45 C.F.R. § 2105.12 – How do consultations and referrals work?

(a) Consultations and referrals generally occur outside the Agency.
1. (1) Paragraphs (b) through (e) of this section address consultations and referrals that occur outside the Agency when the Agency has responsive records.
2. (2) Paragraph (f) of this section addresses what happens when the Agency has no responsive records but believes responsive records may be in the possession of a Federal agency outside the Agency.
(b) If, while responding to a request, the Agency locates records that originated with another Federal agency, it usually will refer the request and any responsive records to that other agency for a release determination and direct response.
(c) If the Agency refers records to another agency, it will document the referral and maintain a copy of the records that it refers and notify you of the referral in writing, unless the notification will itself disclose a sensitive, exempt fact. When the Agency notifies you of the referral, it will tell you whether the referral was for part or all of your request and provide the name and contact information for the other agency. You may treat such a response as a denial of records and file an appeal, in accordance with the procedures in § 2105.57.
(d) If the Agency locates records that originated with another Federal agency while responding to a request, the Agency will make the release determination itself (after consulting with the originating agency) when:
1. (1) The record is of primary interest to the Agency (for example, a record may be of primary interest to the Agency if it was developed or prepared according to the Agency's regulations or directives, or in response to an Agency request);
2. (2) The Agency is in a better position than the originating agency to assess whether the record is exempt from disclosure;
3. (3) The originating agency is not subject to the FOIA; or
4. (4) It is more efficient or practical depending on the circumstances.
(e) If the Agency receives a request for records that another Federal agency has classified under any applicable Executive order concerning record classification, it must refer the request to that agency for response.
(f) If the Agency receives a request for records not in its possession, but that the Agency believes may be in the possession of a Federal agency outside the Agency, the Agency will return the request to you, may advise you to submit it directly to the other agency, will notify you that the Agency cannot comply with the request, and will close the request. If you believe this response was in error, you may file an appeal in accordance with the procedures in § 2105.57.