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FSA
HANDBOOK

Freedom of Information Act

To access the transmittal page click on the short reference

For All Offices

SHORT REFERENCE

2-INFO
(Revision 1)

UNITED STATES DEPARTMENT OF AGRICULTURE
Farm Service Agency
Washington, DC 20250

.

UNITED STATES DEPARTMENT OF AGRICULTURE
Farm Service Agency
Washington, DC 20250

Freedom of Information Act
2-INFO (Revision 1)

Amendment 1

Approved by: Acting Administrator

Amendment Transmittal
A Reason for Revision
This handbook has been revised to update FSA guidance on processing requests for FSA
documents, data, and information requested by the public under the Freedom of Information Act.
B Obsolete Material
The following are obsolete by this revision:
•
•

1-4-13

2-INFO
FSA-533.

Page 1

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Table of Contents
Page No.
Part 1

Basic Provisions
1
2
3
4
5
6
7-10

Part 2

Overview .............................................................................................................
Policy and Applicability ......................................................................................
Responsibilities ....................................................................................................
Relationship Between FOIA and the Privacy Act ...............................................
FOIA FSA Reading Room Requirements and Frequently Requested Records ...
Annual FOIA Reports ..........................................................................................
(Reserved)
Controlling FOIA Requests

11
FOIA-CAP ...........................................................................................................
12
Official FOIA Records .........................................................................................
13
Converting From Paper to Electronic FOIA Case Files (Optional) .....................
14-20 (Reserved)
Part 3

2-1
2-2
2-4

Processing FOIA Requests
21
22
23
24
25
26
27
28

Official FOIA Requests .......................................................................................
FOIA Request Processing Timeline.....................................................................
Acknowledging FOIA Requests ..........................................................................
Obtaining Records Requested ..............................................................................
Reviewing Records for Release ...........................................................................
Issuing FOIA Request Response Letters .............................................................
Closing FOIA Requests .......................................................................................
Processing FOIA Requests Seeking Information Submitted From a
Business Source ...................................................................................................
29
Initial FOIA Request Appeal and Litigation........................................................
30
Preventing Processing Backlogs ..........................................................................
31-40 (Reserved)

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1-1
1-3
1-8
1-10
1-14
1-15

2-INFO (Rev. 1) Amend. 1

3-1
3-12
3-22
3-27
3-36
3-43
3-54
3-60
3-64
3-69

TC Page 1

Table of Contents (Continued)
Page No.
Part 4

FOIA Fees and Fee Waivers
41
General Provisions ...............................................................................................
42
Search Services ....................................................................................................
43
Review Services ...................................................................................................
44
Duplication Services ............................................................................................
45
Certification and Authentication Services ...........................................................
46
Shipping Services.................................................................................................
47
All Other Services or Materials ...........................................................................
48
Charging Fees ......................................................................................................
49
Requester Categories for Fee Assessment ...........................................................
50
Fee Waivers and/or Reductions ...........................................................................
51
Fee Estimates .......................................................................................................
52
Fee Payment .........................................................................................................
53-60 (Reserved)

Part 5

FOIA Exemptions
61
62
63
64
65
66
67
68
69
70
71
72

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4-1
4-3
4-5
4-6
4-7
4-8
4-9
4-10
4-12
4-18
4-29
4-32

General Provisions ...............................................................................................
Exemption 1 - Matters of National Defense or Foreign Policy
[5 U.S.C. 552(b)(1)] .............................................................................................
Exemption 2 - Internal Personnel Rules and Practices [5 U.S.C. 552(b)(2)] ......
Exemption 3 - Information Exempted by Other Statutes [5 U.S.C. 552(b)(3)] ...
Exemption 4 - Trade Secrets and Commercial or Financial Information
(Confidential Business Information) [5 U.S.C. 552(b)(4)] ..................................
Exemption 5 - Privileged Interagency or Intra-Agency Memoranda or Letters
[5 U.S.C. 552(b)(5)] .............................................................................................
Exemption 6 - Personal Information Affecting an Individual’s Privacy
[5 U.S.C. 552(b)(6)] .............................................................................................
Exemption 7 - Records Compiled for Law Enforcement Purposes
[5 U.S.C. 552(b)(7(A), 7(B), 7(C), 7(D), 7(E), 7(F))] .........................................
Exemption 8 – Records of Financial Institutions [5 U.S.C. 552(b)(8)] ...............
Exemption 9 - Geological and Geophysical Information Concerning Wells
[5 U.S.C. 552(b)(9)] .............................................................................................
When FSA May Lose the Right to Invoke an Exemption ...................................
Discretionary Releases .........................................................................................

2-INFO (Rev. 1) Amend. 1

5-1
5-3
5-4
5-5
5-8
5-14
5-22
5-36
5-43
5-44
5-45
5-46

TC Page 2

Table of Contents (Continued)
Exhibits
1
Reports, Forms, Abbreviations, and Redelegations of Authority
2
Definitions of Terms Used in This Handbook
3, 4
(Reserved)
5
Summary Table of Time Limits for Processing FOIA Requests—Basic Process
6-9
(Reserved)
10
Summary of Steps for FOIA Request Responses
11
Example Acknowledgement Letters
12
Example Clarification Letters
13
Example Routing Letters
14
Example Expedited Processing Decision Letters
15
Example Fee Waiver Decision Letters
16
Example Perfection Letter
17
Example No Records Final Response Letters
18
Example Glomar Final Response Letter
19
Example Final Response Grant Letters
20
Example Final Response Partial Grant Letter
21
Example Final Response Denial Letter
22
Example Final Response Partial Grant and Denial Exemption Letters
23
Example Exemption 4 [5 U.S.C. 552 (b)(4)] Submitter Letters
24
Quick-Start Guide for Reviewing Records for Release
25-28 (Reserved)
29
Summary Tables of FOIA Fees

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2-INFO (Rev. 1) Amend. 1

TC Page 3

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Par. 1
Part 1
1

Basic Provisions

Overview
A Purpose
This handbook:
•

provides policy and general guidance for administering and implementing FOIA,
5 U.S.C. 552, as amended, within FSA

•

applies to all FSA offices that receive and respond to FOIA requests

•

is subject to the requirements of FOIA and USDA FOIA regulations.

If there are any inconsistencies between this handbook and USDA FOIA regulations, USDA
FOIA regulations will prevail.
B Regulatory References
Authority for administering FOIA is provided by the following:
•
•
•
•
•
•
•
•

FSA FOIA regulations, 7 CFR Part 798
USDA FOIA regulations, 7 CFR Part 1, Subpart A
USDA Privacy Act regulations, 7 CFR Part 1, Subpart G
5 U.S.C. 552, as amended
the Privacy Act, 5 U.S.C. 552a
DOJ FOIA Guide
DOJ FOIA Guide and Privacy Act Overview
DOJ FOIA Updates/FOIA Posts.

C Related Handbooks
This table lists all handbooks related to FOIA.
IF the questions or concern is about….
fee payment information
Privacy Act operations
program appeals, mediation, and litigation

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2-INFO (Rev. 1) Amend. 1

THEN see…
3-FI and 43-FI.
3-INFO.
1-APP.

Page 1-1

Par. 1
1

Overview (Continued)
D FSA’s FOIA Web Site
To access FSA’s FOIA public web site, go to
www.fsa.usda.gov/FSA/webapp?area=home&subject=landing&topic=landing, scroll to
the bottom and in the lower-left corner, CLICK “FOIA”. Currently FSA’s FOIA public web
site contains links to the following:
•
•
•
•
•

requester Service Center list
USDA’s FOIA Home Page
DOJ’s FOIA Home Page
electronic FSA FOIA request forms
electronic “reading room”.

Web site additions are forthcoming.

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2-INFO (Rev. 1) Amend. 1

Page 1-2

Par. 2
2

Policy and Applicability
A Policy
It is FSA’s policy to:
•

make FSA records available to the public consistent with the letter and spirit of the FOIA
and Privacy Act

•

furnish non-exempt records promptly to any member of the public upon written request,
according to FSA’s fee structure

•

respond to all FOIA requests “first-in, first-out”.

B Applicability
The policy and procedures in this handbook apply to all records in the possession and control
of FSA, regardless of format, including records in the possession and control of contractors
performing functions in support of FSA missions, with the following exceptions.
IF…
records are the
personal records of
FSA employees

THEN FOIA…
applies only to FSA records. The distinction between FSA and
personal records can be difficult to determine. Personal records
generally are not:
•
•
•

subject to FSA record retention requirements
distributed to other employees for official use
integrated into FSA’s official file system.

Personal records are created, used, and maintained primarily for the
convenience of the employee. In determining whether records are
FSA or personal records, documents should be reviewed on a
case-by-case basis. For additional guidance, see subparagraph C.
commercially
does not apply to documents available for purchase by the general
available records
public.
artwork and other
does not apply to items; such as museum exhibits, even when these
tangible objects
items have evidentiary or documentary value for FSA.
records not yet
does not apply to records that are not available on the date when a
available or no longer request for them is received by FSA, either because they have not
available
yet been created or issued, or because they have been destroyed,
whether according to approved FSA records schedules,
inadvertently, or because of fire or flood.

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2-INFO (Rev. 1) Amend. 1

Page 1-3

Par. 2
2

Policy and Applicability (Continued)
C Personal Documents Versus FSA Documents
FOIA only applies to FSA records. It does not apply to personal records of individual FSA
employees.
At times, the distinction between FSA and personal records can be difficult to determine.
This determination is heavily fact-driven. Similar documents created by different employees
might be treated differently depending on applying the following 10 factors.
Personal records generally are not subject to FSA record requirements, and are not
distributed to other employees for official use. They are created, used, and maintained
primarily for convenience of the employee. In determining whether documents are personal
records, evaluate the documents according to the following criteria.
Item
Creation

Criteria
Was the document created or received by an FSA employee, on FSA time,
with FSA materials, at FSA expense? If not, then it is not likely to be an
FSA record on this basis alone.
Content
Does the document contain substantive information? If not, then it is not
likely to be an FSA record, on this basis alone. Does the document contain
personal as well as business information? Even though a record may have
certain personal information in it, it may be an FSA record if its release
would shed light on the activities of the Government.
Purpose
Was the document created solely for an individual employee’s personal
convenience; such as to serve as a memory jogger? Alternatively, to what
extent was it created to facilitate FSA business?
Distribution Was the document distributed to anyone else for any reason; such as for a
business purpose?
Use
To what extent did the document’s author actually use the document to
conduct FSA business? Did others use it?

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2-INFO (Rev. 1) Amend. 1

Page 1-4

Par. 2
2

Policy and Applicability (Continued)
C Personal Documents Versus FSA Documents (Continued)
Item
Criteria
Maintenance Was the document kept in the author’s possession, or was it placed in an
official FSA file? Personal records should be maintained separately and not
placed in official files along with FSA records. Placing a record in an FSA
file creates the presumption that it is an FSA record. Once a FOIA request
is received for an FSA file, any personal records in that file will
automatically be subject to disclosure under FOIA.
Note: The nature of the document rather than its location or marking must
be considered. The fact that an employee stamps a record “Personal”
and places it in his/her desk drawer does not make it a personal
record.
Disposition Was the document’s author free to dispose of the document at his/her
personal discretion? What was the actual disposal practice?
Control
Has FSA attempted to exercise control over the document through
applicable maintenance and disposition regulations? Did it do so by
requiring the document to be created in the first place? If so, then it is an
FSA record.
Segregation Is there any practical way to segregate out any personal information in the
document from official business information?
Revision Was the document revised or updated after the fact for record keeping
purposes?

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2-INFO (Rev. 1) Amend. 1

Page 1-5

Par. 2
2

Policy and Applicability (Continued)
C Personal Documents Versus FSA Documents (Continued)
Documents should be reviewed on a case-by-case basis considering the totality of the
circumstances surrounding each document. The following examples illustrate how to apply
these criteria to typical FSA situations.
Example
Scenario
1
A supervisor maintains his/her own personal notes to use as a memory jogger
for performance evaluations. They are maintained privately and not circulated
to or verbally shared with any other employee. The notes are not required to
be kept in official FSA files; the supervisor can remove them from the office
and destroy them at will.
Although the notes are physically located in FSA and concern FSA employees,
they are not under the control of FSA and are not subject to FOIA or the
Privacy Act. The supervisor created the notes solely for his/her convenience
and he/she is the only person with access to them. However, if the notes are
passed on to another supervisor, verbally shared, or used wholly or in-part to
support a performance rating or any personnel action, they will become FSA
records. Otherwise, the notes are considered personal records and not subject
to FOIA or Privacy Act provisions.

2

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Note: If personal records; such as supervisor’s notes, are removed from the
immediate custody of the supervisor and placed in official personnel
files that the supervisor maintains on employees, they will be subject to
FOIA provisions. Once a FOIA request is received, the files cannot be
altered.
An employee attends a meeting in FSA and takes personal notes to refresh
his/her memory on the issues discussed as he/she works on a long-term
project. The notes are maintained in a file folder on the employee’s desk, are
not disseminated to or verbally shared with any other employee, or used to
conduct FSA business. The employee uses the notes solely as a memory
jogger. The employee’s notes are not FSA records subject to FOIA or Privacy
Act provisions. The notes would not be considered FSA records unless the
employee treated them as such, by sharing them with others, used them to
support an FSA action, conducted business, or placed them within FSA’s
official files on the subject.

2-INFO (Rev. 1) Amend. 1

Page 1-6

Par. 2
2

Policy and Applicability (Continued)
C Personal Documents Versus FSA Documents (Continued)
Example
Scenario
3
Every week the FSA director’s secretary prepares a calendar listing the
activities for each day of the upcoming week. The calendar is provided to the
staff either on paper or by e-mail to inform them of the director’s availability.

4

The calendar is an FSA record. The document, which is created at FSA’s
expense by an FSA employee, is circulated to the staff for business purposes.
It is created for the express purpose of facilitating the daily activities of the
office; that is to inform the staff of the availability of the director. Any
personal information could easily be segregated from the business material, if
necessary.
A supervisor keeps an appointment calendar on his/her desk to note upcoming
business meetings and personal appointments; such as lunch with old friends,
doctor’s appointment, etc. The secretary may note appointments that have
been scheduled for him/her on the calendar.
The calendar is not an FSA record. Although created by an FSA employee at
FSA expense, it contains little, if any, substantive information. The calendar
was created for the supervisor’s personal convenience so that he/she could
organize both his/her personal and business appointments. It is not circulated
to other employees as it was not intended for their use. FSA did not require
the supervisor to maintain the calendar and he/she is free to destroy it at any
time.
Exception:

Certain calendars may be controlled by FSA record disposition
schedules; such as calendars of higher level FSA officials. If
FSA officials are required to maintain calendars that must be
retained for a specific period before being destroyed, they are
FSA records.

Note: Individuals whose calendars are considered FSA records may wish to
maintain 2 calendars, 1 for business use and 1 for personal use.

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2-INFO (Rev. 1) Amend. 1

Page 1-7

Par. 3
3

Responsibilities
A FSA FOIA Officer
FSA’s FOIA Officer, located in OEA, Office of the Administrator, is responsible for
administering FOIA within FSA, and for managing the Washington, DC, FOIA Office.
B National FOIA Offices
The Washington, DC, and KC FOIA Offices function as FSA’s National FOIA Offices and
will work together to provide FOIA guidance to all FSA personnel, including FOIA Officers
and coordinators in State and County Offices.
C KC FOIA Officer
The KC FOIA Office supervisor has been designated as the National FOIA Officer
responsible for managing FSA’s primary processing office for FSA record requests in
electronic format.
D State Office Designated FOIA/Privacy Act Coordinators
State Office employees designated as State FOIA/Privacy Act coordinators are responsible
for:

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•

processing requests for FSA documents within their respective offices

•

providing training to and coordinating the work of FSA County Offices within their
respective States in responding to and reporting on FOIA and Privacy Act requests

•

acting as liaison between the Appeals and Litigation Staff and County Offices for FOIA
and Privacy Act appeals and litigation.

2-INFO (Rev. 1) Amend. 1

Page 1-8

Par. 3
3

Responsibilities (Continued)
E County Office Designated FOIA Coordinators
County Office employees designated as FOIA coordinators, or employees assigned FOIA
responsibilities as a part of their collateral duties, are responsible for:
•

coordinating with their designated State FOIA/Privacy Act coordinators to process
requests for FSA documents received within their respective County Offices

•

logging and tracking requests for FSA documents

•

taking time extensions, when applicable.

Note: CED’s and FLM’s are responsible for making determinations on requests for
expedited processing and FOIA fee waivers, withholding records, making
discretionary releases, and making partial or total releases.
F Offices Possessing Records
FSA offices that possess FOIA requested records are responsible for searching for records
requested under FOIA when contacted by FSA staff authorized to process FOIA requests, in
a timely manner, to enable FSA to comply with statutory time limits for processing FOIA
requests (Exhibit 5).

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2-INFO (Rev. 1) Amend. 1

Page 1-9

Par. 4
4

Relationship Between FOIA and the Privacy Act
A First Party Requests Asking for Their Records From Privacy Act System of Records
When an individual requests access to records about himself/herself that are contained in a
Privacy Act System of Records; that is personal information under the control of FSA that is
contained in a System of Records whose records are retrieved by FSA using the requester’s
name or some other personal identifier, the request will be processed under both FOIA and
the Privacy Act regardless of the statutes cited, so that the individual is granted the greatest
access to his/her records that either FOIA or the Privacy Act provides. Before FSA begins
processing a request covered by the Privacy Act, FSA will ensure that the requester has
provided the necessary information to identify himself/herself as the subject to whom the
information sought pertains.
Note: See 3-INFO, Exhibit 4 for FSA’s Privacy Act Systems of Records.
B First Party Requests Asking for Their Records From Other FSA Files
If an individual submits a FOIA request for records about himself/herself that are not
covered by the Privacy Act, the request will be treated as any other FOIA request. However,
in reviewing records responsive to such a request, FSA will not invoke exemption 6 or 7(c)
where the only privacy interest to be protected is the requester’s.
Example: If a requester’s home address is included in a record not covered by the Privacy
Act, the requester’s home address will not be withheld according to either
exemption 6 or 7(c). In such an instance, a release “to one person” is not a
“release to all”, as is generally the case, under FOIA.

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2-INFO (Rev. 1) Amend. 1

Page 1-10

Par. 4
4

Relationship Between FOIA and the Privacy Act (Continued)
C Third Party Requests Asking for Records About Individuals From Privacy Act System
of Records
When a third party, an individual other than the person who is the subject of the Privacy Act
record, submits a FOIA request for information that is subject to the Privacy Act; such as,
“Send me all the records FSA has on my spouse, an employee of FSA”, the material will not
be disclosed without prior written approval of the individual on whom the record is
maintained, unless at least 1 of the following is true:
•

release is permissible under 1 of the Privacy Act conditions of disclosure
(5 U.S.C. 552a(b)); such as the release to the requester would be for 1 of the routine uses
listed in the applicable Privacy Act SORN

•

the information is required to be released under FOIA

•

individual on whom the record is maintained is deceased; however, if releasing the
information would result in a clearly unwarranted invasion of the personal privacy of a
living individual; such as a member of the deceased individual’s family, the information
must be withheld.

D Criminal Penalties
Any employee who knowingly or willfully discloses information protected by the Privacy
Act may be subject to civil or criminal penalties. See 1-APP for additional information about
criminal penalties set forth in the Privacy Act.
E Interaction of FOIA and Privacy Act Exemptions for First Party Requests
The Privacy Act never prohibits disclosing material that FOIA requires to be released, such
as Federal and non-Federal employee grade level and salary.
To withhold information from the subject of the file (a first party requester) both a Privacy
Act and a FOIA exemption must apply, as indicated in the following example taken from the
2010 edition of DOJ’s Freedom of Information Act Guide and Privacy Act Overview:
“Suppose John Q. Citizen writes to Agency, ‘Please send to me all records that you have
on me.’
For purposes of this example, assume that the only responsive records are contained in a
System of Records retrieved by Mr. Citizen’s own name or personal identifier. Thus,
both the Privacy Act and FOIA potentially apply to the records.”

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2-INFO (Rev. 1) Amend. 1

Page 1-11

Par. 4
4

Relationship Between FOIA and the Privacy Act (Continued)
E Interaction of FOIA and Privacy Act Exemptions for First Party Requests (Continued)
“[1.]

IF NO PRIVACY ACT EXEMPTION APPLIES.

Note: There are 10 Privacy Act exemptions (5 U.S.C. 552a(d)(5), ( j), and (k)).
Generally applicable to records maintained by law enforcement or investigatory
agencies, they exempt particular systems of records from the Privacy Act notice,
access, and amendment requirements. Privacy Act exemptions are generally not
invoked like FOIA exemptions, on a document-by-document basis. Privacy Act
exemptions are generally invoked by FSA for an entire Privacy Act System of
Records.
Result: Mr. Citizen should receive access to his Privacy Act records where Agency can
invoke no Privacy Act exemption. The agency cannot rely upon a FOIA exemption
alone to deny Mr. Citizen access to any of his records under the Privacy Act.
[2.]

IF A PRIVACY ACT EXEMPTION APPLIES.

Result: Where a Privacy Act exemption applies, Mr. Citizen is not entitled to obtain
access to his records under the Privacy Act. But he still may be able to obtain access to
his records (or portions thereof) under FOIA.
[3.]

IF NO PRIVACY ACT EXEMPTION AND NO FOIA EXEMPTION APPLIES.

Result: the information should be disclosed.
[4.]

IF BOTH PRIVACY ACT AND FOIA EXEMPTIONS APPLY.”

Result: the record should be withheld, unless FSA, after careful consideration, decides to
disclose the record to the first-part requester as a matter of administrative discretion.

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2-INFO (Rev. 1) Amend. 1

Page 1-12

Par. 4
4

Relationship Between FOIA and the Privacy Act (Continued)
F Applicability of Privacy Act and FOIA
The Privacy Act, unlike FOIA, only apples to U.S. citizens or lawfully admitted aliens.
FOIA applies to any individual except fugitives from justice.
G Combined FOIA/Privacy Act Requests
In handling combined FOIA/Privacy Act requests, the time limits applicable to FOIA apply
to processing the entire request. FOIA fee provisions apply to the records processed under
FOIA. Privacy Act fee provisions apply to records processed under the Privacy Act.
H Differences in Fee Provisions
For records that are subject to the Privacy Act, FSA can charge the person who is the subject
of the records only for duplicating the material and not for search or review time. However,
an individual receiving records under the Privacy Act is not entitled to receive the first
100 pages without charge. Duplication fees apply to all pages provided. There will be no
charge if the fee for processing the entire request is $25 or less.
Fees chargeable under FOIA are also discussed in Part 4.

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2-INFO (Rev. 1) Amend. 1

Page 1-13

Par. 5
5

FOIA FSA Reading Room Requirements and Frequently Requested Records
A Type of Records Required To Be Made Available For Public Information
According to FOIA and 7 CFR Subtitle A, Part 1, Section 1.4, FSA is required to make the
following records available for public inspection and copying in its public “reading room”:
•

final opinions, including concurring and dissenting opinions, and orders made in case
adjudications

•

policy statements and interpretation adopted by FSA that are not published in FR

•

administrative staff manuals and instructions to staff that affect a member of the public

•

copies of all records, regardless of form or format, which have been released according to
a FOIA request and which, because of the nature of their subject matter, have become or
are likely to become the subject of subsequent requests for substantially the same records,
based on the following factors:
•

FSA’s previous experience with similar records

•

particular characteristics of the records involved, including their nature and the type
of information contained in them

•

identity and number of requesters, and whether there is widespread media, historical,
academic, or commercial interest in the records.

B Documents Frequently Requested
Copies of documents frequently requested by the public under FOIA are made available
electronically on FSA’s FOIA public web site. See subparagraph 1 D. Copies of other
documents required to be made available electronically to the public are accessible on FSA’s
public web site. Together, these “pages” constitute FSA’s public “reading room”.

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2-INFO (Rev. 1) Amend. 1

Page 1-14

Par. 6
6

Annual FOIA Reports
A Compiling FSA Reports
Annually, FSA is required to submit a FOIA report to the Departmental FOIA Officer on or
before December 31. The report includes information about FOIA requests, appeals, and
litigation against the Department, costs to administer the program, total amount of fees
collected for processing requests, and other data about the Department’s FOIA request
processing.
Annual reports shall be compiled from information entered into FOIA-CAP, FSA’s official
system for tracking FOIA requests, and from information submitted, on an annual basis, on
FSA-538. FOIA-CAP is available at https://wdcprod81.sc.egov.usda.gov/foiacap that
includes guidance through “Help”.
B USDA Reports to DOJ
On or before February 1 of each year, the Department is required to submit a report
covering FSA’s FOIA activities for the preceding FY to the Office of Information and
Privacy, DOJ. To access USDA’s annual report go to the Departmental Administration’s
FOIA Electronic Reading Room at www.da.usda.gov/foia_reading_room.htm. USDA’s
annual report contains detailed information about FOIA request processing within each of its
agencies.

7-10

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(Reserved)

2-INFO (Rev. 1) Amend. 1

Page 1-15

.

Par. 11
Part 2 Controlling FOIA Requests
11

FOIA-CAP
A What is FOIA-CAP
FOIA-CAP is FSA’s official electronic system for tracking and managing FOIA requests.
Using FOIA-CAP will assist FSA offices with processing requests more efficiently, ensuring
consistency in responses, and facilitate preparing FSA’s annual report to DOJ and Congress.
B Usage Requirements
FSA State and County Offices authorized to respond to FOIA requests will track the requests
in FOIA-CAP and submit additional DOJ-required cost and staffing information about
administering FOIA annually on FSA-538. FOIA-CAP is accessible at
https://wdcprod81.sc.egov.usda.gov/foiacap .
Note: National FSA FOIA Offices are required to track FOIA requests in FOIAXpress,
USDA’s enterprise-wide FOIA tracking system. Currently, cost and training
considerations prevent FSA from expanding FOIAXpress usage to State and County
Offices.
C FOIA-CAP Guidance
Guidance for using FOIA-CAP:



will be issued annually in notices
is available at https://wdcprod81.sc.egov.usda.gov/foiacap through “Help”.

D Manual FOIA Log
Offices with significant FOIA workloads are advised to maintain a manual log of FOIA
requests as a backup when FOIA-CAP is unavailable.

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Par. 12
12

Official FOIA Records
A Case Files
FSA offices authorized to respond to FOIA requests will maintain an official file on each
FOIA request received. A separate case file; that is a folder labeled with the control number
of each request, name of the requester, and the retention date of FOIA request case file, will
be maintained for each FOIA request. These files will include, at a minimum, a copy of the
following:
•

original FOIA request as received from the requester

•

subsequent correspondence from the requester to FSA about the request; such as a letter
modifying or clarifying the scope of a request and a letter providing written assurance for
paying FOIA fees

•

all written communications from FSA to the requester, including the following, as
applicable:
•
•
•
•
•

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acknowledgement letter
subsequent written communications with the requester
FSA’s response to a request for expedited processing
FSA’s response to a request to waive FOIA fees
FSA’s final response letters

•

all intra-agency or interagency communications about the request; such as e-mail
messages generated in the process of locating responsive records

•

notes made justifying withholding any records or issuing discretionary releases

•

an unredacted (original) copy of all responsive records

•

copy of all responsive records in the form in which they were released to the requester
with all redactions made

•

records of FOIA fee bills issued and collected.

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Page 2-2

Par. 12
12

Official FOIA Records (Continued)
B FOIA Record Retention
Records maintained in the official FOIA request case files will be maintained as official FSA
records, for record management purposes.
FOIA case files are covered by NARA Transmittal No. 8, dated December 1998, General
Records Schedule 14, Item 11, titled, “FOIA Request Files”. For State and County Offices,
these files are covered by 25-AS, Exhibit 45, under “Informational Service Files, INFO 2”.
Generally, they will be retained for the following time periods:
•

6 calendar years following date of response, for all requests in which records were
withheld in-full or in-part; that is denials and partial grants, for all requests for which a
request for expedited processing or fee waiver request was denied, and/or for all requests
that were subsequently appealed or litigated

•

2 calendar years after date of response, for all other requests.

Retention date of a FOIA request case file means the date when the official FSA Federal
records within the file may be destroyed, under the Federal Records Act.
Examples:

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The retention date for a FOIA request completed on:
•

September 13, 2008, for a request in which all records were granted, is
September 30, 2010

•

September 5, 2008, for a request in which some of the records requested
were withheld (a partial grant), is September 30, 2014.

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Par. 13
13

Converting From Paper to Electronic FOIA Case Files (Optional)
Note: FSA Offices are not required to convert from paper to electronic FOIA case files. If FSA
Offices choose to convert, to reduce FOIA program administration costs, they should
follow the guidance in this paragraph.
A Overview
Establishing and maintaining electronic FOIA case files is not simply a matter of duplicating
paper case files in electronic format. The key to establishing electronic FOIA case files
economically, without purchasing and implementing specialized case management software,
requires consistently applying the following 2 principles:
•
•

using a standard document naming convention
segregating public records from nonpublic records.

B Benefits
Establishing and maintaining electronic FOIA case files can reduce FOIA program
administration costs, as follows:

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•

less space is required to store FOIA case files

•

responsive records can be distributed by CD ROM instead of paper, eliminating copying
and reducing shipping costs

•

responsive records can be electronically redacted

•

costs for sharing case files with appeals staff and legal counsel, when required, are
greatly reduced

•

costs for copying previously requested records are reduced

•

FSA can make frequently requested records available to the public on its public FOIA
web site.

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Par. 13
13

Converting From Paper to Electronic FOIA Case Files (Optional) (Continued)
C Conversion Process Documentation
In each office, it is important to document the following:
•
•
•

extent to which FOIA case files have been automated
date FOIA case files automation began
electronic location of the files being created and maintained.

D Electronic File Storage
It is easier to misplace files electronically than to misplace paper files. It is important that
FOIA case files be stored on servers that are backed up regularly. In offices where FOIA
responsibilities are handled by more than 1 employee, all FOIA processer employees must
have access to all of the office’s electronic FOIA case files. Electronic FOIA case files, like
paper case files, must be accessible when employees working on them are absent from the
office. FOIA case files, like FSA program files, are legal documents.
Note: FOIA case files should never be stored in an individual’s personal, working drive.

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Par. 13
13

Converting From Paper to Electronic FOIA Case Files (Optional) (Continued)
E Naming Electronic Files
Electronic FOIA case files shall be named using the following standard naming convention
for folders and files within folders, consistently. This will enable anyone working with the
files to identify and locate both specific case files and specific documents within specific
case files.
Some minor adaptations may be necessary to accommodate voluminous quantities of
responsive records.
Rule
Description
1 Store all electronic case files for a given FOIA FY in a primary folder, designated by
FY.

2

Example: 2008, 2009, 2010, 2011, 2012, 2013.
Store all documents for each FOIA request in a secondary folder, designated by
FOIA control number; that is 2-digit State code, 3-digit county code, 4-digit year,
and 6-digit request number, sequentially starting with 000001 (ss-ccc-yyyy-nnnnnn).
Example: For the Texas State Office, the first 3 FOIA request electronic files for
2012 would be numbered as follows:
•
•
•

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48-002-2012-000001
48-002-2012-000002
48-002-2012-000003.

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Par. 13
13

Converting From Paper to Electronic FOIA Case Files (Optional) (Continued)
E Naming Electronic Files (Continued)
Rule
Description
3 Name records as they are chronologically received or generated and added to FOIA
case files, according to their function within the file, using FOIA case file number;
for example: 48-002-2012-000001. Records under the individual FOIA control
number will be numbered with the 2-digit year, sequential control number, and
2-letter code. 1/
Example Record Code
Record Description
08-000001aa (ab, ac, ad…)
Answers to requester query;
communications from FSA to the
requester; such as acknowledgement letter,
clarification letter, response letter, etc.
08-000001ba (bb, bc, bd…)
Billing records; such as bill for collection,
check received in payment, etc.
08-000001ca through pz and
Responsive records; documents asked for
ra through wa 1/
by requester.
08-000001qa (qb, qc, qd, etc.)
Query from requester; communications
from requester to FSA; such as initial
request, agreement to pay fees, etc.
08-000001xa through yz
All other administrative request
processing; such as request for file search,
Note: Occasionally, as when
notes to file, etc.
processing requests for
confidential commercial or
financial information, FOIA
processer may want to qualify a
document “suffix” for ease of
later location; such as
08-000001xm-submitter letter.
08-000001za (zb, zc, zd, etc.)
Records relating to request appeal or
litigation.
1/ For requests in which there are a voluminous number of records; for example, over
520 documents; unique record “suffixes” will need to either be extended to more than
2-letters, or extended by some other means to accommodate all responsive records.

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Par. 13
13

Converting From Paper to Electronic FOIA Case Files (Optional) (Continued)
E Naming Electronic Files (Continued)
When extending file names, remember that every record in each electronic FOIA case folder
must have a unique name. When naming records, considerable time is saved by not giving
records names that are reflective of their function or content. As long as records are added to
the electronic file in chronological order, as they are created or received, it is relatively easy
to locate the “second interim response letter” by browsing through the list of “a” records (aa,
ab, ac, ad, ae, af) and opening only 1 or 2 files. If FOIA processers try to name records based
on their function and content, FOIA processers will quickly exhaust the standard
designations and cause unnecessary time to be spent devising appropriate names and adding
the names to both the electronic files and paper records. Before leaving any electronic
record created and named according to this subparagraph, write the name of the record; such
as 08-00000qa, in pencil, in the upper left-hand corner of the document on the reverse side of
the last page of the paper records to which it applies.

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Par. 13
13

Converting From Paper to Electronic FOIA Case Files (Optional) (Continued)
F Segregating Public Records From Nonpublic Records
Maintaining original copies of FSA nonpublic records that require redaction before release to
the requester, separate from copies of records in the form they were released to the requester
(public records), guards against inadvertently releasing records containing information that is
protected by 1 of the 9 exemptions. Both of the following methods of keeping the versions
segregated should be used:
•

establish separate subfolders for nonpublic FSA records from the public version

•

when naming the 2 versions of records, systematically differentiate by a method that
allows easy linking of the 2 versions; such as omitting the year prefix for the nonpublic
version of the document.

Example: For request 48-002-2012-000001, there were 5 paper responsive records as
follows:
•
•
•
•
•

record ra: releasable-in-full
record rb: releasable-in-part ; redacted under exemption 3
record rc: releasable-in-part; redacted under exemption 6
record rd: releasable-in-full
record re: denied-in-full under exemption 5.

FOIA processer would create the following electronic documents, in the
following subfolders, within FOIA case file folder 20-105-2008-000001.
Nonpublic Subfolder
000001rb
000001rc

Public Subfolder
08-000001ra
08-000001rb
08-000001rc
08-000001rd

000001re

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Par. 13
13

Converting From Paper to Electronic FOIA Case Files (Optional) (Continued)
F Segregating Public Records From Nonpublic Records (Continued)
Using the naming convention in this subparagraph makes:
•

reviewing CD ROM’s prepared for release to a requester relatively easy, to determine if
the public version of all releasable records has been copied properly
Note: All records released should contain FY prefixes.

•

locating the 2 versions of the record easier when legal review is required.

By maintaining a set of records requiring redaction before being released in a nonpublic file,
and a set of records released to the public in a public file, the number of records retained in
the case file is minimized.
Note: Maintaining nonpublic and public records, instead of all original and released
records, reduces record storage by not keeping duplicate sets of records that can be
released without redaction.
14-20 (Reserved)

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Par. 21
Part 3
21

Processing FOIA Requests

Official FOIA Requests
A Validating FOIA Requests
Upon receiving a request for FSA records or information, FOIA processers will confirm that
the request is a valid FOIA request.
Request
Requirement
Explanation
In writing.
FSA does not accept verbal requests for FSA records received over the
telephone or in person; such as a requester walking into an FSA County
Office, and asking for copies of records. Individuals making verbal
requests for FSA records should be asked to document the requests in
writing. Although many FOIA requests are signed, there is no requirement
that a FOIA request contain an original signature or a copy of the
requester’s signature. FSA accepts written FOIA requests sent to FSA
through USPS, commercial delivery services, e-mail, FAX, FSA web site
forms, or delivered in person.
For FSA
An FSA record is any record or documentary material that has been created
records.
or received by FSA or for FSA by an entity under contract to FSA. FSA
records include, but are not limited to program applications and contracts,
letters, memoranda, e-mail, technical reports, manuals, papers, maps,
photographs, microfiche, and data in electronic databases of all types. FSA
records do not include the following:
•

artwork or other tangible objects; such as items in museum exhibits

•

documents; such as books, atlases, or audiovisual materials
commercially available for purchase by the general public.

Note: The Federal Records Act definition of an FSA record is not the
same as the FOIA definition. The FOIA definition is much
broader. Under FOIA, an annotated copy of a document is a
wholly separate record, and all records in FSA’s possession,
including records maintained for FSA by contractors, but
excluding FSA employee personal records, constitute FSA records.

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21

Official FOIA Requests (Continued)
A Validating FOIA Requests (Continued)
Request
Requirement
Explanation
Access to or
If a requester seeks answers to questions, or explanations of FSA policies,
copies of FSA procedures, or actions, the requester’s letter should be referred to the
records.
appropriate FSA office for response in a timely manner (Exhibit 5). FOIA
does not require FSA to answer questions posed as FOIA requests.
Access to or
FSA will not accept requests for records that have not yet been created or
copies of FSA received, or “standing requests” for records as they are created, in the
records in
future. Requesters seeking access to records not yet in existence should be
FSA’s
advised that they should resubmit these requests at a later time.
possession at
Note: Although FSA is not required to “reconstruct” records that are no
the time that
longer available at the time the search to locate records is
the search to
conducted, because they were properly or accidentally destroyed,
locate records
this fact is generally not known at the time that FOIA requests are
is conducted.
initially received, and for this reason, these requests must generally
be accepted for processing. 1/
Request for
FOIA requests may be filed by U.S. citizens, including school children and
FSA records
prisoners, foreign citizens, individuals writing on behalf of law firms,
filed by any
partnerships, corporations, associations, nonprofit institutions, and
party who is
individuals representing foreign, State, local, or tribal Governments.
allowed, by
Federal Government agencies and fugitives from justice are not eligible to
law, to file a
file FOIA requests. While individual members of Congress are allowed to
FOIA request. file FOIA requests, requests made under the authority of a Congressional
Committee or Subcommittee on a subject within its jurisdiction are not
processed under FOIA. Such requests are generally signed by the
Chairperson of the Committee or Subcommittee, and should be referred to
OEA. Requests for FSA records from individual members of Congress
should be processed in consultation with OEA.
Record
Valid FOIA requests include instances in which FSA records, responsive
referrals from to a FOIA request that has been filed with a different Federal agency, are
another
found in the other agency’s files. In records referral requests, FSA is asked
Federal agency to review the records in question for a release determination, and to
subject to
provide FSA’s recommendations for record release, FSA’s
FOIA.
recommendation to withhold the records, or for FSA to provide that
portion of FSA’s records that are releasable, under FOIA, directly to the
original FOIA requester. Requests in which FSA is asked only to provide
recommendations for releasing FSA’s records to another Federal agency
are called “consultation requests.”
1/ FSA’s cut-off date for determining responsive records is the date the search is conducted
to locate records. Records created after that date are treated as not responsive to the
request.

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Par. 21
21

Official FOIA Requests (Continued)
A Validating FOIA Requests (Continued)
Request
Requirement
Distinguished •
from other
types of
information
access
requests.

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Explanation
A Privacy Act request is a written request (paper copy with an original
signature) made by an individual for information about himself or
herself, or access to or copies of FSA records on him or herself, which
are contained in a Privacy Act System of Records. Only U.S. citizens
and aliens lawfully admitted for permanent residence are authorized to
make Privacy Act requests. Privacy Act requests should be processed
according to 3-INFO and USDA Privacy Act regulations at
7 CFR Part 1, Subpart G.

•

FOIA/Privacy Act requests are written requests (paper copy with an
original signature) made by an individual for information about himself
or herself, or access to or copies of FSA records on him or herself, in
which only part of the records requested are contained in a Privacy Act
System of Records. That portion of the request involving records
contained in a Privacy Act System of Records should be processed
according to 3-INFO and USDA Privacy Act regulations at
7 CFR Part 1, Subpart G. That portion of the request involving records
not contained in a Privacy Act System of Records should be processed
as a FOIA request. FOIA time limits apply to both portions of these
requests.

•

Subpoenas, upon receipt, will be forwarded by FOIA processers to the
servicing OGC for review. The responding office will respond to the
subpoena as directed by the servicing OGC. In some instances, the
office will be directed to process the subpoena as a FOIA request.
Although this guidance should be followed on an instance-by-instance
basis, subpoenas, in general, do not qualify as valid FOIA requests and
should not be logged and processed as such, unless so directed by
OGC. See 1-APP, subparagraph 192 F.

2-INFO (Rev. 1) Amend. 1

Page 3-3

Par. 21
21

Official FOIA Requests (Continued)
B Logging FOIA Requests
Upon receiving a valid FOIA request, FOIA processers will do the following.
•

Date-stamp the request.

•

Enter the request into FOIA-CAP (paragraph 11); FOIA-CAP will assign a unique
control number to the request.

•

Enter the request into a manual log as a backup when FOIA-CAP is unavailable, if FOIA
workload is significant.

•

In FOIA-CAP, assign the request, on a preliminary basis, to the simple, normal, or
complex processing track; requests in all tracks are processed on a first-in, first-out, basis.
IF it appears the request can be responded to…
with minimal effort in 5 workdays or less
in more than 5, but less than 20 workdays
in more than 20 workdays, and that you may need to
take a 10-workday extension (subparagraph 22 C)

THEN assign request to the…
simple processing track
normal processing track
complex processing track

Note: In making processing track assignments, FOIA processers are making a reasonable
estimate based on a quick assessment of the request, along with their knowledge of
the records requested. FOIA processers are permitted to move requests from 1 track
to another, as needed.

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21

Official FOIA Requests (Continued)
C Perfecting FOIA Requests
After logging a valid FOIA request into FOIA-CAP, FOIA processers will determine if it can
be processed in the form in which it was received. The process of analyzing a FOIA request
to determine if it has been received by the proper office, if it reasonably describes the records
sought, and if all applicable fee issues have been resolved, is called perfecting the request.
There are 3 steps in perfecting a FOIA request. To perfect a FOIA request, FOIA processers
will do the following.
•

Determine if the request has been sent to the proper office for processing, as follows.
IF FSA office to
which the request
has been sent…
THEN…
maintains the records the request will be processed by that office, provided that that
requested
office has been authorized to process FOIA requests.
maintains a portion FOIA processers will process that portion of the request that
of the records
pertains to the records maintained in their office, and follow this
requested
table for the remainder of the records requested.
does not possess
FSA office will forward the request to the appropriate FSA
processing authority office at which the request should have been filed.
does not maintain the FOIA processers will attempt to determine which FSA office is
records requested
likely to maintain the records requested. If this determination
can be made quickly (within 1 to 2 workdays) and reasonably
definitively (for example, that a request filed with a State Office
asking for information maintained by a County Office should be
processed by the County Office), FOIA processers will route the
request to the appropriate FSA office at which the request should
be processed, providing the requester with appropriate contact
information for the office to which the request was routed.

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21

Official FOIA Requests (Continued)
C Perfecting FOIA Requests (Continued)
IF FSA office to
which the request has
been sent…
does not maintain the
records requested and
it is reasonably certain
that the records are
maintained at another
USDA Agency

THEN…
FOIA processers will attempt to determine which USDA
agency is likely to maintain the records requested. If this
determination can be made quickly (within 1 to 2 workdays)
and reasonably definitively (for example, that a request filed
with FSA asking for information about a named National
Forest should be processed by the Forest Service), FOIA
processers will route the request to the appropriate USDA
agency at which the request should be processed, providing the
requester with appropriate contact information for the USDA
agency to which the request was routed.
does not maintain the FOIA processers will attempt to determine which Federal
records requested and agency is likely to maintain the records requested. If this
it is reasonably certain determination can be made quickly (within 1 to 2 workdays)
that the records are
and reasonably definitively (for example, that a request filed
maintained at another with FSA asking for information about a named National Park
Federal agency
should be processed by the National Park Service within the
Department of Interior), FOIA processers will inform the
requester that he/she must file the request with that agency,
providing the appropriate contact information if at all possible.
does not maintain the FOIA processers will inform the requester that he/she seeks
records requested and records not maintained by FSA and that FSA is unable to
it is not reasonably
identify where the requested records might be located.
possible to determine
where the records may
be located
Notes: If the request seeks records within FSA databases, FOIA processers will route the
request to KC FOIA Office, providing the requester with appropriate contact
information for KC FOIA (subparagraph E).
If a request seeks records maintained by another USDA Agency, FOIA processers
in State and County Offices will send the request, by e-mail, to the
Washington, DC, FOIA office for routing to the appropriate USDA Agency.

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Par. 21
21

Official FOIA Requests (Continued)
C Perfecting FOIA Requests (Continued)
•

Determine if the request reasonably describes the records being requested. A request
must describe the records sought in sufficient detail to enable an employee familiar with
the subject area of the request to locate the records with a reasonable amount of effort.
A reasonably described request is a request that includes enough detailed/specific
explanatory information; that is, data definition, programs of interest, dates, titles, names
of individuals, names of offices, and names of agencies or other organizations, for the
responding office to fully understand and identify the records sought (Exhibit 10).
IF…
a request reasonably describes
the records sought
a request reasonably describes
the records sought, but also
substantially duplicates a
recent request previously filed
by the same requester
any portion of a request does
not reasonably describe the
records being requested

THEN…
the request can continue to be processed.
the request should not be processed further. Advise
the requester that USDA regulations allow FSA to treat
a second request for the same or substantially the same
records from the same requester as moot, and close the
request.
FOIA processers will advise the requester that the
request does not reasonably describe the records being
requested, in the acknowledgement letter (Exhibit 11),
and provide the opportunity to clarify the request.

Note: There are 14 types of letters used in the FOIA and/or FOIA/Privacy Act process,
with varying additions, modifications, and omissions, depending on the situation.
See Exhibits 11 through 23 for example letters.

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21

Official FOIA Requests (Continued)
C Perfecting FOIA Requests (Continued)
Note: When asking a requester to submit additional written clarification of that portion
of his/her request that is unclear, FOIA processers will advise the requester that if
he/she does not respond to FSA’s request for clarification within 20 workdays of
the date of the letter asking for clarification, that FSA will assume that the
requester is no longer interested in pursuing his/her request, and will close its files
on the request.
IF the requester…
responds to a request for
clarification at a later date,
providing an adequate
description of the records
sought

THEN…
• process clarification as a new request
•

advise the requester of the request’s new
control number and date on which the
revised description of records requested was
received

• continue processing the request.
does not respond to a request close the request.
for clarification within
20 workdays of the date of the
letter asking for clarification

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21

Official FOIA Requests (Continued)
C Perfecting FOIA Requests (Continued)
•

Determine if all FOIA fee issues have been resolved. When determining if any FOIA fee
issues remain to be resolved, FOIA processers should remember the following:
•

they are making a preliminary determination that can be revised anytime in the
request’s processing; frequently it is not possible to determine the full cost of search
services required to process a FOIA request until the search for responsive records
has been completed

•

all FOIA fee estimates are estimates

•

the requester cannot owe any previously applicable FOIA fees (subparagraph 52 C)

•

before the request can be processed, FOIA processers should review Part 4.
Note: The following summary of the 4 steps required to determine if all FOIA fee
issues have been resolved are based on FOIA processers knowing Part 4
procedure and policy (Exhibit 29).
Step
Action
1
Is the request a FOIA request, a FOIA/Privacy Act request, or a records
referral request? The answer to this question will determine if FOIA
processer needs to consider FOIA fees for search services, review services,
and/or copying of records requested. Fees are charged as follows:

1-4-13

•

records referral requests generally only incur copying fees

•

Privacy Act requesters are only charged copying fees so that portion of a
FOIA/Privacy Act request that asks for Privacy Act records only incurs
copying fees

•

FOIA requests may incur all 3 types of fees.

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Par. 21
21

Official FOIA Requests (Continued)
C Perfecting FOIA Requests (Continued)
Step
Action
2
What is FOIA fee category of the requester? The answer to this question
will determine precisely which FOIA fees may be incurred by this particular
requester for this request. There are 4 specific categories of FOIA
requesters for fee purposes: commercial-use, educational/scientific
institution-use, media-use, and other-use. Each can be charged for certain
services, and most have certain entitlements that allow them to receive a
certain number of hours of search time or pages of copying before
chargeable fees are incurred.
3
Is it likely, given what the requester is seeking, that FOIA fees will be
charged? The answer to this question will determine whether, given the
records requested and the type of fees that might be incurred, it is likely that
fees will actually be charged. Determine if what the requester is asking for
can be satisfied within their entitlements, or if their chargeable FOIA fees
will be greater than these entitlements by an amount that exceeds $25. In
making this determination, FOIA processers may need to check with the
office or individual who maintains the records to obtain an estimate of the
level and extent of search services (and review services, if applicable)
required to process the request.
4
Has the requester agreed to pay FOIA fees, and if so, how much? The
answer to this question will determine if the requester has agreed to pay for
the full, chargeable cost of processing his/her request. If the requester has
agreed to pay FOIA fees, and the amount agreed upon is greater than the
amount of FOIA fees likely to be charged, then all issues related to FOIA
fees have adequately been resolved and the request can continue to be
processed. If the requester has not agreed to pay FOIA fees, or the amount
agreed upon is less than the amount of FOIA fees likely to be charged, then
the requester must be asked to confirm, in writing, that he/she is willing to
pay the full, chargeable FOIA fees likely to be incurred in processing his/her
request, and to be provided with an opportunity to revise the scope of the
request to reduce the applicable FOIA fees.
Note: If fees exceed $250, the requester must be asked to pay 50 percent
of the amount estimated in advance of processing his/her request
(subparagraph 51 C).

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2-INFO (Rev. 1) Amend. 1

Page 3-10

Par. 21
21

Official FOIA Requests (Continued)
C Perfecting FOIA Requests (Continued)
Note: When asking a requester to confirm, in writing, that he/she is willing to pay the
full, chargeable FOIA fees likely to be incurred in processing his/her request, or
to provide advance payment of FOIA fees, FOIA processers will advise the
requester that if he/she does not respond to FSA’s request for written fee payment
assurance within 20 workdays of the date of the letter, or advance payment of
FOIA fees, that FSA will assume that the requester is no longer interested in
pursuing his/her request and will close its files on the request.
IF the requester…
responds to a request for fee
assurance, provides advance
payment, or provides fee category
information at a later date

THEN…
• process the response as a new request
•

advise the requester of the request’s
new control number and date on
which the fee assurance letter,
advance payment, or fee category
information was received

• continue processing the request.
does not respond to a request for fee close the request.
assurance, provide advance payment
of FOIA fees, as applicable, within
20 workdays of the date of the letter
asking for such assurance or payment
has asked for a FOIA fee waiver, and a decision on whether to grant or deny
has provided a sound justification for this request for a fee waiver should be
a waiver of all FOIA processing fees made. If FSA decides to grant the fee
waiver, there are, by definition, no fee
issues related to processing the request
regardless of the answers to questions in
this table.
If/when all FOIA fee issues have been resolved, consider the request to have been perfected
on the date on which any issues needing to be resolved were resolved, send a perfection letter
(Exhibit 16), and continue processing the request.

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2-INFO (Rev. 1) Amend. 1

Page 3-11

Par. 22
22

FOIA Request Processing Timeline
A Initial Determinations
Under FOIA, FSA has 20 workdays to respond to a FOIA request (Exhibit 5). The
20-workday time limit begins the day after a valid request has been perfected.
Note: The day the request is perfected is counted as workday 0; FSA is expected to respond
to the request on or before workday 20.
FSA must notify the requester, within 20 workdays, whether the requested records will be
granted, granted in-part, or denied. As long as the requester has been informed of FSA’s
decision, with respect to releasing or not releasing requested records, FOIA does not require
that all of the requested records that are being released to be released by workday 20.
However, if the records requested are not provided in FSA’s final response letter, FSA’s
final response letter should provide the requester with the date on which the requested
records will be made available.
B Definitions of Denied, Granted In-Part, and Granted
Denied means FSA decided the records were not to be released in response to a FOIA
request because all the information in the requested records was determined by FSA to be
exempt under 1 or more FOIA exemptions or because of a procedural reason; such as no
responsive records were located.
Granted means FSA decided the records were to be released in-full in response to a FOIA
request.
Granted in-part means FSA decided the records were to be withheld in-part in response to a
FOIA request.

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2-INFO (Rev. 1) Amend. 1

Page 3-12

Par. 22
22

FOIA Request Processing Timeline (Continued)
C Perfecting Requests Delays
While many FOIA requests can be perfected on the date on which they are received by FSA,
there are circumstances that may delay valid FOIA request perfection, including the
following:
•

requester has not reasonably described the records requested

•

requester has not provided written assurance of his/her intention to pay FOIA fees as
high as are likely to be incurred in processing the request

•

requester has not provided advance payment for processing the request, when required

•

requester has not supplied sufficient information for his/her fee category to be
determined (subparagraph 49 A).

Because some requesters may fail to respond to FSA requests for scope clarification, fee
assurance, or fee advance payment, some valid FOIA requests will never become perfected.
This is not a problem. The fact that some FOIA requesters may choose to effectively
withdraw their requests by failing to respond to FSA requests for clarification, fee assurance,
or advance payment does not reflect unfavorably upon FSA’s FOIA program or its
processers.
D Time Extensions
FOIA processers may extend the 20 workday limit by an additional 10 workdays by taking a
time extension. Time extensions may be taken only in the following unusual or exceptional
circumstances:
•

need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request

•

need to search for, collect, and appropriately examine a voluminous amount of separate
and distinct records that are requested in a single request

•

need for consultation, which will be conducted with all practicable speed with another
Department or agency with substantial subject-matter interest in the request.

USDA regulations specify that consultation about policy or legal issues between an agency
and OGC, the Chief FOIA Officer, or DOJ is not an allowable basis for taking a time
extension.

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2-INFO (Rev. 1) Amend. 1

Page 3-13

Par. 22
22

FOIA Request Processing Timeline (Continued)
D Time Extensions (Continued)
To take a time extension, FOIA processers must notify the requester, in writing, before the
20 workday time limit expires (Exhibit 5), of the following:
•
•

FSA is taking a 10 workday time extension to properly process the request in question
particular circumstance that justifies the time extension.

Note: Time extension communications must:
•

reference 1 of the 3 legal reasons bulleted in this subparagraph

•

use the example letter wording in this subparagraph when taking a 10 workday
time extension, when a time extension has not been communicated to the
requester in other agency correspondence

•

provide the requester with the new, later date (workday 30) by which they plan to
complete processing the request.

Time extensions are generally taken after a FOIA request has been acknowledged, and the
process of locating and examining responsive records has begun; however, there are times
when it is apparent, from the point at which a request is perfected, that 1 of the 3 bulleted
circumstances in this subparagraph applies. A requester may ask for a voluminous amount of
records or for records that are maintained in an office, within FSA, that is separate from the
office processing the request.
When a FOIA processer knows, from the point of perfection, that 1 of the 3 bulleted
circumstances in this subparagraph applies to a particular request, a time extension may be
taken in the same letter that acknowledges the request.

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2-INFO (Rev. 1) Amend. 1

Page 3-14

Par. 22
22

FOIA Request Processing Timeline (Continued)
D Time Extensions (Continued)
When it is known, from the start, that a time extension will be needed, add the following
paragraphs to acknowledgement letters (Exhibit 11).

Additionally, please be advised that we are taking a time extension in order to properly
process your request, because of: [choose 1:
a. the need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request.
b. the need to search for, collect, and appropriately examine a voluminous amount of
separate and distinct records which are requested in a single request.
c. the need for consultation, which will be conducted will all practicable speed, with
another Department or agency with substantial subject-matter interest in the request.]
We hope to be able to respond to you on or before [month, day, year of new due date]
___________________.

Because of amendments to FOIA included in the Open Government Act of 2007, if a FOIA
request is not processed within 20 workdays from the date it was perfected, and a time
extension was not taken, no fees for searching for responsive records or for duplicating the
records may be charged. If a time extension was taken, extending the processing period to
30 workdays from date of perfection, applicable search and duplication fees may be billed.
Because the Open Government Act of 2007 does not prohibit FSA from billing requesters for
search and duplication fees in instances when a time extension was taken, when any of the
3 bulleted circumstances in this subparagraph applies, FOIA processers are advised to
interpret applying the 3 bulleted circumstances as liberally as is reasonably possible. FOIA
processers should take a time extension whenever a time extension can be justified and they
believe that they may not be able to meet the 20 workday processing limit.

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2-INFO (Rev. 1) Amend. 1

Page 3-15

Par. 22
22

FOIA Request Processing Timeline (Continued)
D Time Extensions (Continued)
The following is an example time extension letter.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, Zip Code]
Dear [Mr./Ms. Requester]:
This is in reference to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) /
Freedom of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day,
year] ___________, control number __________________.
We are writing to notify you that we are taking a time extension in order to properly process your
request, because of [choose 1:
a. the need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request.
b.

the need to search for, collect, and appropriately examine a voluminous amount of separate
and distinct records which are requested in a single request.

c. the need for consultation, which will be conducted will all practicable speed, with another
Department or agency with substantial subject-matter interest in the request.]
We hope to be able to respond to you on or before [month, day, year of new due date]
___________.
In the interim, if you have any questions about the status of your request, you may contact
_______________________ at ___-___-____, by e-mail to _____________, or by mail to
_______________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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2-INFO (Rev. 1) Amend. 1

Page 3-16

Par. 22
22

FOIA Request Processing Timeline (Continued)
E When FSA Is Unable to Meet Time Limits
If FSA is unable to respond to a FOIA request within the statutory time limits of 20 or
30 workdays, as applicable, FOIA processers should do the following:
•

notify the requester, in writing, of the date by which they anticipate that FSA will be able
to issue its response and provide an opportunity to limit the scope of the request to allow
FSA to process the request within the extended time limit (7 CFR 1.16 (a)(1))

•

process the request as quickly as is feasible

•

negotiate, with the requester, an informal (non-statutorily authorized) extension of the
time required to process the request; negotiated agreements should:
•
•

be confirmed in writing
specify clearly the total time agreed upon.

Note: Completing the request within the negotiated timeframe will not qualify as
timely, under FOIA, with respect to FOIA’s statutory time limits; however, the
negotiated agreement may prevent an administrative appeal based on lack of
timely response.

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2-INFO (Rev. 1) Amend. 1

Page 3-17

Par. 22
22

FOIA Request Processing Timeline (Continued)
F Expedited Processing
Under FOIA, requesters may seek expedited processing of their FOIA requests.
Expedited processing means giving FOIA requests priority, and processing them ahead of
other non-expedited, pending requests when the requester has shown a compelling need for
specific records. A compelling need is a threat to life or physical safety of an individual or,
in the case of the media, urgency to inform the public about actual or alleged Federal
Government activity.
A valid request for expedited processing must:
•

be submitted, in writing, with the initial FOIA request

•

include a written statement that explains, in detail, the compelling need and basis for
requesting expedited processing that the requester certifies to be true and correct to the
best of the requester’s knowledge.
Note: FSA will not consider a request for expedited processing to have been received
without the request being accompanied by both this written statement and by
words attesting to the fact that the statement is true and correct to the best of the
requester’s knowledge.
Example: A statement asking FSA to “please expedite the processing of my
FOIA request”, that is not accompanied by details about the
compelling need would not be treated as a formal request for expedited
processing.

FSA will grant a valid request for expedited processing whenever the responding FOIA
processer determines that the requester has met either of the following criteria:

1-4-13

•

circumstances in which the lack of expedited processing could reasonably be expected to
pose an imminent threat to the life or physical safety of an individual

•

an urgency to inform the public about an actual or alleged Federal Government activity,
if made by an individual primarily engaged in disseminating information.

2-INFO (Rev. 1) Amend. 1

Page 3-18

Par. 22
22

FOIA Request Processing Timeline (Continued)
F Expedited Processing (Continued)
Representatives of the news media would normally qualify as individuals primarily engaged
in disseminating information. Other requesters; however, must demonstrate that their
primary activity involves publishing or otherwise disseminating information to the public as
a whole, and not just a particular segment or group. Urgency indicates that the information
has a particular value that will be lost if not disseminated quickly. Ordinarily this means a
breaking news story of general, wide-spread, public interest. The following do not qualify as
being urgent:
•

information of historical interest only

•

information sought for litigation or commercial activities

•

a news media publication or broadcast deadline unrelated to the news breaking nature of
the information

•

information clearly needed by the requester for their own personal use or gain.

FOIA provides that FOIA requests for expedited processing will be responded to in
10 calendar days from receipt date. This means that FSA will advise the requester if the
request for expedited processing is being granted or denied within 10 calendar days. It does
not mean that FSA must issue its final response to the request within 10 calendar days. FSA
should issue its final response to an expedited request as soon as reasonably possible,
processing this request ahead of all others in the queue.
However, FSA will not make a determination on a request for expedited processing until
FOIA request has been perfected.
Note: Only the office that possesses the records requested can make an expedited
processing decision.
Until it is reasonably clear what records are being requested, and all fee issues associated
with processing the request have been resolved, it is not possible to determine if FSA will be
able to process FOIA request in any timeframe.

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2-INFO (Rev. 1) Amend. 1

Page 3-19

Par. 22
22

FOIA Request Processing Timeline (Continued)
F Expedited Processing (Continued)
IF valid, expedited FOIA
request…
may be processed without
additional scope clarification, fee
assurance, or advance payment
has not been perfected before
issuing the acknowledgement letter

THEN FOIA processers will advise the
requester…
of FSA’s decision in response to a request for
expedited processing in FSA’s acknowledgement
letter (Exhibit 14).
that his/her request for expedited processing will not
be decided until all matters about reasonableness,
scope clarification, and fees associated with
processing the request have been resolved.

Note: In all instances, an expedited processing decision should be provided as soon as the
request is perfected, without further delay. However, if the request does not become
perfected, FSA is not required to make an expedited processing decision.
When responding to expedited processing requests, FSA will issue decisions as follows.
IF…
granting the
request for
expedited
processing

denying the
request for
expedited
processing

THEN FOIA processers will…
move the request to the FOIA-CAP expedited processing track and process
the request ahead of other non-expedited, pending requests.
Note: Granting expedited processing does not compel FSA to complete
request processing within 10 calendar days. Once a determination to
grant expedited processing has been made, FOIA processers will
process the request as soon as practicable.
identify the name and title or position of FSA official responsible for
determining that the request did not quality for expedited processing, the
reason for denial that addresses what constitutes valid expedited processing
as detailed in this subparagraph, and provide the requester with his/her
appeal rights. Following the guidance provided in subparagraph 24 H,
advise the requester that all appeals must be in writing, filed within
45 calendar days of the date of the denial letter, and mailed to the following
address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.
Note: Write “FOIA APPEAL” on the letter and envelope to ensure
prompt handling.
See 1-APP, Exhibit 58 for mandatory language to insert in
adverse FOIA response letters.

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2-INFO (Rev. 1) Amend. 1

Page 3-20

Par. 22
22

FOIA Request Processing Timeline (Continued)
G Expedited Processing Date Reporting Requirement
Because the date on which expedited processing decisions are made is part of the information
required by DOJ in the annual FOIA report, if the date on which the expedited processing
decision was made is not readily apparent from other written documentation in FOIA case
file, a note should be added to the case file at the time that the expedited processing decision
is made.
Note: If a valid request for expedited processing is received by an office that has no other
pending FOIA requests being processed, and the request can be processed within
10 workdays, there is no need to provide s separate response letter, either granting or
denying expedited processing. The issue is moot. However, if it is determined in the
course of processing this request that a final response cannot be issued within
10 workdays of the date of receipt of the request, then the office must issue a formal
written determination on the request for expedited processing.

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2-INFO (Rev. 1) Amend. 1

Page 3-21

Par. 23
23

Acknowledging FOIA Requests
A Acknowledgement Letters
FOIA processers will send FOIA requesters acknowledgement letters (Exhibit 11) for all
valid FOIA (and FOIA/Privacy) requests. Whenever feasible, acknowledgement letters
should be:

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•

issued within 3 workdays of receiving a valid FOIA request

•

written in clear, plain language that can be understood by the requester, with the
following information:
•

description of the records requested, as worded in the letter, e-mail communication,
etc., or a copy of the request should be included as an attachment to the letter

•

date the records were requested, as found on the letter, e-mail communication, etc.

•

date that the request was received by the FSA office currently processing the request

•

control number assigned to the request

•

assigned processing track into which the request was placed; that is complex,
expedited, normal, or simple

•

date request was perfected, if could be perfected without additional clarification, etc.

•

date the requester might expect to receive FSA’s response; such as a date “on or
before” (20 workdays from the date of perfection)

2-INFO (Rev. 1) Amend. 1

Page 3-22

Par. 23
23

Acknowledging FOIA Requests (Continued)
A Acknowledgment Letters (Continued)
•

name, telephone number, FAX number, and e-mail address, as appropriate, of FSA
contact to who questions about the status of the request should be addressed.

Note: When appropriate, the acknowledgement letter should direct the requester to the
office or agency to which the request should have directed, if the requester filed
the request with an office other than the office which is likely to have possession
of the records requested, in which case the items in subparagraph C do not apply.
B Acknowledgment Letters With Time Extension Notification
When it is known, from the start, that a time extension will be needed, add the following to
the acknowledgement letter.

Additionally, please be advised that we are taking a time extension to properly process your
request, because of: [choose 1:
a. the need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request.
b.

the need to search for, collect, and appropriately examine a voluminous amount of
separate and distinct records which are requested in a single request.

c. the need for consultation, which will be conducted will all practicable speed, with
another Department or agency with substantial subject-matter interest in the request.]
We hope to be able to respond to you on or before [month, day, year of new due date]
___________________.

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2-INFO (Rev. 1) Amend. 1

Page 3-23

Par. 23
23

Acknowledging FOIA Requests (Continued)
C Acknowledgment Letters Requesting Additional Information
When requests do not contain all information needed to complete the request,
acknowledgement letters should contain information in subparagraph A, plus the following
information:

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•

request for clarification or limitation of the scope of the request, when records are
deemed not to be reasonably described

•

request for fee assurance, including the following, as applicable:
•

estimated fee amount, including the computations for each service that is determined
chargeable

•

notification to the requester that he/she may reduce the scope of the request to reduce
the applicable fees

•

request for advance payment of FOIA fees

•

request for fee category clarification or additional information to support the fee category
claimed

•

FSA response to a request for expedited processing, if the request has been perfected
(subparagraph 21 C)

•

FSA response to a request for a waiver of all FOIA processing fees.

2-INFO (Rev. 1) Amend. 1

Page 3-24

Par. 23
23

Acknowledging FOIA Requests (Continued)
D Acknowledgment Letters as FSA’s Final Response
In the following circumstances, where no further processing of a FOIA request is required,
acknowledgement letters may function as FSA’s final response letter. The following are the
most common instances, for a more complete list see subparagraph 26 J.
Notes: USDA regulations allow FSA to regard a FOIA request that substantially duplicates a
recent FOIA request previously filed by the same requester as a duplicate. When
acknowledging a duplicate request, FOIA processers will inform the requester of
USDA’s policy with respect to substantially duplicate requests in the
acknowledgement letter and close the request.
Many FSA records are already in the public domain and accessible to the public
through FSA’s public web site at www.fsa.usda.gov (paragraph 5).
IF…
request is for FSA records that are
known to be publicly accessible on
FSA’s public web site
it is not initially apparent, when
perfecting the request, that the
records requested are accessible on
FSA’s public web site
request is for FSA records that are
known to be in the public domain;
such as when they have been
published in FR or are available
from GPO

THEN FOIA processers will…
inform the requester how to locate the requested
records on the web site in the acknowledgement letter
and close the request.
continue to process FOIA request.

inform the requester how to obtain the records
requested from the applicable source in the
acknowledgement letter and close the request.
When records are available for purchase from GPO,
requesters will be advised to order them by any of the
following:
•
•
•

e-mail to http://bookstore.gpo.gov/
FAX to 202-512-2104
mail to:
U.S. GOVERNMENT PRINTING OFFICE
PO BOX 979050
SAINT LOUIS MO 63197-9000.

Note: Public domain records may be provided if they are readily available in the FSA office
and not so lengthy that their copying would subject the requester to billable fees.

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2-INFO (Rev. 1) Amend. 1

Page 3-25

Par. 23
23

Acknowledging FOIA Requests (Continued)
D Acknowledgment Letters as FSA’s Final Response (Continued)
Additional written communications with the requester may be required before a request can
be processed. Frequently, it will not be possible to determine if all fee issues associated with
processing a FOIA request have been resolved, if it is not clear what records are actually
being sought from the initial description of the records requested. FOIA processers will
respond to subsequent communications with a requester, in response to requests for
clarification or limitation of the scope of the request or requests for written fee payment
assurance or advance payment of fees as soon as practicable, with the following:
•
•

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date the request was perfected
date by which FSA’s response might be expected as soon as the request is perfected.

2-INFO (Rev. 1) Amend. 1

Page 3-26

Par. 24
24

Obtaining Records Requested
A Locating Records
After a valid FOIA request has been perfected and acknowledged, FOIA processers will
locate all the records that must be evaluated to properly respond to FOIA request. When
requesting records from other FSA offices or staff, FOIA processers will:
•

not delay issuing the request for records even if prior, pending FOIA requests in the same
track have yet to be completed, based on the first-in, first-out principle
Note: FOIA processers must expect to have FOIA requests in all stages of processing at
any given time. Requesting records from other FSA offices or staff is a task that
can be accomplished relatively quickly. While records are being located and
copied, work can proceed on the review for releasing records responsive to prior,
pending FOIA requests in the same processing track.

•

make requests in writing; e-mail communications are often the most effective method of
requesting records from program offices, a copy of the request should be included as an
attachment

•

provide offices or staff with a reasonably complete description of the records sought,
along with the date on which they are to be provided to FOIA processing office; unless
the request is for a voluminous amount of records, allowing 1 calendar week for
production of the records should be adequate

•

ask offices or staff for copies of all responsive records; the originals of records requested
under FOIA should remain in FSA files
Note: Copies provided should:
•
•
•
•

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be clearly legible
be 1-sided, not back-to-back
have no redactions
be clipped or banded in sets, not stapled.

2-INFO (Rev. 1) Amend. 1

Page 3-27

Par. 24
24

Obtaining Records Requested (Continued)
A Locating Records (Continued)

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•

provide offices or staff with any guidance necessary applicable to conducting FOIA
searches, as detailed in subparagraph B; in particular, as applicable, alert offices or staff
to the threshold for FOIA fees beyond which offices or staff should suspend their search
for responsive records (subparagraph C), to allow FOIA processer time to contact the
requester to obtain written assurance for payment of additional FOIA fees

•

ask offices or staff conducting the search to document their efforts, according to the
guidance provided in subparagraph D

•

ask offices or staff conducting the search for any recommendations that they might have
as to which records should be withheld from release when the individuals involved are
knowledgeable about both the responsive records and FOIA exemptions

•

retain a copy of the request for records in the request’s official case file, and follow up
with the office or staff if records are not provided by the effective due date for the search

•

retain a copy of documentation about file searches conducted in the request’s official case
file.

2-INFO (Rev. 1) Amend. 1

Page 3-28

Par. 24
24

Obtaining Records Requested (Continued)
B Searching for Records
FOIA requires that FSA make a reasonable search for all records responsive to a valid,
perfected FOIA request. This means that:
•

FSA will:
•

undertake a search that is reasonably calculated to uncover all responsive documents;
the reasonableness of FSA’s search depends, in-part, on how the search was
conducted in light of the scope of the request, and of the description of the records
sought, particularly if the description of the records sought includes specific details
about the circumstances surrounding the creation or maintenance of the records

•

search for records in all offices that are reasonably likely to have responsive records

•

search for records in all formats in which responsive records might reasonably be
presumed to be maintained; such as paper, electronic, microfilm, etc.

•

search for all unique records responsive to FOIA requests, remembering that, under
FOIA, a copy of a memo, for example, containing hand notes made by FSA
employee, is considered a different document from the memo as originally issued, as
is a copy of that same memo transmitted by FAX, containing FAX transmission
notations; only records that are exact duplicates, with respect to every marking on
every page, can be regarded as duplicate records under FOIA
Note: FSA is required to provide only 1 copy of every responsive record in its
possession to requesters, regardless of how many copies of that same record
FSA maintains in its files.

•

search for all responsive documents that were in existence as of the date the search
was initiated by the office or staff conducting the search; FSA will consider any
records created after the date the search began as not responsive to the request

•

recall responsive records in FSA’s possession that have been transferred to FRC for
temporary storage, or arrange for them to be copied
Note: When custody of responsive records has been transferred to NARA, FOIA
processers will advise the requester, in writing, to request them from NARA
directly, providing a name, address, and telephone number of a contact person
at NARA. If records transferred permanently to NARA constitute the only
records responsive to the request, this communication constitutes FSA’s final
response letter to the requester with respect to this request.

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2-INFO (Rev. 1) Amend. 1

Page 3-29

Par. 24
24

Obtaining Records Requested (Continued)
B Searching for Records (Continued)
•

while FSA must make every effort to uncover all relevant documents, a reasonable
search is not equivalent to a perfect search
Note: DOJ advises that, “an agency’s inability to locate every single responsive record
does not undermine an otherwise reasonable search”.

•

while FSA must generally conduct a search for responsive documents in response to
every valid FOIA request, there are some uncommon instances in which it is possible to
determine from a description of the records requested, alone, without conducting a file
search, that FSA could not reasonably be presumed to have responsive records in its
files; such as a request for “all records related to alleged terrorist xxxxxx”, unless the
alleged terrorist had some identifiable connection with a USDA mission.
Note: Federal agencies receive this type of request when individuals seeking records file
FOIA requests with Federal agencies without regard for their specific delegated
missions.

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2-INFO (Rev. 1) Amend. 1

Page 3-30

Par. 24
24

Obtaining Records Requested (Continued)
C Suspending Record Searches for Fee Considerations
When FOIA fees are applicable, FSA offices or staff searching for responsive records should
be made aware of the threshold at which their search for responsive records should be
suspended if the actual search time required to locate responsive records greatly exceeds the
original estimate. Generally, this can be accomplished by asking FSA offices or staff to
suspend their search for responsive records after “x” number of hours, based on the number
of hours that were originally calculated when the initial estimate of FOIA fees was calculated
(subparagraph 21 C). FSA offices or staff searching for responsive records should be asked
to suspend the search for responsive records at this point, compile a new estimate of the total
time required to complete the search, and provide this information to the office processing
the FOIA request. With this information in hand, FOIA processers shall contact the requester
to ask for written assurance of additional fee payment and provide the opportunity to limit
his/her search to the records already located.
The requester does not have a right to modify the request to reduce the cost of the request, if
the modification would require spending additional search time.
Example: A requester asks for category I, II, III, and IV information, and agrees to pay for
up to 4 hours of search time. He/she cannot limit the request to only category I
and II after 4 hours of search time, if offices or staff have already exhausted the
initial 4 hours of search time locating all records responsive to categories III
and IV.
Unless a requester prioritizes the records requested, either in the initial request letter or in
subsequent communications received in the course of perfecting the request, he/she has no
control over the order in which the requested records are searched for in FSA files. If the
requester does not provide additional written fee payment assurance, the search should
formally be stopped and the records located reviewed for release.

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2-INFO (Rev. 1) Amend. 1

Page 3-31

Par. 24
24

Obtaining Records Requested (Continued)
D Documenting Record Searches
Offices and staff conducting FOIA record searches will document their efforts using the
format in subparagraph E, by providing the following information to the office processing
FOIA request:
•

number of hours of search time required to locate responsive records, itemized by the
hourly salary of the employees conducting the search, or by indicating the number of
hours of clerical search time expended and the number of non-clerical search time
expended
Note: Search time will be accounted for in 1/4 hour segments. The minimum search
time reportable is 1/4 hour.

•

which files or records systems were searched, identified by name or number as
applicable, and where responsive records were located

•

date on which the file search was begun

•

statement attesting either of the following:
•

no responsive records were located

•

a copy of all responsive records located are being provided to the office processing
FOIA request

•

name and contact information of FSA official responsible for the file search

•

a signed, dated statement from FSA official responsible for the file search stating,
“I certify that I am responsible for the search of records conducted in my office
encompassed by this request, and the attached records were the only documents located
in response to this request.”

If an appeal for adequacy of search or FOIA lawsuit is filed, the FSA official responsible for
the file search will be required to explain how the search was conducted or to execute a
declaration demonstrating the reasonableness of the search to the court. The information
collected in this subparagraph will provide the basis for these statements.

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2-INFO (Rev. 1) Amend. 1

Page 3-32

Par. 24
24

Obtaining Records Requested (Continued)
E Example Letter to Other Office Requesting FOIA File Search
The following is an example letter to be used when requesting FOIA file searches.

TO:
FROM:
SUBJECT:
DATE:

[Staff Member maintaining requested records]
[FOIA Officer/Coordinator]
Request for Freedom of Information Act (FOIA) File Search:
Control Number: [Insert number]
[Date]

We have received a FOIA request asking for records under your control. A copy of the
request is attached. This requester has ___ or has not___ agreed to pay FOIA fees.
•

Please read this request carefully and conduct a thorough search for all of the records
that the requester is seeking. If you have any questions – or if there is any doubt in your
mind -- as to what this requester is seeking, please contact me before beginning your
search. Do not contact the requester for clarification.

•

Please furnish me with a copy of all responsive documents located. When copying
documents, please DO NOT STAPLE them together. Clip or band them together as
appropriate.

•

Please keep track of the amount of time required to conduct your search for responsive
records, and note this on the attached memo to be returned to me with copies of the
responsive documents. If you anticipate that it will take more than 2 hours to complete
your search, please contact me before beginning it. If you discover that it takes more
than 2 hours to complete your search, after you have started it, please contact me before
continuing it (unless the requester has agreed to pay sufficient FOIA fees to cover the
cost of processing his/her request. See above.)

•

Please keep track of where you searched for responsive records, and note this on the
attached memo. In the event of an appeal or litigation concerning this request, you will
be asked to explain where you searched for responsive records and why you searched
these files, rather than other files.

•

Please complete your search for responsive records by [insert date].

Thank you for your prompt assistance with this request.

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2-INFO (Rev. 1) Amend. 1

Page 3-33

Par. 24
24

Obtaining Records Requested (Continued)
F Example Response Letter From Office Providing FOIA File Search
The following is an example response to be used by office providing FOIA file searches
when replying to FOIA file search requests.

TO:
FROM:
SUBJECT:

[FOIA Officer/Coordinator]
[Staff Member maintaining requested records]
Report of FOIA File Search: Control #[Insert number]

____

No responsive documents were located relevant to this request.

____

Attached are all responsive documents/information located in response to this
request. (Records attached.)

____

I spent _____ hours of [grade _____, step _____, or circle 1: clerical /
professional] search time looking for responsive records (in quarter hour
increments. Minimum time reportable = ¼ hour.).

____

The records system(s) by number/name searched were:
System

Results
Positive
Negative
__________________________________ / ___________
__________________________________ / ___________
__________________________________ / ___________
__________________________________ / ___________
I certify that I am responsible for this records search conducted in response to this FOIA
request and that the attached records were the only responsive documents located.
Signature: ________________________

Date: _________________

Printed/Typed Name: ________________________________________
Title: _____________________________________________________
Telephone #: _______________________________________________
E-Mail Address: _____________________________________________

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2-INFO (Rev. 1) Amend. 1

Page 3-34

Par. 24
24

Obtaining Records Requested (Continued)
G Actions To Be Taken as a Result of File Searches
When:
•

no records are located, as FSA’s final response to the requester with respect to this
request, FOIA processers will inform the requester that there are no records responsive to
the request and provide the requester with his/her appeal rights, according to
subparagraph H, advising the requester that all appeals must be:
•
•
•

in writing
filed within 45 calendar days of the date of the denial
mailed to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570
Notes: Write “FOIA APPEAL” on the letter and envelope to ensure prompt
handling.
See 1-APP, Exhibit 58 for mandatory language to insert in adverse FOIA
response letters.

•

FSA records are located, FOIA processers will review the records for release, under
FOIA (paragraph 25)

•

records originating with other USDA or Federal agencies subject to FOIA are located,
FOIA processers will refer the records to the applicable agencies for a release
determination and direct response to the requester.
Note: FOIA processers will inform the requester, in writing, of the referral indicating
the number of pages of responsive documents that are being referred, and
providing a name, address, and telephone number of a contact person at the
applicable agency. If records originating with other agencies constitute the only
records responsive to this request, this response is FSA’s final response letter to
the requester with respect to this request.

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2-INFO (Rev. 1) Amend. 1

Page 3-35

Par. 25
25

Reviewing Records for Release
A FSA Disclosure Policy
In response to a FOIA request, FSA will make all non-exempt records available to the public
consistent with the letter and spirit of FOIA. FOIA processers will not withhold otherwise
non-exempt records because of the following:
•
•
•
•

records might reveal an FSA administrative or operational inefficiency
records might embarrass FSA officials
identity of the requester
requester’s purpose for seeking the records, if known.

B Reviewing Records
FOIA processers will review all responsive records, on a page-by-page basis, to determine if
any portions of the pages are protected from release by any of the 9 FOIA exemptions.
Making a determination that specific documents, or portions of documents, are protected
from release requires an understanding of FOIA exemptions. FOIA exemptions are covered
in depth in Part 5; see Exhibit 24 for a quick-start guide.
•

Reviewing (and redacting, as needed) responsive records is the most time-consuming
aspect of processing FOIA requests. It is important; therefore, that this process be
conducted as efficiently and effectively as feasible. Although the procedures discussed
herein are described as if they are performed in a linear fashion; that is, first, all records
are reviewed for release, second, all records requiring redaction are redacted, etc., in
practice, so long as FOIA processers have a thorough understanding of FOIA
exemptions, review and redaction of FOIA documents can and should be performed more
or less simultaneously.

•

Unless it is reasonably certain that most of the documents responsive to a particular
request will be releasable, under FOIA, it is a useful practice to begin the review process
by making a second copy of all responsive documents. This is because official FOIA
case files must contain both of the following:
•
•

copies of all documents as released to the requester
copies of all documents in their original form.

Note: If FOIA processers redact the copy of the responsive documents that they receive
from other offices, they will no longer have a copy of the unredacted documents
in their possession. Unredacted documents must be produced if an appeal or
litigation is filed.

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2-INFO (Rev. 1) Amend. 1

Page 3-36

Par. 25
25

Reviewing Records for Release (Continued)
B Reviewing Records (Continued)

1-4-13

•

When performing the page-by-page review of responsive documents, it is a useful
practice, if using manual methods of redaction, to mark (with brackets or other
indications) passages or portions of the page being reviewed in pencil, to indicate the
extent of the page’s content that needs to be withheld; to annotate the page, in pencil,
with the exemption authorizing the withholding and to note the exemption cited on FOIA
case file’s exemption log (subparagraph F).

•

If there is no reasonable doubt that the passages or portions of the page being reviewed
are protected by the specific exemptions indicated on the page, redaction can take place
immediately, before reviewing the next page. Occasionally, given the content of
particular documents, it is useful to mark an entire document before redacting any of the
passages deemed to require redaction, to ensure that similar passages are being treated
consistently, etc.

•

Once the review and redaction process has been completed, in all cases in which
redactions have been made, and in all cases in which there were substantive questions as
to the releasability of particular passages or portions of documents, a second, final review
of the documents, comparing the originals with the documents in the form proposed for
release to the requester should be made before copying them for inclusion with FSA’s
response. Ideally, this review should be performed by another FOIA processer who is
knowledgeable about the exemptions. In instances where this is not possible, it is a
useful practice to set the finished set of documents aside for a short while, so as to be able
to return to them “with fresh eyes.”

•

Once review, redaction, and final review, of all responsive documents has been
completed, a copy of all releasable documents containing all documents releasable
without redactions and all redacted documents should be made for the requester.

•

Copies of releasable documents must be clearly legible. When reproducing documents
that are, themselves, barely legible, care must be taken to generate as legible a copy as is
technically feasible, given the standard office equipment available in FSA offices. When
releasing records with limited visibility, because of the condition of the documents
received from the FSA office that maintains them, records should be stamped or
annotated with the words, “Best Available Copy”.

2-INFO (Rev. 1) Amend. 1

Page 3-37

Par. 25
25

Reviewing Records for Release (Continued)
C Segregating Records
FSA will not withhold responsive records in their entirety simply because the requested
records contain some exempt material.
•

FOIA processers will conduct a line-by-line review of each page of each responsive
document, to determine what information needs to be withheld.

•

When any page of any record contains both exempt and nonexempt material, FOIA
processers will generally segregate any portions of the records that can be released under
FOIA, and make these available to the requester.
Note: The reasonably segregable portions must be released to the requester when it can
realistically be believed that a skillful and knowledgeable requester could not
reconstruct the redacted information.

•

If the non-exempt information is so intertwined with the exempt material that disclosing
the non-exempt information would leave only meaningless words and phrases, the entire
portion may be withheld.

•

Whenever possible, even when nearly all of the information contained in a document is
exempt from release, release enough information; such as at the heading of the page or
e-mail message, etc., for the requester to identify which document is being withheld,
unless releasing even this information would allow the requester to access information
that must be protected under FOIA. Consistently using this practice enables requesters to
better understand why the information was redacted, and eliminates the need for
compiling a documents list (subparagraph D).
Example: Three pages of hand-written notes taken at FSA meeting and shared with
meeting attendees, entitled: “FSA Stakeholders’ Meeting, January 9, 2006,”
containing impressions, conclusions, and recommendations for action of
mid-level managers attending the meeting.
Solution: Redact the entire document, except for the heading, with
annotation: “b.5 (this page + 2 pages)”.
Note: When noting exemption references on documents, instead of writing
the whole reference; such as, “5 U.S.C. 552(b)(5)” for Exemption 5,
FOIA processers may use the abbreviated, “b.5”.

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2-INFO (Rev. 1) Amend. 1

Page 3-38

Par. 25
25

Reviewing Records for Release (Continued)
C Segregating Records (Continued)
Occasionally a small amount of responsive information is “buried” within an otherwise
wholly non-responsive document.
Example: Responsive information includes 1 item in FSA’s “Weekly Activity Report;” all
other information in the Report is non-responsive.
IF the remainder
of the document…
is non-exempt
contains some data
that might be
exempt

THEN release the…
entire document.
1 paragraph of responsive material on whatever page of the
document it appears. Remove all non-responsive information,
except for the heading on page 1 of the document, including the
“FROM” and “DATE” information identifying the document. Add
annotation, “all other data non-responsive.” Removing
non-responsive data does not constitute a denial under FOIA. The
requester has not asked for non-responsive data. Do not provide
appeal rights when only non-responsive material has been removed
from documents released.

D Document Lists and Vaughn Indices
USDA regulations provide that requesters have no legal right to receive the following:
•
•

an index of documents denied
a “Vaughn index” with FSA’s initial response to their request.
Note: A Vaughn index is a detailed affidavit that identifies each document withheld,
states the exemption claimed, and explains how disclosure would damage the
interested protected by the claimed exemption. Vaughn indices are:
•
•

frequently prepared when FOIA requests are litigated
generally prepared by OGC with the assistance of FSA FOIA appellant staff.

There may be times when FOIA processers want to create a document list to accompany an
FSA response. Document lists may be appropriate in instances when a significant number of
responsive documents are being withheld, according to 1 or more exemptions. In such cases,
document lists may be prepared as a substitute for the required description of the records
withheld and their extent (paragraph 26). Document lists should identify the documents
withheld, without releasing any exempt content, extent of documents being withheld in
pages or other suitable form of enumeration, and exemptions that justify withholding the
individual documents being withheld.

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2-INFO (Rev. 1) Amend. 1

Page 3-39

Par. 25
25

Reviewing Records for Release (Continued)
E Tracking Time to Review Records
If reviewing, redacting, and otherwise preparing responsive records for a commercial-use
request, record the time spent performing this task. The total cost of review services required
to process records responsive to a commercial-use request is generally chargeable to the
requester, and must be added to the final calculation of fees incurred in processing the
request regardless of whether or not the requester will be billed for this amount. For all other
categories of requests, this time need not be tracked.
F Redacting Exempt Material
FOIA processers will ensure that all documents, or portions of documents that are exempt
from release because of the applicability of 1 or more of FOIA exemptions are isolated and
redacted from responsive records before these records are provided to the requester. If
information is exempt from release because of the applicability of more than 1 FOIA
exemption, all FOIA exemptions that apply will be indicated on both the applicable page and
in the final response letter.
FOIA processers may employ any of the following redaction methods that ensure all exempt
material is adequately withheld from disclosure.
Method
Description
1
For paper records, manual redaction may be achieved by covering exempt
material with white redaction/correction/cover-up tape and indicating its
removal by bracketing the material removed, or by heavily blackening exempt
material using wide black marking pens. The resulting pages should be
photocopied to ensure that no exempt material is visible on the portions of the
page disclosed.

2

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Note: When using black marking pens, it may be necessary to photocopy
pages twice; that is to copy the redacted page and to copy the copied
page, to ensure that no exempt material is visible when the page to be
disclosed is held in front of a bright light.
For paper records, electronic redaction may be achieved by scanning the paper
records and employing electronic software designed to cut-out portions of the
page, and printing out the resulting, redacted pages. It is critical, when using
electronic redaction software, to ensure that if redacted records are being
provided to requesters in electronic format; such as CD ROM disks, that the
software employed does not use a masking method of redaction that would
allow requesters to remove the electronic mask and view the exempt material.
FOIA processers who want to use electronic redaction of paper records should
contact the FSA FOIA Officer for recommendations about FOIA redaction
software.

2-INFO (Rev. 1) Amend. 1

Page 3-40

Par. 25
25

Reviewing Records for Release (Continued)
F Redacting Exempt Material (Continued)
Method
Description
3
For electronic records, if technically feasible, redactions shall be indicated at
the place in the records where such redaction was made. This may be achieved
by use of any identifiable technique that will clearly show the extent of the
redacted material. If not technically feasible, redactions made; such as specific
categories of information or data not released, will be explained in the final
response letter.
When redacting portions of pages, FOIA processers will indicate on the released portions of
the records the extent of the information deleted, unless this is evident from the document
itself, and the appropriate exemption under which each redaction was made, unless doing so
would harm an interest protected by the exemption used to withhold the information. This
can be indicated by noting the exemption justifying the withholding near the redaction; such
as, “b.5” or “b.6”.
Notes: When noting exemption references on documents, instead of writing the whole
reference; such as, “5 U.S.C. 552(b)(5)” for Exemption 5, FOIA processers may use
the abbreviated, “b.5”.
Software designed to support paper record electronic redaction allows FOIA
processers to make these annotations using “electronic rubber stamps.”
When reviewing and redacting a significant number of responsive documents, FOIA
processers may want to maintain a redaction log to assist them in keeping track of which
exemptions were applied to which documents, how many pages were released in-full or
in-part, and how many pages were withheld in-full. By keeping track of this information as
each document is reviewed and redacted, a second detailed count of pages granted in-full,
granted in-part, and denied in-full, and a second accounting of exemptions used, will not be
required. If a redaction log is maintained during the review process, it should be retained in
the request’s official case file as a part of the administrative record.

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2-INFO (Rev. 1) Amend. 1

Page 3-41

Par. 25
25

Reviewing Records for Release (Continued)
F Providing Records in Format Requested
FOIA provides that FSA must provide the records sought in the form or format requested by
the requester if the office responding to the request can readily reproduce the records in that
form or format with reasonable efforts. However, if the process of providing the information
would damage or destroy an original document; such as in the case of a very old and brittle
paper document, FSA may not be able to honor the requester’s format request. In this
situation, FOIA processers should contact the requester to see if an alternative format would
suffice. FOIA stipulates that FSA must make reasonable efforts to maintain their records in
forms or formats that are reproducible.
If the requested records can be converted to the format requested, FSA can charge the
requester the direct costs involved in converting the information to the requested format, if it
does not maintain the information in that format. These costs should be included in the fee
estimate provided to the requester when the request is first perfected (subparagraph 21 C).

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2-INFO (Rev. 1) Amend. 1

Page 3-42

Par. 26
26

Issuing FOIA Request Response Letters
A Response Letters
FOIA processers will issue a written response to all valid FOIA requests. Response letters
should be written in clear, plain language that can be understood by the requester. Response
letters will advise the requester of FSA’s determination about the releasability of the records
requested.
B Granting Access
When FOIA processers determine, after a review of all records responsive to the request, that
all records are fully releasable; that is none of the record, in whole or in-part, is exempt from
disclosure according to any of the 9 FOIA exemptions, they will issue a response letter
granting access to all responsive records. The letter will advise the requester of the
following:

1-4-13

•

FSA is granting the request for access to the records requested; such as, “The FSA FOIA
Office has determined that your request will be granted in-full.”

•

extent of the records being released

•

date on which the responsive records are to be provided, if they are not included with the
response letter.

2-INFO (Rev. 1) Amend. 1

Page 3-43

Par. 26
26

Issuing FOIA Request Response Letters (Continued)
C Granting Partial Access
When FOIA processers determine, after a review of all records responsive to the request, that
a portion of the requested records are exempt from disclosure according to 1 or more of the 9
FOIA exemptions, they will issue a response letter granting access in-part to the requested
records. The letter will advise the requester of the following:
•

FSA is granting the request for access to the records requested in-part; such as, “The FSA
FOIA Office has determined that your request will be granted in-part.”

•

extent of the records being released in-full, the extent of the records being released
in-part; that is with redactions, and/or the extent of any records being withheld in-full

•

exemptions that justify withholdings

•

name and title or position of FSA official responsible for the determination that a portion
of the records requested are exempt from disclosure under FOIA

•

requester’s right to appeal withholding that portion of the records that are being withheld,
following the guidance provided in subparagraph 24 H, advising the requester that all
appeals must be in writing, filed within 45 calendar days of the date of the denial letter,
mailed to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570
Notes: Write “FOIA APPEAL” on the letter and envelope to ensure prompt handling.
See 1-APP, Exhibit 58 for mandatory language to insert in adverse FOIA
response letters.

•

1-4-13

date on which that portion of the responsive records that are being released will be
provided, if they are not included with the response letter.

2-INFO (Rev. 1) Amend. 1

Page 3-44

Par. 26
26

Issuing FOIA Request Response Letters (Continued)
D Denying Access
When FOIA processers determine, after a review of all records responsive to the request, that
all of the requested records are exempt from disclosure according to 1 or more of the 9 FOIA
exemptions, they will issue a response letter denying access to the requested records. The
letter will advise the requester of the following:
•

FSA is denying the request for access to the records requested; such as, “The FSA FOIA
Office has determined that your request will be denied.”

•

extent of the records being denied in-full

•

exemptions that justify withholdings

•

name and title or position of FSA official responsible for the determination that all of the
records requested are exempt from disclosure under FOIA.

•

requester’s right to appeal withholding all of the requested records, following the
guidance provided in subparagraph 24 H, advising the requester that all appeals must be
in writing, filed within 45 calendar days of the date of the denial letter, mailed to the
following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570
Notes: Write “FOIA APPEAL” on the letter and envelope to ensure prompt handling.
See 1-APP, Exhibit 58 for mandatory language to insert in adverse FOIA
response letters.

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2-INFO (Rev. 1) Amend. 1

Page 3-45

Par. 26
26

Issuing FOIA Request Response Letters (Continued)
E Discretionary Releases
USDA regulations permit FSA to make discretionary releases of records otherwise exempt
from disclosure according to 1 of the 9 FOIA exemptions when a release is not otherwise
specifically prohibited by Executive Order, statute, common law, or regulation
(paragraph 62). If an FSA office determines that making a discretionary release is
appropriate and is consistent with FSA and USDA policy, FOIA processers will:
•

understand that under FOIA, when making a discretionary release, “a release to 1 is a
release to all,” meaning that records exempt from disclosure according to FOIA released
to 1 requester, on a discretionary basis, must be released to all other requesters seeking
access to these same records
Note: The decision to make a discretionary release constitutes a decision to release
certain, specific records that would otherwise be protected by FOIA, not a
decision to release records that would otherwise be protected by FOIA to a
certain, specific requester.

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•

advise the requester that the requested information is exempt from disclosure under
FOIA, but that FSA has decided to exercise its discretion and is releasing the information

•

document, in writing, the rationale for making the discretionary release, including a
statement identifying the FSA official responsible for the discretionary release, and a
signed and dated statement from the FSA official certifying that the release is not
prohibited by Executive Order, statute, common law, or regulation

•

retain the discretionary release statement, as described in this subparagraph, in the official
case file for the request.

2-INFO (Rev. 1) Amend. 1

Page 3-46

Par. 26
26

Issuing FOIA Request Response Letters (Continued)
F Interim Response Letters
When responding to a request for a voluminous number of records, all of which must be
reviewed and redacted, if applicable, for release, FOIA processers may issue interim
response letters, providing the requester with FSA’s determination on the releasability of a
given portion of the requested records; rather than issuing 1 response letter covering all
requested records, to provide a requester with some of the requested records by an earlier
date, as follows:
•

when issuing interim response letters, each letter should advise the requester as to
whether that portion of the records was granted in-full, granted in-part, or denied, and
should include all of the information required for each type of response, as described in
subparagraph B, C, and D, along with the fact that this response letter constitutes a partial
response, rather than the final response, to the request
Note: Do not provide appeal rights in interim response letters. Provide appeal rights for
any records withheld in-full or in-part, 1-time only, in the final response letter.

•

if at all possible, interim response letters should provide the date on which FSA intends to
issue either the next interim response letter or final response to the request
Note: The final response letter should advise the requester that it is FSA’s final response
to the request and should contain a summary of all prior interim response letters.

•

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the overall disposition of a FOIA request, for which interim response letters have been
issued, when interim response letters contain differing release decisions; such as
1 interim response letter granting total access, and 1 interim response letter granted
access in-part or denying records altogether, will be determined to have been granted
in-part.

2-INFO (Rev. 1) Amend. 1

Page 3-47

Par. 26
26

Issuing FOIA Request Response Letters (Continued)
G Other Information To Be Included in Response Letters
In addition to information relating to releasability of records requested under FOIA, response
letters will contain the following information, as applicable:
•

description of records requested, if a copy of the request is unavailable to be included as
an attachment to the letter

•

date the records were requested

•

date the request was received and perfected by FSA

•

control number assigned to the request

•

any modifications to the scope of the request agreed upon, in writing, between the
requester and FSA

•

other information pertinent to processing the request; such as information about releasing
records requested under the Privacy Act for a FOIA/Privacy request, information about
reproducibility of the records in the format requested by the requester, etc.

•

FOIA fees statement, identifying the actual fees assessed for searching for responsive
documents, reviewing and redacting the responsive documents, as applicable, duplicating
the responsive documents being released, and any other category of applicable fees
Note: This statement is required even when the requester is not being asked to pay
FOIA fees.

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2-INFO (Rev. 1) Amend. 1

Page 3-48

Par. 26
26

Issuing FOIA Request Response Letters (Continued)
G Other Information To Be Included in Response Letters (Continued)

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•

statement identifying the amount of FOIA fees that the requester is being asked to pay,
with a statement advising the requester to make payment by check, draft, or money order
made payable to “Treasurer of the United States,” and the address to which payment
should be made; generally the address of the responding FOIA Office

•

statement, when FOIA fees are being assessed, that the requester has 30 calendar days
after receiving FSA’s final response letter to pay the amount charged, that the amount
owed is subject 31 U.S.C. 3701 and 3711 through 3720A provisions, and that interest
charges on unpaid FOIA assessments will accrue at the rate prescribed in 31 U.S.C. 3717,
beginning on the 31st day after the date of the response letter

•

name, telephone number, FAX number, and e-mail address, as appropriate, of a contact at
the FSA office to which questions about FSA’s response to the request shall be
addressed.

2-INFO (Rev. 1) Amend. 1

Page 3-49

Par. 26
26

Issuing FOIA Request Response Letters (Continued)
H Other FOIA Responses
Although most FOIA requests are responded to by a letter providing an FSA determination
granting access in-full to all responsive documents, granting access in-part to all responsive
documents, or denying access in-full to all responsive documents, there are occasions, as
discussed in the following table, when these types of responses are not appropriate.
Response
Type
Description
Glomar If a FOIA request is worded in a way that even an acknowledging existence or
non-existence of records in FSA files would reveal information that a FOIA
exemption seeks to protect, FOIA processers will issue a “Glomar response.”
•

Courts have upheld that a Glomar response may be appropriate in a
national security or law enforcement context; such as in response to a
FOIA request seeking access to law enforcement records about whether or
not an individual has been investigated, because simply revealing that an
individual has been investigated for criminal activity is likely to constitute
an invasion of personal privacy.

•

In a Glomar response, FSA asserts that it “can neither confirm nor deny
existence of responsive records”, see Exhibit 18.

•

A Glomar response does not constitute a formal denial of records.
Therefore, when issuing a Glomar response, appeal rights for the
appropriateness of FSA’s response to the request should be provided
following the guidance provided in subparagraph 24 H, advising the
requester that all appeals must be in writing, filed within 45 calendar days
of the denial letter, and mailed to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570
Notes: Write “FOIA APPEAL” on the letter and envelope to ensure
prompt handling.
See 1-APP, Exhibit 58 for mandatory language to insert in
adverse FOIA response letters.

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2-INFO (Rev. 1) Amend. 1

Page 3-50

Par. 26
26

Issuing FOIA Request Response Letters (Continued)
H Other FOIA Responses (Continued)
Response
Type
Glomar
•
(Continued)

•

Description
A Glomar response is only effective when it is given consistently for a
distinct category of requests. If it were to become known that FSA
provides a Glomar response only when records do exist, and gave a “no
records” response otherwise, then the purpose of this unique approach
would be defeated..
In situations where a Glomar response is appropriate, FOIA processers
should still conduct a search for responsive records and retain in the
administrative file.

When in doubt, FOIA processers should contact the FSA FOIA Officer for
guidance in determining if a Glomar response is an appropriate response to
a particular FOIA or FOIA/Privacy request.
No Records When no records responsive to a request are located, following a reasonable
search of FSA files, FOIA processers will provide the requester with a “no
records response,” according to subparagraph 24 D. When notifying
requesters that no records responsive to a request were located in FSA files,
FOIA processers will also notify the requester of their right to appeal the
determination, following the guidance provided in subparagraph 24 H,
advising the requester that all appeals must be in writing, filed within
45 calendar days of the date of the denial letter, mailed to the following
address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570
Notes: Write “FOIA APPEAL” on the letter and envelope to ensure
prompt handling.
See 1-APP, Exhibit 58 for mandatory language to insert in
adverse FOIA response letters
Note: If FOIA requesters file an administrative appeal of the
determination, the issue that they will be contesting is the adequacy
of FSA’s file search.

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2-INFO (Rev. 1) Amend. 1

Page 3-51

Par. 26
26

Issuing FOIA Request Response Letters (Continued)
I

Circumstances When Acknowledgement Letters Are Response Letters - Requests Never
Perfected
When a valid FOIA request is never formally perfected, because of the following, the
acknowledgement letter in which FSA asks the requester to clarify or limit the request, or
agree either to pay FOIA fees or provide advance payment of FOIA fees, will constitute the
final response letter, as follows:

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•

FSA office receiving the request does not maintain the records requested
(subparagraph 21 C)

•

requester has not reasonably described the records requested (subparagraph 21 C)

•

requester has not provided written assurance of his/her intention to pay FOIA fees as
high as are likely to be incurred in processing the request (subparagraph 21 C)

•

requester has not provided advance payment for processing the request, when required
(subparagraph 21 C).

2-INFO (Rev. 1) Amend. 1

Page 3-52

Par. 26
26

Issuing FOIA Request Response Letters (Continued)
J

Circumstances When Acknowledgement Letters Are Response Letters - Perfected
Requests
When a valid FOIA request is perfected, but FSA determines that no further processing of the
request is required because of the following, the acknowledgement letter in which FSA
advises the requester why FSA cannot respond to the request, where the requested
documents are available, or that FSA could not reasonably be presumed to have responsive
records, will constitute the final response letter, as follows:
•

request duplicates a recent FOIA request previously filed by the same requester
(subparagraph 23 D)



requested records are known to be publicly accessible on FSA’s public web site
(subparagraph 23 D)

•

requested records are known to be in the public domain and are available from another
source, such as the Superintendent of Documents (subparagraph 23 D)

•

requester is officially delinquent with respect to FOIA fees charged by FSA, USDA, or
any other Federal agency subject to FOIA; therefore, is not eligible to file a FOIA request
until the amount charged has been paid (paragraph 50)

•

it was possible to determine from a description of the records requested, without
conducting a file search, that FSA could not reasonably be presumed to have responsive
records in its files; such as a request for “all records related to alleged terrorist xxxxxx”
(subparagraph 24 B).
Note: FSA’s response to such a request constitutes a “no records response”
(subparagraph H).

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2-INFO (Rev. 1) Amend. 1

Page 3-53

Par. 27
27

Closing FOIA Requests
A Providing Records When Not Included With Response
Preparing to close completed FOIA requests begins after the final response has been issued.
If responsive records to be released were not released with the final response letter, FSA
processers will exercise all due diligence to provide the responsive records by the target
delivery date provided in the response letter. Include a copy of the final response letter,
stamped, “Copy”, with the responsive records to identify the records as responsive to that
particular request, and coming from your office.
Note: Many FOIA requesters file multiple FOIA requests for similar records at multiple
FSA offices. If FOIA processers do not let the requester know that FOIA processer’s
office has responded fully to his/her request, when the requester receives the
responsive records, the requester may not credit FOIA processer’s office with
responding and may file a no-response appeal.
B Fee Issue Followup
Before the FOIA case file for the request can be closed completely, all matters associated
with collecting chargeable FOIA fees must be resolved.
C Receiving Fees
As required by applicable financial management regulations, as follows, FOIA processers will
confirm fee payment receipt. Fee payment information is needed to account for and report all
FOIA fees collected according to the established policy.
IF located in…
State and County, Caribbean Area, Receivable Management,
or APFO
FMD
Washington, DC, office, except FMD

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2-INFO (Rev. 1) Amend. 1

THEN see…
3-FI.
43-FI.
established office policy.

Page 3-54

Par. 27
27

Closing FOIA Requests (Continued)
D Overdue Fees
In instances where FOIA fees are assessed, and requesters have not provided payment within
30 calendar days of the date of the bill, FSA offices may begin levying interest charges on an
unpaid bill starting on calendar day 31.

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•

Interest will be at the rate prescribed in 31 U.S.C. 3717, and will accrue from the date of
the billing.

•

FOIA processers will monitor requests for which FOIA fees are assessed, and notify
requesters, in writing, on or shortly after calendar day 31, that applicable FOIA fees have
not been paid, that interest on the fees chargeable may accrue, and that FSA is not
required to respond to any future FOIA requests filed by delinquent requesters until
payment for all applicable FOIA fees has been received.

2-INFO (Rev. 1) Amend. 1

Page 3-55

Par. 27
27

Closing FOIA Requests (Continued)
E Delinquent Requester List
FOIA processers will notify the FSA FOIA Officer, in writing preferably by e-mail, when a
FOIA requester is deemed to be seriously delinquent in FOIA fee payment.

1-4-13

•

FOIA requester is deemed to be seriously delinquent in the payment of FOIA fees on
calendar day 91 following FSA’s final response.

•

FSA offices reporting seriously delinquent requesters are responsible for notifying the
FSA FOIA Officer upon receiving payment of the overdue amount.

•

Seriously delinquent requester notifications sent to the FSA FOIA Officer will provide
the following information:
•

name of requester

•

organization with which requester is affiliated, if applicable

•

amount due FSA

•

date amount due (30 calendar days after date of final response)

•

FOIA control number of the request for which the amount is due

•

name of office issuing request for payment

•

contact employee’s name, telephone number, FAX number, and e-mail address for
office issuing request for payment.

2-INFO (Rev. 1) Amend. 1

Page 3-56

Par. 27
27

Closing FOIA Requests (Continued)
F Closing FOIA-CAP Records
Before FOIA case file may be closed completely, the FOIA-CAP record for the request must
be completed, as follows.
•

FOIA processers may complete the FOIA-CAP record before receiving fee payment.
Complete this record as soon after the final response has been issued and all responsive
records have been provided to the requester, because details relating to processing the
request will be fresh, and the case file will not need to be reviewed before data entry can
take place.

•

If fee payment has not been received when the FOIA-CAP record is completed, it will be
necessary to return to the FOIA-CAP record if/when payment occurs.

•

If fee payment has not been received by the date at which the FOIA-CAP FY is closed to
new entries, it cannot be added to the record in the new FY. In this instance, no further
actions are required to document payment of FOIA fees within FOIA-CAP.
Note: The paper administrative file should contain evidence of fees paid.

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2-INFO (Rev. 1) Amend. 1

Page 3-57

Par. 27
27

Closing FOIA Requests (Continued)
G Completing the Official FOIA Case File
Because it is possible that payment for FOIA fees may never be received by FSA, it is not
necessary to delay FOIA case file completion until fee payment has been received
(subparagraph 12 B), as follows:
•

ensure that all documents required to be retained are included in the official FOIA case
file

•

make notes in the file as needed to enable an FSA official not familiar with processing
the request to understand the decisions made in processing the request, particularly for
decisions made to release or deny responsive documents, from the case file alone
Note: If an appeal or litigation is filed, a copy of the complete case file may need to be
provided to OGC.

1-4-13

•

unless another arrangement of the case file contents is clearly appropriate to the contents
of this particular request, arrange the contents of the case file in reverse chronological
order, with the earliest (by date) documents on the bottom of the folder, and each later
document on top of each earlier document; this will result in a folder that has the final
FSA response letter on top, followed by a copy of any check, draft or money order
received in payment, as applicable

•

ensure that it is easily possible to determine which records were released, and which were
not, as applicable

•

annotate the FOIA request case file with its retention date, according to 25-AS,
Exhibit 45

•

if the case file is sufficiently large that multiple folders (or other appropriate document
containers) are required to house the case file, ensure that each separate folder (or
document container) is labeled with the control number of the request, name of the
requester, expiration date of FOIA request case file, an indication of how many separate
folders (or document containers) were required to contain the request, and the order of
each, in the file; such as 1 of 3, 2 of 3, 3 of 3

•

file the case file in the office’s completed FOIA files cabinet.

2-INFO (Rev. 1) Amend. 1

Page 3-58

Par. 27
27

Closing FOIA Requests (Continued)
H Record Retirement
Expired FOIA case files shall be forwarded to FRC, or destroyed as appropriate, on a regular
basis. Depending on the amount of available storage space in FOIA Office, and the number
of FOIA and FOIA/Privacy requests received in the course of a FY, the frequency of record
retirement and/or destruction will vary from office to office. Depending on the number of
FOIA requests or filing space available, forward/destroy FOIA case files on a quarterly,
semi-annual, or annual basis. Because the expiration date of each FOIA request case file
should be clearly labeled on each separate document container comprising the request’s
official case file, pulling all case files that have passed their expiration date should be
relatively simple. If an office has a regular, established time for performing record
retirement for records maintained in the office, expired FOIA records may be retired at that
same time.
Note: If there is a freeze on records destruction, FOIA records may not be destroyed. They
may; however, be retired to FRC.

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2-INFO (Rev. 1) Amend. 1

Page 3-59

Par. 28
28

Processing FOIA Requests Seeking Information Submitted From a Business Source
A Receiving Requests Containing Commercial or Financial Information
If FSA receives a FOIA request for records containing commercial or financial information
submitted by a person or entity outside the Federal Government (the submitter), under
Executive Order 12,600, or superseding Executive Order, FSA is required to consult with
the submitter before releasing the information requested.
Notes: Requests for records containing commercial or financial information generally seek
records relating to FSA contracts for goods or services, leases on real property, etc.
However, all requests for commercial or financial information submitted by persons
or entities outside the Federal Government must be reviewed based the consultation
required by Executive Order 12,600, or superseding Executive Order.
While some information submitted by agricultural producers to participate in USDA
programs might otherwise qualify as confidential commercial or financial information
submitted by a person or entity outside the Federal Government, FSA is not required
to consult with these parties, upon receiving a FOIA request for their records, because
this information may not be released to the public according to exemption 3
(paragraph 64) and Food, Conservation, and Energy Act of 2008, Section 1619.
Because FSA is required to consult with the submitter, upon receiving such requests,
responding to such requests within the statutory 20 workday deadlines is a major challenge.
It is very important that every step in the process is performed as promptly and as efficiently
as possible.

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2-INFO (Rev. 1) Amend. 1

Page 3-60

Par. 28
28

Processing FOIA Requests Seeking Information Submitted From a Business Source
(Continued)
A Receiving Requests Containing Commercial or Financial Information (Continued)
Immediately upon receiving any FOIA request for records containing commercial or
financial information submitted by a person or entity outside the Federal Government (the
submitter), FOIA processer shall:
•

acknowledge the request, advising the requester that FSA is giving the submitter an
opportunity to review and comment on the material requested (use the example letter in
Exhibit 23, subparagraph C)

•

if possible, take a time extension for processing the request in the initial
acknowledgement letter (Exhibit 23, subparagraph C) includes time extension language)
Note: Consultation with a submitter of commercial or financial information is not 1 of
the 3 valid reasons, under FOIA, for taking a time extension. However, searching
and collecting the requested records from an office that is separate from the office
processing the request, is a valid reason for taking a time extension. Taking a
formal time extension adds an additional 10 workdays to the statutory time limits
for processing the request, and allows FSA to charge the requester for the cost of
processing the request even if the statutory time limits are not met, according to
the Open Government Act of 2007.

•

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request a file search from the office that maintains the records, if applicable.

2-INFO (Rev. 1) Amend. 1

Page 3-61

Par. 28
28

Processing FOIA Requests Seeking Information Submitted From a Business Source
(Continued)
B Locating Requested Records
Immediately upon locating the requested records:
•

issue a written notice to the submitter, advising the submitter of the procedures for
objecting to releasing the requested information and specifying the date any objections it
might propose must be received by FSA to be considered in FSA’s response to the FOIA
request; provide a copy of the FOIA request in question and copies of the requested
records in the submitter notice package using the first example letter in Exhibit 23,
subparagraph A)
Note: Issuing the written notice by e-mail is recommended if FOIA processer can obtain
both the e-mail address of the party to whom the notice is to be sent and his/her
consent to receiving the responsive records by e-mail. Because these documents
may contain information that the submitter wants to protect from public release, it
is important that they be transmitted only to secure e-mail addresses. Since none
of these documents should contain PII, they may be transmitted by e-mail or
FAX, to confirmed addresses.

•

keep track of the date on which the submitter received the letter; in the event of “reverse
FOIA” litigation, FSA must be able to document when the submitter received the notice
Note: To keeping track of the date on which the submitter received the letter, if sending
by:
•
•
•

•

1-4-13

e-mail, request affirmative confirmation of receiving the e-mail
FAX, save the transmission confirmation page
USPS, send letter by certified, return-receipt-requested delivery.

if FOIA processer does not receive a response from the submitter within 10 workdays,
after proof of receipt, contact the requester by phone or e-mail to request the status of the
submitter’s response; communicate to the submitter the need for prompt action by
submitter, given FSA’s obligation to respond to the requester within 20 or 30 workdays,
as applicable in this instance, and remind the submitter that if FSA does not hear from
the submitter within a reasonable time period according to 7 CFR 1.12(a), the requested
records will be released to the requester without redactions.

2-INFO (Rev. 1) Amend. 1

Page 3-62

Par. 28
28

Processing FOIA Requests Seeking Information Submitted From a Business Source
(Continued)
C Receiving Submitter’s Comments
Immediately upon receiving the submitter’s comments, review the requested records for
release under FOIA, as follows.
•

Review and redact the records in light of the submitter’s comments, remembering that it
is the Government that makes the final decision as to what may be withheld, under
exemption 4, and what must be released to the public.

•

Remember that the mere possibility of employee raiding does not constitute an adequate
justification for the withholding, under exemption 4, of the names of submitter employees
and subcontractors (see National Air Traffic Controllers Association v. Federal Aviation
Administration, (D.C. Cir 2007)).

D Issuing FSA’s Response to the Request
Remember that whenever a decision is made to accept the submitter’s objections, and to
redact all of the information proposed for withholding under exemption 4, no further
communication with the submitter is required, unless the requester files suit in District Court
to compel releasing information withheld.
If a decision is made to release any of the information proposed for withholding under
exemption 4 by the submitter, then FOIA processor must:
•

notify the submitter of the release within 10 workdays of the scheduled date of release
Note: Whenever a decision is made to release any portion of the information that the
submitter has asked to be withheld, FOIA processor is required to inform the
submitter of the decision, in writing, 10 workdays before releasing the records
using the example letter in Exhibit 23, subparagraph C. Ensure that FSA can
document the date that the submitter received the notification of intent-to-release
by sending the letter by certified, return-receipt-requested delivery.

•

1-4-13

issue FSA’s response to the request on workday 11, after issuing the intent-to-release
notification, if the submitter does not file suit to block release of the information
proposed for release, over its objections, by FSA.

2-INFO (Rev. 1) Amend. 1

Page 3-63

Par. 29
29

Initial FOIA Request Appeal and Litigation (Continued)
A FOIA Appeal Rights
FOIA requesters have the right to administratively appeal any adverse determination made by
FSA, with respect to their requests. This includes, but is not limited to, the following
actions:
•

denying record release, in-full or in-part, based on at least 1 of the 9 FOIA exemptions

•

denying a request for expedited processing

•

denying a request for a fee waiver

•

issuing a no-records response to a request; they may appeal adequacy of FSA’s search

•

issuing a Glomar response to a request; they may appeal appropriateness of FSA’s
approach

•

failing to respond to an initial request.

Note: See 1-APP, Part 7 for additional appeal and litigation information.
FSA is required to inform requesters of their right to file an administrative appeal whenever
advising requesters of any adverse determination with respect to their initial request.
To assist the FSA appeals officer in processing appeals, ask FOIA requesters, when advising
them of their appeal rights, to do the following:
•

provide FSA with any additional information that they might have that has a bearing on
the issue under appeal
Example: When advising requesters of their right to appeal a determination that FSA has
no records responsive to a particular request, it is helpful to ask requesters to
provide us with the location of any responsive records, if it is known to them.

•

enclose a copy of their initial request letter in the appeal package.

Note: Example letters provided in Exhibits 11 through 23 contain examples of appeal rights
notifications adapted to the circumstances of the letter.

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2-INFO (Rev. 1) Amend. 1

Page 3-64

Par. 29
29

Initial FOIA Request Appeal and Litigation (Continued)
A FOIA Appeal Rights (Continued)
If any portion of the records were found and provided or accounted for in the final response
letter, appeal rights should not be provided.
FSA is not required to inform requesters of their right to file an administrative appeal when
informing requesters of the following:
•

only a portion of the documents requested were located

•

fewer documents than expected were located

•

request was closed, administratively, because a requester failed to clarify an unclear
request when clarification was asked for, or failed to provide written fee payment
assurance or advance fee payment, when asked, within 20 workdays.
Note: Except when a request for expedited processing and/or a request for a fee waiver
are being denied, appeal rights should never be provided for requests that have
not yet been perfected.

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2-INFO (Rev. 1) Amend. 1

Page 3-65

Par. 29
29

Initial FOIA Request Appeal and Litigation (Continued)
B Requests Remanded After Appeal
DOJ requires agencies to keep track of the time spend on any FOIA request that is remanded
for further processing after administrative appeal. For this reason, FSA offices processing
remanded FOIA requests must:
•

create new records for remanded requests in FOIA-CAP

•

notify requesters, in writing, of the new control numbers under which their requests are
being processed after administrative remand

•

receive an additional 20 workdays to process requests, unless the requests qualify for and
receive formal time extensions, in which case the time limit shall be extended an
additional 10 workdays.

FSA offices process remanded FOIA requests must also:

1-4-13

•

process remanded FOIA requests according to guidance provided by the Appeals and
Litigation Staff

•

add appropriate notes to the administrative files of the case files containing the request, as
initially processed and as processed after remand, to link the 2 case files

•

communicate to the requester, if needed as appropriate, to resolve any fee issues
associated with the search for responsive records

•

forward a copy of the final response letter to the Appeals and Litigation Staff, referencing
the appeal number under which the request was remanded for further processing.

2-INFO (Rev. 1) Amend. 1

Page 3-66

Par. 29
29

Initial FOIA Request Appeal and Litigation (Continued)
C Preventing Appeals
FOIA appeals must be expected, because FOIA requires FSA to withhold information
protected by 1 or more of the 9 exemptions and; therefore, it is not always possible to satisfy
requesters by releasing all of the requested records. However, there are steps that can be
taken to minimize the number of FOIA appeals filed. These include the following:
•

segregating and releasing non-exempt information in documents in which a portion of the
information is exempt; failure to do this consistently is the single most common ground
for the filing of avoidable FOIA appeals in FSA

•

providing a brief explanation of the file search conducted when advising that no
responsive records were located; such as informing the requester of which offices or files
were searched in response to the request; often, when a requester understands the lengths
that FSA went to in attempting to locate responsive records, he or she is less likely to file
an appeal alleging inadequacy of search

•

keeping the requester advised of FSA’s progress in processing a complex request, when
delays are encountered in obtaining responsive records, or in completing the review of
responsive records

•

issuing partial responses when processing a request involving a voluminous number of
responsive records; generally, when a requester receives a portion of the responsive
records at regular intervals, he or she is less likely to file an appeal complaining that the
initial request has not yet been completely satisfied.

If a FOIA appeal is filed, the FSA appeals officer will notify the office that processed the
initial request of the appeal and will request a copy of FOIA case file. Towards that end,
FOIA processors must ensure that FOIA case files are properly compiled and contain all
documents required to adjudicate an appeal, including a copy of all records released in-full or
in-part without the information withheld blacked out or redacted, and any notes
necessary to provide an adequate understanding of how the request was processed.
When FSA issues its final determination on the appeal, the Appeals and Litigation Staff will
notify both the requester, and the office that processed the request, of its decision. Under
certain circumstances; such as when granting an appeal based on adequacy of search, the
Appeals and Litigation Staff may direct the office processing the request to take further
action with respect to the request.

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2-INFO (Rev. 1) Amend. 1

Page 3-67

Par. 29
29

Initial FOIA Request Appeal and Litigation (Continued)
C Preventing Appeals (Continued)
If FOIA litigation occurs, the office that processed the initial request will be notified of the
litigation and of any action that it is required to take to assist OGC and DOJ in responding to
the lawsuit.
Offices processing FOIA requests should be aware that, with the passage of the Open
Government Act of 2007, FSA may be required to pay attorney fees and other litigation costs
when the court decides that FOIA plaintiff substantially prevailed. Formerly, these costs,
when awarded to plaintiffs by the court, were paid by the U.S. Treasury Claims and
Judgment Fund. With the passage of the Open Government Act of 2007, attorney fees and
costs, when awarded by the court, are to be paid by the agency processing the request using
its appropriated funds.
Offices processing FOIA requests should be aware that the Open Government Act of 2007
contains provisions providing that, “when the court orders producing any agency records
improperly withheld... and assesses against the United States reasonable attorney fees and
other litigation costs, and... additionally issues a written finding that the circumstances
surrounding the withholding raise questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special Counsel shall promptly initiate a
proceeding to determine whether disciplinary action is warranted against the officer or
employee who was primarily responsible for the withholding.”

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30

Preventing Processing Backlogs
A Definition of Backlog
According to DOJ, a backlog means all records whose processing has not been completed
within the statutory time limits. Backlogs are unacceptable.
B Preventing FOIA Request Backlogs
Most FOIA requests take only minutes to complete when they are done immediately. During
several FOIA request processing steps, FOIA processers are waiting for others to take action;
such as waiting for a program specialist to locate the responsive records. Because in FSA,
processing FOIA requests is primarily a collateral duty, making responding to FOIA requests
more of a priority is the best way to ensure that FOIA requests do not slide into backlog
status.
C Statutory Time Limits and FOIA Response Clock
Statutory time limits for processing FOIA requests do not begin until a FOIA request has
been received at the FSA office that has jurisdiction over the records and all issues relating to
clarity of scope and FOIA fees have been satisfied.
Note: This means that FSA should route FOIA requests for records managed by other FSA
offices immediately. The Open Government Act of 2007 mandates that FOIA
requests arrive at the office that has jurisdiction over the records sought within
10 workdays of receiving the request anywhere in FSA.
The FOIA clock does not start until requests are perfected.
Do not start the clock too soon upon receiving a FOIA request. Ensure the following before
starting the response clock:
•
•

FOIA processer understands what the requester is seeking or requests clarification
there are no fee issues that need to be resolved.
Note: If requester is unwilling to pay for the cost of processing the request, when FOIA
charges are assumed to be applicable, do not waste time searching for responsive
records.

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30

Preventing Processing Backlogs (Continued)
C Statutory Time Limits and FOIA Response Clock (Continued)
Do not assign a due date to the request until the request is perfected. Too many requests end
up in FSA backlogs because they were perfected before all the information needed to process
the request was received.
If, at anytime in request processing, FOIA processer learns that the cost of processing will be
greater the amount the requester was originally asked to pay, stop the clock and unperfect the
request while FOIA processer notifies requester of the new estimated cost of processing the
request.
D Closing Requests in 20 Workdays When Clarification or Fee Assurance is Not Received
Under FOIA, FSA is not required to:
•

search for records responsive to FOIA requests in instances where the scope of the
request is not reasonably described, or where there are outstanding FOIA fee issues

•

leave requests open, unperfected indefinitely, after notifying requesters about the scope
of the request or FOIA fees

•

contact requestor repeatedly if they fail to respond to our request for clarification or fee
assurance in a timely manner.

Within FSA, timely manner means 20 workdays. When we notify requesters that we will
close their requests after 20 workdays if they do not respond to our requests within this
timeframe, we may close the request without writing a second letter notifying them that we
closed the request.
Note: Although this procedure is not yet in our current FSA FOIA regulations, it is
permissible because the requester suffers no adverse impact by this procedure. If
FSA receives a clarification or fee assurance letter on workday 22, after it has closed
the request in question, a new control number is assigned and the request is processed
upon receipt.
Closing unperfected requests promptly eliminates the burden of issuing followup letters,
freeing employees to spend time on other pending requests.

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30

Preventing Processing Backlogs (Continued)
E Taking Time Extensions Whenever Warranted
Taking a time extension increases FSA’s allowable processing time by 50 percent, adding
another 10 workdays to the statutory time limits for processing FOIA requests. Always take
a time extension, when it is warranted, if FOIA processer is unable to complete request
processing within 20 workdays (see subparagraph 22 C for more information about how to
take a time extension).
FOIA processers are authorized to take time extensions only in the following 3 situations:
•

to search for and collect the requested records from field facilities or other establishments
that are separate from the office processing the request

•

to search for, collect, and appropriately examine a voluminous amount of separate and
distinct records that are requested in a single request

•

to consult with another Department or agency with substantial subject-matter interest in
the request, which will be conducted with all practicable speed.

FOIA processers should interpret the 3 situations liberally, if it is at all reasonable, and take
time extensions as needed.
Example: Take a time extension when the requested records are maintained in an office that
is separate from the office that is processing the request, as when a State FOIA
coordinator is processing a request for records that are maintained by a County
Office.
In certain circumstances; such as when processing requests for commercial or financial
information (confidential business information), if FOIA processer does not take a time
extension, it is nearly impossible to process the request within 20 workdays because FOIA
processers are required to allow the submitter of the information sought a reasonable period
of time to respond to the request for his/her position as to the releasability of the data
(paragraph 28).

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30

Preventing Processing Backlogs (Continued)
F Ensuring That the 10 Oldest FOIA Requests Are Completed Each Year
When offices are making every reasonable effort to respond to FOIA requests within the
statutory time limits, and find they still have FOIA requests in backlog status, DOJ
recommends that offices ensure that, at a minimum, they complete the 10 oldest FOIA
requests that were outstanding at the end of the previous FY by the end of the next FY.
G Educating Employees About the Need For Timely Searches
When offices are making every reasonable effort to respond to FOIA requests within the
statutory time limits, and find that the reason that they are unable to complete requests within
20 workdays is because the offices that possess the requested records do not complete their
file searches promptly, it may be necessary to provide the employees with further FOIA
training. The employees charged with conducting FOIA searches may not realize that:
•
•

FOIA requests have deadlines
their failure to conduct a timely file search has a potentially adverse impact on FSA.
Note: Failure to conduct a timely file search may:
•
•
•

subject FSA to a FOIA appeal or lawsuit based on nonresponse
cause FSA to loose the ability to charge FOIA fees
cause FSA to be assessed attorney’s fees and other court costs.

If FOIA processers do not request searches for records when requests have not been properly
clarified, or fee issues resolved, record custodians will have more time to provide records for
requests that are perfected and for which fees have been arranged. FOIA processers might
need to provide training, on a formal or informal basis, with parties responsible for
conducting FOIA searches. Adding FOIA as an agenda item to scheduled meetings of
program specialists can improve the speed at which responsive records are produced.

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30

Preventing Processing Backlogs (Continued)
H Automating Responsive Record Redaction and Release
Using automation to redact records according to subparagraph F, Method 2, and providing
responsive records electronically may help reduce the time and cost of providing them to
requesters. When records are scanned and redacted by electronic means, providing them on
CD ROM disk is both quick and inexpensive.
Before providing records in electronic format, confirm with the requester that he or she is
willing to accept them in electronic format, if this is not clear from the initial request letter.
I

Monitoring FOIA Workload/Staffing Ratio
Help prevent FOIA request backlogs by monitoring FOIA workload. Know how many FOIA
requests FOIA processer’s office receives every year, on the average, and what portion of a
full-time equivalent (or how many FTE full-time equivalents, as the case may be) is required
to process FOIA requests. When either the number of FOIA requests received increases
significantly, or the complexity of the requests increases significantly, unless FOIA processer
increases the human resources allocated to FOIA program, FOIA processer’s office may
build a FOIA backlog.
DOJ requires that FSA track the number of personnel required to process FOIA requests
received on an annual basis, and report the number of personnel required to process FOIA
requests in their annual FOIA Report to Congress (subparagraph J). By monitoring FOIA
workload/staffing ratio, FOIA processers will not only be prepared to provide FSA with the
information required for its annual report, but be in position to seek additional assistance,
from management, when workload demands exceed available human resources.

31-40 (Reserved)

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.

Par. 41
Part 4
41

FOIA Fees and Fee Waivers

General Provisions
A Fee Policy
Unless waived or reduced, FSA is authorized to charge fees for processing FOIA requests
that involve activities; such as record searches (both manual and electronic records), record
duplication, and, when applicable, review and redaction of records. Fees may also be
charged in situations when requesters ask for special services; such as certifying that records
released in response to requests are true copies of the original documents, or sending records
by special methods; such as express mail. Fees may not be charged for customary postage
costs or time spent by FOIA processers resolving legal or policy issues, or in monitoring a
requester’s inspection of FSA records, when this type of access to FSA records is
appropriate. For a more detailed discussion of the types of services for which fees may be
charged, and their charges, see paragraph 42. No higher fees or charges in addition to those
provided for in this handbook may currently be assessed for services under FOIA.
B Unsuccessful Search or Exempt Document Fees
Charges for unsuccessful searches, searches that fail to locate records responsive to a FOIA
request, or searches that locate records that are exempt from disclosure, shall be assessed at
the same fee rate as searches that result in releasable records. In agreeing to pay fees for
processing their FOIA requests, requesters are agreeing to pay for search services regardless
of whether or not these searches result in disclosing the requested records.

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41

General Provisions (Continued)
C Waived Fees
FOIA provides that certain categories of requesters will only be charged certain types of
FOIA fees. This means that certain categories of requesters are entitled to a waiver of certain
types of FOIA fees (paragraph 49). Additionally, under FOIA, requesters may also request a
complete or partial waiver of all FOIA processing fees (paragraph 50). FSA will
automatically waive fees incurred in processing FOIA requests when:
•

the cost of collecting fees exceeds the total amount that would otherwise be collected; for
USDA, this amount is $25 or less; when waiving fees of $25 or less, requesters will be
advised that FSA is waiving the applicable fee because, “the cost of collecting the fee is
equal to or greater than the amount of the fee itself” (7 CFR, Subtitle A, Subpart A,
Appendix A, Subsection 3(b))

•

requesters provide their own copy paper and copying equipment, in which case
duplication fees will not be charged (although search and review fees may be assessed, if
applicable)

•

FSA fails to respond to any FOIA request in 20 workdays from the date of perfection,
provided that a time extension to extend the processing period to 30 workdays was not
taken; that is provided that no unusual or exceptional circumstances apply to processing
the request; for any such request, all search and/or duplication fees that would otherwise
be charged will be waived; when waiving fees, in this instance, requesters will be advised
that FSA is waiving the applicable fee because “according to the Open Government Act
of 2007, search fees and duplication fees may not be assessed if the agency fails to
comply with any time limit” (see subparagraph 22 C for further guidance).

D Aggregating Requests For Fee Purposes
When there is a reasonable basis to conclude that a requester or group of requesters has
divided a request into a series of requests on a single subject or related subjects to avoid fees,
the requests may be aggregated, or treated as a single request, for fee purposes. Multiple
requests involving unrelated matters will not be aggregated.

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•

FOIA processers may presume that multiple requests that are made within a 30 calendar
day period have been made to avoid fees.

•

Where requests are separated by a longer period, FOIA processers will aggregate requests
for fee purposes only when there is a solid basis for determining that aggregation is
warranted under all the circumstances involved.

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Par. 42
42

Search Services
A What is Covered
Charges for search services cover the costs incurred by FSA personnel (clerical or
professional) used to locate and retrieve FSA records and information responsive to a FOIA
request. Search services include the following:
•

both manual and electronic searches

•

time spent examining records for information that is within the scope of the request

•

transporting personnel to places of record storage, or records to the location of personnel,
for record search, if such services are reasonably necessary; such as costs incurred in
retrieving records stored at FRC for conducting a search for responsive documents.

Note: Charges for search services may be assessed, when applicable, regardless of whether
or not they result in releasing responsive records (subparagraph 41 B).

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42

Search Services (Continued)
B Schedule of Charges
Fees for personnel time spent conducting either manual or computer searches will be
assessed in 1 of the 3 following manners in the given order.
IF…
1 employee is
involved in a search
a mixed class of
personnel is
involved in a search

THEN the search shall be assessed at the salary rate of…
the employee conducting the search, plus 16 percent of the
employee’s salary.
each employee conducting the search, plus 16 percent of the
employee’s salary.

Note: A mixed class of personnel for manual search purposes, and
where more than 1 employee is involved, is a group of
employees of unlike rank, grade, pay, or position.
an identical class of $10 per hour for clerical time and $20 per hour for supervisory or
personnel is used
professional time.
exclusively
Note: An identical class of personnel for manual search purposes,
and where more than 1 employee is involved, is a group of
employees of like rank, grade, pay or position.
Notes: Fees should be computed to the nearest 1/4 hour (15 minute increment).
Fees for computer searches and services shall be charged as follows:
•

mainframe computer searches and services shall be charged for at the rates
established in the user’s manual or handbook published by the computer center at
which the work will be performed; where the rate has not been established, the
rate shall be $44.50 per minute and computed to the nearest 1 second

•

computer searches on other than mainframes shall be charged for at the
manual/computer search rate. Fees should be computed to the nearest 1 second
when possible, to the nearest minute when to the second computation is not
possible.

All other costs incurred will be assessed at the actual cost to FSA (Exhibit 29).

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43

Review Services
A What is Covered
Only commercial-use requesters can be charged for review services. Charges for review
services cover the services of FSA personnel (clerical or professional) used in examining
records, both paper and electronic, located in response to a request to determine whether any
portion of any record located is exempt from mandatory disclosure. Review services include
processing any records for disclosure; such as doing all that is necessary to redact exempt
portions and otherwise prepare records for release. Review services do not include the time
spent resolving general legal or policy issues about the application of FOIA exemptions.
B Schedule of Charges
Fees for personnel time spent conducting either manual or computer searches will be
assessed in 1 of the 3 following manners in the given order.
IF…
THEN the search shall be assessed at the salary rate of…
1 employee is
the employee conducting the search, plus 16 percent of the
involved in a search employee’s salary.
a mixed class of
each employee conducting the search, plus 16 percent of the
personnel is involved employee’s salary.
in a search
Note: A mixed class of personnel for manual search purposes, and
where more than 1 employee is involved, is a group of
employees of unlike rank, grade, pay, or position.
an identical class of $10 per hour for clerical time and $20 per hour for supervisory or
personnel is used
professional time.
exclusively
Note: An identical class of personnel for manual search purposes,
and where more than 1 employee is involved, is a group of
employees of like rank, grade, pay or position.
Note: Fees should be computed to the nearest quarter hour (15 minute increment).
When appropriate, electronic data services relied on to ensure that large quantities of data
have been purged of data protected by 1 of the 9 FOIA exemptions; such as a computer
program written to ensure that FSA purchase card data has been purged of PII protected by
exemption 6, will be assessed at the actual cost to FSA (Exhibit 29).

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44

Duplication Services
A What is Covered
Charges for duplication services cover the costs incurred in making a copy of a record, or the
information contained in the record, to respond to a FOIA request. Copies can take the form
of paper, microform, photographs, audiovisual materials, or electronic records; such as
magnetic tape or disk.
B Schedule of Charges
Photocopying fees for:
•
•

8 1/2”×14” or smaller shall be $0.20 per page (per each sheet side)
larger than 8 1⁄2”×14” shall be $0.50 per page linear foot of the longest side of the copy.

The fee for other forms of duplicated records; such as microform, audio-visual materials, or
machine-readable documentation; that is, magnetic tape or disk, shall be the actual direct cost
of producing the records (Exhibit 29).

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45

Certification and Authentication Services
A What is Covered
Charges for:
•

certification services are the amounts charged by FSA for certifying that copies provided
are true copies of the original documents located in FSA files

•

authentication services are the amounts charged by FSA for authenticating documents
under Departmental Seal, including aerial photographs.

B Schedule of Charges
Certifications fees shall be $5 per page.
Authentications fees under Departmental Seal shall be $10 per page (Exhibit 29).

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46

Shipping Services
A What is Covered
Shipping service charges include costs incurred by FSA for the following:
•

shipping copies of records from the FSA office that maintains the records to the FSA
office responding to FOIA request

•

shipping copies of records when sending records to requesters by special methods; such
as express mail or overnight delivery, when asked by the requester to supply them by this
means, etc.

•

costs of special shipping containers required to mail copies of records in special formats;
such as audio-visual materials, to requesters.

B Schedule of Charges
Charges for shipping services will be assessed at the actual cost to FSA.
Note: Shipping charges will not be assessed for records shipped in standard formats to
requesters by USPS mail (Exhibit 29).

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47

All Other Services or Materials
A Covered Services or Materials
Any other materials or services required by FSA to locate, duplicate, or, as applicable, review
and redact records requested under FOIA. Examples of other materials or services include
transcription services, for converting audio tapes to paper format when requested under
FOIA and required to be redacted, or charges incurred by contractors maintaining records on
behalf of FSA where, by contractual arrangement, FSA must pay a contractor higher fees for
searching databases than are allowable under this schedule.
B Charge Schedule
Charges for all other applicable services will be assessed at the actual cost to FSA
(Exhibit 29).

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48

Charging Fees
A Table of Chargeable Fees for FOIA Services
The following table summarizes the chargeable fees for routine FOIA services categories.

Category
Search Services
Review Services
Duplication

Unit Cost
Clerical Time Professional Time
Unit Description
$10 per hour 1/ $20 per hour 1/
Charged in 1/4 hour increments.
$0.20 per page (per each sheet side)

Certification

$0.50 per page linear foot of the
longest side of the copy
$5 per page

Authentication

$10 per page

Other Services

Actual charges as established or
incurred by FSA

Single-sided copy, 8 ½” x 14”
or smaller.
Single-sided copy, larger than
8 ½” x 14”.
FSA certification that copies are
true copies.
Authentication of copies under
Departmental Seal.

1/ Whenever feasible, charge at hourly rate of actual salary plus 16 percent of salary.
Otherwise, charge at this standard USDA hourly rate (Exhibit 29).

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48

Charging Fees (Continued)
B Summary of Instances When Fees Will Not be Assessed
The following list provides instances in which FOIA fees will not be assessed. This
checklist may be used by FOIA processers who may be required to respond to requests:
•
•

for FSA records that qualify as valid FOIA requests
that do not qualify as valid FOIA requests that are processed under other guidance.

Note: Items in bold are not valid FOIA requests.
Item
Instance
1 The cost of collecting a fee would be equal to or greater than the fee itself. For
USDA, this figure has been calculated to be $25 (subparagraph 41 C).
2 When requesters provide their own copying equipment, materials, and services, no
copying fee will be assessed; however, fees for researching the request, locating and
compiling the records, and reviewing and redacting the records may still be
assessed, if applicable (subparagraph 41 C).
3 For search or duplication fees, when FSA fails to comply with any FOIA time limit,
and no unusual or exceptional circumstances apply to processing the request that
lead FOIA processers to take a time extension (subparagraph 22 D).
4 For time spent by FSA employee to resolve legal or policy issues raised while
processing a FOIA request (subparagraph 41 A).
5 For time spent monitoring a requester’s inspection/copying of FSA records
(subparagraph 41 A).
6 For postage costs when the responding FSA FOIA Office uses the normal postage
method; normal postage costs when replying or delivering responsive records to the
requester shall be absorbed by FSA (subparagraph 41 A).
7 Filling requests from other Federal Departments or Government agencies for
official use, provided quantities requested are reasonable in number.
8 For specific types of fees, when they are not applicable to specific categories of fee
requesters (paragraph 49).
9 Fee waivers or reductions of otherwise applicable FOIA fees are requested, in
writing, and granted by FSA (paragraph 50).
10 When providing records requested by the Chairperson of a Congressional
Committee or Subcommittee (subparagraph 21 A).
12 Copying is performed for the convenience of the Government, not required for
processing the request.
13 For search and review services when responding to a second request for the same set
of records from a different requester, when responsive records have already been
located, reviewed for release, and redacted, if required.
Note: When previous work performed is used as the basis for filling a current
FOIA request, fees shall be assessed only for the direct additional costs
associated with fulfilling the current FOIA request.

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49

Requester Categories for Fee Assessment
A Determining Fee Category
There are 4 categories of requesters for fee assessment purposes. When submitting a FOIA
request, a requester should specify what fee category he/she is in, in the request letter. If
he/she specifies a fee category, or he/she does not qualify for the specified category, when
perfecting a valid FOIA request, FOIA processers will make an FSA decision about requester
fee category.
IF a requester…
is submitting a FOIA
request on behalf of
another person or
organization; that is, if a
requester is an attorney
submitting a request on
behalf of a client
(individual or
organization)

THEN…
it is the underlying requester’s (the client’s) identity and intended
use that determines the fee category of that request. Based on
the information provided by the requester, FOIA processers will
determine their fee category.

Note: If an attorney chooses not to identify the party on whose
behalf the request is being filed, FOIA processers should
not contact the attorney to ask him/her to identify the
underlying client, but should class the attorney as a
commercial-use requester, unless the attorney provides
sufficient documentation to justify his/her being classed
as an other-use requester.
does not provide
FOIA processers may request additional documentation from
sufficient information to requesters to enable the FOIA processer to determine if this
justify that he/she is in
claim is valid. Alternatively, FOIA processers may, at their
the fee category claimed; discretion, assign requesters the most favorable fee category that
such as an individual
can be justified, given the information provided in the request
claims to be a free-lance letter.
journalist, but does not
Example: If it is reasonable to presume, from the information
provide sufficient
provided, that the individual claiming to be a
documentation to
free-lance journalist has no commercial interest in the
support the claim
records requested, he or she may be classed as an
other-use requester, if there is insufficient
documentation to support this claim.

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49

Requester Categories for Fee Assessment (Continued)
A Determining Fee Category (Continued)
IF a requester…
fee category
cannot be
determined from
the information
provided by the
requester in the
initial request
letter

THEN…
the requestor is deemed not to be perfected, for fee reasons. FOIA
processers will ask requesters, in writing in the acknowledgement
letter, to provide additional information sufficient to enable FSA to
make the fee category decision.
When asking a requester to provide additional information, FOIA
processers will advise the requester that if he/she does not respond to
the FSA’s request for additional information within 20 workdays of the
date of the letter, FSA will make a fee category determination based
solely on the information provided in the initial request.
If the requester does not respond within 20 workdays of the date of the
letter, then make the most reasonable determination possible, given the
information available.

Note: Without additional information, FOIA processers will presume that requesters asking
for copies of inherently commercial documents are commercial-use requesters.

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49

Requester Categories for Fee Assessment (Continued)
B Requester Categories for Fee Purposes
There are 4 requester categories for FOIA fee assessment purposes, as follows.
Category
Description
Commercial-Use Commercial-use requesters are individuals who seek information for a
use or purpose that furthers the commercial, trade, or profit interests of
the requester or the person on whose behalf the request is made. In
determining whether a requester falls into this category, FSA will
consider the identity of the requester and the intended use of the records
in addition to any other available information about the requester.
Note: For commercial-use requesters, FSA will assess fees that recover
the full direct costs of researching the request, locating and
obtaining the records, compiling and preparing the records,
redacting exempt information, reviewing and approving the
records for release, and duplicating the records. Commercial-use
requesters are not entitled to free search time, free review time,
or duplication without charge. FSA may recover the full direct
costs of work performed for commercial-use requesters, even if
there are ultimately no disclosed records.

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49

Requester Categories for Fee Assessment (Continued)
B Requester Categories for Fee Purposes (Continued)
Category
Description
Educational-Use This category is formally referred to as covering “educational
and Scientific-Use institution and noncommercial scientific institution” requesters.
Educational- and scientific-use requesters are individuals who are
either formally affiliated with an educational institution or formally
affiliated with a noncommercial scientific institution, as follows:
•

educational-use requesters are formally affiliated with a preschool,
a public or private elementary or secondary school, an institution of
undergraduate higher education, an institution of graduate higher
education, an institution of professional education, or an institution
of vocational education that operates a program of scholarly
research; to be in this category, a requester must show that the
request is authorized by and is made under the auspices of a
qualifying institution and that the records are not sought for a
commercial use, but are sought to further scholarly research
Note: Students, including candidates for graduate degrees, seeking
documents to write a paper or further their own research,
should not be classified as educational-use requesters,
because they are seeking documents to further their own
careers. They should be classified as other-use requesters.

•

scientific-use requesters are formally affiliated with an institution
that is not operated for commerce, trade, or profit, and that is
operated solely for conducting scientific research purposes, the
results of which are not intended to promote any particular product
or industry; to be in this category, a requester must show that the
request is authorized by and is made under the auspices of a
qualifying institution and that the records are not sought for a
commercial use, but are sought to further scientific research.

Note: For educational- and scientific-use requesters, FSA will only
assess fees for duplication services in excess of 100,
8 1/2” x 14” or smaller, single-side pages of paper copies, or the
equivalent cost if records are provided in some other form;
therefore, educational- and scientific-use requesters shall not to
be charged for either search time or review times, and shall
receive the first 100, 8 1/2” x 14” or smaller, single-side pages
of duplication free of charge.

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2-INFO (Rev. 1) Amend. 1

Page 4-15

Par. 49
49

Requester Categories for Fee Assessment (Continued)
B Requester Categories for Fee Purposes (Continued)
Category
Media-Use

Description
Media-use requesters include the following:
•

persons actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public; such as
representatives of the news media
Note: News means information that is about current events or that
is, or would be, of current interest to the public.
Examples:

News media includes, but is not limited to,
newspapers, television or radio stations broadcasting
to the public at large, and publishers of periodicals
(but only in instances when they can qualify as
disseminators of news) who make their products
available for purchase or subscription by the general
public.

•

individuals employed by entities who deliver news through
alternative media; such as publishers of electronic newspapers

•

free-lance journalists that are representatives of the news media who
are able to demonstrate a solid basis for expecting publication
through a news organization, even though not actually employed by
a news organization; a publication contract, past record of
publication, or evidence of a specific free-lance assignment from a
news organization may indicate a solid basis for expecting
publication.

To be in the media-use category, a requester must not be seeking the
records for a commercial use.
Note: For media-use requesters, FSA will only assess fees for
duplication services in excess of 100, 8 1/2” x 14” or
smaller, single-side pages of paper copies, or the equivalent cost
if records are provided in some other form; therefore, media-use
requesters shall not to be charged for either search time or
review times, and shall receive the first 100, 8 1/2” x 14” or
smaller, single-side pages of duplication free of charge.

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2-INFO (Rev. 1) Amend. 1

Page 4-16

Par. 49
49

Requester Categories for Fee Assessment (Continued)
B Requester Categories for Fee Purposes (Continued)
Category
Other-Use

Description
Other-use requesters, who cannot be classed as commercial-use, educationaluse, scientific-use, or media-use requesters, are individuals who are permitted,
by law, to file FOIA requests.
Note: For other-use requesters, FSA will only assess fees for search fees in
excess of 2 hours and duplication services in excess of 100,
8 1/2” x 14” or smaller, single-side pages of paper copies, or the
equivalent cost if records are provided in some other form; therefore,
other-use requesters shall not be charged for either the first 2 hours of
search time, for review time, and shall receive the first 100,
8 1/2” x 14” or smaller, single-side pages of duplication without being
charged.

C Table of Chargeable Fees for Each Fee Category
The following table summarizes the chargeable fees for each category of requester.
Category
Commercial Use
Educational Use
Scientific Use
Media Use
Other Use

Search Fees
Yes
No
No
No
Yes, first 2 hours free.

Review Fees
Duplication Fees
Yes
Yes
No
Yes; first 100, 8 1/2” x 14” or
smaller, single-side pages are
free.

Notes: Privacy Act requesters are charged only for the cost of duplicating responsive records
(Exhibit 29).
Requesters are not charged FOIA fees if the total amount of the chargeable fee is
equal to or less than $25, because the cost of collecting the fee would exceed the
amount collected, according to 7 CFR, Subtitle A, Subpart A, Appendix A,
Subsection 3(b).

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2-INFO (Rev. 1) Amend. 1

Page 4-17

Par. 50
50

Fee Waivers and/or Reductions
A Fee Waiver Policy
Under FOIA, a requester has the right to seek a waiver of all FOIA fees. FSA will waive or
reduce fees, if disclosing the requested records is both of the following:
•

deemed to be in the public interest because it is likely to contribute significantly to public
understanding of the operations and activities of the Government

•

not primarily in the requester’s commercial interest.

B Requester Rights and Responsibilities
Under FOIA, a requester has the right to seek a statutory waiver of all FOIA fees. If a
requester is seeking a fee waiver, it is his/her responsibility to provide detailed information
sufficient to support the waiver. This information must be submitted with the FOIA request.
A requester should explain how releasing the records requested will contribute significantly
to the public’s understanding of the Government’s operations and activities. The burden is
on the requester to justify his/her entitlements to a fee waiver.
FSA will consider each request for a fee waiver on its own merits. The fact that a specific
requester has received a fee waiver in the past from FSA, or from any other Federal agency,
does not mean that the requester is automatically entitled to a fee waiver for every request
that he or she may submit, because the essential element of any fee waiver determination is
whether releasing the particular documents sought will likely contribute significantly to
public understanding of the operations or activities of the Government.
If the information provided by the requester is not sufficient for FSA to make a definitive
determination on the request for a fee waiver, FOIA processers may, at their discretion in the
acknowledgement letter, ask a requester for additional information to support his/her request.
Note: FOIA processers are not required to provide requesters with a second opportunity to
justify requests for a fee waiver. Most requests should be decided on the basis of the
information provided with the request. If the information provided with the request
does not justify granting a fee waiver, the request for a fee waiver should be denied.

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2-INFO (Rev. 1) Amend. 1

Page 4-18

Par. 50
50

Fee Waivers and/or Reductions (Continued)
B Requester Rights and Responsibilities (Continued)
Whenever a request for a fee waiver cannot be decided solely on the basis of the information
provided in the request letter and the requester has not agreed to pay the full amount of FOIA
fees likely to be charged to processing the request if the request is denied, and chargeable
fees are likely to exceed $25, the request will be regarded as not yet perfected. In such
instances, FOIA processers will:
•

ask the requester for additional information to support the fee waiver and, in the same
letter (generally the acknowledgement letter), advise the requester that if he/she still
wants FSA to process the request if the fee waiver is denied, that he/she must agree to
pay the estimated cost of processing the request

•

advise the requester that if he/she does not respond to the FSA’s request for additional
information to support the request for a fee waiver and fee payment assurance if the
request for a fee waiver is denied, within 20 workdays of the date of the letter asking for
such information, that FSA will assume that the requester is no longer interested in
pursuing his/her request, and will close its files on the request.
IF a requester…
THEN…
does not respond to a request both close the request.
for additional fee waiver
information and written fee
payment assurance within
20 workdays of the date of the
letter
responds to a request for
process the request as a new request and advise the
additional information to support requester, in writing, of the request’s new control
the fee waiver request at a later
number, date on which the additional information was
date, and this information is
received, date on which FSA’s fee waiver decision was
sufficient to grant the request for a made, outcome of FSA’s decision; such as the waiver
fee waiver
was granted, and continue processing the request.

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2-INFO (Rev. 1) Amend. 1

Page 4-19

Par. 50
50

Fee Waivers and/or Reductions (Continued)
B Requester Rights and Responsibilities (Continued)
IF a requester…
THEN…
responds to a request process this request as a new request and advise the requester, in
for additional
writing, of the request’s new control number and the date on which
information to support the additional information was received. Deny the request for a fee
the fee waiver request waiver, in the acknowledgement letter, and advise the requester if
at a later date, this
he/she does not respond to the FSA’s request for fee payment
information is not
assurance within (another) 20 workdays of the date of the letter
sufficient to grant the asking for such information, that FSA will assume that the
request for a fee
requester is no longer interested in pursuing his/her request, and
waiver, and the
will close its files on the request.
requester does not
IF the requester…
THEN…
provide written fee
responds to this request within the required continue processing
payment assurance
time period
the request.
does not respond to this request within the
close the request.
required time period, agreeing to pay the cost
of processing his/her request

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2-INFO (Rev. 1) Amend. 1

Page 4-20

Par. 50
50

Fee Waivers and/or Reductions (Continued)
C FSA 4-Part Fee Waiver Evaluation Process
FSA has established a 4-part fee waiver test against which requests for fee waivers from
FOIA requesters should be evaluated. This process consists of a series of questions that, if
answered, should simplify the process of making a fee waiver request determination. In
reviewing a fee waiver justification, FOIA processers should ask each of the following
questions with respect to the specific records requested by the individual requesting them.
To qualify for a fee waiver, the answer to each of the following questions, in the order listed,
must be “yes.” If the answer to any 1 of these questions is “no,” stop the evaluation process.
The request does not qualify for a fee waiver.
Example: If the records requested do not concern the operations or activities of the
Government, but are about the requester, then there is no need to proceed further
with the analysis to determine if the records disclosure will be likely to contribute
to public understanding of the operations or activities of the Government.
Part
Questions
1 Do the requested records concern the operations or activities of the Government? If
so, how?

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2-INFO (Rev. 1) Amend. 1

Page 4-21

Par. 50
50

Fee Waivers and/or Reductions (Continued)
C FSA 4-Part Fee Waiver Evaluation Process (Continued)
Part
Questions
2 If the requested records concern the operations or activities of the Government, will
disclosure be likely to contribute to public understanding of these operations and
activities?
•

How are the contents of the records the requester is seeking meaningfully
informative on FSA’s activities? Is there a logical connection between the
content of the records and the operations or activities to which the requester is
interested?

•

Other than enhancing the requester’s knowledge, how will disclosing the
requested records contribute to the understanding of the public at large or a
reasonably broad audience of persons interested in the subject?
Note: The requester’s identity, vocation, qualifications, and expertise about the
requested information (whether the requester is affiliated with a
newspaper, college or university, has previously published articles,
books, etc.) may be relevant factors. However, the requester merely
stating that he/she is planning to write a book, research a particular
subject, or perform doctoral dissertation work, is insufficient, without
demonstrating how the requester plans to disclose the information in a
manner which will be informative to a reasonably broad audience of
persons interested in the subject.

•

1-4-13

Does the requester have the ability and intention to disseminate the information
to the general public or a reasonably broad audience of persons interested in the
subject?
•

How and to whom does the requester intend to disseminate the information?

•

How does the requester plan to use the information to contribute to public
understanding of the Government’s operations or activities?

2-INFO (Rev. 1) Amend. 1

Page 4-22

Par. 50
50

Fee Waivers and/or Reductions (Continued)
C FSA 4-Part Fee Waiver Evaluation Process (Continued)
Part
Questions
3 If there is likely to be a contribution to public understanding, will releasing the
requested records contribute significantly to public understanding?
•

Is the information being disclosed new? Does the information being disclosed
confirm or clarify data that has been previously released?

•

How will disclosure increase the existing level of public understanding of the
operations or activities of FSA or USDA?

•

4

Is the information already publicly available? If the Government has previously
published the information that the requester is seeking, through the Internet, or
as part of the administrative record for a particular issue, it is less likely that
there will be a significant contribution from release by this requester at this time.
Would disclosing the requested records be primarily in the requester’s commercial
interest?
•

Does the requester have a commercial interest that would be furthered by
disclosure? Commercial interest means an interest that furthers a commercial,
trade, or profit interest as those terms are commonly understood. The
requester’s status as “profit-making” or “nonprofit making” is not the deciding
factor. Not only profit-making entities, but other organizations or individuals
may have a commercial interest to be served by disclosure, depending on the
circumstances involved.

•

If the requester does have a commercial interest that would be furthered by
disclosure, would disclosure be primarily in that interest? Would the public
interest in disclosure be greater than any commercial interest the requester or the
requester’s organization may have in the documents? If so, how would it be
greater?
Note: The requester’s identity, vocation, and the circumstances surrounding the
request are all factors to be considered in determining whether disclosure
would be primarily in the requester’s commercial interest.
Example: If the requester is a representative of a:

1-4-13

•

news media organization seeking information as part of the news
gathering process, FSA will presume that the public interest
outweighs the requester’s commercial interest

•

commercial business, corporation, association, or the requester is
an attorney representing such an organization, FSA will presume
that the requester’s commercial interest outweighs the public
interest unless the requester demonstrates otherwise.

2-INFO (Rev. 1) Amend. 1

Page 4-23

Par. 50
50

Fee Waivers and/or Reductions (Continued)
D Fee Waiver Determinations
FOIA processers will respond to requests for FOIA fee waivers as a part of the process in
which FOIA requests are perfected. Although some requesters may state in their request
letters that they are willing to pay FOIA fees up to a certain specified dollar amount if their
request for a fee waiver be denied, many requesters will not provide written assurance of
their willingness to pay applicable FOIA fees if their request for a fee waiver be denied.
IF requesters…
THEN…
provide written
processing their requests can continue, without delay, if FSA denies
assurance of their
their request for a fee waiver, provided the amount that they agreed
willingness to pay
to pay is sufficient to cover the full cost of FOIA fees likely to be
FOIA fees if their
charged, unless advance payment of a portion of this amount is
request for a fee
required; if advance payment is required, see subparagraph 21 C.
waiver be denied
do not provide written FOIA processers will advise the requester of the outcome of the fee
assurance of their
waiver decision; such as it was denied, with the estimated cost of
willingness to pay
processing the request, and that if he/she does not respond to FSA’s
request for fee payment assurance within 20 workdays of the date
FOIA fees if their
request for a fee
of the letter asking for fee payment assurance information, that
waiver be denied, and FSA will assume that the requester is no longer interested in
chargeable fees are
pursuing his/her request, and will close its files on the request.
likely to exceed $25
IF requester…
THEN…
does not respond to a request
close the request.
for written fee payment
assurance within 20 workdays
of the date of the letter
responds to a request for written process this as a new request.
fee payment assurance at a later Advise the requester, in writing,
date
of the request’s new control
number, the date on which fee
assurance was received, and
continue processing the request.

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2-INFO (Rev. 1) Amend. 1

Page 4-24

Par. 50
50

Fee Waivers and/or Reductions (Continued)
D Fee Waiver Determinations (Continued)
FOIA processers will:
•

consider only the releasable portions of the responsive records when evaluating requests
for fee waivers, because exempt portions of documents will not contribute to public
understanding of the operations and activities of the Government

•

not make fee waiver determinations based primarily on the general importance of the
underlying subject matter of FOIA request.

The general importance or sensitivity of the underlying subject matter of a FOIA request
should not override the analysis of whether disclosing the releasable portions of the
particular documents being requested, in the request for which a fee waiver is being
requested, will itself contribute significantly to public understanding of the operations and
activities of the Government.
Fee waiver decisions will be issued promptly, whenever possible, and communicated, in
writing, to the requester. If at all possible, they should be communicated in the
acknowledgement letter. Because the date on which fee waiver decisions are made is part of
the information required by DOJ in the annual FOIA report, if the date on which this decision
was made is not readily apparent from other written documentation in FOIA case file, a note
of the date should be added to the file at the time that this decision is made.
•

1-4-13

When advising requesters that their request for a fee waiver has been granted, FOIA
processers may simply state that, “FSA has granted your request for a fee waiver.” They
are not required to provide the requester with a written summary of their analysis; such
as, “the 4-step fee waiver evaluation process” (described in subparagraph D). If the
process was complex; however, FOIA processer should retain any notes made in the
process in the request’s official case file. If on appeal or litigation, FOIA processers
must be able to demonstrate that the process relied on in their office for deciding fee
waivers is both according to FSA guidelines and applied equitably, across all requests
seeking fee waivers.

2-INFO (Rev. 1) Amend. 1

Page 4-25

Par. 50
50

Fee Waivers and/or Reductions (Continued)
D Fee Waiver Determinations (Continued)
•

When advising requesters that their request for a fee waiver was denied, FOIA processers
will advise requesters of the following:
•

FSA’s policy about when fee waivers will be granted; such as, “FSA will waive or
reduce fees if disclosing the requested records is deemed to be in the public interest
because it is likely to contribute significantly to public understanding of the
operations and activities of the Government, and it is not primarily in the requester’s
commercial interest”, according to subparagraph A

•

FSA denied the request for a fee waiver because it did not qualify for a fee waiver

•

reasons why the request did not qualify for a fee waiver by addressing the 4 questions
in the “4-step fee waiver evaluation process” described subparagraph D.
Note: The explanation does not need to address any additional questions beyond the
question for which the answer was “no”. When, for example, records
requested do not concern the operations or activities of the Government, but
are about the requester, it is sufficient to state, “FSA has determined that
because the records you requested do not concern the operations or activities
of the Government, your request for a fee waiver has been denied”; provide
the name and title or position of FSA official responsible for the fee waiver
decision; and their appeal rights, following the guidance provided in
subparagraph 24 H, advising the requester that all appeals must be in writing,
filed within 45 calendar days of the date of the denial letter, mailed to the
following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.
Notes: Write “FOIA APPEAL” on the letter and envelope to ensure
prompt handling.
See 1-APP, Exhibit 58 for mandatory language to insert in adverse
FOIA response letters.

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2-INFO (Rev. 1) Amend. 1

Page 4-26

Par. 50
50

Fee Waivers and/or Reductions (Continued)
E Partial Fee Waivers, Discretionary Fee Waivers, and Fee Reductions
FOIA fees may be waived in-part when:
•

it is determined that only some of the requested records would be likely to contribute
significantly to public understanding of the operations and activities of the Government

•

disclosure would not be primarily in the commercial interest of the requester.

The criteria for waiving fees in-part are the same as those for a total fee waiver. Fees waived
in-part would be prorated on the percentage of records that meet the fee waiver criteria.
Where the documents may be segregated, FSA should calculate the exact cost of processing
records that do not qualify for a fee waiver.
FSA may waive or reduce fees under the following circumstances:
•

at its discretion, regardless of whether or not a request for a fee waiver has been
requested by the requester, if FSA determines that disclosure will primarily benefit the
general public

•

when furnishing records or a service, without charge or at a reduced rate, is an
appropriate courtesy to a foreign country or international organization, or where
comparable fees are set on a reciprocal basis with a foreign country or an international
organization

•

requester is engaged in a non-profit activity designed for the public safety, health, or
welfare

•

requester is engaged in a non-profit activity at the behest or on the behalf of USDA
and/or the individuals or entities USDA is chartered to serve

•

it is determined that payment of the full fee by a State or local Government or non-profit
group would not be in the interest of the FOIA program.
Note: FSA would typically consider receiving the full fee not to be in the interest of the
FOIA program when the State or local Government or non-profit group is
engaged in an activity that will directly benefit the individuals or entities USDA is
chartered to serve. When determining whether or not a discretionary fee waiver
is appropriate, FOIA processers may ask that the State or local Government or
non-profit group demonstrate how the activity would directly benefit the
individuals or entities USDA is chartered to serve.

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2-INFO (Rev. 1) Amend. 1

Page 4-27

Par. 50
50

Fee Waivers and/or Reductions (Continued)
E Partial Fee Waivers, Discretionary Fee Waivers, and Fee Reductions (Continued)
When granting partial fee waivers, discretionary fee waivers, or fee reductions, FOIA
processers will notify requesters of this decision in the response letter. When granting:

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•

partial fee waivers, FOIA processers will advise requesters, in the response letter, which
records qualified for FOIA fee waiver, and which did not, following the guidance
provided in subparagraph E

•

discretionary fee waivers, or fee reductions, FOIA processers will advise requesters, in
the response letter, why otherwise applicable FOIA fees are being waived or reduced, at
the discretion of the Government, “FSA is granting a discretionary fee reduction, in this
instance, because it has determined that payment of the full fee would not be in the
interest of the FOIA program”.

2-INFO (Rev. 1) Amend. 1

Page 4-28

Par. 51
51

Fee Estimates
A Developing Fee Estimates
Upon receiving a valid FOIA request that reasonably describes the records sought, FOIA
processers will determine if it is necessary to develop a FOIA fee estimate. Unless a
requester has been granted a fee waiver, has previously agreed to pay the full amount of fees
likely to be charged, or it is anticipated that chargeable fees will be $25 or less, FOIA
processers will need to estimate the amount of FOIA fees that would be charged if the
request were to be processed completely.
Note: This estimate should take into account the fact that certain categories of FOIA
requesters, for fee purposes, are entitled to not be charged for searches or reviews,
and/or are entitled to receive 2 hours of search time and/or 100 pages of duplication
without charge before incurring chargeable fees (subparagraph 49 C).
Example: Processing an other-use requester’s FOIA request is estimated to take
1 hour of search time and result in 75 pages of responsive records. No
chargeable fee is like to be incurred in processing this request.
In developing this estimate, FOIA processers will consider the following.
Item
Fee Category
of Requester
Records Being
Requested

Description
What services can this requester be charged? What entitlements, if any,
does this requester have that accrue from his/her fee category?
Are they paper or electronic? Where are they currently being maintained?
In FSA files, FRC, or other off-site storage facility? What skill level
(clerical or professional) is required to locate them in FSA files? How
long will it take FSA personnel to search for them?
FSA FOIA Fee Given the level of personnel required to search for responsive records, and
Schedules
the anticipated number of hours required locating them, how much is it
likely to cost FSA to search for the requested records? To review
responsive records for release and to redact them, if required? To
duplicate them? How much, if any, can the requester be charged for each
of these services? The full amount? That portion of the total cost after
subtraction of his/her entitlements?
Other
Has the requester asked for the records in a format in which they are not
Considerations customarily maintained, but into which FSA can convert them at cost?
Has the requester asked that the records be shipped by overnight delivery?
That Might
Affect Fees
Has the requester asked that the records be certified or authenticated?

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2-INFO (Rev. 1) Amend. 1

Page 4-29

Par. 51
51

Fee Estimates (Continued)
B Fee Estimates Are Guesses
Fee estimates are always informed guesses. Even under the best of circumstances, fee
estimates are based on the responding office’s understanding of the work expected to be
involved in processing the request, and cannot be expected to match, dollar for dollar, the
exact cost of processing the request when/if it is actually completed. While it may be
reasonable, at times, to perform a sample search, when developing a fee estimate for
searching a significant number of files that that are organized in a similar manner, FOIA
processers should not perform what, in effect, would constitute a complete, or nearly
complete, file search merely to develop a more accurate estimate of FOIA fees. Staff time
expended in developing FOIA fee estimates is not chargeable, even to commercial-use
requesters.
Fee estimates should be qualified. Because most FOIA fee estimates are estimates, FOIA
processers should advise requesters, in acknowledgement letters, the estimated cost of
processing their requests that:
“the actual fees may vary from the amount estimated, and that if it appears that the actual
cost to process your request will be below this cost, you will be charged only the actual
costs incurred in processing your request. If it appears that the actual cost to process your
request will exceed the estimated cost to process your request, we will contact you as
soon as possible to discuss the options available to you.”

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2-INFO (Rev. 1) Amend. 1

Page 4-30

Par. 51
51

Fee Estimates (Continued)
C When Fee Estimates Differ From Actual Costs
Actual costs will differ from estimated costs for processing FOIA requests. At any time
during the file search, when it is determined or discovered that actual costs are likely to be
lower than estimated costs by any amount, or it is determined that actual costs are likely to be
higher than estimated costs, but within the lower limit agreed upon by the requester when
he/she provided written fee payment assurance, it is not necessary to notify requesters of
differences between actual costs and estimated costs between the time the initial estimate is
provided and the final statement of actual costs is issued in the response letter.
However, if it is determined or discovered that actual costs are likely to be higher than
estimated costs and higher than the amount agreed-upon by the requester, when he/she
provided written fee payment assurance, at any time during the file search, FOIA processers
should stop processing the request and contact the requester to discuss the available options.
Options include the following:
•

obtaining the requester’s written agreement to pay the additional fees

•

limiting the scope of the request to the work already performed, or reducing the scope of
the request in other ways, to reduce the total fees charged.

Because FOIA processers cannot be billed for amounts higher than they have agreed to pay,
it is important to ensure that FSA does not incur unnecessary costs in performing file
searches for which the Government will not be paid.

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2-INFO (Rev. 1) Amend. 1

Page 4-31

Par. 52
52

Fee Payment
A FOIA Fee Notifications
FOIA fee statements, identifying actual fees assessed for searching for responsive
documents, reviewing and redacting the responsive documents, duplicating responsive
documents, and any other category of applicable fees will be provided in the response letter
for every FOIA request for which fees were incurred by FSA during processing, as discussed
in subparagraph 26 G. This statement will be provided even when the requester is not being
asked to pay FOIA fees for any reason, including when a statutory or discretionary fee
waiver has been granted or fees incurred have been waived because they do not exceed $25.
Note: This statement is required because DOJ requires FSA to track costs incurred in
processing requests.
The FOIA fee statement amount that the requester is being asked to pay, a statement advising
the requester to make payment by check, draft, or money order made payable to, “Treasurer
of the United States,” and the address to which payment should be made (generally the
address of the responding FOIA Office) will be provided in the response letter for every
FOIA request for which requesters are charged fees, as discussed in subparagraph 26 F.
FOIA processers will include, in the final response letter whenever fees are being charged,
statements advising requesters that:
•

they have 30 calendar days after receiving FSA’s final response letter to pay the amount
charged, as discussed in subparagraph 26 F

•

the amount owed is subject to 31 U.S.C. 3701 and 3711 through 3720A provisions, and
that interest charges on unpaid FOIA assessments will accrue at the rate prescribed in
31 U.S.C. 3717, beginning on the 31st day after the date of the response letter.
Note: This statement requirement does not apply if the requester is a State, local, or
Tribal Government.

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Par. 52
52

Fee Payment (Continued)
B Collecting FOIA Fees
When FOIA fee payment is received by check, draft, or money order, FOIA processers shall
file a copy of the check, draft, or money order in the request’s case file to record requester
payment. FOIA processers shall follow this table for processing payments.
IF located in…
State and County,
Caribbean Area,
Receivable Management,
APFO, or Kansas City
FOIA Office
FMD
Washington, DC, office,
except FMD

THEN…
AND…
confirm receiving fee ensure that the
payments
check, draft, or
money order is
Note: This
delivered or sent
information is to the party or
needed to
office
account for
responsible for
and report all handling funds
FOIA fees
collected by the
collected.
office

ACCORDING to…
3-FI.

43-FI.
established office
policy.

C Advance Fees
When the estimated fees for processing a FOIA request exceed $250, FSA will require the
requester to pay 50 percent of the total estimated amount in advance before beginning the
process of the request. FOIA processers will advise the requester that if he/she does not
respond to FSA’s request for advance payment of 50 percent of the total estimated amount of
billable FOIA fees within 20 workdays of the date of the notification-of-estimate letter, FSA
will assume that the requester is no longer interest in pursuing his/her request, and will close
its files on the request (subparagraph 21 C).

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52

Fee Payment (Continued)
D Overdue or Delinquent Fees
When a requester has delinquent FOIA fees, because of nonpayment, FSA will require the
requester to pay the delinquent fee in-full, plus any applicable interest, before FSA begins to
process a new or subsequent request.
When FOIA fees are assessed, and requesters have not provided payment within 30 calendar
days of receiving FSA’s final response letter, FSA office may begin levying interest charges
on unpaid fees starting on calendar day 31, if the office can verify the date the letter in which
payment was requested was receiving (subparagraph 26 K), as follows:
•

interest will be assessed at the rate provided in 31 U.S.C. 3717

•

interest will accrue from the 31st calendar day after the final response letter was received

•

FOIA processers will monitor requests for which FOIA fees are assessed and notify
requesters, in writing, on or shortly after calendar day 31, that applicable FOIA fees have
not been paid, that interest on the fees chargeable may accrue, and that FSA is not
required to respond to any future FOIA requests filed by delinquent requesters until
payment for all applicable FOIA fees has been received.

When attempting to collect fees levied under FOIA, FSA will abide by 31 U.S.C. 3701 and
3711 through 3720A provisions in disclosing information to consumer reporting agencies
and in using collection agencies, where appropriate, to encourage payment.

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52

Fee Payment (Continued)
D Overdue or Delinquent Fees (Continued)
FOIA processers will notify the FSA FOIA Officer, in writing, preferably by e-mail to
[email protected], when a FOIA requester is deemed to be seriously delinquent in the
payment of FOIA fees.
•

FOIA requester is deemed to be seriously delinquent in FOIA fee payment on calendar
day 91 after receiving FSA’s final response.

•

FSA offices that have reported seriously delinquent requesters are responsible for
notifying the FSA FOIA Officer when the overdue amount is paid.

•

Include the following information when notifying the FSA FOIA Officer of seriously
delinquent requesters:
•

name of requester

•

organization with which requester is affiliated, if applicable

•

amount due FSA

•

date amount due; 30 calendar days after receiving final response

•

FOIA control number of the request for which the amount is due

•

name, telephone number, FAX number, and e-mail address of office issuing request
for payment.

53-60 (Reserved)

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.

Par. 61
Part 5
61

FOIA Exemptions

General Provisions
A The 9 FOIA Exemptions
Under FOIA, there are 9 exemptions and 3 law enforcement exclusions that serve as the basis
for withholding information from the public. The 9 exemptions are discussed at length in
this part.
Note: The law enforcement exclusions are discussed in DOJ FOIA Guide available at
www.usdoj.gov/oip/foia_guide07.htm and mentioned briefly in subparagraph 68 H.
These exclusions rarely apply to FSA records.
Exemption
1
2
3
4
5
6
7
8
9

Title
Matters of National Defense or Foreign Policy (paragraph 62)
Internal Personnel Rules and Practices (paragraph 63)
Information Exempted by Other Statutes (paragraph 64)
Trade Secrets and Commercial or Financial Information (Confidential Business
Information) (paragraph 65)
Privileged Interagency or Intra-Agency Memoranda or Letters (paragraph 66)
Personal Information Affecting an Individual’s Privacy (paragraph 67)
Records Compiled for Law Enforcement Purposes (paragraph 68)
Records of Financial Institutions (paragraph 69)
Geological and Geophysical Information Concerning Wells (paragraph 70)

B FSA Disclosure Policy
In response to a FOIA request, FSA will make all non-exempt records available to the public
consistent with FOIA. FSA will withhold records (or portions of records), data, and
information only if it is protected from release by 1 of the exemptions listed in
subparagraph A, or in rare cases, 1 of the law enforcement exclusions, as applicable. FOIA
processers will not withhold otherwise non-exempt records because of any of the following:
•
•
•
•

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records might reveal an FSA administrative or operational inefficiency
records might embarrass FSA officials
identity of the requester
requester’s purpose for seeking the records, if known.

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Par. 61
61

General Provisions (Continued)
C Multiple Exemptions Applicability
The exemptions may apply singly or in combination to a record or document. When multiple
exemptions apply to a record, all applicable exemptions will be cited. If information does
not fall under any of the exemptions, there is no basis for withholding. Any reasonably
segregable non-exempt portions of a document must be released after deleting the exempt
portion (subparagraph 25 C).
D Examples of Withheld Information
Examples of information withheld under each exemption are included in paragraphs 62
through 70). These examples are not intended to be all inclusive or to apply in every
situation. All records must be reviewed on a case-by-case basis.
E Discretionary Releasing Certain Protected Information
Depending on how current the information is, whether an action is pending or has been
completed, and other related circumstances, releasing a record may be appropriate on a
discretionary basis even if it is otherwise protected by an exemption (paragraph 72).
F When In Doubt, Consult
When in doubt as to whether specific records or documents fall under any of the
9 exemptions, FOIA processers should consult with the FOIA coordinator in their State
Office, staff in the National FOIA Offices, KC FOIA Officer, FSA FOIA Officer, or OGC, as
appropriate. FOIA processers must ensure that whenever a record is withheld under FOIA,
there is a reasonable legal basis according to 1 or more of the 9 exemptions.

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Par. 62
62

Exemption 1 - Matters of National Defense or Foreign Policy [5 U.S.C. 552(b)(1)]
A When Exemption 1 Applies
Exemption 1 allows FSA to withhold information about the national defense or foreign
policy providing that the information has been properly classified under Executive
Order 12,958, Classified National Security Information (dated October 14, 1995), or
superseding Executive Order.
B Examples of Information Withheld
While FSA would not typically have access to classified national defense or foreign policy
records, possible protected records could include material classified as top secret, secret, or
confidential.
Example: A foreign trade document prepared for the Secretary, USDA, which is formally
classified as confidential because of the document’s foreign policy impact.

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Par. 63
63

Exemption 2 - Internal Personnel Rules and Practices [5 U.S.C. 552(b)(2)]
A When Exemption 2 Applies
Exemption 2 protects records that are related solely to the internal personnel rules and
practices of FSA. Exemption 2:
•

protects relatively trivial records about internal matters for which there is no legitimate
public interest or benefit under ordinary or routine circumstances; such as information
related to using parking facilities, lunch hours, sick and annual leave rules, etc.

•

covers records that FSA normally creates and maintains for its own use, rather than for
dissemination to the public

•

applies when processing and releasing the requested records would cause FSA an
administrative burden.

B Considerations in Applying Exemption 2
Information responsive to a FOIA request that qualifies for protection under exemption 2
should not automatically be withheld. Before withholding information under exemption 2,
the information must be reviewed to determine if:
•
•

it qualifies for a discretionary release (paragraph 72)
its release would cause foreseeable harm to FSA.

Note: Information or records qualifying for protection under exemption 2 may only be
withheld when their release would cause FSA an administrative burden. Such a
burden could entail extensive time and/or expense in reproducing responsive records
in formats that they are not customarily maintained, such as scanning large quantities
of documents electronically that are normally maintained in paper.

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Par. 64
64

Exemption 3 - Information Exempted by Other Statutes [5 U.S.C. 552(b)(3)]
A When Exemption 3 Applies
Exemption 3 allows FSA to withhold records that are specifically exempt from disclosure by
other Federal statutes. Information may be withheld only if the statute:
•

requires that the matters be withheld from the public in such a manner as to leave no
discretion on the issue

•

establishes particular criteria for withholding or refers to particular types of matters to be
withheld.

Information protected by exemption 3 varies with the specific statute prohibiting the
information disclosure. Exemption 3 statutes that apply to FSA are listed in subparagraph B,
in decreasing applicability order, with statutes most likely to apply listed first.

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Par. 64
Exemption 3 - Information Exempted by Other Statutes [5 U.S.C. 552(b)(3)] (Continued)
B Exemption 3 Statutes Applicable to FSA
The following 2 statues apply to FSA.
•

•

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The Food, Conservation, and Energy Act of 2008, Title I, Subtitle F, Section 1619,
7 U.S.C. 8791:
•

does not permit disclosing information provided by an agricultural producer or owner
of agricultural land about the agricultural operation, farming or conservation
practices, or the land itself, to participate in programs of the Department, and
geospatial information otherwise maintained by the Secretary about agricultural land
or operations for which the previously described information is provided, without the
consent of the producer or owner

•

permits disclosing the following:
•

payment information, including names and addresses of farm program payment
recipients

•

statistical or aggregate data if the information prohibited from disclosure has been
transformed into a statistical or aggregate form without naming the individuals or
identifying the specific data-gathering site.

Federal Property and Administrative Services Act, 41 U.S.C. 253b, as amended by the
National Defense Authorization Act for 1997, Pub. L. 104-201 protects names and
contract proposals of unsuccessful bidders or vendors, and the proposals of successful
bidders or vendors when these proposals have not been incorporated by reference in a
contract between FSA and the contractor that submitted the proposal.

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Par. 64
Exemption 3 - Information Exempted by Other Statutes [5 U.S.C. 552(b)(3)] (Continued)
C Statutes That Are Not Exemption 3 Statutes
The following 2 statues are not exemption 3 statutes.

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•

The Privacy Act of 1974. Privacy-protected information should be considered under
FOIA exemptions 6 and 7(c).

•

Trade Secrets Act. Information obtained from sources outside the Government involving
commercial and financial interests should be considered under FOIA exemption 4.

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65

Par. 65
Exemption 4 - Trade Secrets and Commercial or Financial Information (Confidential
Business Information) [5 U.S.C. 552(b)(4)]
A When Exemption 4 Applies
Exemption 4:
•

protects trade secrets and commercial or financial information that is obtained from a
person and is privileged or confidential

•

protects both the interests of commercial entities that submit proprietary information to
the Government and the interests of the Government in receiving continued access to
such data

•

is not applicable if the information is generally available to the public; such as if the
information is published in the company’s annual report, available through the Securities
and Exchange Commission, or would be made available if requested from the submitter.

B Applicability Criteria
The following criteria will be used to determine whether exemption 4 is applicable.
•

Trade secret records must contain information about a trade secret.
Note: Trade secret means a secret, commercially valuable plan, formula, process, or
device used to make, prepare, compound, or process a commodity, and that can be
said to be the end product of either innovation or substantial effort. This
definition requires that there be a direct relationship between the trade secret and
the productive process.

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Par. 65
Exemption 4 - Trade Secrets and Commercial or Financial Information (Confidential
Business Information) [5 U.S.C. 552(b)(4)] (Continued)
B Applicability Criteria (Continued)
•

Commercial or financial information records must contain commercial or financial
information. Information is commercial if a person has a commercial interest in the
information. The information must be:
•

obtained from a person
Notes: A person may be a corporation, association, a State or local Government, or
any public or private corporation, including an Indian tribe. FSA and other
Federal Government agencies would not be persons for the purposes of this
provision.
Government commercial or financial information may be protected by the
Government commercial information privilege of exemption 5 (paragraph 66).

•

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privileged or confidential.

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65

Par. 65
Exemption 4 - Trade Secrets and Commercial or Financial Information (Confidential
Business Information) [5 U.S.C. 552(b)(4)] (Continued)
B Applicability Criteria (Continued)
Note: The test for whether commercial or financial information is confidential
depends, in-part, on whether the information was voluntarily or involuntarily
submitted to the Government, as follows.
IF…
a submitter of
information
voluntarily provides
information to the
Government
the Government
requires the
submitter to provide
information

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THEN…
the information will be considered to be confidential
for the purposes of exemption 4 if “it is of a kind that
would not customarily be released to the public by
the person from whom it was obtained.”
commercial or financial information is “confidential”
for the purposes of exemption 4 if disclosure is likely
to have any of the following effects:
•

impair the Government’s ability to obtain
necessary information in the future; FSA must be
able to demonstrate that the submitter would not
have provided the information if he/she believed
it would be subject to disclosure or that the
reliability or quality of the information it receives
from the submitter in the future would be
diminished

•

cause substantial competitive harm to the
person/business from whom the information was
obtained; if no competition exists; that is the
company is the sole producer of a given product,
then the information cannot be withheld under
the premise that release would cause competitive
harm

•

harm an identifiable private or Governmental
interest; such as impair the effectiveness of a
Government program or FSA compliance.

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Par. 65
Exemption 4 - Trade Secrets and Commercial or Financial Information (Confidential
Business Information) [5 U.S.C. 552(b)(4)] (Continued)
C Required Versus Voluntary
A submitter’s voluntary participation in an activity; such as seeking a Government contract
or applying for a grant or loan, does not govern whether any submissions made in connection
with that activity are likewise voluntary. FSA should focus on whether the Government
required submitters who chose to participate in a given activity or process to submit the
information at issue. Information is considered required if any legal authority compels
submission as a condition of doing business with the Government.
D Disclosure
Government documents may be protected under exemption 4 to the extent that they contain
summaries or reformulations of information otherwise protected by exemption 4 supplied by
an outside source.
According to Executive Order 12,600, Predisclosure Notification Procedures for Confidential
Commercial Information, June 23, 1987, or superseding Executive Order, FSA will notify
submitters when their data is requested under FOIA to determine if the material is
confidential and exempt from disclosure. See paragraph 28 for a step-by-step analysis of the
process required when handling information submitted by business sources, when this
information is requested under FOIA, and it is potentially protected by exemption 4.
Note: Under USDA regulations, FSA must allow the submitter a reasonable period in
which to object to disclosing any specific portion of the information requested under
FOIA (generally, 10 workdays should be considered reasonable). Given that FSA has
only 20 workdays to respond to the request, FOIA processers must process requests
for this type of information with all due diligence, taking a time extension whenever
justified by unusual or exceptional circumstances (subparagraph 22 C).
FSA must maintain adequate records in the case file of any request for commercial or
financial information submitted from an outside source potentially protectable by
exemption 4 to support its decision to disclose the commercial or financial information
requested in case a lawsuit is filed by the submitter. Lawsuits filed by submitters are
commonly referred to as a “reverse FOIA” litigation wherein a submitter files suit in District
Court to prevent the Government from releasing commercial or financial information
requested under FOIA.

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Par. 65
Exemption 4 - Trade Secrets and Commercial or Financial Information (Confidential
Business Information) [5 U.S.C. 552(b)(4)] (Continued)
E Examples of Information Withheld
Examples of general commercial or financial information the courts have found to be
properly withheld under exemption 4 include the following:
•

•

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commercial or financial information received in confidence in connection with bids,
contracts, or proposals, including the following:
•

assets, income, profits, losses, and expenditures

•

names of consultant, subcontractors, and suppliers; performance, cost, and equipment
information

•

labor costs, profit margins, and competitive vulnerability

•

business sales statistics, research data, and technical designs

•

financial statements and balance sheets

•

price negotiation memos

•

names of customers and amount and discounts offered to them

•

resumes and other employee-related information such as what the company pays its
employees

•

a company’s internal organization chart

•

letters of reference from private sector clients

•

approach and methodology for accomplishing work set forth in the solicitation

•

plant facility reports

scientific and manufacturing processes or developments containing technical or scientific
data submitted with an application or report while research is in progress.

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Par. 65
Exemption 4 - Trade Secrets and Commercial or Financial Information (Confidential
Business Information) [5 U.S.C. 552(b)(4)] (Continued)
F Examples of Information Possibly Covered
The following are examples of FSA commercial and financial information that might
generally be covered by exemption 4:

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•

maximum and minimum price guidelines established for guiding purchasing officers and
merchandisers of CCC-owned commodities or commodities under loan to CCC before
the awarding of a contract

•

information provided in confidence to help FSA or CCC formulate and operate programs
involving groups such as warehousemen, dealers, and producer associations

•

personal statements given in the course of inspections, investigations, or audits, when
such statements are received in confidence from the individual and retained in confidence
because they reveal trade secrets or commercial or financial information normally
considered confidential or privileged

•

financial data provided in confidence by private employers in connection with locality
wage surveys that are used to fix and adjust pay schedules applicable to the prevailing
wage rate of employees within the local area.

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Par. 66
66

Exemption 5 - Privileged Interagency or Intra-Agency Memoranda or Letters
[5 U.S.C. 552(b)(5)]
A When Exemption 5 Applies
Exemption 5 is designed to protect interagency and intra-agency memoranda or letters, which
would not be available, by law, to a party in litigation with FSA; such as records that
normally would not be made available through the discovery process, the means by which
the parties involved in a lawsuit exchange information before a hearing or trial.
Note: Exemption 5 cannot be used to withhold material merely because it is embarrassing,
purely factual material, or final decisions. When using exemption 5 to withhold
records or documents, FOIA processers should document for the request’s case file,
which of the 4 privileges discussed in subparagraph B each of the documents being
withheld under exemption 5 is protected. This information should be communicated
to the requester in the final response letter; that is which documents are protected by
which privileges, and be placed in the request’s case file.
Exemption 5 applies to interagency or intra-agency records, records that are transmitted
within or among FSA components, or between or among Federal agencies. In some
circumstances, it may apply to documents generated outside FSA. Documents prepared by
outside consultants, at FSA’s request, can be protected if those documents played a role in
FSA’s deliberative process.

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66

Exemption 5 - Privileged Interagency or Intra-Agency Memoranda or Letters
[5 U.S.C. 552(b)(5)] (Continued)
B Common Privileges
The 4 exemption 5 privileges most commonly invoked are as follows.
Privilege
Description
Deliberative Designed to protect the quality of FSA’s decision-making process, to:
Process
• encourage candid and frank discussions among FSA officials
•

protect against prematurely disclosing proposed policies before they are
adopted

•

avoid public confusion that might be caused by disclosing reasons and
rationales that were not ultimately the basis for FSA’s action.

To fall within the deliberative process privilege, the material must be both
pre-decisional and deliberative; that is part of the decision-making process,
in that it includes opinions, recommendations, or deliberations on legal or
policy matters. Generally, protected information is analytical and subjective
rather than factual. In determining whether a document is pre-decisional and
deliberative, the following should be considered:

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•

document’s language and place in the decision-making process;
pre-decisional, deliberative documents are written before FSA’s final
decision and usually contain recommendations, opinions, or represent
FSA’s tentative position on an issue, and typically discuss the pros and
cons of adopting 1 viewpoint over another

•

decision-making authority of the person issuing the document; such as
whether the person who issues the document has the authority to speak
finally and officially for FSA; if the author lacks the authority to make
the final decision for FSA, the document is more likely to be
pre-decisional

•

direction in which the document flows in the decision-making chain;
documents written by a subordinate and transmitted to a superior are
more likely to be pre-decisional than documents written by a person who
is in a position to make the final decision for FSA.

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66

Exemption 5 - Privileged Interagency or Intra-Agency Memoranda or Letters
[5 U.S.C. 552(b)(5)] (Continued)
B Common Privileges (Continued)
Privilege
Description
Deliberative The deliberative process privilege generally may not be used to withhold
Process
purely factual material or the factual portions of deliberative documents.
(Continued) The factual portions must be released where they can be segregated from the
deliberative portions of the document. However, if the manner of selecting
or presenting facts would reveal the deliberative process or if the facts are
inextricably intertwined with the decision-making process, the facts may be
withheld. FSA may withhold factual material where the facts are such a
negligible part of the document that releasing them would be meaningless.
Drafts of documents are exempt under the deliberative process privilege.
They must be part of the decision-making chain and prepared before
adopting a final FSA position. Drafts reflect the give and take of the review
process that leads to a decision. FSA officials must be able to talk and
discuss issues freely. However, labeling a document, “Draft” does not in
itself protect the document.
The deliberative process privilege may be used to protect a draft regardless
of whether it differs from the final version provided that FSA is able to show
that the draft is part of the decision-making process and describes the role
that the documents plays in that process. An exception to withholding a
draft document is when FSA cites the draft document as binding precedent,
adopts it as working FSA law, or incorporates it by reference in a final FSA
decision. If several recommendations are presented in a draft and only 1 is
adopted, the unadopted recommendations may be withheld under the
exemption 5 deliberative process privilege.
Final documents that represent the final FSA action on an issue, and
generally post-decisional documents that discuss, analyze, or explain
established policies, may not be withheld under this privilege. Under certain
circumstances, a post-decisional document may be withheld if it contains
pre-decisional information; such as guidance for decisions of similar cases
arising in the future or information that reflects FSA’s decision-making
process or the author’s own recommendations.

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66

Exemption 5 - Privileged Interagency or Intra-Agency Memoranda or Letters
[5 U.S.C. 552(b)(5)] (Continued)
B Common Privileges (Continued)
Privilege
Description
Attorney-Work Protects documents and other memoranda prepared by FSA attorney
Product
during or in anticipation of litigation, including administrative
proceedings. It covers litigation-related documents prepared by an
attorney or under his/her direction that reveal the attorney’s mental
impressions, theories of the case, legal strategies; such as reports prepared
by a consultant or a program employee, which were prepared under the
direction of any attorney in anticipation of litigation. Litigation need not
have started, but it must be reasonably contemplated; that is a specific
claim must exist that is likely to lead to litigation. The privilege applies
after a case has ended, or even if it never was begun, as long as it was
reasonably contemplated. Attorney-work product documents may be
withheld in their entirety because, unlike the deliberative process
privilege, the attorney-work product privilege protects facts.
Attorney-Client Applies to confidential communications between FSA attorney and his/her
client (here the client is FSA, which acts through its employees), about a
legal matter for which the client has sought professional advice. The
privilege is designed to protect the client so only the client can waive this
privilege. Unlike the attorney-work product privilege, using the attorneyclient privilege is not limited to instances where litigation is expected.
However, to withhold information under this privilege, the documents
must meet all the following 4 criteria:
•

nonlawyer must have been or sought to be a client of the lawyer

•

lawyer must have acted in his/her capacity as a lawyer

•

document must relate to facts communicated confidentially to secure a
legal opinion

•

client must not have waived the privilege.

If a document is shared outside the attorney-client relationship,
exemption 5 may no longer be used to protect the information. However,
information circulated within FSA to employees involved in the matter for
which advice is sought does not breach confidentiality. Factual
information may only be withheld under this privilege if it is part of the
confidential communication. If the facts are not covered by the 4 criteria
governing the attorney-client privilege, they must be segregated and
released.

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66

Exemption 5 - Privileged Interagency or Intra-Agency Memoranda or Letters
[5 U.S.C. 552(b)(5)] (Continued)
B Common Privileges (Continued)
Privilege
Description
Government Available to the Government for information that it generates in the course
Commercial of its business dealings; such as the process leading up to the award of a
Information contract, or for some appraisal information associated with the acquisition of
real property. The premise is that prematurely releasing the information
would put the Government at a competitive disadvantage or would endanger
the consummation of a contract. However, once the contract has been
awarded, property acquired, or the offer withdrawn, the privilege expires.
The privilege applies to trade secrets or other confidential research,
development, or commercial information generated by the Government.
Factual information in the documents, that would not compromise the
Government’s position, must be segregated and released.
C Examples of Information Withheld
Examples of information that may be withheld under exemption 5 include the following:

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•

advisory opinions, recommendations, and deliberations that are part of the
decision-making process (deliberative process privilege)

•

draft documents regardless of whether they differ from the final version (deliberative
process privilege)

•

nonfactual portions of pre-decisional staff papers, containing staff evaluations, advice,
opinions, or suggestions (deliberative process privilege)

•

recommendations contained in official reports of inspection, audits, investigations, or
surveys about safety, security, or the internal management, administration, or operation
of 1 of FSA’s offices or programs (deliberative process privilege)

•

ratings given to job applicants by panel members and panel member names; ratings may
be released if they cannot be linked to the panel members who gave them; panel member
names may be released if the release will not reveal the rating they gave (deliberative
process privilege)

•

in some instances, advisory material prepared on behalf of FSA by consultants
(deliberative process privilege)

2-INFO (Rev. 1) Amend. 1

Page 5-18

Par. 66
66

Exemption 5 - Privileged Interagency or Intra-Agency Memoranda or Letters
[5 U.S.C. 552(b)(5)] (Continued)
C Examples of Information Withheld (Continued)

1-4-13

•

information of a speculative, tentative, or evaluative nature on such matters as proposed
plans to procure, lease, or otherwise acquire and dispose of materials, real estate,
facilities, or functions, when such information would provide undue or unfair competitive
advantage to a private entity in its dealing with the Government, or would impede FSA
activities (deliberative process privilege/commercial information privilege)

•

financial formulas used to determine the financial capability of a contractor (deliberative
process privilege/commercial information privilege)

•

certain information in an appraisal generated by the Government or on its behalf,
especially in anticipation of litigation (commercial information privilege/attorney
work-product privilege)

•

cost estimates, technical ratings and evaluations, and recommendations for award
prepared by the Government (deliberative process privilege/commercial information
privilege)

•

facts divulged by a client to his/her attorney in confidence and opinions given by an
attorney to his/her clients based on those facts (attorney-client privilege)

•

information gathered by FSA investigators under the direction of FSA attorneys (attorney
work-product privilege)

•

memoranda prepared by FSA attorney that advises FSA of the types of legal challenges it
may face in light of a proposed program, potential defenses available to FSA, and the
likely outcome (attorney work-product privilege)

•

records prepared by FSA attorney about his/her legal strategy in a case that are
exchanged among FSA personnel or with other agencies in preparing for litigation or an
administrative proceeding (attorney work-product privilege).

2-INFO (Rev. 1) Amend. 1

Page 5-19

Par. 66
66

Exemption 5 - Privileged Interagency or Intra-Agency Memoranda or Letters
[5 U.S.C. 552(b)(5)] (Continued)
D Examples of Information Possibly Covered
Examples of FSA information that might be covered by exemption 5 include the following:
•

internal FSA documents/memorandums of a deliberative nature before a final decision,
memorandum on pending action by management, minutes of management meetings
containing recommendations, opinions, etc., budget estimates with supporting data, or
reports containing recommendations, opinions, or advice FSA uses in its decision-making
process (deliberative process privilege)

•

communication between a superior and subordinate about a discussion of preliminary
matters (deliberative process privilege)

•

COC or STC meetings in Executive Session (deliberative process privilege)

•

identity of NAP independent assessor and/or the documents of a pre-decisional nature
provided by the NAP independent assessor (deliberative process privilege)
Note: The exemption only applies until STC approves COC recommendation at which
time the pre-decisional nature ceases. Requests asking for NAP independent
assessment information will be forwarded to the appropriate FSA State Office for
response.

1-4-13

•

Disaster Damage Assessment Reports and Flash Situation Reports (deliberative process
privilege); requests asking for Disaster Damage Assessment Reports and Flash Situation
Reports will be forwarded to the appropriate FSA State Office for response

•

non-factual portions of staff papers, to include after-action reports, lessons learned, and
situation reports containing staff evaluations, advice, opinions, or suggestions
(deliberative process privilege)

2-INFO (Rev. 1) Amend. 1

Page 5-20

Par. 66
66

Exemption 5 - Privileged Interagency or Intra-Agency Memoranda or Letters
[5 U.S.C. 552(b)(5)] (Continued)
D Examples of Information Possibly Covered (Continued)

1-4-13

•

advice, suggestions, or evaluations prepared on behalf of FSA by individual consultants,
boards, committees, councils, groups, panels, conferences, commissions, task forces, or
other similar groups that are formed for the purpose of obtaining advice and
recommendations (deliberative process privilege)

•

nonfactual portions of evaluations by FSA personnel of contractors and their products
(deliberative process privilege)

•

planning, programming, and budgetary information that is involved in FSA planning and
resource allocation process (deliberative process privilege).

2-INFO (Rev. 1) Amend. 1

Page 5-21

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
A When Exemption 6 Applies
Exemption 6 permits withholding information about individuals in personnel, medical, or
similar files because disclosing the information would constitute a clearly unwarranted
invasion of personal privacy. Although documents containing personal and personnel-related
information must be reviewed on a case-by-case basis, FSA maintains that an individual has
a personal privacy interest in the information listed in subparagraph E.
Note: Similar files means any files or documents about a specifically identifiable individual
that contains information that can be identified as applying to that person.
Examples of similar files may include the following:
•

files containing reports, records, and other material about personnel matters in which
administrative action, including disciplinary action that may be or has been taken, that are
identified to a specific individual

•

personal injury report files

•

files related to permits, applications, and licenses

•

certain information in reports of investigation.

Records about a business or association generally may not be withheld under exemption 6;
such as business addresses and telephone numbers. However, in certain circumstances,
especially within FSA where a business or farm is owned and operated by an individual and
the records of the business or farm are in essence the records of the individual, exemption 6
may apply.
Exemption 6 may not be used where the privacy interest to be protected is the requester’s.
Therefore, exemption 6 should not be used to withhold information from a requester that
he/she would be entitled to under the Privacy Act.

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 5-22

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
B Exemption 6 “Balancing Test”
When making decisions about applying exemptions 6 and 7(C), determine whether or not a
privacy interest applies; there must be a privacy interest in the requested information for any
further consideration of privacy-exemption protection to be considered.
To qualify, the information must concern the privacy interest of an identifiable, living
person; see subparagraph C for when exemption 6 may be used to protect the family of the
deceased. A privacy interest exists if disclosing the information to the public would violate
the privacy of the subject individual, and/or could cause injury or embarrassment to the
individual.
Note: If a personal privacy interest does not exist, then exemptions 6 and 7(C) do not
apply.
Exemption 6 material that is covered by the Privacy Act may be released with the prior
written consent of the person who is the subject of the record. However, there is no
requirement for prior written consent for exemption 6 information that is not covered by the
Privacy Act. Whether information should be released is determined by the balancing test. If
there is a privacy interest, determine whether there also is a public interest, as follows.

1-4-13

•

Would disclosing the information shed light on FSA’s performance of its statutory
duties? Information that reveals little or nothing about the operations or activities of the
Government does not meet the public interest standard and should be withheld.

•

Consider how disclosure would benefit the general public in light of the content and
context of the requested document.

•

The requester’s particular purpose, circumstances, and proposed use should not be taken
into account, except to the extent that it may coincide with an identifiable public interest.

2-INFO (Rev. 1) Amend. 1

Page 5-23

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
B Exemption 6 “Balancing Test” (Continued)
Balance the personal privacy interest against the public interest.
IF…
FSA determines
that a public
interest is present
the privacy
interest is greater
the public interest
is greater

THEN…
that interest should be balanced against the personal privacy interest.
The benefit to the public must be weighed against the potential harm to
an individual’s personal privacy.
the information should be withheld.
the material should be released.
Notes: A privacy interest may still exist even though personal
information has been made available to the general public at
some place and point in time; this is referred to as the practical
obscurity standard.
The fact that disclosing certain information about a particular
individual to the media might be interesting to the public does
not in and of itself create a public interest that is recognized by
FOIA. Disclosure must reveal something about the operations
or activities of FSA to be considered as public interest in the
balancing test.

A requester’s particular knowledge of, or relationship to, the information in question should
not be considered in deciding FOIA requests.
Example: FSA should not disclose information to the spouse or relative of the subject
individual that they would withhold from any member of the general public.

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 5-24

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
B Exemption 6 “Balancing Test” (Continued)
The identity of a FOIA requester cannot be taken into consideration in considering what
should be released. An exception to this rule is that FSA may not invoke exemption 6
or 7(C) where the only privacy interest to be protected is the requester’s.
Example: If a requester asks for a copy of a record not covered by the Privacy Act, and it
contains his or her home address, FSA cannot withhold the home address from
him or her.
Exemptions 6 or 7(C) cannot be used to withhold information from a requester that he/she
would be entitled to under the Privacy Act; that is information about him/her.
After privacy-protected, PII has been redacted, all reasonably segregable, non-exempt
portions of the documents must be released.
C Protecting the Family of the Deceased
Exemptions 6 and 7(C) generally may be used only to protect the privacy of living
individuals, not deceased persons. However, in some cases, exemptions 6 and 7(C) may be
invoked to protect the family of the deceased. Particularly sensitive, often graphic, personal
details about the circumstances surrounding an individual’s death may be withheld when
necessary to protect the privacy interests of surviving family members.
Examples:The audiotape of the Challenger astronauts recorded immediately before their
deaths was withheld to protect the family members from the pain of hearing the
final words of their loved ones.
In a case involving the National Park Service, the autopsy and death photographs
of an individual were withheld to protect the family members from the pain of
seeing them.

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 5-25

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
D When Exemption 6 May Not Apply
Generally, when the following information is requested under FOIA, it can be released and is
not protected under exemption 6. Review items carefully; there may be protected
information that must be redacted mixed with releasable information:
Note: See subparagraph E for protected information.

1-4-13

•

appreciation and commendation letters from professional associates

•

awards and honors received in an individual’s professional capacity, including
justification for all awards and honors, with all protected material redacted; such as
narrative material contained in a performance appraisal

•

bargaining unit member names

•

citizenship

•

deceased persons’ information, with all exempt material redacted (including SSN’s)

•

educational information related to an employee’s or successful applicant’s profession;
such as information (name of school, year of graduation) about high school, college,
graduate school, technical school, etc.

•

FOIA requester names, except when they are making first party requests

•

job applications for the successful candidate or the incumbent, with all exempt material
redacted

•

military service and veteran preference information; such as the fact that an individual
served, military service number, dates and branch for all active military service, rank,
medals, badges or awards received, fact of veteran preference

2-INFO (Rev. 1) Amend. 1

Page 5-26

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
D When Exemption 6 May Not Apply (Continued)
•

names of employees involved in union activities during working hours, selecting
officials, and individuals who applied for and received the buyout and have separated
from FSA

•

names of present and past employees, positions titles, occupational series, annual salary
rates, grades, and amounts received for performance awards or bonuses, incentive
awards, merit pay amounts, awards for distinguished performance at all levels, merit pay,
and allowances and differentials
Note: Normally, the name of the individual, position, type of award, and the dollar
amount are releasable; however, generally the justification of the award is not
releasable, particularly when it is linked to FSA’s performance evaluation.

•

organization and professional group membership when related to an employee’s
profession

•

panel ratings and scores of the successful job candidate, with names of raters redacted

•

past employment in State or Federal Government positions and in the private sector when
it is related to the position held by the employee

•

position descriptions, job element identification, and performance standards or work
expectations, but not actual performance appraisals, if releasing will not interfere with
law enforcement programs or severely inhibit FSA effectiveness
Note: Performance elements, standards, or work expectations may be withheld when
they are so intertwined with performance appraisals that their disclosure would
reveal an individual’s performance appraisal.

•

1-4-13

present and past duty stations, including official mailing and e-mail addresses of FSA
employees, and telephone number as they appear in the public FSA telephone directories

2-INFO (Rev. 1) Amend. 1

Page 5-27

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
D When Exemption 6 May Not Apply (Continued)

1-4-13

•

promotion, reassignment, or appointment recommendations, etc., after action occurs,
except for information protected under exemption 6, such as information that would
disclose an individual’s performance appraisal

•

ranking factors used for job applicants; not to be confused with a crediting plan cited in
subparagraph F

•

resumes and applications for Federal employment for the successful candidate only, with
all exempt material redacted

•

service computation date and information related to tenure

•

sex

•

SF-50, with all exempt material redacted

•

SF-52, with all exempt material redacted

•

special skills, accomplishments, and awards related to the employee’s or successful
applicant’s profession and/or position

•

standard payroll forms, with all exempt material redacted

•

type of job for which applicant is applying

•

total number of hours worked, including overtime.

2-INFO (Rev. 1) Amend. 1

Page 5-28

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
E Examples of FSA Employee and General Information Withheld
The following information is eligible for protection under exemption 6 if:
•

there is no public interest qualifying under the standard set forth in DOJ v. Reporters
Committee for Freedom of the Press, 489 U.S. 749 (1989) and Department of
Defense v. Federal labor Relations Authority, 62 U.S.L.W. 4143 (February 23, 1994)
Note: To quality as a public interest, releasing the information itself would have to shed
light on FSA’s performance of its statutory duties.

•

there is a public interest under exemption 6 and the public interest in disclosure does not
outweigh the potential harm to an individual’s personal privacy when the required
balancing test (subparagraph B) is performed.

Examples of FSA employee and general information that may be withheld under
exemption 6 include, but are not limited to the following:
•

personal identifying information such as the following:
•
•
•
•
•

1-4-13

age, place, and date of birth
allegations of misconduct or arrests
background information that is not work-related
beeper number
driver’s license number

•

e-mail and home address, including personal P.O. Box number

•

home FAX number

2-INFO (Rev. 1) Amend. 1

Page 5-29

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
E Examples of FSA Employee and General Information Withheld (Continued)

1-4-13

•

home telephone and personal cell number, except if the individual is operating a business
from home and/or uses the cell phone number for business

•

information about an individual that could be considered derogatory to the individual

•

information about or provided by relatives and references

•

marital status

•

military service number

•

mother’s maiden name and /or other personal information supplied by an individual as an
indentify code for system access

•

names of individuals filing first-party Privacy Act or FOIA/Privacy Act requests

•

name, when linked to other personal information protected by exemption 6 and not
otherwise releasable, as the names of past and present employees

•

other names used

•

PIN

•

political party or union affiliation

•

racial and/or ethnic background

•

SSN (including the last 4-digits when only last 4-digits are present)

•

technical education (not directly related to the position held by employee or successful
applicant) (subparagraph D)

•

whether an employer may be contacted about the employee’s work record

•

work experience (not directly related to the qualifications for the position held by
employee or successful applicant) (subparagraph D)

2-INFO (Rev. 1) Amend. 1

Page 5-30

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
E Examples of FSA Employee and General Information Withheld
•

personal medical and financial information, such as the following:
•
•
•
•
•
•

•

1-4-13

bank account number/information
medical condition or history records
health or drug test results
personal credit/debit card numbers and statements
personal credit worthiness scores, reports
OGE Form 450

payroll information such as the following; however, not total amounts of compensation,
as discussed in subparagraph D:
•

fringe benefit payments

•

hourly rate of pay, not valid for Wage Grade employees

•

information about wage garnishment according to alimony orders and child support
orders, except when requested by State and local Government officials authorized to
issue compulsory requests for information

•

medical, dental , life, and long-term care insurance information

•

net wages (gross salary is releasable)

•

number of deductions and amounts of deductions

•

number of withholding exemptions

•

tax information

•

time and attendance records (the amount of accrued sick or annual leave, leave
without pay, sick or annual leave used, absent without leave, and other personal
information)

2-INFO (Rev. 1) Amend. 1

Page 5-31

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
E Examples of FSA Employee and General Information Withheld (Continued)
•

personnel-related information, such as the following:
•

amount of veteran’s preference (5 or 10 points)

•

availability for employment

•

award justifications based on employee performance (linked to evaluations)

•

employee conduct investigation records and results
Note: Where wrongdoing by high-level Government officials is shown, the result
may be different. There may be a public interest that out-weighs the personal
privacy interest.

•

employee grievance and FSA’s response to the grievance; arbitration decision on the
grievance (where a particular employee’s decision is requested)

•

employee EEO complaint and FSA response to complaint; EEO investigative case
files
Note: Exemptions 5 and 7(A) may also apply to EEO case files.

1-4-13

•

information about whether an individual received an honorable or dishonorable
discharge from military service

•

job termination reasons and resignation letters

•

letters of reprimand and suspension notices

•

mailing lists that contain personal information (names, home addresses, and telephone
numbers of individuals as opposed to businesses and other organizations) where the
release would not shed light on the operations or activities of the Government

•

membership in organizations other than organizations related to an employee’s
profession

•

names of dues-paying members of the bargaining unit

2-INFO (Rev. 1) Amend. 1

Page 5-32

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
E Examples of FSA Employee and General Information Withheld (Continued)

•

•

performance appraisals, including narrative statements or materials

•

personnel hearing information

•

personnel matter information about which administrative/disciplinary action may be
or was taken

•

religious preference; information related to exercising employee’s religion, such as
religious holiday leave applications

•

referral lists of qualified candidates and the roster of applicants for a particular
position, except for the successful candidate

•

results of a complaint by an employee against his/her supervisor (where wrongdoing
is shown, the result may be different)

•

supervisory evaluation of a candidate for a particular position

•

supervisor’s notes on an employee’s performance

•

unsuccessful job applicant identities, qualifications, knowledge, skills, abilities, and
personal characteristics

security and law enforcement official information, such as the following:
•

names of law enforcement personnel, including the Secretary’s security detail
Note: Names of senior Government officials, especially senior Government officials
that appear in official directories, are generally released.

•

1-4-13

work-related cell and pager numbers of law enforcement personnel.

2-INFO (Rev. 1) Amend. 1

Page 5-33

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
F Examples of FSA Program Information Withheld
The following information is eligible for protection under exception 6 if:
•

there is no public interest qualifying under the standard set forth in DOJ v. Reporters
Committee for Freedom of the Press, 489 U.S. 749 (1989) and Department of
Defense v. Federal labor Relations Authority, 62 U.S.L.W. 4143 (February 23, 1994)
Note: To quality as a public interest, releasing the information itself would have to shed
light on FSA’s performance of its statutory duties.

•

there is a public interest under exemption 6 and the public interest in disclosure does not
outweigh the potential harm to an individual’s personal privacy when the required
balancing test (subparagraph B) is performed.

Examples of FSA program information that may be withheld under exemption 6 include, but
are not limited to the following:
•

direct and guaranteed loan/loan application information, including but not limited to, the
following:
•

details of the loans when connected to the farm loan borrowers
Note: The total amount of the loans, when connected to the names of farm loan
borrowers, must be released.

1-4-13

•

delinquent loan installments

•

farm-stored commodity loans denied because of previous difficulty settling
farm-stored loans with a producer

•

individual borrower segregated, selective, or discriminate lists that include
categorization based on such factors as borrowers having delinquent loans, borrowers
receiving servicing letters, borrowers whose names have been submitted to collection
agencies, and borrowers facing foreclosure, bankruptcy, or similar proceedings

2-INFO (Rev. 1) Amend. 1

Page 5-34

67

Par. 67
Exemption 6 - Personal Information Affecting an Individual’s Privacy [5 U.S.C. 552(b)(6)]
(Continued)
F Examples of FSA Program Information Withheld (Continued)
•

real estate appraisals prepared for farm loan applicants, borrowers, or for foreclosure
proceeding purposes
Note: First party FOIA/Privacy Act requests for real estate appraisals prepared for
foreclosure proceeding purposes may not be withheld under exemption 6.
They should be withheld under the Privacy Act (5 U.S.C. 552a(d)(5), and
FOIA exemption 5, the attorney work-product privilege.

•

1-4-13

personal identifying information including, but not limited to:
•

all types of personal identifying information listed in subparagraph E about
employees and other individuals

•

all types of personal medical and financial information listed in subparagraph E about
employees and other individuals, including other types of information more like about
agricultural landowners and producers, such as the following:
•

bankruptcy information

•

collection, debt, deposit, and disbursement registers, bank deposit slips, bank
statements, canceled and duplicate checks, bank reconciliation statements

•

direct deposit form and/or name of the lending institution where benefits are
directly deposited

•

financial transaction history

•

information about an individual or their business operations that could be
considered unduly derogatory to the individual

•

tax information

2-INFO (Rev. 1) Amend. 1

Page 5-35

68

Par. 68
Exemption 7 - Records Compiled for Law Enforcement Purposes [5 U.S.C. 552(b)(7(A),
7(B), 7(C), 7(D), 7(E), 7(F))]
A When Exemption 7 Applies
Exemption 7 protects records or information compiled for law enforcement purposes, but
only to the extent that producing law enforcement records or information could cause 1 of
the harms specified in subparagraphs B through H.
To invoke exemption 7, FSA must demonstrate that the requested records were compiled for
a law enforcement purpose. The law to be enforced within the meaning of the term law
enforcement purposes includes civil; for example, there are other civil law enforcement
purposes, EEO statutes, as well as statutes authorizing administrative and regulatory
proceedings. The records do not have to be initially compiled for law enforcement purposes,
so long as they are being used for that purpose at the time the response to FOIA request is
made.
B Exemption 7(A)
Exemption 7(A) allows withholding law enforcement records or information if producing the
law enforcement records or information could reasonably be expected to interfere with
enforcement proceedings.
Law enforcement proceeding include civil and criminal proceedings. To qualify for
exemption 7(A) protection, FSA must show that a law enforcement proceeding is pending or
prospective and that disclosing the documents could reasonably be expected to cause harm;
that is disrupt, impede, delay, or otherwise harm the enforcement proceedings; such as
destroy or alter the evidence or intimidate a witness.
Generally, FSA may invoke exemption 7(A) as long as the law enforcement proceeding
remains pending or prospective. Once the proceeding is closed, the information can be
withheld only if another exemption applies.
FSA may make categorical withholding of documents under exemption 7(A) if FSA can
show that releasing particular kinds of documents would generally interfere with
enforcement proceedings. If documents do not fall under 1 of the categories, then they must
be released.
Examples:

1-4-13

Example categories of information that may be withheld under
exemption 7(A) include reports of investigation, witness statements, lab
reports, evidence logs, and audit reports where an investigation is involved.

2-INFO (Rev. 1) Amend. 1

Page 5-36

68

Par. 68
Exemption 7 - Records Compiled for Law Enforcement Purposes [5 U.S.C. 552(b)(7(A),
7(B), 7(C), 7(D), 7(E), 7(F))] (Continued)
C Exemption 7(B)
Exemption 7(B):
•

allows withholding law enforcement records or information if producing the law
enforcement records or information would deprive a person of a right to a fair or an
impartial adjudication

•

is aimed at preventing prejudicial pretrial publicity that could impair court proceedings.

Although exemption 7(B) is rarely used, it could be used when a trial or adjudication is
pending or imminent, and when it is more probable than not that disclosing the material
sought would seriously interfere with court proceeding fairness.
Note: Exemption 7(B) has been used to withhold privileged documents under the discovery
rules.

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 5-37

68

Par. 68
Exemption 7 - Records Compiled for Law Enforcement Purposes [5 U.S.C. 552(b)(7(A),
7(B), 7(C), 7(D), 7(E), 7(F))] (Continued)
D Exemption 7(C)
Exemption 7(C) allows withholding law enforcement records or information if producing the
law enforcement records or information could be expected to constitute an unwarranted
invasion of personal privacy.
As with exemption 6, exemption 7(C) requires identifying and balancing the relevant privacy
and public interests to determine whether disclosing certain law enforcement information
could cause an unwarranted invasion of personal privacy (subparagraph 67 B). Under
exemption 7(C), FSA may determine that a certain type of information may be protected
always (a categorical withholding) regardless of the individual circumstances.
Under exemption 7(C), the names and addresses of private individuals appearing in law
enforcement files may be categorically withheld unless access is necessary to confirm or
reject evidence that FSA is involved in an illegal activity.
Individuals involved in a criminal investigation, including suspects, witnesses, interviewees,
middle and low-ranking law enforcement officers investigators, and other individuals named
in investigatory files possess privacy interests under exemption 7(C), in not having their
names revealed in connection with an investigation because disclosure may result in
embarrassment or harassment. The names of supervisory law enforcement officers are
normally released.
FSA may continue to invoke exemption 7(C) even if the information is compiled into a
nonlaw enforcement file at a later date if the non-law enforcement file essentially reproduces
and is substantially the equivalent of all or part of an earlier record made for law enforcement
purposes.
Examples:

Examples of information that may be withheld under exemption 7(C) include
names of low to mid-level special agents and law enforcement personnel,
informants, witnesses, interviewees, and suspects.

Note: Names of low to mid-level special agents and law enforcement personnel, informants,
witnesses, interviewees, and suspects may also be withheld under exemption 6.

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 5-38

68

Par. 68
Exemption 7 - Records Compiled for Law Enforcement Purposes [5 U.S.C. 552(b)(7(A),
7(B), 7(C), 7(D), 7(E), 7(F))] (Continued)
E Exemption 7(D)
Exemption 7(D) allows withholding law enforcement records or information if producing the
law enforcement records or information could reasonably be expected to disclose the identity
of a confidential source, including a State, local, or foreign agency or authority, any private
institution that furnished information on a confidential basis, and in the case of a record or
information compiled by a criminal law enforcement authority in the course of a criminal
investigation or by FSA conducting a lawful national security intelligence investigation,
information furnished by a confidential source.
The identity of a source is protected whenever he/she has provided information under either
an express promise of confidentiality or circumstances where such assurance could
reasonably be implied. In considering whether to invoke exemption 7(D), consider whether
the information was furnished by a confidential source during the course of a legitimate law
enforcement investigation.
Not all sources furnishing information in the course of criminal investigations are entitled to
a “presumption of confidentiality.” Source confidentiality must be determined on a
case-by-case basis. Two factors should be applied in deciding whether implied
confidentiality exists; the nature of the crime and the source’s relation to the crime. A key
consideration is the potential for retaliation, reprisal, or harassment against the source that
provided the information.
Under exemption 7(D), there is no balancing. If the source was confidential, the exemption
may be invoked regardless of the public interest in disclosure. The nature of the information
is not considered. The question is not whether the requested document is of the type that
FSA usually treats as confidential, but whether the source spoke under an express or implied
promise that the communication would remain confidential.
Exemption 7(D) may be used regardless of the fact that an investigation has been closed.
The source’s protection cannot be lost through the passage of time or the death of the source.
Examples:

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Examples of information withheld under exemption 7(D) include any
information that might identify a confidential source, such as interviews,
affidavits, or another witness’ reference to the source.

2-INFO (Rev. 1) Amend. 1

Page 5-39

68

Par. 68
Exemption 7 - Records Compiled for Law Enforcement Purposes [5 U.S.C. 552(b)(7(A),
7(B), 7(C), 7(D), 7(E), 7(F))] (Continued)
F Exemption 7(E)
Exemption 7(E) allows withholding law enforcement records or information if producing the
law enforcement records or information would disclose either of the following.
Clause
Description
1
Techniques and procedures for law enforcement investigations or prosecutions.
Under exemption 7(E)’s first clause, FSA does not have to show that a particular
harm would be caused by releasing the information. Information may receive
categorical protection.

2

Note: Techniques and procedures may be withheld even if they are known to the
public, if disclosure could lessen their effectiveness.
Guidelines for law enforcement investigations or prosecutions, if disclosing the
guidelines could reasonably be expected to risk circumvention of the law.
Under exemption 7(E)’s second clause, FSA has to show that harm would be
caused by releasing the information. FSA can only withhold guideline portions
that would cause harm.

Examples:

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Examples of materials the courts have found to be properly withheld under
exemption 7(E) include certain portions of manuals maintained by FSA
Inspector General, information on interviewing techniques, and conducting
surveillances and investigations.

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Page 5-40

68

Par. 68
Exemption 7 - Records Compiled for Law Enforcement Purposes [5 U.S.C. 552(b)(7(A),
7(B), 7(C), 7(D), 7(E), 7(F))] (Continued)
G Exemption 7(F)
Exemption 7(F) allows withholding law enforcement records or information if producing the
law enforcement records or information could reasonably be expected to endanger the life or
physical safety of any individual.
To withhold the names of individuals in law enforcement files or other information under
exemption 7(F), FSA must show that there is a concern for the safety of people; that is
releasing the information could result in physical attacks, threats, risks to physical safety, or
harassment.
Exemption 7(F) is applicable even after a law enforcement officer has retired or after an
individual has testified at trial.
FSA is not required to balance the public/s interest in disclosure against the individual’s
personal privacy interest like exemptions 6 and 7(C).
Examples:

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Examples of material covered under exemption 7(F) include names and other
identifying information about law enforcement personnel, including the
Secretary’s security detail, names of private security contractors operating in
concert with U.S. military forces in Iraq, and critical infrastructure/sensitive
information related to America’s Homeland Security; such as inundation
maps, if disclosure could reasonably be expected to jeopardize national
security or endanger the life or physical safety of citizens.

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Page 5-41

68

Par. 68
Exemption 7 - Records Compiled for Law Enforcement Purposes [5 U.S.C. 552(b)(7(A),
7(B), 7(C), 7(D), 7(E), 7(F))] (Continued)
H Law Enforcement Exclusions
Under certain circumstances, records about pending investigations and informants may be
considered to be outside the FOIA scope. There are 3 law enforcement exclusions that
expressly authorize Federal law enforcement agencies to treat the records as not subject to
the requirements of FOIA. These exclusions were designed to address exceptionally
sensitive situations in which even providing a Glomar response would be inadequate to the
task. A more detailed explanation of when these exclusions apply can be found in DOJ
FOIA Guide available at www.usdoj.gov/oip/foia_guide07.htm. FSA should consult the
Office of Special Counsel before considering relying on 1 of the 2 law enforcement
exclusions available to agencies, other than FBI, to treat records as not subject to FOIA.
Note: The third exclusion applies expressly to records maintained by FBI.

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2-INFO (Rev. 1) Amend. 1

Page 5-42

Par. 69
69

Exemption 8 - Records of Financial Institutions [5 U.S.C. 552(b)(8)]
A When Exemption 8 Applies
Exemption 8 covers matters that are 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, such as the Federal Reserve Boards or the
Office of the Comptroller of the Currency. It generally does not apply to records in FSA’s
possession.
B Examples of Information Withheld
Exemption 8 has been invoked to protect band examination reports; such as reports
evaluating a bank’s stability, financial condition, operations, and reports examining a bank’s
compliance with consumer laws and regulations.

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2-INFO (Rev. 1) Amend. 1

Page 5-43

Par. 70
70

Exemption 9 - Geological and Geophysical Information Concerning Wells
[5 U.S.C. 552(b)(9)]
A When Exemption 9 Applies
Exemption 9 pertains to geological and geophysical information and data, including maps,
concerning wells.
B Examples of Information Withheld
Exemption 9 applies to wells, broadly, including oil, natural gas, and water wells. It has been
invoked to withhold well logs and maps, seismic reports, and other exploratory oil company
findings. Although it has rarely been invoked by FSA, it is reasonable to assume that it may
be invoked to protect water and irrigation wells in compelling circumstances; such as when
exemption 9 protection is necessary to guard against a Homeland Security attack on pooled
natural resources intended to cause harm to the public.

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2-INFO (Rev. 1) Amend. 1

Page 5-44

Par. 71
71

When FSA May Lose the Right to Invoke an Exemption
A Right to Invoke Exemptions
Depending on release circumstances, FSA may lose the right to invoke an exemption even
when it is otherwise warranted, if the information has been disclosed previously; that is,
shared with parties outside the Federal Government.
B Right Not Waived
However, FSA has not waived its right to invoke an otherwise applicable exemption in the
following circumstances:

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•

when records are circulated within FSA, between FSA and another Federal agency, or
when material is disclosed to Congress

•

depending on the facts, when FSA must release a document under limited and controlled
conditions; such as releasing documents under a protective order in an administrative
proceeding

•

where prior disclosure was unauthorized or unlawful; that is a leak

•

where disclosure is in furtherance of a legitimate Government purpose.

2-INFO (Rev. 1) Amend. 1

Page 5-45

Par. 72
72

Discretionary Releases
A Permitted Discretionary Releases
USDA regulations permit FSA to make discretionary releases of records otherwise exempt
from disclosure, according to 1 of the 9 FOIA exemptions, when the discretionary release is
not otherwise specifically prohibited by Executive Order, statute, common law, or
regulation.
Notes: Disclosing information that is protected under exemptions 1, 3, 4, 6, 8, and 9 will in
most instances be restricted from discretionary release by a statute or Executive
Order. Such documents are not subject to discretionary release.
Documents covered by exemptions 2 and 5 (deliberative process privilege) may be
considered for discretionary releases. Discretionary releases of materials protected by
these exemptions may be made without consulting FSA FOIA Officer.
Legally, it is possible to consider documents covered by exemption 5 (attorney-client
privilege, attorney work-product privilege, and Government commercial information
privilege), 7(A), 7(B), 7(C), 7(D), 7(E), and 7(F) for discretionary releases. However,
only in extremely rare cases should such information ever be subject to discretionary
release. FOIA processers considering discretionarily releasing such information
should obtain FSA FOIA Officer concurrence before making discretionary releases of
information protect by these exemptions.
B FOIA Processer Action
If an FSA office determines that making a discretionary release is appropriate and is
consistent with FSA and USDA policy, FOIA processers will follow the guidance in
subparagraph 26 E that includes the following:

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•

notifying the requester, in writing, the requested information is exempt from disclosure,
under FOIA, but that FSA decided to exercise its discretion to release the information

•

documenting, in writing, the rationale for making the discretionary release, and including
in this document, a statement identifying the FSA official responsible for the
discretionary release, and a signed and dated statement from this official, certifying that
such a release is not prohibited by Executive Order, statute, common law, or regulation,
and retain the discretionary release statement, as described in subparagraph 26 E, in the
official case file for the request.

2-INFO (Rev. 1) Amend. 1

Page 5-46

Exhibit 1
Reports, Forms, Abbreviations, and Redelegations of Authority
Reports
This table lists the required reports in this handbook.
Report Control
Reporting
Negative
Number
Title
Period
Submission Date
Report Reference
FSA-538
Annual
Annually Counties by
Yes
6
(RPT I 00 INFO 09-1) Freedom of
October 15; State and
Informatio
National Offices,
n Act
APFO, KCCO, and
Report
KCFO by October 30
FOIA
Annually December 31
Yes
6
Report to
Congress
Forms
This table lists all forms referenced in this handbook.

Number
FSA-538
OGE Form 450
SF-50
SF-52

Title
Annual Freedom of Information Act Report
Confidential Financial Disclosure Report
Notification of Personnel Action
Request for Personnel Action

Display
Reference

Reference
6, 11
67
67
67

Abbreviations Not Listed in 1-CM
The following abbreviations are not listed in 1-CM.
Approved
Abbreviation
FOIA-CAP
KC
NARA
OGE
PIN
SORN

Term
FOIA Capture System
Kansas City
National Archives and Records Administration
Office of Government Ethics
personal identification number
System of Records Notice

Reference
6, 11, 21, 22, 27, 29, Ex. 2
3, 21, 27, 61
12, 24
67
67
4, Ex. 2

Redelegations of Authority
None.

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2-INFO (Rev. 1) Amend. 1

Page 1

.

Exhibit 2
Definitions of Terms Used in This Handbook
Acknowledgement Letters
Acknowledgement letters mean written communications acknowledging receiving valid FOIA
requests. Acknowledgement letters generally constitute FSA’s first formal communications with
FOIA requesters. As appropriate, acknowledgement letters will include requests for FOIA
request scope clarification, written FOIA fee payment assurance, FOIA fee advance payment,
and responses to requests for expedited processing and FOIA fee waivers. Whenever possible,
acknowledgement letters should be issued within 3 workdays of receiving a valid FOIA request.
Appeal
Appeal means a written challenge by a FOIA requester to FOIA response sufficiency when
permissible; such as when:

1-4-13

•

records or parts of records have been withheld

•

FSA informs the requester that it does not possess responsive records, and the requester
questions the adequacy of FSA’s search

•

a request for a FOIA fee waiver has been denied

•

a request for expedited processing has been denied or not responded to on time

•

a decision was not made on a request within the statutory time limits and FSA’s processing
of the request has not been completed

•

a requester believes that there is a procedural deficiency about the processing of his/her
request; such as fees are improperly calculated.

2-INFO (Rev. 1) Amend. 1

Page 1

Exhibit 2
Definitions of Terms Used in This Handbook (Continued)
Commercial Interest
Commercial interest means an interest that furthers a commercial, trade, or profit interest as
those terms are commonly understood.
Commercial-Use Request
Commercial-use request means a request from or on behalf of a person who seeks information
for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the
person on whose behalf the request is made. In determining whether a requester falls into this
category, FSA will consider the identity of the requester and the record’s intended use in addition
to any other available information about the requester.
Complex Request
Complex request means a FOIA request that an agency using multi-track processing places in a
slower track based on the volume and/or complexity of the records requested. Within FSA,
records that cannot be processed within 20 workdays are placed in the complex track.
Consultation Request
Consultation request means a record referral request in which FSA is asked only to provide
recommendations for releasing FSA’s records to another Federal agency, rather than providing
copies of any releasable records directly to the requester.

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2-INFO (Rev. 1) Amend. 1

Page 2

Exhibit 2
Definitions of Terms Used in This Handbook (Continued)
Delinquent FOIA Requester
Delinquent FOIA requester means a FOIA requester who has not paid FOIA fees for which
he/she has been charged, and whose payment is officially overdue by at least 30 calendar days.
Denied
Denied means FSA decided the records were not to be released in response to a FOIA request
because all the information in the requested records was determined by FSA to be exempt
under 1 or more FOIA exemptions or because of a procedural reason; such as no responsive
records were located.
Duplication
Duplication means making a copy of a record, or the information contained in it, to respond to a
FOIA request. Copies can be paper, microform, photographs, audiovisual materials, or
electronic records; such as magnetic tape or disk.
Educational Institution
Educational institution means a preschool, public or private elementary or secondary school, an
undergraduate higher education institution, graduate higher education institution, professional
education institution, or vocational education institution that operates a scholarly research
program. To be in this category, a requester must show that the request is authorized by, and is
made under, the auspices of a qualifying institution and that the records are not sought for a
commercial-use, but are sought to further scholarly research.
Expedited Processing
Expedited processing means giving FOIA requests priority, and processing them ahead of other
non-expedited, pending requests when the requester has shown a compelling need for specific
records. A compelling need is a threat to life or physical safety of an individual or, in the case of
the media, urgency to inform the public about actual or alleged Federal Government activity.

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2-INFO (Rev. 1) Amend. 1

Page 3

Exhibit 2
Definitions of Terms Used in This Handbook (Continued)
First-In, First-Out
First-in, first-out means that, within each separate processing track, FSA will respond to FOIA
requests in the order in which they are received. This does not mean that no work will
commence on a later request before the earlier request has been processed in its entirety. All
requests should be validated and logged on the date on which they are received, and
acknowledged within 3 workdays of receipt, if at all possible. It does mean that if substantive
work remains to be done and can be done on an earlier request in the same processing track, it
shall be done before substantive work is done on a later request in that same track.
FOIA-CAP
FOIA-CAP means the electronic system used to log and track FOIA requests received by FSA’s
State and County Offices, and to generate the annual FOIA report to Congress.
FOIA Processers
FOIA processers mean FOIA Officers and staff in National FOIA Offices, State FOIA/Privacy
Act coordinators, and designated FOIA coordinators along with their CED’s and FLM’s in
County Offices.
FOIA Request
FOIA request means any written request, including requests filed by FAX, e-mail, and electronic
web site, made by any member of the public for FSA records on any subject. FSA does not
accept verbal requests for FSA records received over the telephone or in person; such as a
requester walking into an FSA County Office. Individuals making verbal requests for FSA
records should be asked to document the requests in writing.
Free-Lance Journalist
Free-lance journalist means a representative of the news media who is able to demonstrate a
solid basis for expecting publication through a news organization, even though not actually
employed by the news organization. A publication contract, past publication record, or evidence
of a specific free-lance assignment from a news organization may indicate a solid basis for
expecting publication.
Frequently Requested Document
Frequently requested document means documents as follows:
•
•

1-4-13

that have been requested at least 3 times under FOIA
that FSA anticipates would likely be the subject of 3 or more requests.

2-INFO (Rev. 1) Amend. 1

Page 4

Exhibit 2
Definitions of Terms Used in This Handbook (Continued)
Glomar Response
Glomar response means a final FSA response to a FOIA or FOIA/Privacy request indicating that
FSA will neither confirm nor deny responsive record existence. Glomar response is generally
used in national security and law enforcement contexts when a request is worded in such a way
that even acknowledging the existence or non-existence of records in FSA files would reveal
information that a FOIA exemption seeks to protect.
Granted
Granted means FSA decided the records were to be released in-full in response to a FOIA
request.
Granted In-Part
Granted in-part means FSA decided the records were to be withheld in-part in response to a
FOIA request.
Multi-Track Processing
Multi-track processing means placing simple requests, requiring relatively minimal effort to
respond, in 1 processing track and more voluminous and complex requests in another track. FSA
uses a 4-track system: expedited, simple, normal, and complex. Requests in each track are
processed on a first-in, first-out, basis.

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2-INFO (Rev. 1) Amend. 1

Page 5

Exhibit 2
Definitions of Terms Used in This Handbook (Continued)
News
News means information that is about current events or that is, or would be, of current interest to
the public.
Noncommercial Scientific Institution
Noncommercial scientific institution means an institution that is not operated for commerce,
trade, or profit, and that is operated solely for conducting scientific research, the results of which
are not intended to promote any particular product or industry. To be in the
educational/scientific institution-use category, requesters must show that the request is
authorized by and made under the auspices of a qualifying institution and that the records are not
sought for a commercial-use, but are sought to further scientific research.
Nonpublic Records
Nonpublic record means any record that cannot be released to the public in-part or in-full
because the record is protected by 1 or more of the 9 exemptions.
Normal Request
Normal request means a FOIA request that is neither especially simple nor especially complex.
Within FSA, records that can be processed within 5-20 workdays are placed in the normal track.

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2-INFO (Rev. 1) Amend. 1

Page 6

Exhibit 2
Definitions of Terms Used in This Handbook (Continued)
Partial Grant
Partial grant means FSA’s decision to disclose part of a record in response to a FOIA request,
deleting information determined exempt under 1 or more FOIA exemptions, or a decision to
disclose some records in their entirety, but withhold others in whole or in-part.
Perfected Request
Perfected request means a FOIA request for records that has been received by FSA’s FOIA
Office that possesses the records, adequately describes the records sought, and for which there is
no remaining question about the payment of applicable FOIA fees.
Public Record
Public record means any record that can be released to the public because the record is not
protected by 1 or more of the 9 exemptions, including redacted records.
Privacy Act Request
Privacy Act request means a written request with an original signature made by an individual for
information about him or herself that is contained in a Privacy Act System of Records. Only
U.S. citizens, and aliens lawfully admitted for permanent residence, are authorized to make
Privacy Act requests.
Note: Third-party requests for information on individuals contained in a Privacy Act System of
Records that can be granted because the individuals to whom the information pertains
have granted consent to the specific disclosures are not Privacy Act requests. They are
FOIA requests.
Producer
Producer, for the purposes of FOIA, means an FSA program participant according to FSA’s
master name and address file.
Note: Producers include individuals and non-individuals (entities), and can be the farm
operator, landowner, or other producer on a farm.

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2-INFO (Rev. 1) Amend. 1

Page 7

Exhibit 2
Definitions of Terms Used in This Handbook (Continued)
Reading Room Materials
Reading room materials mean records in any format that are required to be made available to
the public under 5 U.S.C.(a)(2)m and other records that FSA, at its discretion, makes available to
the public for inspection and copying without requiring a FOIA request filing.
Referring FOIA Requests
Referring FOIA requests means formally assigning FOIA requests for FSA records to another
Federal agency for processing. Because referring FOIA requests for processing to another
Federal agency for processing may obligate FSA to ensure that the agency to which the request
was referred does, in fact, process the request the request that was referred, FSA will not
formally refer FOIA requests either to other Federal agencies, for response. Instead, as
appropriate, FSA will advise requesters, when it is reasonable to believe that the records
requested are maintained by another Federal agency, where the requester might write to request
these records from the agency believed to be maintaining them; providing the requester with
appropriate contact information for this agency whenever possible.
Representative of the News Media
Representative of the news media means any person actively gathering news for an entity that is
organized and operated to publish or broadcast news to the public (see definition of news).
Examples:

Examples of news media entities include, but are not limited to, newspapers,
television or radio stations broadcasting to the public at large, and publishers of
periodicals, but only in instances when representative of the news media can
qualify as disseminators of “news”, who make their products available for
purchase or subscription by the general public. To be in this category, a requester
must not be seeking the records for a commercial-use.

Requester
Requester means any individual who has asked, in writing, to see or receive a copy of FSA
records, including foreign citizens, partnerships, corporations, associations, and foreign, State,
local, or tribal Governments. Federal Government agencies and fugitives from justice are not
eligible to file FOIA requests.
Retention Date of a FOIA Request Case File
Retention date of a FOIA request case file means the date when the official FSA Federal records
within the file may be destroyed, under the Federal Records Act.

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2-INFO (Rev. 1) Amend. 1

Page 8

Exhibit 2
Definitions of Terms Used in This Handbook (Continued)
Review Services
Review services mean the services of FSA personnel (clerical or professional) used in examining
records, both paper and electronic, located in response to a request to determine whether any
portion of any record located is exempt from mandatory disclosure. Review services include
processing responsive records for disclosure; such as doing all that is necessary to redact exempt
portions and otherwise prepare records for release. Review services do not include the time
spent resolving general legal or policy issues about applying FOIA exemptions. Only
commercial-use requesters are charged for review services.
Routing FOIA Requests
Routing FOIA requests means sending within 1 or 2 workdays of receipt, preferably by e-mail or
by the most expeditious manner possible, a FOIA request received at 1 FSA office asking for
copies of FSA records maintained at another FSA office or USDA agency, for processing and
response.
Notes: Whenever FOIA requests are routed to another FSA office or USDA agency for
processing and response, the receiving FSA office will notify the requester that the
request has been routed to the proper office for processing, and provide the requester with
appropriate contact information for this office.
FOIA requests should only be routed to another FSA office or USDA agency when it is
reasonably certain of the following:

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•

for FSA offices authorized to process FOIA requests, that the office to which the
request has been forwarded maintains the requested records

•

for USDA agencies authorized to process FOIA requests, that the agency to which the
request has been forwarded maintains the requested records.

2-INFO (Rev. 1) Amend. 1

Page 9

Exhibit 2
Definitions of Terms Used in This Handbook (Continued)
Search Services
Search services mean the services of FSA personnel (clerical or professional) used in locating
and retrieving FSA records and information responsive to a FOIA request. Search services
include both manual and electronic searches, time spent examining records to find information
that is within the scope of the request, and services to transport personnel to record storage
locations or records to personnel locations to search records, if such services are reasonably
necessary.
Simple Request
Simple request means a FOIA request that FSA places in a faster track based on the volume
and/or complexity of the records requested. Within FSA, records that can be processed within
5 workdays or less are placed in the simple track.
SSN
SSN means a 9-digit number issued to citizens, permanent residents, and temporary (working)
residents under Social Security Act, section 205(c)(2), codified as 42 U.S.C. 405(c)(2). SSN is
issued to an individual by the Social Security Administration. SSN’s purpose is to track
individuals for taxation purposes. In recent years SSN has become a de facto national
identification number. SSN is classified as “core PII” in FSA. FSA recognizes no difference in
the need to protect the full 9-digit SSN from inappropriate release to parties not authorized
access, and the abbreviated, 4-digit version (last 4-digits of SSN) now used on some forms to
identify individuals. Any and all portions of SSN must be redacted whenever they appear on
documents released to third parties pursuant to exemption 6, or to individuals within FSA
without a “need to know”.
Submitter
Submitter means any person or entity outside the Federal Government from whom FSA directly
or indirectly obtains commercial or financial information. Submitter includes, but is not limited
to, individuals, corporations, and State, local, tribal, and foreign Governments. Submitter does
not include the Federal Government.
System of Records Notice (SORN)
SORN means a grouping of records containing personal information about individuals, under
FSA control, from which information is retrieved by the name of the individual or by some other
identifying particular assigned to the individual for which a notice has been published in FR.
A copy of all notices for FSA SORN’s is included in 3-INFO.

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Page 10

Exhibit 2
Definitions of Terms Used in This Handbook (Continued)
Timely Manner
Timely manner means 20 workdays.
Trade Secret
Trade secret means a secret, commercially valuable plan, formula, process, or device used to
make, prepare, compound, or process a commodity, and that can be said to be the end product of
either innovation or substantial effort. The definition of trade secret requires that there be a
direct relationship between the trade secret and the productive process.
Vaughn Index
Vaughn index means a detailed affidavit that identifies each document withheld in a Partial
Grant or total Denial, providing the exemption claimed and explaining how disclosure would
damage the interest protected by the claimed exemption. FOIA requesters have no right to
expect to receive either a Vaughn index or a document list, detailing documents withheld, when
a FOIA request is processed (subparagraph 25 D).
Workday
Workday means a regular Federal workday. It does not include Saturdays, Sundays, Federal
legal holidays, or any days on which FSA offices are closed because of weather conditions,
natural disasters, or other emergency situations.

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2-INFO (Rev. 1) Amend. 1

Page 11

.

Exhibit 5
(Par. 3, 21, 22)
Summary Table of Time Limits for Processing FOIA Requests—Basic Process
The following table provides actions, time limits, and statutory or FSA deadlines as a reference only.

Action
Time Limit
Log receiving request.
Workday 0
Acknowledge request.
Workday 3
Respond to request for expedited processing.
Calendar Day 10
Forward request to proper FSA office for response.
Workday Day 10
Last day to take time extension.
Workday 20
Respond to request without time extension.
Workday 20
Close request if fee assurance or scope clarification Workday 21 following
not received.
letter requesting fee
assurance or scope
clarification
Provide responsive records if not provided with
As soon as practicable
response letter.
after date of final
response letter.
Respond to request with time extension.
Workday 30
Interest on unpaid FOIA fees begins to accrue.
Calendar Day 31

Statutory or FSA
Deadline
FSA
FSA
Statutory
Statutory
Statutory
Statutory
FSA

FSA

Statutory
FSA
Note: USDA fee
regulations in
effect.

The following table provides additional time limits for processing FOIA requests for confidential
commercial and financial information potentially protected by exemption 4.

Action
Provide submitter of information opportunity to
provide views on information protected by
exemption 4.
Provide submitter of information an opportunity to
file suit in District Court before releasing the
information over its objections (“notification”).
Release requested records over submitter’s
objections if not blocked by “reverse FOIA”
lawsuit.
Provide submitter notice that the requester has
filed suit in District Court to compel release of the
records withheld under exemption 4.

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Timeframe
10 Workdays

DOJ Requirement
or FSA Deadline
FSA

10 Workdays

DOJ

Workday 11 after
DOJ
“notification” receipt.
10 Workdays

2-INFO (Rev. 1) Amend. 1

DOJ

Page 1

.

Exhibit 10
(Par. 21)
Summary of Steps for FOIA Request Responses
The following table is a summary of steps to be taken when responding to FOIA requests that shall
be used as a reference only.
Step
Action
1
Know FSA’s FOIA policies, procedures, and regulations and apply them fairly.
2
Read the request.
•

Is it a request for records? Questions can be considered a request for records when
FSA possesses records that contain answers to these questions.

•

3

1-4-13

Disregard labels; such as “Under the provisions of the Privacy Act, I want a copy of
John Doe’s records”. Don’t be mislead about which act applies. A third party request
for an individual’s record should be processed under FOIA, taking into account the
Privacy Act.
Read the request again.
•

Does it ask for records that are under the control of the FOIA processer’s office;
records that another FSA office maintains; or another USDA or Federal agency
maintains? Should the FOIA processer process it here, or forward it to another FSA
office; or notify the requester that another USDA or Federal agency is likely to be in
possession of any records on this topic?

•

Does it reasonably describe the records sought; that is, does the FOIA processer know
what the requester wants? Does the FOIA processer know who to contact to obtain the
records?

•

How broadly or narrowly should the FOIA processer interpret the request?

•

Would discussion with the requester help to define, clarify, or narrow the scope of the
request?

2-INFO (Rev. 1) Amend. 1

Page 1

Exhibit 10
(Par. 21)
Summary of Steps for FOIA Request Responses (Continued)
Step
Action
4
Resolve questions about fees with the requester. Fee issues should be resolved before the
FOIA processer starts searching for responsive records.
•

Has the requester indicated a willingness to pay the cost of searching for, reviewing
(this applies only to commercial-use requesters), and copying the records? If not,
advise the requester of the estimate fees associated with processing the request (itemize
the estimated costs). Notify the requester that the time limits for processing the request
will not begin until written fee assurance is received.

•

Has the requester asked for a fee waiver? Does he/she qualify for a fee waiver? Is it
likely that the cost of processing the request in question will necessitate making a
formal decision on the request for a fee waiver, or will the requester’s entitlements
under his/her fee category, combined with the fact that FSA does not charge requesters
when chargeable FOIA fees do not exceed $25 render the need to make this decision
moot? If a fee waiver decision must be made, and the fee waiver request is denied,
notify the requester of the procedures and time limits for appealing this decision, and
advise him/her of the estimated cost of processing the request and that the time limits
for processing the request will not begin until written assurance of fee payment is
received.

•

5

6

1-4-13

Are the chargeable fees to process the request likely to be less than or equal to $25?
FSA does not charge the requester when FOIA fees do not exceed $25.
Decide whether expedited processing is appropriate, if requested. Has the requester asked
for expedited processing of his/her request and provided adequate justification (including
the required certification statement) to qualify for it? If expedited processing is denied,
notify the requester of the basis for the denial and the procedures and time limits for
appealing the denial of expedited processing.
Acknowledge the request, if the FOIA processer has not already acknowledged the request.
The FOIA processer may include a request for clarification of the scope of the request and a
request for written assurance of fee payment in the acknowledgement letter. The FOIA
processer may also address a request for expedited processing in the acknowledgement
letter. However, the FOIA processer should not provide a FOIA fee estimate for a request
whose scope is not yet sufficiently clear in this letter; if the FOIA processer cannot
determine which records are being sought, how can the FOIA processer estimate the cost of
locating the records?

2-INFO (Rev. 1) Amend. 1

Page 2

Exhibit 10
(Par. 21)
Summary of Steps for FOIA Request Responses (Continued)
Step
Action
7
Identify and locate the records requested.
•

Do the records exist? Are they personal or FSA records?

•

Are the records in FSA’s possession and control?

•

Should another agency be consulted in their review for release?

•
8
9

Was our search for the records adequate and sufficient to ensure that all records within
the scope of the request were identified and located?
Decide whether a 10-workday time extension is appropriate to properly process the
request. If so, take it.
Review the records for release to the requester.
•

Duplicate the records so that the FOIA processer has a working copy in the file.

•

Are there exempt records or portions of records?

•

10

1-4-13

Does the FOIA processer want to make a discretionary release of exempt information
where such a release is allowed? Has the FOIA processer carefully considered the
institutional (the Government), commercial (business entities) and personal privacy
(individuals) interests that might be impacted by disclosure?
Prepare the records for disclosure/non-disclosure, segregating exempt records or portions
of records from non-exempt records or portions of records.
•

Redact (delete) any exempt information. Indicate in the area of the deletion the
exemption used to withhold the information or if all deletions on a document are
covered by 1 or more exemptions, annotate them on the document.

•

Duplicate the documents. Make 1 readable redacted copy to be released and 1 readable
unredacted copy with brackets showing where redacted portions begin and end to be
retained for file purposes in case of appeal or litigation.

2-INFO (Rev. 1) Amend. 1

Page 3

Exhibit 10
(Par. 21)
Summary of Steps for FOIA Request Responses (Continued)
Step
Action
11 Prepare the response letter to the requester.
•

Enclose the records, or notify the requester when and where the records will be
available for inspection or release.

•

Include the total number of pages located, released in-full, released in-part, or withheld
in-full, explaining the reasons for the denial and citing the applicable exemptions
authorizing their withholding, if applicable.

•

Provide the procedures and time limits for appealing the denial of any portions of the
records withheld.

•

12

Include a FOIA fees statement, itemizing the cost of processing the request within
FSA, and indicating the fee chargeable to the requester for the processing of the
request. Provide instructions for payment.
Issue the response, enclosing the records to be disclosed, if appropriate.
•

Maintain 1 copy of the response, including a complete copy of the records released, in
the request’s case file.

•

Maintain a copy of the withheld records in the request’s case file in the event of an
appeal or litigation.

•
13

Process payment received, as appropriate, according to local instructions as to how
such payments should be handled. State and County Offices shall follow 3-FI.
Close and file the case file for the request.

Note: Always, when working on a FOIA request, assume that it may result in litigation. Keep good
records, including a telephone or written log of all communications not otherwise
documented in writing. Communicate with the requester; keep him/her advised of the status
of the request.

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2-INFO (Rev. 1) Amend. 1

Page 4

Exhibit 11
(Par. 21-23, 29)
Example Acknowledgement Letters
A Perfected Request Letter
Use the following basic acknowledgement letter, if the request was perfected when received.
Add, as attachments, a copy of the request letter and Exhibit 29.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year]
_________, to the United States Department of Agriculture (USDA), Farm Service Agency (FSA).
FSA received a copy of your request on [month, day, year] ___________ and assigned it control
number _____________. Please reference this number in any future communication with our office
about your request.
FSA processes FOIA/PA requests on “first-in, first-out” basis. The actual processing time will depend
on the complexity of the request and whether or not it involves sensitive or voluminous records, or
extensive searches and/or consultations. FSA also processes FOIA/PA requests on a multi-track basis.
This means that simple requests, requiring minimal efforts to respond (1-5 workdays), are processed in
one track, normal requests requiring more time to respond (6-20 workdays) are processed in another
track, and complex requests involving voluminous records, extensive searches or consultations
(requiring more than 20 workdays to respond) are processed in yet another track. We have placed your
request in the [choose 1: simple / normal / complex] track.
We have classified your request as a [choose 1: commercial-use / media-use / educational
non-commercial scientific-use / other-use] request. Please consult the attached schedule of FOIA/PA
fees for an explanation of what this means with respect to your obligation to pay FOIA/PA fees.
If you have any questions about the status of your request, you may contact ____________________ at
___-___-____, by e-mail at _____________, or by mail at _____ _______________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachments

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 1

Exhibit 11
(Par. 21-23, 29)
Example Acknowledgement Letters (Continued)
B When Requester Has Not Agreed to Pay FOIA Fees for $250 or Less
Use the basic acknowledgement letter in subparagraph A, adding the following text after the
standard fee paragraph, when requester has not agreed to pay FOIA fees, it is likely that they will
be charged given the scope of the request, and the estimated cost of processing the request is
$250 or less. Estimate the full chargeable cost of processing the request and insert the amount in
the following additional paragraph after the standard fee paragraph.

We have classified your request as a [choose 1: commercial-use / media-use / educational
non-commercial scientific-use / other-use] request. Please consult the attached schedule of FOIA/PA
fees for an explanation of what this means with respect to your obligation to pay FOIA/PA fees.
Our best estimate of the cost of processing your request is ______________. This estimate is based on
[choose 1, as applicable: search service calculations, duplication, review service calculation]. In your
request letter, you do not provide us with written assurance of your willingness to pay this amount.
Consequently, we are not able to begin processing your request at this time. If you are still interested in
having us process your request, please send us written confirmation of your willingness to pay this
amount. Alternatively, you may reduce the amount of your FOIA fee by reducing the scope of your
request. Please note that if we do not hear from you within 20 workdays from the date of this letter, we
will assume that you are no longer interested in pursuing your request, and we will close our files on the
request.

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 2

Exhibit 11
(Par. 21-23, 29)
Example Acknowledgement Letters (Continued)
C When Requester Has Not Agreed to Pay FOIA Fees for $250 or Less, Has Requested A
Waiver, But Does Not Qualify
Use the basic acknowledgement letter in subparagraph A, adding the following text after the
standard fee paragraph, when requester has not agreed to pay FOIA fees, it is likely that they will
be charged given the scope of the request, and the estimated cost of processing the request is
$250 or less, but the requester has asked for a waiver of all applicable FOIA fees and he/she does
not qualify for such a waiver. Estimate the full chargeable cost of processing the request, insert
the amount in the following paragraph, and the FOIA fee waiver denial analysis in Exhibit 15.

We have classified your request as a [choose 1: commercial-use / media-use / educational noncommercial scientific-use / other-use] request. Please consult the attached schedule of FOIA/PA fees
for an explanation of what this means with respect to your obligation to pay FOIA/PA fees.
Our best estimate of the cost of processing your request is ______________. This estimate is based on
[choose 1, as applicable: search service calculations, duplication, review service calculation]. In your
request letter, you do not provide us with written assurance of your willingness to pay this amount.
Instead, you ask that we waive all applicable FOIA fees.
U.S. Department of Agriculture regulations state that “[a]gencies shall waive or reduce fees if disclosing
the requested records is deemed to be in the public interest. A request is in the public interest if it is
likely to contribute significantly to public understanding of the operations and activities of the
Government, and it is not primarily in the commercial interest of the requester”. (7 CFR, Appendix A,
to Subpart A, (a)). However, your request does not contain sufficient evidence to support these criteria.
FSA considers the following factors when determining if disclosing information is likely to contribute
significantly to public understanding of the operations or activities of the Government:
a) Does the record concern the operations or activities of the Government?
b) If a record concerns the operations or activities of the Government, is its disclosure likely to
contribute to public understanding of these operations and activities? Is the focus of the requester on
contribution to public understanding of the operations or activities of the Government?
c) If there is likely to be a contribution to public understanding, will that contribution be significant? A
contribution to public understanding will be significant if the information disclosed is new, clearly
supports public oversight of FSA operations, including the quality of FSA activities and the effect of
policy and regulations on public health and safety, or otherwise confirms or clarifies data on past or
present operations of FSA.
(d) Is disclosing the responsive records primarily in the commercial interest of the requester?
You state that you are requesting a waiver of all FOIA processing fees because [provide reason as
stated by requester] ______________________________________________________________
______________________________________________________________________________.

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 3

Exhibit 11
(Par. 21-23, 29)
Example Acknowledgement Letters (Continued)
C When Requester Has Not Agreed to Pay FOIA Fees, Has Requested A Waiver, But Does
Not Qualify (Continued)
However, an analysis of the above four (4) factors does not support your position. With respect to
these:
[List each question, in turn, and provide an analysis of whether or not the request meets each of the
applicable factors, in turn. Generally, you can stop the analysis at the point where the request fails to
meet a factor, stating; for example, when the analysis fails to meet factor b.]: Because you have not
demonstrated, to our satisfaction, that your focus in asking for copies of these records is in making a
contribution to the understanding of the general public, there is no further need to determine if this
contribution would be significant, or if the public interest in disclosure is greater than any commercial
interest you might have in the documents. [If an analysis of all 4 factors is much stronger than an
analysis of only the first factor that was not met, and the requester is likely to appeal the fee waiver
denial decision, it is preferable to perform the entire analysis.]
Therefore, your request for a fee waiver is denied.
If you believe the determination to deny your request for a fee waiver is incorrect, you may appeal to
the FSA Administrator. The Appeals and Litigation Staff must receive your written appeal within
forty-five (45) calendar days of the date of this letter. Please include in the appeal a brief explanation of
how disclosure of the information to you is likely to contribute significantly to public understanding of
the operations or activities of the Government and the reason disclosure would not be primarily in your
commercial interest. Be sure to include a copy of your initial request letter in your appeal package, and
clearly mark both your letter and its envelope with the words “Freedom of Information Act Appeal”.
Mail your appeal package to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.
Under the circumstances, we are not able to begin processing your request at this time. If you are still
interested in having us process your request, please send us written confirmation of your willingness to
pay the estimated cost of processing your request. Alternatively, you may reduce the amount of your
FOIA fee by reducing the scope of your request. Please note that if we do not hear from you within
20 workdays from the date of this letter, we will assume that you are no longer interested in pursuing
your request, and we will close our files on the request.

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 4

Exhibit 11
(Par. 21-23, 29)
Example Acknowledgement Letters (Continued)
D When Requester Has Not Agreed to Pay FOIA Fees for More Than $250
Use the basic acknowledgement letter in subparagraph A, adding the following text after the
standard fee paragraph, when requester has not agreed to pay FOIA fees, it is likely that they will
be charged given the scope of the request, and the estimated cost of processing the request is
more than $250. Estimate the full chargeable cost of processing the request, insert the amount in
the following first data blank, and 50 percent of the amount in the second data blank.

We have classified your request as a [choose 1: commercial-use / media-use / educational noncommercial scientific-use / other-use] request. Please consult the attached schedule of FOIA/PA fees
for an explanation of what this means with respect to your obligation to pay FOIA/PA fees.
Our best estimate of the cost of processing your request is ______________. This estimate is based on
[choose 1, as applicable: search service calculations, duplication, review service calculation]. In your
request letter, you do not provide us with written assurance of your willingness to pay this amount.
Additionally, because this amount exceeds $250, we must receive advance payment of at least 50% of
the cost of processing your request before we are authorized to begin its processing, as per 7 CFR,
Appendix A, to Subpart A, 8(c). Consequently, if you are still interested in having us process your
request, please send us a check, draft or money order payable to the Treasury of the United States for
[50% of the estimated cost of processing the request] _____________. Alternatively, you may reduce
the amount of your FOIA fee by reducing the scope of your request. Please note that if we do not hear
from you within 20 workdays from the date of this letter, we will assume that you are no longer
interested in pursuing your request, and we will close our files on the request.

E When Requester Has Outstanding FOIA Fees
Use the basic acknowledgement letter in subparagraph A, adding the following text after the
standard fee paragraph, when requester has outstanding FOIA fees from a previous request that
have not been paid in the time required, insert the control number of the prior request in the
following first data blank, and the name of the applicable FSA office in the second data blank.

We have classified your request as a [choose 1: commercial-use / media-use / educational
non-commercial scientific-use / other-use] request. Please consult the attached schedule of FOIA/PA
fees for an explanation of what this means with respect to your obligation to pay FOIA/PA fees.
However, according to our records, you have not yet paid FOIA fees incurred in processing your
previous request: [insert control number] ______________, filed with [insert name of applicable FSA
office] __________. Under our regulations at 7 CFR, Appendix A, to Subpart A, 8(d), we are not
authorized to begin processing your present request until you pay the full amount owed, plus any
applicable interest charges. Therefore, until such time as you can provide us with written confirmation
that you have satisfied this prior obligation, we are not able to process this or any subsequent FOIA
request.

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 5

.

Exhibit 12
(Par. 21, 26, 29)
Example Clarification Letters
A When Requester Was Not Perfected
Use the following Clarification and Acknowledgement Letter if the request was not perfected
when received because of issues of scope; such as the fact that the records requested were not
reasonably described.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated ___________, to the United
States Department of Agriculture (USDA), Farm Service Agency (FSA). FSA received a copy of your
request on ___________ and assigned it control number _____________. Please reference this number
in any future communication with our office about your request.
We are unable to begin processing your request at this time because we cannot determine precisely
which records you are seeking. In your letter, you state that you are requesting [insert statement from
request letter as to which records are being sought.] However, [insert brief explanation, from FSA’s
perspective, as to what additional information is needed to clarify or limit the request, or, alternatively,
why the scope of the requester is not sufficiently clear for FSA to begin searching for the requested
records.]
We cannot proceed further with your request until we receive additional written clarification from you.
Please note that if we do not hear from you within 20 workdays from the date of this letter, we will
assume that you are no longer interested in pursuing your request, and we will close our files on the
request.
If you have any questions about any of the issues discussed in this letter, you may contact ________ at
___-___-____, by e-mail at _____________, or by mail at ________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 1

Exhibit 12
(Par. 21, 26, 29)
Example Clarification Letters (Continued)
B When Scope is Unclear or Overly Broad
Use the following Later Clarification of Scope Required Letter if, after consulting with the
office/staff that maintains the records requested, it is now apparent that the scope of the request
as initially described by the requester is either unclear or overly broad.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year]
___________, control number __________________.
We are writing to advise you that, after consulting with FSA program specialists familiar with the
subject of your request, we have determined that the scope of your request is not sufficiently clear to
enable us to begin its processing. In your letter, you state that you are requesting [insert statement from
request letter as to which records are being sought.] However, [insert brief explanation, from FSA’s
perspective, as to what additional information is needed to clarify or limit the request, or, alternatively,
why the scope of the requester is not sufficiently clear for FSA to begin searching for the requested
records.]
We cannot proceed further with your request until we receive additional written clarification from you.
Please note that if we do not hear from you within 20 workdays from the date of this letter, we will
assume that you are no longer interested in pursuing your request, and we will close our files on the
request.
If you have any questions about any of the issues discussed in this letter, you may contact ________ at
___-___-____, by e-mail at _____________, or by mail at ________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

1-4-13

2-INFO (Rev. 1) Amend. 1

Page 2

Exhibit 13
(Par. 21, 29)
Example Routing Letters
A Routing to Another FSA Office or USDA Agency and Acknowledgement Letter
Use the following Routing to Another FSA Office or USDA Agency and Acknowledgement
Letter when the request was not perfected when received because the records requested are
maintained at another FSA office or USDA Agency.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated ___________, to the United
States Department of Agriculture (USDA), Farm Service Agency (FSA). FSA received a copy of your
request on ___________ and assigned it control number _____________. Please reference this number
in any future communication with our office about your request.
We have determined that the records you are seeking may be maintained in another [choose 1: FSA
office or USDA agency]. Therefore, we are routing your request to this office for direct response.
You may expect to hear from this office shortly. If you do not, you may write or call:
[Name of FSA office or USDA agency]
[Contact person at office]
[Mailing address]
[City, State, ZIP Code]
[Telephone Number]
[FAX Number]
[E-mail address]
If you have any questions about any of the issues discussed in this letter, you may contact ________ at
___-___-____, by e-mail at _____________, or by mail at ________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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2-INFO (Rev. 1) Amend. 1

Page 1

Exhibit 13
(Par. 21, 29)
Example Routing Letters (Continued)
B Notifying Requester of Proper Non-USDA Office to Respond Letter
Use the following Notifying Requester of Proper Non-USDA Office to Respond Letter when the
request was not perfected when received because the records requested are maintained at another
Federal Agency.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated ___________, to the United
States Department of Agriculture (USDA), Farm Service Agency (FSA). FSA received a copy of your
request on ___________ and assigned it control number _____________. Please reference this number
in any future communication with our office about your request.
We have determined that the records you are seeking would not be maintained in USDA files. We
believe that they may be maintained in files maintained by [specify name of other Federal department]
_____________________________.
If you are still interested in pursuing your request, we suggest that you contact this department directly,
using the contact information provided below:
[Name of department]
[Contact person]
[Mailing address]
[City, State, ZIP Code]
[Telephone Number]
[FAX Number]
[E-mail address, if known]
If you have any questions about any of the issues discussed in this letter, you may contact ________ at
___-___-____, by e-mail at _____________, or by mail at ________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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2-INFO (Rev. 1) Amend. 1

Page 2

Exhibit 13
(Par. 21, 29)
Example Routing Letters (Continued)
C Later Forwarding/Notification Letter
Use the following Later Forwarding/Notification Letter if, after consulting with the office/staff
that maintains the records requested, it is now apparent that the records requested are maintained
at either another FSA office or at another USDA Agency or another Federal Agency.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year]
___________, control number __________________.
We are writing to advise you that, after consulting with FSA program specialists, we have determined
[Choose either of the following, as applicable]
[when forwarding to another FSA office/USDA agency] that the records you are seeking may be
maintained in another [choose 1: FSA office or USDA agency]; therefore, we are forwarding your
request to this [office/agency] for direct response.
You may expect to hear from this office shortly. If you do not, you may write or call:
[Name of FSA office or USDA agency]
[Contact person at office]
[Mailing address]
[City, State, ZIP Code]
[Telephone Number]
[FAX Number]
[E-mail address]

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2-INFO (Rev. 1) Amend. 1

Page 3

Exhibit 13
(Par. 21, 29)
Example Routing Letters (Continued)
C Later Forwarding/Notification Letter (Continued)
[when notifying of the need to send to another agency] The records you are seeking would not be
maintained in USDA files. We believe that they may be maintained in files maintained by [specify
name of other Federal department] _____________________________.
If you are still interested in pursuing your request, we suggest that you contact this department directly,
using the contact information provided below:
[Name of department]
[Contact person]
[Mailing address]
[City, State, ZIP Code]
[Telephone Number]
[FAX Number]
[E-mail address, if known]
If you have any questions about any of the issues discussed in this letter, you may contact ________ at
___-___-____, by e-mail at _____________, or by mail at _______________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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2-INFO (Rev. 1) Amend. 1

Page 4

Exhibit 13
(Par. 21, 29)
Example Routing Letters (Continued)
D Acknowledgement Following Routing/Records Referral Letter
Use the following Acknowledgement Following Routing/Records Referral Letter when
acknowledging receiving a request that has been routed from another FSA office or USDA
Agency or receiving a referral of FSA records (found in the course of a file search) from another
Agency.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year]
___________, to the [choose 1, as applicable:]
[when acknowledging a request referred from another FSA office or USDA agency] [insert name of
office or agency to which request was originally filed]. Your request was forwarded to our office for
processing and direct response on [month, day, year] ___________ and assigned control number
_____________. Please reference this number in any future communication with our office about your
request.
FSA processes FOIA/PA requests on “first-in, first-out” basis. The actual processing time will depend
upon the complexity of the request and whether or not it involves sensitive or voluminous records, or
extensive searches and/or consultations. FSA also processes FOIA/PA requests on a multi-track basis.
This means that simple requests, requiring minimal efforts to respond (1-5 workdays), are processed in
one track, normal requests requiring more time to respond (6-20 workdays) are processed in another
track, and complex requests involving voluminous records, extensive searches or consultations
(requiring more than 20 workdays to respond) are processed in yet another track. We have placed your
request in the [choose 1: simple / normal / complex] track.
We have classified your request as a [choose 1: commercial-use / media-use / educational
non-commercial scientific-use / other-use] request. Please consult the attached schedule of FOIA/PA
fees for an explanation of what this means with respect to your obligation to pay FOIA/PA fees.

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Exhibit 13
(Par. 21, 29)
Example Routing Letters (Continued)
D Acknowledgement Following Routing/Records Referral Letter (Continued)
[when acknowledging a records referral request] [insert name of agency to which request was
originally filed]. Records originating with FSA and responsive to your request, found by this [choose 1:
office/agency] in the course of its file search, were forwarded to FSA for a release decision and direct
response. We received these records on [month, day, year] ___________ and assigned them control
number _____________. Please reference this number in any future communication with our office
about their processing.
FSA processes FOIA/PA requests on “first-in, first-out” basis. The actual processing time will depend
upon the complexity of the request and whether or not it involves sensitive or voluminous records, or
extensive searches and/or consultations. FSA also processes FOIA/PA requests on a multi-track basis.
This means that simple requests, requiring minimal efforts to respond (1-5 workdays), are processed in
one track, normal requests requiring more time to respond (6-20 workdays) are processed in another
track, and complex requests involving voluminous records, extensive searches or consultations
(requiring more than 20 workdays to respond) are processed in yet another track. We have placed your
request in the [choose 1: simple / normal / complex] track.
We have classified your request as a [choose 1: commercial-use / media-use / educational
non-commercial scientific-use / other-use] request. Please consult the attached schedule of FOIA/PA
fees for an explanation of what this means with respect to your obligation to pay FOIA/PA fees for the
duplication of any records released to you in response to this referral.
If you have any questions about the status of your request, you may contact _________________at
___-___-____, by e-mail at _____________, or by mail at ________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachments

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Page 6

Exhibit 14
(Par. 21, 22, 29)
Example Expedited Processing Decision Letters
A Expedited Processing Denial Letter
Use the following Expedited Processing Denial Letter when denying a request for expedited
processing, when the denial was not communicated in the acknowledgement letter.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year]
___________, control number __________________.
In your letter you also requested expedited processing of your request. According to USDA regulations
at Title 7, CFR 1.9(b), it is the policy of FSA to grant a request for expedited processing whenever the
requester demonstrates that the request involves:
a. circumstances in which the lack of expedited processing could reasonably be expected to pose an
imminent threat to the life or physical safety of an individual, or
b. an urgency to inform the public about an actual or alleged Federal Government activity, if made by
an individual primarily engaged in disseminating information.
You state that you are requesting expedited processing of your request because [provide reason as
stated by requester] ________________________________________________________________.
However, your letter did not provide an adequate justification to support your argument [provide
analysis of why reason is not adequate]. Therefore, we are processing your request on a “first-in,
first-out” basis in the [choose 1: simple / normal / complex] track.

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Page 1

Exhibit 14
(Par. 21, 22, 29)
Example Expedited Processing Decision Letters (Continued)
A Expedited Processing Denial Letter (Continued)
If you believe the determination to deny your request for a fee waiver is incorrect, you may appeal to
the FSA Administrator. The Appeals and Litigation Staff must receive your written appeal within
forty-five (45) calendar days of the date of this letter. Please include in the appeal a brief explanation of
how disclosure of the information to you is likely to contribute significantly to public understanding of
the operations or activities of the Government and the reason disclosure would not be primarily in your
commercial interest. Be sure to include a copy of your initial request letter in your appeal package, and
clearly mark both your letter and its envelope with the words “Freedom of Information Act Appeal”.
Mail your appeal package to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.
If you have any questions about any of the issues discussed in this letter, you may contact ________ at
___-___-____, by e-mail at _____________, or by mail at ________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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Page 2

Exhibit 14
(Par. 21, 22, 29)
Example Expedited Processing Decision Letters (Continued)
B Expedited Processing Grant Letter
Use the following Expedited Processing Grant Letter when granting a request for expedited
processing, when the grant decision was not communicated in the acknowledgement letter.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year]
___________, control number __________________.
In your letter you also requested expedited processing of your request. According to USDA regulations
at Title 7, CFR 1.9(b), it is the policy of FSA to grant a request for expedited processing whenever the
requester demonstrates that the request involves
a. Circumstances in which the lack of expedited processing could reasonably be expected to pose an
imminent threat to the life or physical safety of an individual, or
b. An urgency to inform the public about an actual or alleged Federal Government activity, if made by
an individual primarily engaged in disseminating information.
Please be advised that we have granted your request for expedited processing. Therefore, we are
processing it on a “first-in, first-out” basis in the expedited track. We hope to respond to it shortly.
In the interim, if you have any questions about the status of your request, you may contact ________ at
___-___-____, by e-mail at _____________, or by mail at ________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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Page 3

Exhibit 14
(Par. 21, 22, 29)
Example Expedited Processing Decision Letters (Continued)
C Expedited Processing Denial Language
Add the following expedited processing denial language to the acknowledgement or perfection
letter when responding to a request for expedited processing and the expedited processing
request was not addressed in a separate letter.

In your letter you also requested expedited processing of your request. According to USDA regulations
at Title 7, CFR 1.9(b), it is the policy of FSA to grant a request for expedited processing whenever the
requester demonstrates that the request involves
a. Circumstances in which the lack of expedited processing could reasonably be expected to pose an
imminent threat to the life or physical safety of an individual, or
b. An urgency to inform the public about an actual or alleged Federal Government activity, if made by
an individual primarily engaged in disseminating information.
You state that you are requesting expedited processing of your request because [provide reason as
stated by requester] ________________________________________________________________.
However, your letter did not provide an adequate justification to support your argument [provide
analysis of why reason is not adequate]. Therefore, we are processing your request on a “first-in, firstout” basis in the [choose 1: simple / normal / complex] track.
[Note: When adding this to an acknowledgement letter, omit the statement in the acknowledgement
letter that places the request in the simple or complex track. Reserve that for here.]
If you believe the determination to deny your request for a fee waiver is incorrect, you may appeal to
the FSA Administrator. The Appeals and Litigation Staff must receive your written appeal within
forty-five (45) calendar days of the date of this letter. Please include in the appeal a brief explanation of
how disclosure of the information to you is likely to contribute significantly to public understanding of
the operations or activities of the Government and the reason disclosure would not be primarily in your
commercial interest. Be sure to include a copy of your initial request letter in your appeal package, and
clearly mark both your letter and its envelope with the words “Freedom of Information Act Appeal”.
Mail your appeal package to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.

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Page 4

Exhibit 14
(Par. 21, 22, 29)
Example Expedited Processing Decision Letters (Continued)
D Expedited Processing Grant Language
Add the following expedited processing grant language to the acknowledgement or perfection
letter when responding to a request for expedited processing and the expedited processing
request was not addressed in a separate letter.

In your letter you also requested expedited processing of your request. According to USDA regulations
at Title 7, CFR 1.9(b), it is the policy of FSA to grant a request for expedited processing whenever the
requester demonstrates that the request involves
a. Circumstances in which the lack of expedited processing could reasonably be expected to pose an
imminent threat to the life or physical safety of an individual, or
b. An urgency to inform the public about an actual or alleged Federal Government activity, if made by
an individual primarily engaged in disseminating information.
Please be advised that we have granted your request for expedited processing. Therefore, we are
processing it on a “first-in, first-out” basis in the expedited track.
[Note: When adding this to an acknowledgement letter, omit the statement in the acknowledgement
letter that places the request in the simple or complex track. Reserve that for here.]
We hope to respond to it shortly.

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Page 5

.

Exhibit 15
(Par. 21, 29, Ex. 11)
Example Fee Waiver Decision Letters
A Fee Waiver Denial Letter
Use the following Fee Waiver Denial Letter when denying a request for a waiver of all FOIA
processing fees, when this decision was not communicated in other agency correspondence with
the requester.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Freedom of Information
Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year] ___________, control
number __________________.
In your letter you also requested a waiver of all FOIA processing fees. U.S. Department of Agriculture
regulations state that “[a]gencies shall waive or reduce fees if disclosing the requested records is
deemed to be in the public interest. A request is in the public interest if it is likely to contribute
significantly to public understanding of the operations and activities of the Government, and it is not
primarily in the commercial interest of the requester”. (7 CFR, Appendix A, to Subpart A, (a)).
However, your request does not contain sufficient evidence to support these criteria.
FSA considers the following factors when determining if disclosing information is likely to contribute
significantly to public understanding of the operations or activities of the Government:
a) Does the record concern the operations or activities of the Government?
b) If a record concerns the operations or activities of the Government, is its disclosure likely to
contribute to public understanding of these operations and activities? Is the focus of the requester
on contribution to public understanding of the operations or activities of the Government?
c) If there is likely to be a contribution to public understanding, will that contribution be significant?
A contribution to public understanding will be significant if the information disclosed is new,
clearly supports public oversight of FSA operations, including the quality of FSA activities and the
effect of policy and regulations on public health and safety, or otherwise confirms or clarifies data
on past or present operations of FSA.
(d) Is disclosing the responsive records primarily in the commercial interest of the requester?

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Page 1

Exhibit 15
(Par. 21, 29, Ex. 11)
Example Fee Waiver Decision Letters (Continued)
A Fee Waiver Denial Letter (Continued)
You state that you are requesting a waiver of all FOIA processing fees because [provide reason as
stated by requester] ______________________________________________________________.
However, an analysis of the above four (4) factors does not support your position. With respect to
these:
[List each question, in turn, and provide an analysis of whether or not the request meets each of the
applicable factors, in turn. Generally, you can stop the analysis at the point where the request fails to
meet a factor, stating, as for example, “when the analysis fails to meet factor b”.] Because you have
not demonstrated, to our satisfaction, that your focus in asking for copies of these records is in making a
contribution to the understanding of the general public, there is no further need to determine if this
contribution would be significant, or if the public interest in disclosure is greater than any commercial
interest you might have in the documents. [If, an analysis of all 4 factors is much stronger than an
analysis of only the first factor that was not met, and the requester is likely to appeal the fee waiver
denial decision, it is preferable to perform the entire analysis.]
Therefore, your request for a fee waiver is denied.
If you believe the determination to deny your request for a fee waiver is incorrect, you may appeal to
the FSA Administrator. The Appeals and Litigation Staff must receive your written appeal within
forty-five (45) calendar days of the date of this letter. Please include in the appeal a brief explanation of
how disclosure of the information to you is likely to contribute significantly to public understanding of
the operations or activities of the Government and the reason disclosure would not be primarily in your
commercial interest. Be sure to include a copy of your initial request letter in your appeal package, and
clearly mark both your letter and its envelope with the words “Freedom of Information Act Appeal”.
Mail your appeal package to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.

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Page 2

Exhibit 15
(Par. 21, 29, Ex. 11)
Example Fee Waiver Decision Letters (Continued)
A Fee Waiver Denial Letter (Continued)
Under the circumstances, you will be charged for that portion of FOIA processing fees that are
applicable to your FOIA fee category. [If the requester has not agreed to pay all applicable FOIA fees
and the fee waiver request was denied, add 1 of the following paragraphs, as applicable:
Our best estimate of the cost of processing your request is ______________. This estimate is based
on [choose 1, as applicable: search service calculations, duplication, review service calculation].
In your request letter, you do not provide us with written assurance of your willingness to pay this
amount. Consequently, we are not able to begin processing your request at this time. If you are still
interested in having us process your request, please send us written confirmation of your willingness
to pay this amount. Alternatively, you may reduce the amount of your FOIA fee by reducing the
scope of your request. Please note that if we do not hear from you within 20 workdays from the
date of this letter, we will assume that you are no longer interested in pursuing your request, and we
will close our files on the request.
Our best estimate of the cost of processing your request is ______________. This estimate is based
on [choose 1, as applicable: search service calculations, duplication, review service calculation].
In your request letter, you do not provide us with written assurance of your willingness to pay this
amount. Additionally, because this amount exceeds $250, we must receive advance payment of at
least 50% of the cost of processing your request before we are authorized to begin its processing, as
per 7 CFR, Appendix A, to Subpart A, 8(c). Consequently, if you are still interested in having us
process your request, please send us a check, draft or money order payable to the Treasury of the
United States for [50% of the estimated cost of processing the request] _____________.
Alternatively, you may reduce the amount of your FOIA fee by reducing the scope of your request.
Please note that if we do not hear from you within 20 workdays from the date of this letter, we will
assume that you are no longer interested in pursuing your request, and we will close our files on the
request.]
If you have any questions about any of the issues discussed in this letter, you may contact ________ at
___-___-____, by e-mail at _____________, or by mail at _______________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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Page 3

Exhibit 15
(Par. 21, 29, Ex. 11)
Example Fee Waiver Decision Letters (Continued)
B Fee Waiver Grant Letter
Use the following Fee Waiver Grant Letter when granting a request for a waiver of all FOIA
processing fees, when the grant was not communicated in other agency correspondence with the
requester.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Freedom of Information
Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year] ___________, control
number __________________.
In your letter you also requested a waiver of all FOIA processing fees. U.S. Department of Agriculture
regulations state that “[a]gencies shall waive or reduce fees if disclosing the requested records is
deemed to be in the public interest. A request is in the public interest if it is likely to contribute
significantly to public understanding of the operations and activities of the Government, and it is not
primarily in the commercial interest of the requester”. (7 CFR, Appendix A, to Subpart A, (a)).
Please be advised that your request for a fee waiver has been granted. Therefore, you will not be
charged for any portion of FOIA processing fees that would otherwise be applicable in the processing of
this request.
If you have any questions about any of the issues discussed in this letter, you may contact ________ at
___-___-____, by e-mail at _____________, or by mail at ________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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Page 4

Exhibit 15
(Par. 21, 29, Ex. 11)
Example Fee Waiver Decision Letters (Continued)
C Fee Waiver Denial Language
Add the following fee waiver denial language to the acknowledgement or perfection letter when
notifying a requester that a request for a fee waiver is being denied in this same letter.

In your letter you also requested a waiver of all FOIA processing fees. U.S. Department of Agriculture
regulations state that “[a]gencies shall waive or reduce fees if disclosing the requested records is
deemed to be in the public interest. A request is in the public interest if it is likely to contribute
significantly to public understanding of the operations and activities of the Government, and it is not
primarily in the commercial interest of the requester”. (7 CFR, Appendix A, to Subpart A, (a)).
However, your request does not contain sufficient evidence to support these criteria.
FSA considers the following factors when determining if disclosing information is likely to contribute
significantly to public understanding of the operations or activities of the Government:
a) Does the record concern the operations or activities of the Government?
b) If a record concerns the operations or activities of the Government, is its disclosure likely to
contribute to public understanding of these operations and activities? Is the focus of the requester
on contribution to public understanding of the operations or activities of the Government?
c) If there is likely to be a contribution to public understanding, will that contribution be significant?
A contribution to public understanding will be significant if the information disclosed is new,
clearly supports public oversight of FSA operations, including the quality of FSA activities and the
effect of policy and regulations on public health and safety, or otherwise confirms or clarifies data
on past or present operations of FSA.
(d) Is disclosing the responsive records primarily in the commercial interest of the requester?
You state that you are requesting a waiver of all FOIA processing fees because [provide reason as
stated by requester] ____________________________________________________________.
However, an analysis of the above four (4) factors does not support your position. With respect to
these:
[List each question, in turn, and provide an analysis of whether or not the request meets each of the
applicable factors, in turn. Generally, you can stop the analysis at the point where the request fails to
meet a factor, stating, as for example, “when the analysis fails to meet factor b”.] Because you have
not demonstrated, to our satisfaction, that your focus in asking for copies of these records is in making a
contribution to the understanding of the general public, there is no further need to determine if this
contribution would be significant, or if the public interest in disclosure is greater than any commercial
interest you might have in the documents. [If, an analysis of all 4 factors is much stronger than an
analysis of only the first factor that was not met, and the requester is likely to appeal the fee waiver
denial decision, it is preferable to perform the entire analysis.]

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Page 5

Exhibit 15
(Par. 21, 29, Ex. 11)
Example Fee Waiver Decision Letters (Continued)
C Fee Waiver Denial Language (Continued)
Therefore, your request for a fee waiver is denied.
If you believe the determination to deny your request for a fee waiver is incorrect, you may appeal to
the FSA Administrator. The Appeals and Litigation Staff must receive your written appeal within
forty-five (45) calendar days of the date of this letter. Please include in the appeal a brief explanation of
how disclosure of the information to you is likely to contribute significantly to public understanding of
the operations or activities of the Government and the reason disclosure would not be primarily in your
commercial interest. Be sure to include a copy of your initial request letter in your appeal package, and
clearly mark both your letter and its envelope with the words “Freedom of Information Act Appeal”.
Mail your appeal package to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.
Under the circumstances, you will be charged for that portion of FOIA processing fees that are
applicable to your FOIA fee category. [If the requester has not agreed to pay all applicable FOIA fees
and the fee waiver request was denied, add 1 of the following paragraphs, as applicable:
Our best estimate of the cost of processing your request is ______________. This estimate is based
on [choose 1, as applicable: search service calculations, duplication, review service calculation].
In your request letter, you do not provide us with written assurance of your willingness to pay this
amount. Consequently, we are not able to begin processing your request at this time. If you are still
interested in having us process your request, please send us written confirmation of your willingness
to pay this amount. Alternatively, you may reduce the amount of your FOIA fee by reducing the
scope of your request. Please note that if we do not hear from you within 20 workdays from the
date of this letter, we will assume that you are no longer interested in pursuing your request, and we
will close our files on the request.
Our best estimate of the cost of processing your request is ______________. This estimate is based
on [choose 1, as applicable: search service calculations, duplication, review service calculation].
In your request letter, you do not provide us with written assurance of your willingness to pay this
amount. Additionally, because this amount exceeds $250, we must receive advance payment of at
least 50% of the cost of processing your request before we are authorized to begin its processing, as
per 7 CFR, Appendix A, to Subpart A, 8(c). Consequently, if you are still interested in having us
process your request, please send us a check, draft or money order payable to the Treasury of the
United States for [50% of the estimated cost of processing the request] _____________.
Alternatively, you may reduce the amount of your FOIA fee by reducing the scope of your request.
Please note that if we do not hear from you within 20 workdays from the date of this letter, we will
assume that you are no longer interested in pursuing your request, and we will close our files on the
request.]

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Page 6

Exhibit 15
(Par. 21, 29, Ex. 11)
Example Fee Waiver Decision Letters (Continued)
D Fee Waiver Grant Language
Add the following fee waiver grant language to the acknowledgement or perfection letter when
notifying a requester that a request for a fee waiver is being granted in this same letter.

In your letter you also requested a waiver of all FOIA processing fees. U.S. Department of Agriculture
regulations state that “[a]gencies shall waive or reduce fees if disclosing the requested records is
deemed to be in the public interest. A request is in the public interest if it is likely to contribute
significantly to public understanding of the operations and activities of the Government, and it is not
primarily in the commercial interest of the requester”. (7 CFR, Appendix A, to Subpart A, (a)).
Please be advised that your request for a fee waiver has been granted. Therefore, you will not be
charged for any portion of FOIA processing fees that would otherwise be applicable in the processing of
this request.

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Page 7

.

Exhibit 16
(Par. 21, 29)
Example Perfection Letter
Use the following Perfection Letter to inform requesters that their request is now able to be
processed, because scope or FOIA fees issues that prevented processing have been resolved.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom of
Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year]_________,
control number __________________.
We are writing, today, to advise you that we are now able to begin processing your request. We received
your communication, [choose all that apply: clarifying your request / agreeing to pay the full amount of
applicable FOIA fees / providing advance payment for a portion of the applicable FOIA fees] on [month,
day, year] ____________________.
[Use this language only if you have not included it before.] With respect to your request, please be advised
that FSA processes FOIA/PA requests on “first-in, first-out” basis. The actual processing time will depend
upon the complexity of the request and whether or not it involves sensitive or voluminous records, or
extensive searches and/or consultations. FSA also processes FOIA/PA requests on a multi-track basis. This
means that simple requests, requiring minimal efforts to respond (1 5 workdays), are processed in one track,
normal requests requiring more time to respond (6-20 workdays) are processed in another track, and
complex requests involving voluminous records, extensive searches or consultations (requiring more than
20 workdays to respond) are processed in yet another track. We have placed your request in the [choose 1:
simple / normal / complex] track.
[Use this language only if you have not included it before.] We have classified your request as a [choose 1:
commercial-use / media-use / educational non-commercial scientific-use / other-use] request. Please
consult the attached schedule of FOIA/PA fees for an explanation of what this means with respect to your
obligation to pay FOIA/PA fees.
If you have any questions about our response to your request, you may contact ________________ at
___-___-____, by e-mail at _____________, or by mail at _______________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office

Attachment

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Page 1

.

Exhibit 17
(Par. 21, 29)
Example No Records Final Response Letters
A No Records Final Response Letter
Use the following No Records Final Response Letter, with search, to respond to requests when,
after a search for responsive records, no records could be located in FSA files.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This responds to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom of
Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year] ______,
control number __________________.
We have completed our search for responsive records in [insert name of office(s) in which file search
was conducted or use default: Farm Service Agency (FSA) files]. Files included in the search pertained
to [insert names or category of files included in the search]. No responsive documents were located.
[As appropriate, add any additional information provided by the office conducting the file search as to
why there are no responsive records. Note: Adding this information can often prevent an appeal for
adequacy of search.]
If you believe that there are, in fact, records responsive to your request in files maintained by FSA, you
may appeal to the FSA Administrator. The Appeals and Litigation Staff must receive your written
appeal within forty-five (45) calendar days of the date of this letter. Please include in the appeal the
location of the responsive records, if it is known to you, and the reason why you believe that there are
records responsive to your request in FSA files. Be sure to include a copy of your initial request letter
in your appeal package, and clearly mark both your letter and its envelope with the words “Freedom of
Information Act Appeal”. Mail your appeal package to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.

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Page 1

Exhibit 17
(Par. 21, 29)
Example No Records Final Response Letters (Continued)
A No Records Final Response Letter (Continued)
The cost of processing your request is $_____________, calculated as follows:
[Insert the appropriate Final Response Letter fee language for applicable requester (from the
subparagraph B through G) here.]
If you have any questions about our response to your request, you may contact ________________ at
___-___-____, by e-mail at _____________, or by mail at _______________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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Page 2

Exhibit 17
(Par. 21, 29)
Example No Records Final Response Letters (Continued)
B Commercial-Use Requester No Responsive Records Located Fee Language
Add the following fee language into all letters in this exhibit, adapted as appropriate, for
commercial-use fee requesters, when a search for responsive records was conducted and no
responsive records were located.
Note: When using the standard FOIA/Privacy Act fee chart (Exhibit 29), include only the
categories that apply to the particular request.
Example: For a request for which only clerical search time and professional search time
were expended in processing the request, include only clerical search time and
professional search time in the cost/fee accounting provided in the final
response letter. Add any other categories of services or materials applicable
to request being processed.

__ Hours of Clerical Review Time
__ Hours of Professional search Time

@ $ 2.50 per 1/4 hour.
@ $ 5.00 per 1/4 hour.

[Note: Use standard charges for Clerical and Professional Time for all requester categories
only when actual costs (hourly salary rate + 16%) are not available.]
[Choose either of the following:
However, because the cost of processing your request is equal to or less than $25.00, your fee
has been waived because the cost of collecting this amount would be greater than the amount
collected, pursuant to USDA regulations at Title 7, CFR, Appendix A, to Subpart A, 6(a)(4).
OR
Please submit a check, draft or money order payable to the Treasury of the United States for
[insert total cost of processing request] $______________, to the following address [insert
mailing address of responding office] ___________________________________________.
Please be advised that payment is due within thirty (30) calendar days of the date of this letter.
Interest charges may be assessed at the rate prescribed in 31 U.S.C. 3717. ]

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Exhibit 17
(Par. 21, 29)
Example No Records Final Response Letters (Continued)
C Educational-Use, Non-Commercial Scientific-Use, or Media Use Requester No Responsive
Records Located Fee Language
Add the following fee language into all letters in this exhibit, adapted as appropriate, for
educational-use, non-commercial scientific-use, or media-use requesters, when a search for
responsive records was conducted and no responsive records were located.
Note: When using the standard FOIA/Privacy Act fee chart (Exhibit 29), include only the
categories that apply to the particular request.
Example: For a request for which only clerical search time and professional search time
were expended in processing the request, include only clerical search time and
professional search time in the cost/fee accounting provided in the final
response letter. Add any other categories of services or materials applicable
to request being processed.
__ Hours of Clerical Search Time
__ Hours of Professional Search Time

@ $ 2.50 per 1/4 hour.
@ $ 5.00 per 1/4 hour.

[Note: Use standard charges for Clerical and Professional Time for all requester categories only
when actual costs (hourly salary rate + 16%) are not available.]
[Choose either of the following:
However, because we have granted your request for a fee waiver, there is no chargeable fee for the
processing of your request.
OR
However, because we have classified your request as [choose 1: an educational non-commercial
scientific-use request OR a media-use request], you are entitled not to be charged for the cost of
searching for responsive documents, and to receive the first 100 pages of duplication without charge.
Therefore, your fee for the processing of this request is [insert actual billable cost] $_____.]
[Choose either of the following:
Because this amount is equal to or less than $25.00, your fee has been waived because the cost of
collecting this amount would be greater than the amount collected, pursuant to USDA regulations at
Title 7, CFR, Appendix A, to Subpart A, 6(a)(4).
OR
Please submit a check, draft or money order payable to the Treasury of the United States for [insert
total cost of processing request] $______________, to the following address [insert mailing address of
responding office] _____________________________. Please be advised that payment is due within
thirty (30) calendar days of the date of this letter. Interest charges may be assessed at the rate
prescribed in 31 U.S.C. 3717. ]

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Page 4

Exhibit 17
(Par. 21, 29)
Example No Records Final Response Letters (Continued)
D Other-Use FOIA Requester No Responsive Records Located Fee Language
Add the following fee language into all letters in this exhibit, adapted as appropriate, for otheruse FOIA requesters, when a search for responsive records was conducted and no responsive
records were located.
Notes: When using the standard FOIA/Privacy Act fee chart (Exhibit 29), include only the
categories that apply to the particular request.
Example: For a request for which only clerical search time and professional search time
were expended in processing the request, include only clerical search time and
professional search time in the cost/fee accounting provided in the final
response letter. Add any other categories of services or materials applicable
to request being processed.
For other-use FOIA/Privacy Act requesters, calculate fees applicable to the FOIA
portion and the Privacy Act portion separately, but combine them in the Final Response
Letter (Exhibit 18 through 22, as applicable) using the following fee language.
__ Hours of Clerical Search Time
__ Hours of Professional Search Time

@ $ 2.50 per 1/4 hour.
@ $ 5.00 per 1/4 hour.

[Note: Use standard charges for Clerical and Professional Time for all requester categories only when actual
costs (hourly salary rate + 16%) are not available.]
[Choose either of the following:
However, because we have granted your request for a fee waiver, there is no chargeable fee for the processing of
your request.
OR
However, because we have classified your request as an other-use request, you are entitled to receive the first two
(2) hours of search time and the first 100 pages of duplication without charge. Therefore, your fee for the
processing of this request is [insert actual billable cost] $_______.]
[Choose either of the following:
[Because this amount is equal to or less than $25.00, your fee has been waived because the cost of collecting this
amount would be greater than the amount collected, pursuant to USDA regulations at Title 7, CFR, Appendix A,
to Subpart A, 6(a)(4).
OR
Please submit a check, draft or money order payable to the Treasury of the United States for [insert total cost of
processing request] $______________, to the following address [insert mailing address of responding office]
_____________________________________. Please be advised that payment is due within thirty (30) calendar
days of the date of this letter. Interest charges may be assessed at the rate prescribed in 31 U.S.C. 3717.]

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Page 5

Exhibit 17
(Par. 21, 29)
Example No Records Final Response Letters (Continued)
E No Records Final Response Letter With No Search
Use the following No Records Final Response Letter to respond to requests when it is reasonable
to believe that FSA has no records responsive to a FOIA request, and the determination was
made without conducting a file search.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This responds to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom of
Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year] ______,
control number __________________.
We have determined that it is reasonable to believe that there are no records responsive to your request
on file within FSA. FSA administers and manages farm commodity, credit, conservation, and disaster
and loan programs as laid out by Congress through a network of Federal, State and County Offices.
The records you have requested [As appropriate, add any information supporting your believe that it is
not reasonable to believe that responsive records would be maintained anywhere in FSA’S files.
Note: Adding this information can often prevent an appeal for adequacy of search.]
If you believe the determination to deny your request for a fee waiver is incorrect, you may appeal to
the FSA Administrator. The Appeals and Litigation Staff must receive your written appeal within
forty-five (45) calendar days of the date of this letter. Please include in the appeal a brief explanation of
how disclosure of the information to you is likely to contribute significantly to public understanding of
the operations or activities of the Government and the reason disclosure would not be primarily in your
commercial interest. Be sure to include a copy of your initial request letter in your appeal package, and
clearly mark both your letter and its envelope with the words “Freedom of Information Act Appeal”.
Mail your appeal package to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.

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Page 6

Exhibit 17
(Par. 21, 29)
Example No Records Final Response Letters (Continued)
E No Records Final Response Letter With No Search (Continued)
If you have any questions about our response to your request, you may contact ________________ at
___-___-____, by e-mail at _____________, or by mail at _______________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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Page 7

Exhibit 17
(Par. 21, 29)
Example No Records Final Response Letters (Continued)
F Duplicate Request Final Response Letter With No Search
Use the following Duplicate Request Final Response Letter, without search, when processing a
request that substantially duplicates a recent request filed by the same requester.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year]
___________, to the United States Department of Agriculture (USDA), Farm Service Agency (FSA).
FSA received a copy of your request on [month, day, year] ___________ and assigned it control
number _____________. Please reference this number in any future communication with our office
about your request.
We have determined that your present request substantially duplicates a recent request that you have
filed with our office. This request [choose 1: was responded to on [month, day, year] __________; OR
is currently still in process]. [If FSA responded to the earlier request, provide the response as an
attachment and insert the following: A copy of the [month, day, year] response is attached for
information.] Accordingly, we are closing our file on your present request.
If you have any questions about our actions with respect to this request, you may contact _________ at
___-___-____, by e-mail at _____________, or by mail at ________________________
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachments

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Exhibit 17
(Par. 21, 29)
Example No Records Final Response Letters (Continued)
G No Records Final Response Letter With No Search and No Specification
Use the following No Records Final Response Letter, without search, to respond to a requester
who asks for “all records on himself/herself” without specifying his/her FSA connection.
Note: This letter functions like Exhibit 12 letters, but does not require a 20 workday wait for
clarification before close-out.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom
of Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year]
___________, to the United States Department of Agriculture (USDA), Farm Service Agency (FSA).
FSA received a copy of your request on [month, day, year] ___________ and assigned it control
number _____________. Please reference this number in any future communication with our office
about your request.
In your letter, you ask for all information/records on you maintained by FSA. However, you do not
specify what connection you have had with FSA. FSA maintains records on individuals employed by
FSA and on individuals who do business with USDA, e.g., agricultural producers or landowners who
receive benefits from FSA, or individuals, under contract to FSA, who provide goods or services to it.
Unless you fall into one of these categories, and can describe, in detail, what dealings you have had with
FSA, (e.g. you were employed by a specific FSA office in certain years, or you applied for a particular
benefit at a particular FSA county office in certain years), we have no reason to believe that we would
have records related to you in files anywhere in FSA. In your letter, you provided us with no
information to suggest that this might be the case.
Additionally, FSA maintains its records in a decentralized environment. This means that it does not
have a large, single, computerized database that contains all of its information. Each individual county
and state office within FSA maintains its own files, often in manual (paper) form. And since all of these
individual documents are located, physically, in hundreds of different locations scattered across the
United States, our files, too, are equally scattered. For this reason, it is not possible for us to conduct a
single automated search of all our files for records related to you in a manner similar to the way in
which you might conduct a search on the Internet for information on a subject of interest to you.
Because of this, we do not undertake a search of any of our files for information on a particular
individual unless there is definite, substantive information that would lead us to believe that it is likely
that a particular file would contain information on that particular individual. (To do otherwise might
cost you hundred of dollars in search fees for a search that would result in a finding of “no responsive
records”.)

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Exhibit 17
(Par. 21, 29)
Example No Records Final Response Letters (Continued)
G No Records Final Response Letter With No Search and No Specification (Continued)
In short, because we have no reason to believe that we have information on you, we believe that we
have no records responsive to your request.
If you believe that there are, in fact, records responsive to your request in files maintained by FSA, you
may appeal to the FSA Administrator. The Appeals and Litigation Staff must receive your written
appeal within forty-five (45) calendar days of the date of this letter. Please include in the appeal the
location of the responsive records, if it is known to you, and the reason why you believe that there are
records responsive to your request in FSA files. Be sure to include a copy of your initial request letter
in your appeal package, and clearly mark both your letter and its envelope with the words “Freedom of
Information Act Appeal”. Mail your appeal package to the following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.
If you have any questions about our response to your request, you may contact _________________ at
___-___-____, by e-mail at _____________, or by mail at ________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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Exhibit 18
(Par. 21, 26, 29, Ex. 17)
Example Glomar Final Response Letter
Use the Glomar Final Response Letter to respond to a FOIA request when it is appropriate neither to
confirm nor deny the existence of responsive records.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This responds to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom of
Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year] ___________,
control number __________________.
Please be advised that we can neither confirm nor deny that FSA has any records responsive to your request.
You have the right to challenge FSA’s response to your request for records. The Appeals and Litigation
Staff must receive your written appeal within forty-five (45) calendar days of the date of this letter. Please
include in the appeal a brief explanation of why you believe that FSA’s responsive is not appropriate. Be
sure to include a copy of your initial request letter in your appeal package, and clearly mark both your letter
and its envelope with the words “Freedom of Information Act Appeal”. Mail your appeal package to the
following address:
ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.
If you have any questions about our response to your request, you may contact __________________ at
___-___-____, by e-mail at _____________, or by mail at ______________________________.
Sincerely,

[Name]
[Title]
FSA [National/State/County] Office
Attachment [Copy of Request]

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Page 1

.

Exhibit 19
(Par. 21, 29, Ex. 17, 20, 21)
Example Final Response Grant Letters
A Final Response Grant Letter With Release In-Full
Use the following Final Response Grant Letter to respond to a FOIA request in which all
responsive records are being released in-full.

[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This responds to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom of
Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year]
___________, control number __________________.
In response to your request, we located and are releasing, in full, _________ documents, comprising
____ pages.
The cost of processing your request is $_____________, calculated as follows:
[Insert appropriate Final Response Letter additional fee language for applicable type requester, from
subparagraph B, C, or D, here.]
If you have any questions about our response to your request, you may contact __________________ at
___-___-____, by e-mail at _____________, or by mail at _____________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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Page 1

Exhibit 19
(Par. 21, 29, Ex. 17, 20, 21)
Example Final Response Grant Letter (Continued)
B Commercial-Use Requester Final Response Fee Language
Add the following fee language into all letters in this exhibit, adapted as appropriate, for
commercial-use fee requesters.
Note: When using the standard FOIA/Privacy Act fee chart (Exhibit 29), include only the
categories that apply to the particular request.
Example: For a request for which only clerical search time and professional search time
were expended in processing the request, include only clerical search time and
professional search time in the cost/fee accounting provided in the final
response letter. Add any other categories of services or materials applicable
to request being processed.
__ Hours of Clerical Review Time
__ Hours of Professional search Time

@ $ 2.50 per 1/4 hour.
@ $ 5.00 per 1/4 hour.

[Note: Use standard charges for Clerical and Professional Time for all requester categories
only when actual costs (hourly salary rate + 16%) are not available.]
[Choose either of the following:
However, because the cost of processing your request is equal to or less than $25.00, your fee has been
waived because the cost of collecting this amount would be greater than the amount collected, pursuant
to USDA regulations at Title 7, CFR, Appendix A, to Subpart A, 6(a)(4).
OR
Please submit a check, draft or money order payable to the Treasury of the United States for [insert
total cost of processing request] $______________, to the following address [insert mailing address of
responding office] _____________ ______________________________. Please be advised that
payment is due within thirty (30) calendar days of the date of this letter. Interest charges may be
assessed at the rate prescribed in 31 U.S.C. 3717. ]

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Page 2

Exhibit 19
(Par. 21, 29, Ex. 17, 20, 21)
Example Final Response Grant Letter (Continued)
C Educational-Use, Non Commercial Scientific-Use, Or Media-Use Requester Final Response
Fee Language
Add the following fee language into all letters in this exhibit, adapted as appropriate, for
educational-use, non-commercial scientific-use, or media-use requesters, when a search for
responsive records was conducted and no responsive records were located
Note: When using the standard FOIA/Privacy Act fee chart (Exhibit 29), include only the
categories that apply to the particular request.
Example: For a request for which only clerical search time and professional search time
were expended in processing the request, include only clerical search time and
professional search time in the cost/fee accounting provided in the final
response letter. Add any other categories of services or materials applicable
to request being processed.
__ Hours of Clerical Search Time
__ Hours of Professional Search Time

@ $ 2.50 per 1/4 hour.
@ $ 5.00 per 1/4 hour.

[Note: Use standard charges for Clerical and Professional Time for all requester categories only
when actual costs (hourly salary rate + 16%) are not available.]
[Choose either of the following:
However, because we have granted your request for a fee waiver, there is no chargeable fee for the
processing of your request.
OR
However, because we have classified your request as [choose 1: an educational non-commercial
scientific-use request OR a media-use request], you are entitled not to be charged for the cost of
searching for responsive documents. Therefore, your fee for the processing of this request is [insert
actual billable cost] $_____.]
[Choose either of the following:
Because this amount is equal to or less than $25.00, your fee has been waived because the cost of
collecting this amount would be greater than the amount collected, pursuant to USDA regulations at
Title 7, CFR, Appendix A, to Subpart A, 6(a)(4).
OR
Please submit a check, draft or money order payable to the Treasury of the United States for [insert
total cost of processing request] $______________, to the following address [insert mailing address of
responding office] _____________________________. Please be advised that payment is due within
thirty (30) calendar days of the date of this letter. Interest charges may be assessed at the rate
prescribed in 31 U.S.C. 3717. ]

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Page 3

Exhibit 19
(Par. 21, 29, Ex. 17, 20, 21)
Example Final Response Grant Letter (Continued)
D Other-Use FOIA Requester Final Response Fee Language
Add the following fee language into all letters in this exhibit, adapted as appropriate, for
other-use FOIA requesters, when a search for responsive records was conducted and no
responsive records were located.
Notes: When using the standard FOIA/Privacy Act fee chart (Exhibit 29), include only the
categories that apply to the particular request.
Example: For a request for which only clerical search time and professional search
time were expended in processing the request, include only clerical search
time and professional search time in the cost/fee accounting provided in
the final response letter. Add any other categories of services or materials
applicable to request being processed.
__ Hours of Clerical Search Time
__ Hours of Professional Search Time

@ $ 2.50 per 1/4 hour.
@ $ 5.00 per 1/4 hour.

[Note: Use standard charges for Clerical and Professional Time for all requester categories only
when actual costs (hourly salary rate + 16%) are not available.]
[Choose either of the following:
However, because we have granted your request for a fee waiver, there is no chargeable fee for the
processing of your request.
OR
However, because we have classified your request as an other-use request, you are entitled to receive
the first two (2) hours of search time without charge. Therefore, your fee for the processing of this
request is [insert actual billable cost] $_______.]
[Choose either of the following:
[Because this amount is equal to or less than $25.00, your fee has been waived because the cost of
collecting this amount would be greater than the amount collected, pursuant to USDA regulations at
Title 7, CFR, Appendix A, to Subpart A, 6(a)(4).
OR
Please submit a check, draft or money order payable to the Treasury of the United States for [insert
total cost of processing request] $______________, to the following address [insert mailing address of
responding office] _____________________________________. Please be advised that payment is
due within thirty (30) calendar days of the date of this letter. Interest charges may be assessed at the
rate prescribed in 31 U.S.C. 3717.]

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Page 4

Exhibit 20
(Par. 21, 29, Ex. 17)
Example Final Response Partial Grant Letter
Use the following Final Response Partial Grant Letter to respond to a FOIA request in which some
responsive records are being redacted, in-part.
[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This responds to your Freedom of Information Act (FOIA) request (copy attached) dated [month, day, year]
___________, control number __________________.
In response to your request, we located _________ documents, comprising ____ pages. [Adapt this next sentence to
the particulars of this request.] With respect to these pages, we are releasing _____ pages in full and releasing
____pages in part. We are withholding ____ pages in full and ____ pages in-part, pursuant to 5 U.S.C. 552 (b)( ) of
FOIA. [Insert appropriate citation for each FOIA exemption applicable to the pages or partial pages being withheld
in response to this request; such as “(b)(3), (b)(5), and (b)(6)” of FOIA.]
[Insert appropriate exemption language from Exhibit 22 here.]
If you believe our decision to withhold this information is incorrect, you may appeal to the FSA Administrator. The
Appeals and Litigation Staff must receive your written appeal within forty-five (45) calendar days of the date of this
letter. Please include in the appeal a brief explanation of why you believe this decision is in error. Be sure to include a
copy of your initial request letter in your appeal package, and clearly mark both your letter and its envelope with the
words “Freedom of Information Act Appeal”. Mail your appeal package to the following address:

ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.
The cost of processing your request is $_____________, calculated as follows:
[Insert appropriate Final Response Letter additional fee language for applicable type requester, from Exhibit 19,
subparagraphs B, C, and D, here.]
If you have any questions about our response to your request, you may contact _______________ at ___-___-____, by
e-mail at _____________, or by mail at ______________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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.

Exhibit 21
(Par. 21, 29, Ex. 17)
Example Final Response Denial Letter
Use the following Final Response Denial Letter to respond to a FOIA request in which all
responsive records are being denied.
[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This responds to your Freedom of Information Act (FOIA) request (copy attached) dated [month, day, year]
___________, control number __________________.
In response to your request, we located _________ documents, comprising ____ pages. With respect to these
pages, we are withholding [insert total number of pages located] ____ pages in full, pursuant to
5 U.S.C. 552 (b)([#]) of FOIA. [Insert appropriate citation for each FOIA exemption applicable to the pages or
partial pages being withheld in response to this request; such as “(b)(3), (b)(5), and (b)(6)” of FOIA.]
[Insert appropriate exemption language from subparagraph M here.]
If you believe our decision to withhold this information is incorrect, you may appeal to the FSA Administrator. The
Appeals and Litigation Staff must receive your written appeal within forty-five (45) calendar days of the date of this
letter. Please include in the appeal a brief explanation of why you believe this decision is in error. Be sure to include a
copy of your initial request letter in your appeal package, and clearly mark both your letter and its envelope with the
words “Freedom of Information Act Appeal”. Mail your appeal package to the following address:

ADMINISTRATOR, FARM SERVICE AGENCY
ATTN: APPEALS AND LITIGATION STAFF
1400 INDEPENDENCE AVE SW RM 5971-S
STOP 0570
WASHINGTON DC 20250-0570.
The cost of processing your request is $_____________, calculated as follows:
[Insert appropriate Final Response Letter additional fee language for applicable type requester, from Exhibit 19,
subparagraphs B, C, and D, here.]

If you have any questions about our response to your request, you may contact ________________________ at
___-___-____, by e-mail at _____________, or by mail at _____________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment

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.

Exhibit 22
(Par. 21, 29, Ex. 17, 20)
Example Final Response Partial Grant and Denial Exemption Letters
A Overview
Add the following subparagraph contents, as appropriate, to each exemption cited in the Final
Response Letter.
Note: Add the paragraphs in numerical order; that is exemption 3, exemption 5, and then
exemption 6. Modify the paragraphs, where instructed, to reflect the specific records
responsive to FOIA request. When asked to select from alternative passages, do not
include the information in italic type. In all instances, specify the categories of
information withheld under each exemption, and the number of pages withheld (either
in-part or in-full) under each. When specifying information withheld, do not reveal
information that exists that the applicable exemptions are designed to protect.
B Exemption 1
Exemption 1 [5 U.S.C. 552 (b)(1)] protects matters of national defense or foreign policy.

[adapt the following to the request]
Pursuant to exemption 1, ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 1 protects information about the national defense or foreign policy
properly classified under Executive Order 12,958, Classified National Security Information
(dated October 14, 1995), or superseding Executive Order. The records withheld under
exemption 1 include [specify the categories of information withheld under this exemption for
this request].

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Exhibit 22
(Par. 21, 29, Ex. 17, 20)
Example Final Response Partial Grant and Denial Exemption Letters (Continued)
C Exemption 2
Exemption 2 [5 U.S.C. 552 (b)(2)] protects from public disclosure, records that are related to the
internal personnel rules and practices of an agency.

[adapt the following to the request]
Pursuant to exemption 2, ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 2 protects records dealing with internal matters of a relatively trivial
nature for which there is no legitimate public interest or benefit, when releasing and processing
the requested records would impose an administrative burden on FSA. The records withheld
under exemption 2 include [specify the categories of information withheld under this exemption
for this request].

D Exemption 3
Exemption 3 [5 U.S.C. 552 (b)(3)] protects information included in FSA’s records specifically
exempted from disclosure by another Federal statute; select either of the following statute
appropriate exemption 3 language; only 1 statute ordinarily applies:
•

Food, Conservation and Energy Act of 2008, Section 1619(b)

[adapt the following to the request]
Pursuant to exemption 3, ____ pages have been withheld in full and _____ pages in part.
In this instance, Section 1619(b) of the Food, Conservation and Energy Act of 2008
prohibits disclosing the information requested.
The records you have requested include information that FSA has obtained from
agricultural producers or landowners that concerns their [select all that apply based on the
specific records requested] farming or agricultural operation, including production and
marketing of agricultural commodities and livestock, farming practices, conservation
practices, or the land itself. The type of information withheld includes [describe type of
information specific to the requested records]. This information is required to be provided
to FSA for the agricultural producers and/or landowners shown on these records to
participate in FSA’s farm programs.

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Exhibit 22
(Par. 21, 29, Ex. 17, 20)
Example Final Response Partial Grant and Denial Exemption Letters (Continued)
D Exemption 3 (Continued)
•

National Defense Authorization Act for Fiscal Year 1997

The National Defense Authorization Act for Fiscal Year 1997, Subsection 821(b)(m),
which contains a provision which amends the Federal Property and Administrative Services
Act of 1949 [41 U.S.C. 253b], prohibits disclosing the information requested.
The records you requested include [select all that apply based on the specific records
requested] proposals of unsuccessful bidders on contracts, lists of unsuccessful submitters,
and information in contract proposals that was not set forth or incorporated by reference in
a contract between FSA and the contractor that submitted the proposal. In Hornbostel v.
Department of the Interior, 305 F. Supp.2d 21 (D.D.C. 2003), the District Court for the
District of Columbia held that this type of confidential business information is properly
withheld under exemption 3.

E Exemption 4
Exemption 4 [5 U.S.C. 552 (b)(4)] protects trade secrets and commercial or financial
information (confidential business information)

[adapt the following to the request]
Pursuant to exemption 4, ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 4 protects trade secrets and commercial or financial information that is
obtained from a person and is privileged or confidential. Exemption 4 protects both the interests of
commercial entities that submit proprietary information to the Government and the interests of the
Government in receiving continued access to such data. The records withheld under exemption 4
include [specify the categories of information withheld under this exemption for this request].

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Exhibit 22
(Par. 21, 29, Ex. 17, 20)
Example Final Response Partial Grant and Denial Exemption Letters (Continued)
F Exemption 5
Exemption 5 [5 U.S.C. 552 (b)(5)] protects privileged interagency or intra-agency memoranda or
letters, as follows:

[adapt the following to the request]
Pursuant to exemption 5, ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 5 allows FSA to withhold, “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party... in litigation with an agency”. As such, the
privilege “exempts those documents... normally privileged in the civil discovery context”. National
Labor Relations Bd. v. Sears Roebuck & Co., 421 U.S. 132 (1975). Exemption 5 incorporates
several of these privileges from discovery in litigation, including the deliberative process privilege,
the attorney work-product privilege, the attorney-client privilege, and the Government commercial
information privilege

Note: From the following, select the language appropriate to all privileges that apply to the
information withheld under exemption 5; more than 1 privilege may apply to a single
document.
•

Deliberative Process Privilege

The Deliberative Process Privilege protects the decision-making process of Government
agencies and encourages the frank discussion of legal and policy issues by ensuring that
agencies are not forced to operate in a fish bowl. The deliberative process privilege
protects materials that are both predecisional and deliberative. A predecisional
document is a document prepared to assist an FSA decision-maker in arriving at his/her
decision, and may include recommendations, draft documents, proposals, suggestions,
and other subjective documents that reflect the personal opinions of the writer rather
than FSA policy. The records withheld under this privilege include [specify the
categories of information withheld under this privilege for this request].

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Exhibit 22
(Par. 21, 29, Ex. 17, 20)
Example Final Response Partial Grant and Denial Exemption Letters (Continued)
F Exemption 5 (Continued)
•

Attorney-Client Privilege

The Attorney-Client Privilege protects confidential communications between an
attorney and his/her client relating to a legal matter for which the client has sought
professional advice. Although this privilege fundamentally applies to facts divulged
by a client to his/her attorney, this privilege also encompasses any opinions given
by an attorney to his/her client based upon those facts, as well as communications
between attorneys that reflect client-supplied information. In other words, it applies
whenever FSA attorneys are discussing the legal implications of action FSA may or
may not pursue. The records withheld under this privilege include [specify the
categories of information withheld under this privilege for this request].
•

Attorney-Work Product Privilege

The Attorney-Work Product Privilege protects documents and other memoranda
prepared by FSA attorneys during or in anticipation of litigation, including
administrative proceedings. The Attorney-Work Product Privilege covers
litigation-related documents prepared by an attorney or under his/her direction that
reveal the attorney’s mental impressions, theories of the case, legal strategies, such
as reports prepared by a consultant or a program employee which were prepared
under the direction of any attorney in anticipation of litigation. The records
withheld under this privilege include [specify the categories of information withheld
under this privilege for this request].
•

Government Commercial Information Privilege

The Government Commercial Information Privilege protects information generated
by the Government in the course of its business dealings, such as the process
leading up to the award of a contract, or for some appraisal information associated
with the acquisition of real property. The Government Commercial Information
Privilege’s premise is that premature release of such information would put the
Government at a competitive disadvantage or would endanger the consummation of
a contract. The records withheld under this privilege include [specify the categories
of information withheld under this privilege for this request].

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Exhibit 22
(Par. 21, 29, Ex. 17, 20)
Example Final Response Partial Grant and Denial Exemption Letters (Continued)
G Exemption 6
Exemption 6 [5 U.S.C. 552 (b)(6)] protects personal information affecting an individual’s
privacy.

[adapt the following to the request]
Pursuant to exemption 6, ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 6 protects personnel, medical, and similar files, the disclosing which
would constitute a clearly unwarranted invasion of personal privacy. The courts have held that
the phrase “similar files” involves all information that applies to a particular person. When
disclosing information about particular individuals is requested, the courts have decided that it
is necessary for FSA to determine whether release of the information would constitute a clearly
“unwarranted” invasion of the individuals’ privacy. To make this determination, FSA is
required to perform a “balancing test”. This means that FSA must weigh the individual’s right
to privacy against the public’s right to disclosure. In this instance, FSA has determined that
disclosing this information would shed little or no light on the performance of FSA’s statutory
duties and that, on balance; the public interest to be served by its disclosure does not outweigh
the privacy interest of the individuals in question, in withholding it. The records withheld
under this exemption include [specify the categories of information withheld under this
exemption for this request].

H Exemption 7A
Exemption 7A [5 U.S.C. 552 (b)(7)(A)] protects records compiled for law enforcement
purposes, but only to the extent that disclosing this information could reasonably be expected to
interfere with law enforcement proceedings.

[adapt the following to the request]
Pursuant to exemption 7(A), ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 7(A) protects records that were compiled for either criminal or civil;
such as EEO statutes, as well as statutes authorizing administrative and regulatory proceedings)
law enforcement purposes. Disclosing these documents could reasonably be expected to cause
harm to these proceedings; such as disrupt, impede, delay, or otherwise harm the enforcement
proceedings; such as destroy or alter the evidence or intimidate a witness). The records
withheld under this exemption include [specify the categories of information withheld under
this exemption for this request].

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Exhibit 22
(Par. 21, 29, Ex. 17, 20)
Example Final Response Partial Grant and Denial Exemption Letters (Continued)
I

Exemption 7B
Exemption 7B [5 U.S.C. 552 (b)(7)(B)] protects records compiled for law enforcement purposes,
but only to the extent that disclosing this information would deprive a person of a right to a fair
or an impartial adjudication.

[adapt the following to the request]
Pursuant to exemption 7(B), ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 7(B) protects records whose disclosure could impair a court proceeding
by prejudicial pretrial publicity. The records withheld under this exemption include [specify
the categories of information withheld under this exemption for this request].

J

Exemption 7C
Exemption 7C [5 U.S.C. 552 (b)(7)(C)] protects records compiled for law enforcement purposes,
but only to the extent that disclosing this information could be expected to constitute an
unwarranted invasion of personal privacy

[adapt the following to the request]
Pursuant to exemption 7(C), ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 7(C) protects personnel in law enforcement files whose disclosure
could constitute an unwarranted invasion of personal privacy. To make this determination,
FSA is required to perform a “balancing test”. This means that FSA must weigh the
individual’s right to privacy against the public’s right to disclosure. In this instance, FSA has
determined that disclosing this information would shed little or no light on the performance of
FSA’s statutory duties and that, on balance; the public interest to be served by its disclosure
does not outweigh the privacy interest of the individuals in question, in withholding it. The
records withheld under this exemption include [specify the categories of information withheld
under this exemption for this request].

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Exhibit 22
(Par. 21, 29, Ex. 17, 20)
Example Final Response Partial Grant and Denial Exemption Letters (Continued)
K Exemption 7D
Exemption 7D [5 U.S.C. 552 (b)(7)(D)] protects records compiled for law enforcement
purposes, but only to the extent that disclosing this information could disclose the identity of a
confidential source.

[adapt the following to the request]
Pursuant to exemption 7(D), ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 7(D) protects identity of a source, including a State, local or foreign
agency or authority or any private institution which furnished information on a confidential
basis, to a criminal law enforcement authority in the course of a criminal investigation, or to an
agency conducting a lawful national security intelligence investigation, whenever he/she has
provided information under either an express promise of confidentiality or under circumstances
where such assurance could reasonably be implied. The records withheld under this exemption
include [specify the categories of information withheld under this exemption for this request].

L Exemption 7E
Exemption 7E [5 U.S.C. 552 (b)(7)(E)] protects records compiled for law enforcement purposes,
but only to the extent that disclosing this information would disclose techniques, procedures,
and/or guidelines for law enforcement investigations or prosecutions.

[adapt the following to the request]
Pursuant to exemption 7(E), ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 7(E) protects records; such as portions of law enforcement manuals,
which, if disclosed, could lessen the effectiveness of the pertinent law enforcement techniques,
procedures, and/or guidelines; such as those pertaining to the interception of wire, oral and
electronic communications, techniques of undercover work, analyses of security procedures,
and response to terrorist attacks. The records withheld under this exemption include [specify
the categories of information withheld under this exemption for this request].

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Exhibit 22
(Par. 21, 29, Ex. 17, 20)
Example Final Response Partial Grant and Denial Exemption Letters (Continued)
M Exemption 7F
Exemption 7F [5 U.S.C. 552 (b)(7)(F)] protects records compiled for law enforcement purposes,
but only to the extent that disclosing this information could reasonably be expected to endanger
the life or physical safety of any individual.

[adapt the following to the request]
Pursuant to exemption 7(F), ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 7(F) protects names and other identifying information pertaining to law
enforcement personnel, including the Secretary’s security detail, names of private security
contractors operating in concert with U.S. military forces in Iraq, and critical
infrastructure/sensitive information related to America’s Homeland Security; such as
inundation maps, if disclosure could reasonably be expected to jeopardize national security or
endanger the life or physical safety of citizens. The records withheld under this exemption
include [specify the categories of information withheld under this exemption for this request].

N Exemption 8
Exemption 8 [5 U.S.C. 552 (b)(8)] protects records of financial institutions.

[adapt the following to the request]
Pursuant to exemption 8, ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 8 protects matters that are contained in or related to information or
reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or
supervision of financial institutions; such as the Federal Reserve Boards or the Office of the
Comptroller of the Currency. The records withheld under this exemption include [specify the
categories of information withheld under this exemption for this request].

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Exhibit 22
(Par. 21, 29, Ex. 17, 20)
Example Final Response Partial Grant and Denial Exemption Letters (Continued)
O Exemption 9
Exemption 9 [5 U.S.C. 552 (b)(1)] protects geological and geophysical information about wells.

[adapt the following to the request]
Pursuant to exemption 9, ____ pages have been withheld in full and _____ pages in part.
Specifically, exemption 9 protects geological and geophysical information and data (including
maps) concerning oil wells, natural gas wells, and water wells, as when withholding of the data
is necessary to guard against a (homeland security) attack upon pooled natural resources
intended to cause harm to the public. The records withheld under this exemption include
[specify the categories of information withheld under this exemption for this request].

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Exhibit 23
(Par. 21, 28, 29, Ex. 17)
Example Exemption 4 [5 U.S.C. 552 (b)(4)] Submitter Letters
A Submitter Letter To Seek Commercial and Financial Information
Use the following Submitter Letter to seek the views of the submitter of commercial and
financial information that may be exempt according to exemption 4.

[Control Number]
[Mr./Ms. Submitter-Representative Name]
[Business Title]
[Submitter Business Name]
[Business Address]
[City, State, ZIP Code]
Dear Mr./Ms. [Submitter-Representative]:
We have received a Freedom of Information Act (FOIA) request seeking information in FSA files
submitted by [insert Submitter Business Name] __________________ (your firm). A copy of this
FOIA request is attached. Also attached are copies of all records responsive to this request submitted by
your firm.
To assist us in determining whether the information responsive to this request should be released to this
requester, we need your firm’s views on which items, if any, are protected from disclosure by FOIA
exemption 4 (5 U.S.C. 552(b)(4)). If you recommend that information be withheld, please provide us
with the following:
1. The data to be withheld and the basis on which the information is exempt, under FOIA. With
respect to exemption 4, please provide a specific and detailed discussion of:
a. Whether the Government required the information to be submitted, and if so, how substantial
competitive or other business harm to your firm would likely result from its release;
b. Whether your firm provided the information voluntarily and, if so, how the information in
question fits into a category of information that it customarily does not release to the public; and
c. A certification that the information is confidential and was not disclosed to the public by your
firm and is not routinely available to the public from other sources.
2. A name, telephone number, FAX number and e-mail address where your firm may be contacted
during normal business hours, in the event that we wish to consult with you further regarding this
matter.
Please review the attached documents and submit any recommendations you may have concerning
disclosing this information within 20 workdays from the date of your receiving these materials. While
we will review and consider all objections to release that are received within the specified time limit, it
is the Government that will make the final decision regarding whether the information should be
released or withheld. Only if we decide to release a portion of the responsive records, over your
objections, will we notify you of our intent to do so, ten (10) workdays before release. Additionally,
please be advised that the mere possibility of employee raiding does not constitute an adequate
justification for the withholding, under exemption 4, of the names of your firm’s employees and
subcontractors. [See National Air Traffic Controllers Association v. Federal Aviation Administration,
(D.C. Cir 2007).]

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Exhibit 23
(Par. 21, 28, 29, Ex. 17)
Example Exemption 4 [5 U.S.C. 552 (b)(4)] Submitter Letters (Continued)
A Submitter Letter To Seek Commercial and Financial Information (Continued)

Please note also that while we would prefer hearing from you directly, if you have no objections to
disclosing the information in question, if we do not hear from you within this time period, we will
presume that you have no objection to disclosing this information.
If you have any questions regarding what we are asking you to provide, or any of the issues discussed in
this letter, you may contact ____________ at ___-___-____, by FAX at ___-___-____, by e-mail at
______________, or by mail at ______________________________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachments

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Exhibit 23
(Par. 21, 28, 29, Ex. 17)
Example Exemption 4 [5 U.S.C. 552 (b)(4)] Submitter Letters (Continued)
B Notification to Submitter of Release Over Objections Letter
Use the following Notification to Submitter of Release Over Objections Letter to notify a
submitter of FSA’s decision to release portions of records responsive to a FOIA request to a
requester over its objections.
[Control Number]
[Mr./Ms. Submitter-Representative Name]
[Business Title]
[Submitter Business Name]
[Business Address]
[City, State, ZIP Code]
Dear Mr./Ms. [Submitter-Representative]:
Thank you for your letter, dated [month, day, year], in which you objected to the Farm Service Agency’s
(FSA) disclosing your firm’s [specify documents at issue; such as contract proposal and related
correspondence for contract #___________.]
After considering your comments and thoroughly reviewing the documents at issue, we plan on releasing the
following information for the reasons discussed below. [Explain what information is being released and why
it is being released; see following examples:
1. Total contract award amount. The total amount of the contract awarded to your firm is a matter of
public record and thus releasable under FOIA. The public has a right to know the cost of doing
business with the Government.
2. Name of the President/CEO of your firm. Your firm is a publicly-owned company. Therefore, this
information is published in your firm’s annual report. Because it is already a matter of public record,
the information is releasable under FOIA.
3. Names of key personnel. The mere possibility of employee raiding does not constitute an adequate
justification for the withholding, under exemption 4, of FOIA. See National Air Traffic Controllers
Association v. Federal Aviation Administration, (D.C. Cir 2007).]
We do not believe that release of this information will reveal confidential commercial or finance information
or cause your firm substantial competitive harm. FSA plans to release this information (copies enclosed) to
the requester ten (10) workdays from the date of your receiving this letter.
If you have any questions regarding this matter, you may contact ____________ at ___-___-____, by FAX
at ___-___-____, by e-mail at ______________, or by mail at __________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachment(s)

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Exhibit 23
(Par. 21, 28, 29, Ex. 17)
Example Exemption 4 [5 U.S.C. 552 (b)(4)] Submitter Letters (Continued)
C Acknowledgement With Notice About Submitter Consultation Letter
Use the following Acknowledgement With Notice About Submitter Consultation Letter to
acknowledge FOIA requests seeking records containing commercial or financial information
submitted by a person or entity outside of the Federal Government; such as requests for FSA
contracts for goods or services, leases on real property, etc.
[Control Number]
[Mr./Ms. Requester’s Name]
[Requester Address]
[City, State, ZIP Code]
Dear [Mr./Ms. Requester]:
This is in response to your [choose 1: Freedom of Information Act (FOIA) / Privacy Act (PA) / Freedom of
Information Act/Privacy Act (FOIA/PA)] request (copy attached) dated [month, day, year] __________, to the
United States Department of Agriculture (USDA), Farm Service Agency (FSA). FSA received a copy of your
request on [month, day, year] ___________ and assigned it control number _____________. Please reference this
number in any future communication with our office about your request.
FSA processes FOIA/PA requests on “first-in, first-out” basis. The actual processing time will depend upon the
complexity of the request and whether or not it involves sensitive or voluminous records, or extensive searches
and/or consultations. FSA also processes FOIA/PA requests on a multi-track basis. This means that simple
requests, requiring minimal efforts to respond (1-5 workdays), are processed in one track, normal requests
requiring more time to respond (6-20 workdays) are processed in another track, and complex requests involving
voluminous records, extensive searches or consultations (requiring more than 20 workdays to respond) are
processed in yet another track. We have placed your request in the [choose 1: simple / normal / complex] track.
We have classified your request as a [choose 1: commercial-use / media-use / educational non-commercial
scientific-use / other-use] request. Please consult the attached schedule of FOIA/PA fees for an explanation of
what this means with respect to your obligation to pay FOIA/PA fees.
Please note that because you have asked for records containing commercial or financial information submitted by
persons outside of the Federal Government, we are required to consult with them before releasing the requested
records.
Additionally, please be advised that we are taking a time extension To properly process your request, because of
the need to search for and collect the requested records from field facilities or other establishments that are
separate from the office processing the request. This means that we hope to be able to respond to you on or before
[insert date 30 workdays after the date of this letter: month, day, year] ________________.
In the interim, if you have any questions about the status of your request, you may contact _________ at
____-____-______, by e-mail at _____________, or by mail at ________________________.
Sincerely,
[Name]
[Title]
FSA [National/State/County] Office
Attachments

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Exhibit 24
(Par. 25)
Quick-Start Guide for Reviewing Records for Release
Each responsive document must be reviewed to determine what portions of it, if any, are releasable
to the public. Document releasability decisions may be quite different if the document in question
was:
•
•
•

included in communications between an FSA attorney and FSA client
shared with parties outside FSA
compiled for law enforcement purposes.

Therefore, the same document retrieved from different files within FSA could be treated differently
when requested under FOIA.
The key to reviewing records for release is to know more about the document under review. The
following steps are to assist FOIA processers in organizing record reviews. The following table is a
quick-start guide that may be used as a reference only.
Step
1

Action
Where did FOIA processer find the document?
Knowing where (being able to identify the specific files) from which the document in
question was retrieved in the file search conducted for responsive records is the first step
in performing our analysis. FSA’s uniform filing guide for records in State and County
Offices, 25-AS, is a valuable resource in determining the status of a document with respect
to whether or not it is covered by the Privacy Act. Some of our files, including many of
our program files, are organized for access by personal identifiers (name, SSN, farm
number, etc.) and are covered by the Privacy Act. Other files, like COC Minutes, are
organized for access by other access terms; such as date of meeting.
When FSA can identify the specific FSA file from which a particular document was
retrieved, FSA is in a position to know if the Privacy Act will be a factor in FSA’s
determination to release a particular document to the individual who requested it.
FSA is able to determine if the document has acquired an additional “layer” of FOIA
protection by coming under “the wing of a protected species” by being added to this file,
as; for example, by being added to a formal investigative file, being included in
attorney-client communications, etc.
These are determinations that often cannot be made from a review of content alone that
are critical in FSA’s determination of the document’s releasability.

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Exhibit 24
(Par. 25)
Quick-Start Guide for Reviewing Records for Release (Continued)
Step
2

Action
Who created this document? And for what purpose?
Was this document created by FSA personnel, on FSA time, with FSA materials, at FSA
expense? To what extent was it created to facilitate FSA business? Documents created
by FSA personnel solely for an individual’s personal convenience, even if on FSA’s time,
with FSA materials, and at FSA’s expense may be personal documents and not subject to
FOIA. However, personal records placed in official FSA files, even by mistake, are
subject to FOIA once a FOIA request for these records is received.

3

Or was the document created by parties outside the Federal Government? Documents
created by FSA personnel to facilitate FSA business may potentially be protected by
exemption 5. Documents about FSA business created by parties outside the Federal
Government are generally not protected by exemption 5.
With whom has it been shared?
Just as documents created by parties outside the Federal Government found in FSA files
are generally not protected by exemption 5, documents shared with parties outside the
Federal Government are generally not protected by exemption 5.

4

In much the same way, personal records created for an individual employee’s
convenience when shared with other FSA employees become FSA records once a FOIA
request for these records is received; such as supervisor’s notes about an individual
employee’s conduct or performance shared with FSA personnel specialists are subject to
FOIA.
Does the document contain personal information?
Once the “provenance,” history, and “Privacy Act status” of the document in question is
well understood and their implications translated into appropriate redactions, etc., the
remaining content of the document in question is ready to be reviewed in light of the
9 FOIA exemptions. In so doing, remember that even if a particular document was
retrieved from a Privacy Act System of Records, it must also be reviewed for release
under FOIA. The Privacy Act does not protect information that FOIA requires to be
released.
The first question that must be asked is if the remaining content of the document contains
personal information attributable to an individual. If so, depending on the identity of the
requester, and the identity of the individual to whom this information pertains, this
portion of the content may be protected under FOIA exemption 6.

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Exhibit 24
(Par. 25)
Quick-Start Guide for Reviewing Records for Release (Continued)
Step
5

Action
Does the document contain information provided by a producer to participate in USDA
programs?
The next question that must be asked is if the remaining content of the document contains
information provided by an agricultural producer or owner of agricultural land to
participate in USDA programs. If so, depending on the identity of the requester and the
identity of the individual to whom this information pertains, this portion of the content
may be protected under FOIA exemption 3.
If the FOIA processer is uncertain as to whether specific items of information should be
protected under FOIA exemption 3, you may need to ask the following additional
questions:
•
•
•

6

7

8
9

“Where did the information come from?”
“Why did USDA ask for it or need it or put it in its files?”
“What did USDA do with the information? Record it? Transform it?”.

If the FOIA processer doesn’t know the answers to these questions, the program
specialists in the FOIA processer local office, State Office, or Washington, D.C. should
know. There is no substitute, when reviewing records for release, for knowing FSA’s
records, inside and out. When the FOIA processers have the answers to these questions,
they answer to whether or not the information under review should be redacted under
FOIA exemption 3.
Does the document contain confidential business or financial information submitted by a
party outside the Federal Government?
The next question that must be asked is if the remaining content of the document contains
confidential business or financial information submitted by a party outside the Federal
Government. If so, this portion of the content may be protected under FOIA exemption 4.
Does the document contain FSA recommendations, opinions or deliberations on FSA
policies or procedures by FSA or USDA employees, or COC or STC members? If so,
that content may be protected under FOIA exemption 5.
Does the document contain anything else that might be protected under another
exemption?
Does the remaining content of the document contain anything else that might be
protected by another FOIA exemption?

The bottom line: Reviewing records for release under FOIA is a process of systematically
subjecting a document to cross-examination. Once FOIA processers have
redacted everything that must be protected according to an applicable exemption,
what remains is what must be released in response to a FOIA request.

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.

Exhibit 29
(Par. 21, 42-50, Ex. 11, 17, 19)
Summary FOIA/Privacy Act Fee Tables
A Standard FOIA/Privacy Act Fees
The following table summarizes chargeable fees for routine FOIA services categories. Fees for
electronic searches and other special services are charged according to prevailing rates on a per
minute basis.

Category
Search Services
Review Services
Duplication

Unit Cost
Clerical Time Professional Time
$10 per hour 1/ $20 per hour 1/
$0.20 per page (per each sheet side)

Certification

$0.50 per page linear foot of the
longest side of the copy
$5 per page

Authentication

$10 per page

Other Services

Actual charges as established or
incurred by FSA

Unit Description
Charged in 1/4 hour increments.
Single-sided copy, 8 ½” x 14” or
smaller.
Single-sided copy, larger than
8 ½” x 14”.
FSA certification that copies are
“true copies”.
Authentication of copies under
Departmental Seal.

1/ Whenever feasible, charge at hourly rate of actual salary plus 16 percent of basic pay.
Otherwise, charge at this standard USDA hourly rate.
Note: Requesters are not charged fees if the total amount of chargeable fees is equal to or less
than $25, because the cost of collecting the fee would exceed the amount collected,
according to 7 CFR, Appendix A, to Subpart A, 3(b).

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Exhibit 29
(Par. 21, 42-50, Ex. 11, 17, 19)
Summary FOIA/Privacy Act Fee Tables (Continued)
B FOIA Processing Fees
The following table summarizes the chargeable fees for each category of requester.
Note: Requesters are not charged fees if the total amount of chargeable fees is equal to or less
than $25, because the cost of collecting the fee would exceed the amount collected,
according to 7 CFR, Appendix A, to Subpart A, 3(b).
Category
Commercial Use
Educational Use
Scientific Use
Media Use
Other Use

Search Fees
Yes
No
No
No
Yes, first 2 hours free.

Review Fees
Yes
No

Duplication Fees
Yes
Yes, first 100, 8 1/2” x 14”
or smaller, single-side pages
are free.

C Privacy Act Processing Fees
Privacy Act requesters are charged only for the cost of duplicating responsive records. However,
they are not entitled to 100 pages free.
Note: Requesters are not charged fees if the total amount of chargeable fees is equal to or less
than $25, because the cost of collecting the fee would exceed the amount collected,
according to 7 CFR, Subtitle A, Subpart A, Appendix A, Subsection 3(b).

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