U.S. Code of Federal Regulations
Regulations most recently checked for updates: Dec 08, 2022
(a) In general. (1) Subject to paragraph (a)(2) of this section, the Director of the Office of Information Programs and Services (IPS) is responsible for initial action on all FOIA requests for Department records with two exceptions: Requests submitted directly to the Office of Inspector General (OIG), which receives and processes requests for OIG records; and the Office of Passport Services in the Bureau of Consular Affairs (PPT), which receives and processes requests for passport records (see § 171.4(a)). Once received by IPS, all requests for records coming under the jurisdiction of the following bureaus or offices are processed by those bureaus, although IPS may provide review and coordination support to these bureaus/offices in some situations: the Bureau of Consular Affairs' Office of Visa Services, Office of Passport Services (except for information identified in § 171.4(a)), and Office of Overseas Citizens Services; the Bureau of Diplomatic Security; the Bureau of Human Resources; the Office of Medical Services; and the Foreign Service Grievance Board (FSGB). Additionally, the FSGB, as an independent body, processes all FOIA requests seeking access to its records and responds directly to requesters.
(2) The Division Chief, Requester Liaison Division, in the Office of Information Programs and Services, shall issue all initial decisions on whether a request is valid or perfected, and whether to grant or deny requests for a fee waiver or for expedited processing.
Definitions. The following definitions apply for purposes of this section:
(1) Control means the Department's legal authority over a record, taking into account the ability of the Department to use and dispose of the record, the intent of the record's creator to retain or relinquish control over the record, the extent to which Department personnel have read or relied upon the record, and the degree to which the record has been integrated into the Department's record-keeping systems or files.
(2) Urgently needed information. The information has a particular value that will be lost if not disseminated quickly. Ordinarily this means a breaking news story of general public interest. Information of historical interest only or information sought for litigation or commercial activities would not generally qualify, nor would a news media publication or broadcast deadline unrelated to the breaking nature of the story.
(3) Actual or alleged Federal government activity. The information concerns actual or alleged actions taken or contemplated by the government of the United States, or by one of its components or agencies, including the Congress.
(4) Unusual circumstances means:
(i) The need to search for and collect the requested records from Foreign Service posts or Department offices other than IPS;
(ii) The need to search for, collect, and appropriately examine a voluminous amount of distinct records; or
(iii) The need to consult with another agency or other agencies that has/have a substantial interest in the records, or among two or more Department components that have a substantial subject-matter interest therein. In the majority of requests received by the Department unusual circumstances exist due to the need to search in multiple bureaus/offices/posts located around the globe.
(c) Form of request and response. A requester may ask for any information he or she believes the Department has in its possession or control. The requester must describe the records sought in sufficient detail to enable Department personnel to locate them with a reasonable amount of effort. The more specific the information the requester furnishes, the more likely that Department personnel will be able to locate responsive records if they exist. Any records provided in response to a request shall be provided in the form or format requested if the records are readily reproducible in that form or format.
(d) Agreement to pay fees. By making a FOIA request, the requester shall be considered to have agreed to pay all applicable fees up to $25, unless a fee waiver is granted. IPS will confirm this agreement in an acknowledgement letter. When making a request, the requester may specify a willingness to pay a greater or lesser amount. If the Department determines that costs and fees will exceed the amount agreed to by the requester, the Department shall inform the requester of estimated fees and process up to the amount of the original agreement, unless a new agreement is made.
(e) Receipt of request. The Department is in receipt of a request when it reaches IPS, OIG, or PPT, depending on which office is the intended recipient. At that time, the Department shall send an acknowledgement letter to the requester that identifies the date of receipt of the request in the proper component (IPS, OIG, or PPT), and the case tracking number. The Department (IPS, OIG, or PPT) has 20 working days in which to determine whether to comply with a perfected request. Regardless of which of the three offices authorized to receive FOIA requests receives the request (whether IPS, OIG, or PPT), the Department shall have no more than 10 working days to direct a request to the appropriate office (whether IPS, OIG, or PPT), at which time the 20-day limit for responding to the request will commence. The 20-day period shall not be tolled by the Department except:
(1) The Department may make one request to the requester for clarifying information and toll the 20-day period while waiting for the requester's response; or
(2) If necessary to clarify with the requester issues regarding fees. In either case, the Department's receipt of the information from the requester ends the tolling period.
(f) Expedited processing. Requests shall receive expedited processing when a requester demonstrates that a “compelling need” for the information exists. A “compelling need” is deemed to exist where the requester can demonstrate one of the following:
(1) Failure to obtain requested information on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.
(2) The information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal government activity. Requesters must demonstrate that their primary activity involves publishing or otherwise disseminating information to the public in general, not just to a particular segment or group.
(3) Failure to release the information would impair substantial due process rights or harm substantial humanitarian interests.
(4) A request for expedited processing may be made at the time of the initial request for records or at any later time. The request for expedited processing shall set forth with specificity the facts on which the request is based. A notice of the determination whether to grant expedited processing shall be provided to the requester within 10 calendar days of the date of the receipt of the request in the appropriate office (whether IPS, OIG, or PPT). A denial of a request for expedited processing may be appealed to the Director of IPS within 30 calendar days of the date of the Department's letter denying the request. A decision in writing on the appeal will be issued within 10 calendar days of the receipt of the appeal. See § 171.4 for contact information.
(g) Time limits. The statutory time limit for responding to a FOIA request or to an appeal from a denial of a FOIA request is 20 working days. Whenever the statutory time limit for processing a request cannot be met because of “unusual circumstances” as defined in the FOIA, and the Department extends the time limit on that basis, the Department shall, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed. See § 171.11(b)(4). Where the extension exceeds 10 working days, the Department shall, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing. The Department shall make available its designated FOIA contact and its FOIA Public Liaison for this purpose.
(h) Multi-track processing. The Department uses three processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request. The Department also uses a processing track for requests in which the Department has granted expedited processing. The Department may provide requesters in a slower track an opportunity to limit the scope of their request in order to qualify for faster processing.
(i) Tracking requests. Requesters may contact IPS using the individualized tracking number provided to the requester in the acknowledgment letter, and the Department will provide, at a minimum, information indicating the date on which the agency received the request and an estimated date for completion.
(j) Cut-off date. In determining which records are responsive to a request, the Department ordinarily will include only records in its possession as of the date of initiation of the search for responsive records, unless the requester has specified an earlier cut-off date.
(k) Electronic records. Information maintained in electronic form shall be searched and compiled in response to a request unless such search and compilation would significantly interfere with the operation of the Department's automated information systems.
(l) Segregation of records. The Department will release any reasonably segregable portion of a record after redaction of the exempt portions. The amount of information redacted and the exemption under which the redaction is made shall be indicated on the released portion of the record unless including that indication would harm an interest protected by the exemption. If technically feasible, the amount of information redacted and the exemption under which the redaction is made shall be indicated at the place in the record where the redaction was made.
(m) Referrals and consultations. (1) If the Department determines that records retrieved as responsive to the request were created by another agency, it ordinarily will refer the records to the originating agency for direct response to the requester. If the Department determines that Department records retrieved as responsive to the request are of interest to another agency or Federal government office, it may consult with the other agency or office before responding to the request.
(2) Whenever the Department refers any part of the responsibility for responding to a request to another agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral.
(3) Agreements regarding consultations and referrals. The Department may make agreements with other agencies to eliminate the need for consultations or referrals for particular types of records.
(4) The Department will make efforts to handle referrals and consultations according to the date that the referring agency initially received the FOIA request.
(5) The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. In such instances, the Department will coordinate with the originating agency to seek its views on the disclosability of the record(s).
(n) Requests for information about individuals to be processed under the FOIA - (1) First-party requests. A first-party request is one that seeks access to information pertaining to the person making the request.
(2) Verification of personal identity. To protect the personal information found in its files, the Department recommends that first-party requesters provide the following information so that the Department can ensure that records are disclosed only to the proper persons: the requester's full name, current address, citizenship or legal permanent resident alien status, and date and place of birth (city, state, and country). A first-party request should be signed, and the requester's signature should be either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746 as a substitute for notarization.
(3) Third-party requests. A third-party request is one that seeks access to information pertaining to a third party (i.e., an individual other than the person submitting the request). A third-party requester who is the legal representative of another person covered under the PA, and submits all requirements under subpart C of this part, will be treated as a first-party requester.
(i) A third-party requester may receive greater access to requested information by submitting information about the subject of the request that is set forth in paragraph (n)(1) of this section, and providing proof that that third party is deceased or the third party's authorization to the Department to release information about him- or herself to the requester. The third-party authorization: should take one of the following forms:
(ii) A signed and notarized authorization by the third party; or
(iii) A declaration by the third party made in compliance with the requirements set forth in 28 U.S.C. 1746 authorizing disclosure pertaining to the third party to the requester. The third-party authorization or declaration should be dated within six months of the date of the request. In addition, the Department's Certification of Identity form, DS-4240, can be used to provide authorization from a third party.
(iv) Please note that if a requester is seeking information about a third party and the information is located in a PA system of records, the requester should review subpart C of this part. By providing verification of identity and authorization under that subpart, the third party is treated as a first party for processing purposes. Without providing the required information listed in that subpart, the request will still be processed under the FOIA procedures in subpart B of this part.
(4) Requests for visa information. According to the Immigration and Nationality Act, 222(f) (8 U.S.C. 1202(f)), the records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States. Other information found in the visa file, such as information submitted as part of the application and information not falling within section 222(f) or another FOIA exemption may be provided. In order to provide more information to requesters seeking visa records, the following information should be provided with the FOIA request for both the petitioner and the beneficiary: full name, as well as any aliases used; current address; date and place of birth (including city, state, and country); the type of visa (immigrant or non-immigrant); the country and Foreign Service post where the visa application was made; when the visa application was made; and whether the visa application was granted or denied; and if denied, on what grounds. Providing additional information regarding the records sought will assist the Department in properly identifying the responsive records and in processing the request. In order to gain maximum access to any visa records that exist, attorneys or other legal representatives requesting visa information on behalf of a represented individual should submit a statement signed by both the petitioner and the beneficiary authorizing release of the requested visa information to the representative. Alternatively, the Department's form, DS-4240, may be used to certify the identity of the requester and to provide authorization from the petitioner and the beneficiary to release the requested information to the legal representative. Forms created by other Federal agencies will not be accepted.
(5) Requests for passport records. All passport records requests must meet the requirements found in § 171.22(d). If the PA requirements are not met, the requests will be processed under this subpart and access may be limited.