§ 9.25 — Responsibility For Responding To Requests

(a) Authority to grant or deny a request for records. (1) Except as provided in paragraphs (a)(2) through (4) of this section, the head of the responsible NRC office, or their delegate, will make the initial determination either to grant or to deny in whole or in part requests for records. If disclosure is authorized, the head of the office or their delegate will furnish the agency records to the Freedom of Information Act and Privacy Act Officer, who will notify the requester of the determination.

(2) For records originated by, or located in, the files of the Office of the Inspector General, the Assistant Inspector General for Investigations, or their delegate, will make the initial determination either to grant or to deny in whole or in part requests for records. If disclosure is authorized, the Assistant Inspector General for Investigations will furnish the agency records to the Freedom of Information Act and Privacy Act Officer, who will notify the requester of the determination.

(3) For records originated by, or transmitted to, the Commission, a Commissioner, or records originated by, or for which the Office of the Secretary or an Advisory Committee has primary responsibility, the Deputy Secretary of the Commission, or their delegate, will make the initial determination either to grant or to deny in whole or in part a request for records. If disclosure is authorized, the head of the office will furnish the agency records to the Freedom of Information Act and Privacy Act Officer, who will notify the requester of the determination.

(4) For records originated by, or for which the Office of the General Counsel has principal responsibility, the General Counsel will make the initial determinations either to grant or to deny in whole or in part requests for records. If disclosure is authorized, the head of the office will furnish the agency records to the Freedom of Information Act and Privacy Act Officer, who will notify the requester of the determination.

(b) Content of the response. (1) If the NRC determines that the request for records should be denied in whole or in part, then the requester will be notified by mail or by email. The letter of notification will:

(i) State the exemptions relied upon to deny the request in part or in whole;

(ii) If technically feasible, indicate the amount of information deleted and the exemptions under which the deletion is made at the place in the record where such deletion is made (unless providing such indication would harm an interest protected by the exemption relied upon to deny such material);

(iii) Set forth the name and title or position of the responsible official;

(iv) Advise the requester of the right to seek dispute resolution services from the NRC's FOIA Public Liaison, or the Office of Government Information Services (OGIS) in accordance with paragraph (c) of this section;

(v) Advise the requester of the right to an administrative appeal in accordance with § 9.29; and

(vi) Specify the official or office to which such an appeal will be submitted.

(2) If the NRC determines, after a reasonable search for records, that no responsive records have been found to exist, the NRC will notify the requester of the determination in writing or by email. The notification will also advise the requester of the right to administratively appeal the NRC's determination that no responsive records exist (i.e., to challenge the adequacy of the NRC's search for responsive records) in accordance with § 9.29. The response will specify the official or office to which the appeal will be submitted.

(c) Resolution of disputes. The NRC is committed to efficiently resolving disputes during the request process. The following resources are available to requesters to resolve any disputes that may arise during the request process:

(1) FOIA Public Liaison. Any request-related questions or concerns should be directed to the FOIA Public Liaison, who is responsible for reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes. Contact the NRC FOIA Public Liaison in accordance with § 9.30.

(2) Dispute resolution. OGIS offers non-compulsory, non-binding dispute resolution services to help resolve FOIA disputes. A requester may contact OGIS by mail, email, telephone, or fax as described at its web page, https://www.archives.gov/ogis. Contact OGIS in accordance with § 9.30.

(d) Use of record exclusions. (1) In the event that the NRC identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c) or § 9.17(e), the NRC may confer with the Department of Justice, Office of Information Policy, to obtain approval to apply the exclusion.

(2) The NRC will maintain an administrative record of the process of invocation and approval of the exclusion by the Department of Justice, Office of Information Policy.

(e) Consultation, referral, and coordination. When reviewing records located by the NRC in response to a request, the NRC will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, the agency must proceed in one of the following ways:

(1) Consultation. When records that originated with the NRC are responsive to a request but contain within them information of interest to another agency, the NRC ordinarily will consult with that other entity prior to making a release determination.

(2) Referral. (i) When the NRC believes that a different agency is best able to determine whether to disclose the record, the NRC ordinarily will refer the responsibility for responding to the request regarding that record to that agency because the agency that originated the record is presumed to be the best agency to make the disclosure determination. However, if the NRC and the originating agency jointly agree that the NRC is in the best position to respond regarding the record, then the record may be handled as a consultation.

(ii) Whenever the NRC refers any part of the responsibility for responding to a request to another agency, the NRC will document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA contact information.

(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement agency responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if the NRC locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, to avoid harm to an interest protected by an applicable exemption, the NRC will coordinate with the originating agency to seek its views on the disclosability of the record. The NRC will then convey the release determination for the record that is the subject of the coordination to the requester.

(f) Disclosure review. (1) On receipt of any request potentially involving information exempt from disclosure (e.g., nonpublic information), the NRC will determine whether the information is exempt from disclosure under § 9.17. Whenever a request involves a record containing information that may be exempt from disclosure, but the responsible office, as specified in paragraph (a) of this section, determines that, although exempt, the disclosure of the agency records will not be contrary to the public health and safety, will not be harmful to the common defense or security, and will not affect the rights of any person, the responsible office may authorize disclosure of the agency records. If the responsible office authorizes disclosure of the agency records, the head of the office will furnish the agency records to the Freedom of Information Act and Privacy Act Officer, who will notify the requester of the determination in the manner provided in § 9.27.

(2) Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another agency under any applicable executive order concerning the classification of records, the NRC will refer the responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever an agency's record contains information that has been derivatively classified (e.g., when it contains information classified by another agency), the NRC will refer the responsibility for responding to that portion of the request to the agency that classified the underlying information.

(g) Timing of responses to consultations and referrals. All consultations and referrals received by the NRC will be handled according to the date that the first agency received the perfected FOIA request as described in § 9.23.

(h) Agreements regarding consultations and referrals. The NRC may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.