA appeal is available on VA's FOIA homepage on the
internet. See Sec. 1.552(a) of this part for the pertinent internet
address.
(c) How to file an email appeal. VA accepts email appeals; the
appeal must comply with all requirements of this paragraph and
paragraph (d) of this section. In order to assure initial processing of
an appeal filed by email, the email must be sent to one of the
[[Page 12128]]
official VA FOIA mailboxes established for the purpose of receiving
FOIA appeals; an email FOIA appeal that is sent to an individual VA
employee's mailbox, or to any other entity, will not be considered a
perfected FOIA appeal. Mailbox addresses designated to receive email
FOIA appeals are available on VA's FOIA homepage. See Sec. 1.552(a) of
this part for the pertinent internet address.
(d) Time limits and content of appeal. The appeal to the VA OGC
(024) or VA Office of Inspector General (50) must be received or
postmarked no later than 90 calendar days after the date of the adverse
determination and must contain the following: A legible return address;
clear identification of the determination being appealed, including any
assigned request number (if no request number was assigned, other
information must be provided such as the name of the FOIA officer, the
address of the component, the date of the component's determination, if
any, and the precise subject matter of the appeal); and identification
of the part of the determination that is being appealed (if appealing
only a portion of the determination). If the appeal involves records
about the requester himself or herself or records to which a
confidentiality statute applies, the requester must comply with the
verification of identity requirements set forth in Sec. 1.577 of this
part, which applies to requests for records maintained under the
Privacy Act. If the appeal involves records not covered by the Privacy
Act, but which the requester believes may pertain to him or her, the
requester may obtain greater access to the records by complying with
the verification of identity requirements set forth in Sec. 1.577 of
this part, providing the image of the requester's signature (such as an
attachment that shows the requester's handwritten signature), or
submitting a notarized, signed statement affirming his or her identity
or a declaration made in compliance with 28 U.S.C. 1746. The suggested
language for a statement under 28 U.S.C. 1746 is included on VA's FOIA
homepage. See Sec. 1.552(a) of this part for the pertinent internet
address. If the appeal involves records pertaining to another
individual (i.e., the requester is not the record subject), the
requester may obtain greater access to the records if he or she
provides satisfactory authorization to act on behalf of the record
subject to receive the records or by submitting proof that the record
subject is deceased (e.g., a copy of a death certificate or an
obituary). Each component has discretion to require that a requester
supply additional information to verify that a record subject has
consented to disclosure. Appeals should be marked ``Freedom of
Information Act Appeal.'' The requester may include other information
as well, such as a telephone number and email address and a copy of the
initial agency determination. An appeal is not perfected until VA
either receives the required information identified above or the appeal
is otherwise easily and sufficiently defined. The designated official
within the Office of the General Counsel (024) will act on behalf of
the Secretary on all appeals under this section, except those
pertaining to the Office of Inspector General. The designated official
in the Office of Inspector General will act on all appeals pertaining
to Office of Inspector General records. A determination by the Office
of General Counsel, or designated official within the Office of
Inspector General, will be the final VA action.
* * * * *
0
11. Amend Sec. 1.561 by:
0
a. Revising paragraphs (a) and (b)(3);
0
b. Adding paragraph (b)(1);
0
c. Revising paragraphs (d)(2) and (e);
0
d. Revising paragraphs (f), (g) introductory text, and (g)(1);
0
e. Removing and reserving paragraph (g)(2), and
0
f. Revising paragraphs (h), (i), (l)(3) and (5), and (n)(1).
The revisions and additions read as follows:
Sec. 1.561 Fees.
(a) General. VA will charge for processing requests under the FOIA,
as amended, and in accordance with this section. Requesters must pay
fees by check or money order made payable to the Treasury of the United
States. Payment by credit card also may be acceptable; the requester
should contact the FOIA Officer for instructions on credit card
payments. Note that fees associated with requests from VA
beneficiaries, applicants for VA benefits, or other individuals, for
records retrievable by their names or individual identifiers processed
under 38 U.S.C. 5701 (records associated with claims for benefits) and
5 U.S.C. 552a (the Privacy Act), will be assessed fees in accordance
with the applicable regulatory fee provisions relating to VA benefits
and VA Privacy Act records.
(b) * * *
(3) Direct costs mean expenses that VA incurs in responding to a
FOIA request; direct costs include searching for and duplicating (and
in the case of commercial use requesters, reviewing) records to respond
to a FOIA request, the hourly wage of the employee performing the work
plus 16 percent of the hourly wage, and the cost of operating
duplication machinery. Direct costs do not include overhead expenses,
such as the costs of space or heating and lighting of the facility
where the records are kept.
* * * * *
(10) Fee waiver means waiving or reducing processing fees if a
requester can demonstrate that certain statutory standards are
satisfied, including that the information is in the public interest and
is not requested for commercial interest.
* * * * *
(d) * * *
(2) Duplication. When the agency provides duplicated records in
response to a request, no more than one copy will be provided.
* * * * *
(e) Limitations on charging fees. (1) When VA determines that a
requester is an educational institution, a non-commercial scientific
institution, or a representative of the news media, VA will not charge
search fees.
(2) VA charges fees in quarter hour increments; no search or review
fee will be charged for a quarter hour period unless more than half of
that period is required for search or review.
(3) VA may provide free copies of records or free services in
response to an official request from another government agency or a
congressional office and when a component head or designee determines
that doing so will assist in providing medical care to a VA patient or
will otherwise assist in the performance of VA's mission.
(4)(i) If VA fails to comply with the time limit to respond to a
request, it may not charge search fees, or, in cases of requests from
requesters described in paragraph (e)(1) of this section, may not
charge duplication fees, except as described in paragraph (e)(4)(ii)
through (iv) of this section.
(ii) If VA has determined that unusual circumstances as defined by
the FOIA apply and has provided timely written notice to the requester
in accordance with the FOIA, a failure to comply with the time limit
shall be excused for an additional 10 days.
(iii) If VA has determined that unusual circumstances as defined by
the FOIA apply and more than 5,000 pages are necessary to respond to
the request, VA may charge search fees, or in the case of requesters
described in paragraph (e)(1) of this section, may charge duplication
fees, if the following steps are taken: VA must provide timely written
notice of unusual circumstances
[[Page 12129]]
to the requester in accordance with the FOIA and must discuss with the
requester via written mail, email or telephone (and later confirmed in
writing) (or have made not less than three good-faith attempts to do
so) how the requester could effectively limit the scope of the request
in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is
satisfied, the component may charge all applicable fees incurred in the
processing of the request.
(iv) if a court has determined that exceptional circumstances
exist, as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
(f) The following table summarizes the chargeable fees for each
category of requester.
----------------------------------------------------------------------------------------------------------------
Category Search fees Review fees Duplication fees
----------------------------------------------------------------------------------------------------------------
(1) Commercial Use............... Yes........................ Yes........................ Yes.
(2) Educational Institution and No......................... No......................... Yes (100 pages or 1
Non-Commercial Scientific disc free).
Institution.
(3) News Media................... No......................... No......................... Yes (100 pages or 1
disc free).
(4) All other.................... Yes (2 hours free)......... No......................... Yes (100 pages or 1
disc free).
----------------------------------------------------------------------------------------------------------------
(g) Fee schedule. If it is determined that a fee will be charged
for processing the FOIA request, VA will charge the direct cost to the
agency and in accordance with the requester's fee category (see Sec.
1.561(c)); to the extent possible, direct costs are itemized in
paragraph 1 of this section. Duplication fees also are applicable to
records provided in response to requests made under the Privacy Act
(see Sec. 1.577(e),(f)).
(1) Schedule of fees:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(i) Duplication of standard size (8\1/ Paper records: $0.15 per page.
2\'' x 11''; 8\1/2\'' x 14'') paper Electronic media: $3.00 per
records or records on electronic media. each compact disc (CD) or
digital versatile disc (DVD).
(ii) Duplication of non-paper items Direct cost to VA.
(e.g., x-rays), paper records which
are not of a standard size (e.g.,
architectural drawings/construction
plans or EKG tracings).
(iii) Record search by manual (non- Hourly wage of the employee(s),
automated) methods. plus 16 percent.
(iv) Record search using automated Direct cost to VA.
methods, such as by computer.
(v) Record review (for Commercial Use Hourly rate of employees
Requesters only). performing review to determine
whether to release records and
to prepare them for release,
plus 16 percent.
(vi) Other activities, such as: Direct cost to VA.
Attesting under seal or certifying
that records are true copies; sending
records by special methods; forwarding
mail; compiling and providing special
reports, drawings, specifications,
statistics, lists, abstracts or other
extracted information; generating
computer output; providing files under
court process where the Federal
Government is not a party to, and does
not have an interest in, the
litigation.
------------------------------------------------------------------------
Note to paragraph (g)(1): VA will charge fees consistent with
the salary scale published by the Office of Personnel Management
(OPM).
* * * * *
(h) Notification of fee estimate or other fee issues. (1) VA will
not charge the requester if the fee is $25.00 or less.
(2) When a FOIA Officer determines or estimates that the fees to be
charged under this section will amount to more than $25.00 or the
amount set by OMB fee guidelines, whichever is higher, the FOIA Officer
will notify the requester in writing of the actual or estimated amount
of fees and ask the requester to provide written assurance of the
payment of all fees or fees up to a designated amount, unless he or she
has indicated a willingness to pay fees as high as those anticipated.
Any such agreement to pay the fees shall be memorialized in writing.
When the requester does not provide sufficient information upon which
VA can identify a fee category (see paragraphs (c)(1) through (c)(4) of
this section), or a clarification is otherwise required regarding a
fee, the FOIA Officer may notify the requester and seek clarification;
the notification to the requester will state that if a written response
is not received within 10 days, the request will be closed. The
timeline for responding to the request will be tolled and no further
work will be done on the request until the fee issue has been resolved.
(i) Charges for other services. Apart from the other provisions of
this section, VA will charge the requester the direct costs of
providing any special handling or services requested, such as
certifying that records are true copies or sending them by other than
ordinary mail. The FOIA Officer may choose to provide such a service as
a matter of administrative discretion.
* * * * *
(l) * * *
(3) Where the requester previously has failed to pay a properly
charged FOIA fee to VA within 30 days of the date of billing, a FOIA
Officer may require the requester to pay the full amount due, plus any
applicable interest as specified in this section, and to make an
advance payment of the full amount of any anticipated fee, before the
FOIA Officer begins to process a new request or continues to process a
pending request from that requester.
* * * * *
(5) In cases in which a FOIA Officer requires advance payment or
payment is due under this section, the time for responding to the
request will be tolled and further work will not be done on the request
until the required payment is received.
* * * * *
(n) * * *
(1) Waiving or reducing fees. Fees for processing the request may
be waived if the requester meets the criteria listed in this section.
The requester must submit adequate justification for a fee waiver;
without adequate justification, the request will be denied. The FOIA
Officer may, at his or her discretion, communicate with the requester
to seek
[[Page 12130]]
additional information, if necessary, regarding the fee waiver request.
If the additional information is not received from the requester within
10 days of the FOIA Officer's communication with the requester, VA will
assume that the requester does not wish to pursue the fee waiver
request and the fee waiver request will be closed. If the request for
waiver or reduction is denied or closed, the underlying FOIA request
will continue to be processed in accordance with the applicable
provisions of this Part. Requests for fee waivers are decided on a
case-by-case basis; receipt of a fee waiver in the past does not
establish entitlement to a fee waiver each time a request is submitted.
* * * * *
0
12. In Sec. 1.577, revise paragraphs (c) and (e) to read as follows:
Sec. 1.577 Access to Records.
* * * * *
(c) The VA component or staff office having jurisdiction over the
records subject to the Privacy Act request will establish appropriate
disclosure procedures, including notifying the individual who filed the
Privacy Act request of the time, place, and conditions under which the
VA will comply with the request, in accordance with applicable laws and
regulations. Access requests for Privacy Act records or information
must be sent to the staff office that maintains the records; the
individual seeking access may consult the system of record notice
(https://www.oprm.va.gov/privacy/systems_of_records.aspx) in order to
identify the office to which the request should be sent. Each component
has discretion to require that a requester supply additional
information to verify his or her identity. If the Privacy Officer
determines that the request does not reasonably describe the records
being sought, the Privacy Officer will advise the requester how the
request is insufficient; the Privacy Officer will provide an
opportunity to discuss the request by documented telephonic
communication or written correspondence in order to modify it to
clearly identify the records being sought.
* * * * *
(e) Fees to be charged, if any, to any individual for making copies
of his or her record shall not include the cost of and search for and
review of the record. Fees under $25.00 shall be waived. Fees to be
charged are as follows:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(1) Duplication of documents by any $0.15 per page after first 100
type of reproduction process to one-sided pages or electronic
produce plain one-sided paper copies equivalent.
of a standard size (8\1/2\'' x 11'';
8\1/2\'' x 14''; 11'' x 14'').
(2) Duplication of non-paper records, Direct cost to the Agency as
such as microforms, audiovisual defined in Sec. 1.561(b)(3)
materials (motion pictures, slides, of this part to the extent
laser optical disks, video tapes, that it pertains to the cost
audio tapes, etc.), computer tapes and of duplication.
disks, diskettes for personal
computers, and any other automated
media output.
(3) Duplication of document by any type Direct cost to the Agency as
of reproduction process not covered by defined in Sec. 1.561(b)(3)
paragraphs (e)(1) or (2) of this of this part to the extent
section to produce a copy in a form that it pertains to the cost
reasonably usable by the requester. of duplication.
------------------------------------------------------------------------
0
13. Revise Sec. 1.580 to read as follows:
Sec. 1.580 Administrative review.
(a) Upon consideration and denial of a request under Sec. 1.577 or
Sec. 1.579 of this part, the responsible VA official or designated
employee will inform the requester in writing of the denial. The
adverse determination notice must be signed by the component head or
the component's Privacy Officer, and shall include the following:
(1) The name and title or position of the person responsible for
the adverse determination;
(2) A brief statement of the reason(s) for the denial and the
policy upon which the denial is based; and
(3) Notice that the requester may appeal the adverse determination
under paragraph (b) of this section to the Office of General Counsel
(providing the address as follows: Office of General Counsel (024), 810
Vermont Avenue NW, Washington, DC 20420), and instructions on what
information is required for an appeal, which includes why the
individual disagrees with the initial denial with specific attention to
one or more of the four standards (e.g., accuracy, relevance,
timeliness, and completeness), and a copy of the denial letter and any
supporting documentation that demonstrates why the individual believes
the information does not meet these requirements.
(b) The final agency decision in appeals of adverse determinations
described in paragraph (a) of this section will be made by the
designated official within the Office of General Counsel (024).
(c) A written denial must have occurred to appeal to OGC. The
absence of a response to an access or amendment request filed with a VA
component is not a denial. If an individual has not received a response
to a request for access to or amendment of records, the individual must
pursue the request with the Privacy Officer of the administration
office (e.g., the VHA, VBA, or National Cemetery Administration Privacy
Officer) or staff office (e.g., the Office of Information Technology or
Office of Inspector General Privacy Staff Officer) that has custody
over the records.
[FR Doc. 2019-06101 Filed 3-29-19; 8:45 am]
BILLING CODE 8320-01-P