top of page

AGOtechnology Group

Public·49 members

Private 106

No. You must arrange for a constable, sheriff, or private process server to serve the initial court papers. You may need to ask the district clerk to issue the citation so that you can give it to a constable, sheriff, or private process server.

Private 106

As a general rule, only the initial filing papers (citation, petition, and any other papers you file with the petition) need to be served by a constable, sheriff, private process server, or court clerk. You can serve the rest of the papers yourself.

Information is protected under Section 304 to prevent a significant invasion of privacy, to prevent a risk of harm to the historic property, or to prevent impeding the use of a traditional religious site by practitioners. In making the subsequent decision as to whom the sensitive information may be provided, the official may consider the wider context of who is requesting the information on a historic property and why. For example, is the requestor a participant in a Section 106 consultation? In such a case, knowledge of the historic property's location, character, or ownership could help the party in working with the agency to make better informed decisions. Is the requestor an "outside"party with no necessary connection to a Section 106 review? What is the purpose of the request for information? Answers to such questions better allow the official to assess the Section 304-related risks that disclosure presents.The official must consider whether release of the information could result in privacy invasion, harm to the property, or impede its traditional use. When considering what might constitute a "significant invasion of privacy,"the official should consider what "privacy" means. Keep in mind that Section 304 is intended to protect the historic property and what makes it significant; the intent of this section is not necessarily to protect an individual's personal information unless it relates to protecting the resource. The agency should consider why the historic property is significant and to whom, and whether the disclosure may cause unwanted attention or pose a threat to the resource. A "risk of harm"to the historic property is a risk of an adverse effect to the characteristics of the property that make it historic, as that term is described in 36 CFR 800.5. It may include damage to the integrity of the historic property through, for example, removal of artifacts, pot hunting, or defacing a site.Regarding how the disclosure of information could impede the use of a traditional religious site, the official should consider how practitioners are using the site. For example, is there a danger that confidential or special information that religious practitioners believe gives the site its significance may be disseminated indiscreetly? Are "private"rituals or specific behaviors that occur there in danger of being widely known and thus disclosure of those practices might cause the site to lose significance? This use does not have to be just a physical and immediate use; it can be a more spatially or temporally attenuated use (e.g., the use may depend on the view of the historic property from a distance and/or a particular direction rather than physical presence at the property). Broad deference should be given to the traditional religious practitioners' description of how the property is used by them and what may impede such use. It is important to note that the invasion of privacy, risk of harm, or impediment to use of a traditional religious site need only be a reasonable possibility; it does not have to be a certainty. The official should consult with experts in the relevant field and/or traditional practitioners in evaluating these criteria, including the SHPO and/or THPO, Indian tribe, or Native Hawaiian organization, and the group that assigns significance to the historic property.

An official may ask consulting parties to voluntarily restrict access or disclosure of sensitive information, or may seek to develop a contract with a private party that includes enforceable non-disclosure provisions. A federal agency must make sure that any determination, finding, or agreement made in the Section 106 process is supported by sufficient documentation to allow any reviewing party to understand its basis. In that context, and as a practical matter, a federal agency may seek voluntary agreement among its consulting parties to treat certain information as confidential and such information will be provided only on a "need to know"basis. An agency may utilize other means as well as Section 304 to protect a historic property from harm. For instance, a Section 106 agreement may protect a historic property from harm via inclusion of stipulations providing for more anti-looting patrols in the area or restricting permits for climbing near a Traditional Cultural Property (TCP) during the time(s) of its traditional use. A federal agency may also contract with parties that are not subject to Section 304 or FOIA, e.g., private organizations, neighborhood associations, applicants, consultants, to prevent those parties from releasing sensitive information that the agency has provided to them. Such a contract may be enforceable against the private parties and serve to protect sensitive information from further disclosure by those parties. But these contracts would not prevent the federal agency from disclosing information in response to a FOIA request unless the agency completed the Section 304 process.

Section 304 does not impose withholding requirements on private contractors or consultants. Section 304 would not prohibit those parties from releasing sensitive information that has been provided to them during any stage in project planning or implementation. Thus, once sensitive information is released to private contractors or consultants, Section 304 no longer applies to the withholding of that information by the private contractor or consultant. Consequently, an official may consider developing a legally enforceable contract, or insert non-disclosure provisions in such a contract with its contractor or consultant to protect sensitive information. An official does not need to make a formal Section 304 determination prior to including a non-disclosure provision in a contract with its contractor or consultant because such provision would restrict only the ability of the contractor or consultant from releasing information, and not the official.

ARPA provides for the protection of archaeological resources and sites that are on public lands and Indian lands, and fosters increased cooperation and the exchange of information between governmental authorities, the professional archaeological community, and private individuals. Section 9 of ARPA requires withholding information concerning the nature and location of any archaeological resource for which the excavation or removal requires a permit or other permission under ARPA or under any other provision of federal law unless the federal land manager concerned determines that such disclosure would further the purpose of ARPA and not create a risk of harm to the resource or site where the resource is located. However, a governor of any state may make a written request to receive certain otherwise protected information about resources in his or her state as long as he or she commits to adequately protect the confidentiality of such information to protect the resource from commercial exploitation. ARPA's confidentiality provision protects information about the nature and location of archaeological resources, which are defined in the statute as any material remains of past human life or activities which are of archaeological interest and at least 100 years old. The regulations implementing ARPA, "Protection of Archeological Resources"(43 CFR part 7) state further that, "[o]f archaeological interest means capable of providing scientific or humanistic understandings of past human behavior, cultural adaptation, and related topics through the application of scientific or scholarly techniques such as controlled observation, contextual measurement, controlled collection, analysis, interpretation and explanation. Material remains means physical evidence of human habitation, occupation, use, or activity, including the site, location, or context in which such evidence is situated."ARPA's confidentiality provision applies only to information about archaeological resources located on specified lands, whereas Section 304 is not limited by property ownership or location. ARPA's confidentiality provision protects information about the nature and location of archaeological resources; it does not explicitly protect information regarding property ownership. Further, ARPA applies to information regarding "archaeological resources,"which are defined differently from the NHPA's "historic properties"(although many "archaeological resources"may also qualify as "historic properties"); thus, a property about which sensitive information is withheld under ARPA does not have to be eligible for or listed in the National Register. Finally, ARPA's confidentiality provision requires information to be withheld if it meets the law's criteria. Section 304 specifically allows disclosure of protected information as determined by the Keeper. For Section 106 purposes, if ARPA's Section 9 applies, then it governs access to sensitive information about archaeological resources. If an official proposes to withhold information about property ownership of a historic archaeological resource, or proposes to withhold sensitive information about historic properties other than historically significant archaeological resources, then he or she may utilize Section 304.

Under Section 304, the Keeper and the official determine what information to withhold, and the Keeper determines who may have access to that information, which may or may not include the private landowner. Without going through the Section 304 decision making process, a federal agency cannot withhold information about historic properties in the Section 106 context from disclosure in response to a FOIA request (unless another applicable law prevents such disclosure). Further, recall that Section 304 does not protect information about properties that are not determined eligible for or listed in the National Register. Therefore, depending on the results of the survey, information about unevaluated, non-eligible, or non-listed properties cannot be withheld from disclosure to the landowner (or other parties) under Section 304. 041b061a72


Welcome to the group! You can connect with other members, ge...
bottom of page