records which are demanded in a single request; or

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.

(e) If the Information Access Officer does not respond to a request for records within the time limits provided in paragraph (c) of this section, the requester may petition the Deputy Administrator to take appropriate measures to assure prompt action on the request.

(f) For purposes of this section, the term "division" includes all administrative or operating units of the DOE. (Freedom of Information Act, 5 U.S.C. 552, as amended; Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended; E.O. 11790, 39 FR 23185)

[39 FR 35472, Oct. 1, 1974, as amended at 42 FR 41270, Aug. 16, 1977]

§ 202.5 Responses by Information Access Officer: form and content.

(a) Form of grant. When a requested record has been identified and is to be made available, the Information Access Officer or other appropriate official of DOE shall notify the requester as to when the record is available, and shall promptly make the records available to the person making the request. The notification shall also advise the requester of any applicable fees under § 202.8.

(b) Form of denial. A reply denying a written request for a record shall be in writing signed by the Information Access Officer and shall include:

(1) Reason for denial: A Statement of the reason for denial, containing, as applicable:

(i) Exemption category. A reference to the specific exemption under the Freedom of Information Act authorizing the withholding of the record, and to the extent consistent with the purposes of the exemption, a brief explanation of how the exemption applies to the record withheld, and, if the Information Access Officer considers it appropriate, a statement of why the exempt record is being withheld;

(ii) Denial because record cannot be located or does not exist. If a requested record is known to have been destroyed or otherwise disposed of, or if no such record was ever known to exist, the requester shall be so notified.

(2) Persons responsible for denial. A statement setting forth the names and the titles or positions of each person responsible for the denial of such request; and

(3) Administrative appeal and judicial review. A statement that the denial may be appealed within 30 days to the Deputy Administrator, and the judicial review will be thereafter available either in the district in which the requester resides or has a principal place of business or in which the agency records are situated or in the District of Columbia.

§ 202.6 Appeals to the Deputy Administrator from initial denials.

(a) Appeal to Deputy Administrator. When the Information Access Officer has denied a request for records in whole or in part, the requester may, within 30 days of its receipt, appeal the denial to the Deputy Administrator, DOE. The appeal shall be in writing and shall contain a concise statement of grounds upon which it is brought and a description of the relief sought. It should also include a discussion of all relevant authorities, including, but not limited to, DOE rulings, regulations, interpretations and decisions on appeals and any judicial determinations being relied upon to support the appeal. A copy of the order that is the subject of the appeal shall be submitted with the appeal. The appeal shall be addressed to the Deputy Administrator, Department of Energy, Washington, D.C. 20461, and shall be clearly marked on the envelope "Appeal-Freedom of Information Act; Attention: Director, Office of Exceptions and Appeals." A request which is so addressed and marked will be considered to be received by the DOE for purposes of 5 U.S.C. 552(a)(6) upon delivery to the Office of Exceptions and Appeals, Room 8002, 2000 M Street NW., Washington, D.C. An appeal of the denial of a request which is not so addressed and marked

also shall be considered to be received upon actual receipt by the Director, Office of Exceptions and Appeals. Documents delivered after regular business hours are deemed received on the next regular business day. Regular business hours for the DOE National Office are 8:00 a.m. to 4:30 p.m.

The

(b) Action within 20 days. Deputy Administrator shall act upon the appeal within 20 days of its receipt, and more rapidly if practicable, except that if unusual circumstances require an extension of time before a decision on a request can be reached, the Director, Office of Exceptions and Appeals, acting on behalf of the Deputy Administrator, may extend the time for final action for an additional 10 days less the number of days of any extension which may have been taken by the Information Access Officer during the period of initial determination, upon notifying the requester in writing of the reasons for the extended deadline and the date on which a final determination is expected to be dispatched.

(c) Form of action on appeal. The Deputy Administrator's action on an appeal shall be in writing, and shall set forth his name and title. A denial in whole or in part of a request on appeal shall set forth the exemption relied on, a brief explanation consistent with the purpose of the exemption of how the exemption applies to the records withheld, and the reasons for asserting it. It shall also contain a statement that judicial review will be available either in the district in which the requester resides or has a principal place of business or in which the agency records are situated or in the District of Columbia. Documents determined by the Deputy Administrator to be documents subject to release shall be made promptly available to the applicant.

(Freedom of Information Act, 5 U.S.C. 552, as amended; Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended; E.O. 11790, 39 FR 23185)

[39 FR 35472, Oct. 1, 1974, as amended at 42 FR 41270, Aug. 16, 1977)

§ 202.7 Maintenance of files.

(a) Maintenance of file open to public. The Information Access Offi

cer shall maintain a file, open to the public, which shall contain copies of all grants or denials of all requests for information or appeals made under this subpart. The material shall be indexed by the exemption asserted by the DOE, if any, and, to the extent feasible, according to the type of records requested.

(b) Protection of privacy. Where the identity of a requester, or other identifying details related to a request, would constitute an invasion of a personal privacy if made generally available, the Information Access Officer shall delete identifying details from the copies of documents maintained in the public file established under paragraph (a) of this section.

§ 202.8 Fees for provision of records.

(a) When charged. User fees pursuant to 5 U.S.C. 552, as amended and 31 U.S.C. 483a, shall be charged according to the schedule contained in paragraph (b) of this section for services rendered in responding to requests for DOE records under this subpart unless the Information Access Officer determines, in conformity with the provisions of 5 U.S.C. 552, as amended, and 31 U.S.C. 483a, that waiver of payment of such charges or a portion thereof is in the public interest. Such a determination shall ordinarily not be made unless the service to be performed will be of benefit primarily to the public as opposed to the requester, or unless the requester is an indigent individual. Fees shall not be charged where they would amount, in the aggregate, for a request or series of related requests, to less than $3. Ordinarily, fees for search shall not be charged if the records requested are not found, or if all of the records located are withheld as exempt. However, if the time expended in processing the request is substantial, and if the requester has been notified of the estimated cost pursuant to paragraph (c) of this section and has been specifically advised that it cannot be determined in advance whether any records will be made available, fees for search may be charged.

(b) Services charged for, and amount charged. For the services listed below expended in locating or making availa

ble records or copies thereof, the following charges shall be assessed:

(1) Copies. For copies of documents (maximum of 5 copies will be supplied) $.10 per copy of each page.

(2) Clerical searches. For each one quarter hour spent by clerical personnel in excess of the first quarter hour in searching for and producing a requested record, $1.25.

(3) Certification. For certification of true copies, each, $1.

(4) Nonroutine, nonclerical searches. Where a search cannot be performed by clerical personnel, for example, where the task of determining which records fall within a request and collecting them requires the time of professional or managerial personnel, and where the amount of time that must be expended in the search and collection of the requested records by such higher level personnel is substantial, charges for the search may be made at a rate in excess of the clerical rate, namely for each one quarter hour spent in excess of the first quarter hour by such higher level personnel in searching for a requested record, $3.75.

(5) Examination and related tasks in screening records. No charge shall be made for time spent in resolving legal or policy issues affecting access to records of known contents. In addition, no charge shall be made for the time involved in examining records to determine whether they are exempt from mandatory disclosure and should be withheld as a matter of sound policy.

(6) Computerized records. Fees for services in processing requests maintained in whole or part in computerized form shall be in accordance with this section so far as practicable. Services of personnel in the nature of a search will be charged for at rates prescribed in paragraph (b)(4) of this section unless the level of personnel involved permits rates in accordance with paragraph (b)(2) of this section. A charge may be made for the computer time involved, based upon the prevailing level of costs to governmental organizations and upon the particular types of computer and associated equipment and the amounts of time on such equipment that are utilized. A

charge may also be made for any substantial amounts of special supplies or materials used to contain, present, or make available the output of computers, based upon prevailing levels of costs to governmental organizations and upon the type and amount of such supplies or materials that is used. Nothing in this paragraph shall be construed to entitle any person, as of right, to any services in connection with computerized records, other than services to which such person may be entitled under 5 U.S.C. 552 and under the provisions, not including this paragraph (b), of this subpart.

(c) Notice of anticipated fees in excess of $25. Unless the requester specifically states that he is willing to pay whatever fees are assessed by DOE for meeting the request or, alternatively, specifies an amount in excess of $25 which he is willing to pay and which in fact covers the anticipated fees for meeting the request, a request that is expected to involve assessed fees in excess of $25 will not be deemed to have been received until the requester is advised of the anticipated cost, agrees to bear it, and makes any advance deposit required. Such notification shall be made by the Information Access Officer promptly upon receipt of the request.

(d) Form of payment. Payment should be made by check or money order payable to the Treasury of the United States.

§ 202.9 Exemptions.

(a) 5 U.S.C. 552 exempts from all of its publication and disclosure requirements nine categories of records which are described in subsection (b) of that section. These categories include such matters as national defense and foreign policy information; investigatory files, internal procedures and communications; materials exempted from disclosure by other statutes; information given in confidence; and matters involving personal privacy. Specifically, the exemption of 5 U.S.C. 552(b) applies to matters that are

(1)(i) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of the national defense or foreign policy and (ii) are in fact properly clas

sified pursuant to such Executive order;

(2) Related solely to the internal personnel rules and practices of an agency;

(3) Specifically exempted from disclosure by statute;

(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (i) interfere with enforcement proceedings, (ii) deprive a person of a right to a fair trial or an impartial adjudication, (iii) constitute an unwarranted invasion of personal privacy, (iv) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (v) disclose investigative techniques and procedures, or (vi) endanger the life or physical safety of law enforcement personnel;

(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) Geological and geophysical information and data, including maps, concerning wells.

(b) Any reasonably segregable portion of a record will be provided to any person requesting such record. The DOE will delete portions which are exempt under the exceptions listed above only if it is determined that such deletions are required by law or are in the public interest.

(c) The scope of the exemption is discussed generally in the Attorney

General's Memorandum on the Public Information section of the Administrative Procedure Act, which was published in June 1967 and the Attorney General's Memorandum on the 1974 amendments to the Freedom of Information Act, published in February 1975. These documents are available from the Superintendent of Documents and may be consulted in considering questions arising under 5 U.S.C. 552.

§ 202.10 Computation of time.

In computing any period of time prescribed or allowed by this subpart, the day of the event from which the designated period of time begins to run is not to be included; the last day of the period so computed is to be included; and Saturdays, Sundays, and legal public holidays are excepted.

Subpart B-Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities

§ 202.21 Purpose and scope.

(a) This subpart sets forth the procedures to be followed when a subpoena, order, or other demand (hereinafter referred to as a "demand") of a court or other authority is issued for the production or disclosure of (1) any material contained in the files of the Department of Energy (DOE), (2) any information relating to material contained in the files of the DOE, or (3) any information or material acquired by any person while such person was an employee of the DOE as a part of the performance of his official duties or because of his official status.

(b) For purposes of this subpart, the term "Employee of the DOE" includes all officers and employees of the United States appointed by, or subject to the supervision, jurisdiction, or control of, the Administrator of DOE.

§ 202.22 Production or disclosure prohibited unless approved by appropriate DOE official.

No employee or former employee of the DOE shall, in response to a demand of a court or other authority, produce any material contained in the

file of the DOE or disclose any information relating to material contained in the files of the DOE, or disclose any information or produce any material acquired as part of the performance of his official duties or because of his official status without prior approval of the General Counsel of DOE.

§ 202.23 Procedure in the event of a demand for production or disclosure.

(a) Whenever a demand is made upon an employee or former employee of the DOE for the production of material or the disclosure of information described in § 202.21(a), he shall immediately notify the Regional Counsel for the region where the issuing authority is located. The Regional Counsel shall immediately request instructions from the General Counsel of DOE.

(b) If oral testimony is sought by the demand, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or his attorney, setting forth a summary of the testimony desired, must be furnished for submission by the Regional Counsel to the General Counsel.

§ 202.24 Final action by the appropriate DOE official.

If the General Counsel approves a demand for the production of material or disclosure of information, he shall so notify the Regional Counsel and such other persons as circumstances may warrant.

§ 202.25 Procedure where a decision concerning a demand is not made prior to the time a response to the demand is required.

If response to the demand is required before the instructions from the General Counsel are received, a U.S. attorney or DOE attorney designated for the purpose shall appear with the employee or former employee of the DOE upon whom the demand has been made, and shall furnish the court or other authority with a copy of the regulations contained in this subpart and inform the court or other authority that the demand has been, or is being, as the case may be, referred for the prompt consideration of the appropriate DOE official and shall

respectfully request the court or authority to stay the demand pending receipt of the requested instructions.

§ 202.26 Procedure in the event of an adverse ruling.

If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 202.25 pending receipt of instructions, of if the court or other authority rules that the demand must be complied with irrespective of instructions not to produce the material or disclose the information sought, the employee or former employee upon whom the demand has been made shall respectully decline to comply with the demand. "United States ex rel Touhy v. Ragen," 340 U.S. 462.

§ 204.1 Purpose and scope.

This part establishes regulations for the preparation and maintenance, by specified DOE employees, of written reports regarding certain types of oral communications received from and meetings held with persons from outside the agency. Procedures are also established for the preparation and distribution to the public of a list of all meetings that have occurred between the Administrator, a Deputy Administrator, an Assistant Administrator, a Deputy Assistant Administrator, an Office Director, a Deputy Office Director, the General Counsel, a Deputy General Counsel or other senior DOE official who may be identified pursuant to § 204.5(a)(2) of this part and persons from outside the agency during the preceding halfmonth period. These regulations and procedures are designed to maintain