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OFFICE
OF MANAGEMENT AND BUDGET
5 CFR Part
1303
RIN 0348-AB42
Freedom
of Information Act
AGENCY:
Office of Management and Budget, Executive Office of the President.
ACTION:
Final rule.
SUMMARY:
The Office of Management and Budget (OMB) is issuing a final rule revising
its regulations implementing 5 U.S.C. 552, the Freedom of Information
Act (FOIA). This final rule simplifies and streamlines OMB's FOIA regulations,
and also implements the Electronic Freedom of Information Act Amendments
of 1996 (Pub. L. 104-231).
DATES:
The final rule will be effective May 27, 1998.
FOR
FURTHER INFORMATION CONTACT: Darrell A. Johnson, FOIA Officer,
Office of Management and Budget, at (202) 395-5715.
SUPPLEMENTARY
INFORMATION: On October 9, 1997, (62 FR 52668), OMB requested
public comment on proposed revisions to its regulations at 5 CFR 1303
implementing the Freedom of Information Act. This revision is necessary
to: implement the Electronic Freedom of Information Act Amendments of
1996, P.L. 104-231 (E-FOIA); update OMB's regulations to reflect current
practice; and streamline OMB's regulations to eliminate redundant or otherwise
unnecessary materials.
OMB received
one set of comments regarding the proposed revisions to OMB's FOIA regulations.
The commenter raised several issues regarding the proposal, generally
seeking clarification of provisions implementing E-FOIA. We will address
each of these issues.
The commenter
raised three issues regarding Section 1303.10(d), which provides for expedited
processing of FOIA requests. The commenter requested additional clarification
(such as through examples) in Section 1303.10(d)(1) for how OMB interprets
the second, third, and fourth criteria for responding to a FOIA request
on an expedited basis. OMB believes that, while further clarification
on these criteria may be appropriate in the future, it is preferable at
this point to review requests for expedited treatment under the proposed
regulatory criteria; experience in reviewing such requests should indicate
what type of clarification is needed. The commenter also asked whether
OMB intends to provide expedited treatment only in response to an expedition
request by the FOIA requester, or whether OMB would expedite a request
on its own initiative or in response to an expedition request by a third
party. While OMB expects that it would typically expedite its response
to a FOIA request in response to an expedition request by the FOIA requester,
there may be cases in which OMB would decide to expedite its response
even if the FOIA requester has not asked for expedited treatment. In this
regard, we should note that, as explained in the proposed rule (62 FR
52668), OMB does not have a centralized FOIA process in which requests
are handled on a consecutive basis; thus, the processing of one request
generally does not delay OMB's ability to respond to other requests. Finally,
the commenter asked what constitutes "certification" under Section 1303.10(d),
which implements 5 U.S.C. 552(a)(6)(E)(vi). Under the provision, a requester
may self-certify that the information provided, to demonstrate a compelling
need for an expedited response, is -- in the words of the E-FOIA requirement
-- "true and correct to the best of [the requester's] knowledge and belief."
The commenter
asked OMB to reconsider the 30-day limit in Section 1303.10(e) for a FOIA
requester to file an administrative appeal, and instead suggested a six-month
time limit. Having considered the matter again, OMB continues to believe
that 30 days is a reasonable period in which a requester can decide whether
to file an administrative appeal of OMB's response to a FOIA request.
It has been our experience that the vast majority of appeals are filed
within a few weeks of OMB's response. In addition to providing the requester
with sufficient time, a 30-day limit will also discourage the filing of
"stale" appeals that could require OMB to duplicate much of the work done
in response to the original request.
Regarding
Section 1303.10(g), the commenter suggested that OMB delete (or provide
additional explanation regarding) the second sentence, which concerns
the statutory consequences of a requester refusing to reasonably modify
a request or arrange an alternative time frame for an agency response.
OMB has retained the sentence, which is intended simply to alert requesters
to the statutory consequences of refusing to reasonably modify a request
or arrange an alternative response period (which is the subject of the
first sentence in that paragraph).
Regarding
Section 1303.20, the commenter suggested that the regulations elaborate
further on the procedures for gaining access to OMB's offices, in order
to inspect or copy records. We believe that additional detail is not needed
regarding the access procedures. As explained in the proposed rule (62
FR 52668), one of OMB's aims in revising its FOIA regulations has been
to streamline them. Persons seeking to inspect or copy requested materials
may write or phone the FOIA Officer, at the listed address and phone number.
Finally,
the commenter asked for clarification regarding the statement in Section
1303.60(c) that OMB would consider "the time period over which the requests
have occurred" in determining whether it is reasonable to believe that
multiple requests in fact constitute a single request. While further clarification
might be appropriate in the future, we believe it is preferable at this
point to review FOIA requests under the general standard and to see whether
any specific clarification would be necessary or desirable.
One additional
change has been made in the final rule. References to the "Deputy Assistant
Director for Administration" have been changed to the "FOIA Officer."
Accordingly,
OMB is revising its FOIA regulations by adopting the revisions as proposed.
REGULATORY
FLEXIBILITY ACT, UNFUNDED MANDATES REFORM ACT, AND EXECUTIVE ORDERS 12866
AND 12875: For purposes of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), the final rule will not have a significant economic
effect on a substantial number of small entities; the rule addresses the
procedures to be followed when responding to requests for information
under the Freedom of Information Act. For purposes of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), as well as Executive Orders No. 12866
and 12875, the rule would not significantly or uniquely affect small governments,
and would not result in increased expenditures by State, local, and tribal
governments, or by the private sector, of $100 million or more. Finally,
the final rule is not a "major rule" under 5 U.S.C. chapter 8; the rule
will not have any of the effects set forth in 5 U.S.C. 804(2).
List of Subjects
in 5 CRF Part 1303
Freedom of
Information Act.
/S/
-
Franklin
D. Raines,
-
Director
For the reasons
set forth in the preamble, OMB amends 5 CFR Part 1303 as follows:
PART
1303--[AMENDED]
1.
The authority citation for part 1303 is revised to read as follows:
Authority:
5 U.S.C. 552.
2.
Section 1303.2 is revised to read as follows:
Sec. 1303.2
Authority and functions.
The general
functions of the Office of Management and Budget, as provided by statute
and executive order, are to develop and execute the budget, oversee implementation
of Administration policies and programs, advise and assist the President,
and develop and implement management policies for the government.
3.
Section 1303.3 is revised to read as follows:
Sec. 1303.3
Organization.
(a)
The brief description of the central organization of the Office of Management
and Budget follows:
(1)
The Director's Office includes the Director, the Deputy Director, the
Deputy Director for Management, and the Executive Associate Director.
(2)
Staff Offices include General Counsel, Legislative Affairs, Communications,
Administration, and Economic Policy.
(3)
Offices that provide OMB-wide support include the Legislative Reference
and Budget Review Divisions.
(4)
Resource Management Offices. These offices develop and support the President's
management and budget agenda in the areas of Natural Resources, Energy
and Science, National Security and International Affairs, Health and Personnel,
Human Resources, and General Government and Finance.
(5)
Statutory offices include the Office of Federal Financial Management,
Office of Federal Procurement Policy, and the Office of Information and
Regulatory Affairs.
(b)
The Office of Management and Budget is located in Washington, DC, and
has no field offices. Staff are housed in either the Old Executive Office
Building, 17th Street and Pennsylvania Ave, NW, or the New Executive Office
Building, 725 17th Street NW, Washington, DC 20503. Persons desiring to
visit offices or employees of the Office of Management and Budget, in
either building, must write or telephone ahead to make an appointment.
Security in both buildings prevents visitors from entering the building
without an appointment.
5.
Section 1303.10 is revised to read as follows:
Sec. 1303.10
Access to information.
(a)
The Office of Management and Budget makes available information pertaining
to matters issued, adopted, or promulgated by OMB, that are within the scope
of 5 U.S.C. 552(a)(2). A public reading area is located in the Executive
Office of the President Library, Room G-102, New Executive Office Building,
725 17th Street NW, Washington, DC 20503, phone (202) 395-5715. Some of
these materials are also available from the Executive Office of the President's
Publications Office, Room 2200 New Executive Office Building, 725 17th Street
NW, Washington, DC 20503, phone (202) 395-7332. OMB issuances are also available
via fax-on-demand at (202) 395-9068, and are available electronically from
the OMB homepage at http:/www.whitehouse.gov/WH/EOP/omb. In addition, OMB
maintains the Office of Information and Regulatory Affairs (OIRA) Docket
Library, Room 10102, New Executive Office Building, 725 17th Street NW,
Washington, DC 20503, phone (202) 395-6880. The Docket Library contains
records related to information collections sponsored by the Federal government
and reviewed by OIRA under the Paperwork Reduction Act of 1995. The Docket
Library also maintains records related to proposed Federal agency regulatory
actions reviewed by OIRA under Executive Order 12866 "Regulatory Planning
and Review". Telephone logs and materials from meetings with the public
attended by the OIRA Administrator are also available in the Docket Library.
(b)
The FOIA Officer is responsible for acting on all initial requests. Individuals
wishing to file a request under the Freedom of Information Act (FOIA)
should address their request in writing to the FOIA Officer, Office of
Management and Budget, 725 17th Street NW, Washington, DC 20503, Phone
(202) 395-5715. Requests for information shall be as specific as possible.
(c)
Upon receipt of any request for information or records, the FOIA Officer
will determine within 20 days (excepting Saturdays, Sundays and legal
public holidays) after the receipt of such request whether it is appropriate
to grant the request and will immediately provide written notification
to the person making the request. If the request is denied, the written
notification to the person making the request shall include the names
of the individuals who participated in the determination, the reasons
for the denial, and a notice that an appeal may be lodged within the Office
of Management and Budget. (Receipt of a request as used herein means the
date the request is received in the office of the FOIA Officer.)
(d)
Expedited processing. (1) Requests and appeals will be taken out of order
and given expedited treatment whenever it is determined that they involve:
(i)
Circumstances in which the lack of expedited treatment could reasonably
be expected to pose an imminent threat to the life or physical safety
of an individual;
(ii)
An urgency to inform the public about an actual or alleged federal government
activity, if made by a person primarily engaged in disseminating information;
(iii)
The loss of substantial due process rights; or
(iv)
A matter of widespread and exceptional media interest in which there exist
possible questions about the government's integrity which effect public
confidence.
(2)
A request for expedited processing may be made at the time of the initial
request for records or at any later time.
(3)
A requester who seeks expedited processing must submit a statement, certified
to be true and correct to the best of that person's knowledge and belief,
explaining in detail the basis for requesting expedited processing. For
example, a requester within the category described in paragraph (d)(1)(ii)
of this section, if not a full-time member of the news media, must establish
that he or she is a person whose main professional activity or occupation
is information dissemination, though it need not be his or her sole occupation.
A requester within the category (d)(1)(ii) of this section also must establish
a particular urgency to inform the public about the government activity
involved in the request, beyond the public's right to know about government
activity generally. The formality of certification may be waived as a
matter of administrative discretion.
Within ten
days of its receipt of a request for expedited processing, OMB will decide
whether to grant it and will notify the requester of the decision. If
a request for expedited treatment is granted, the request will be given
priority and will be processed as soon as practicable. If a request for
expedited processing is denied, any appeal of that decision will be acted
on expeditiously.
(e)
Appeals shall be set forth in writing within 30 days of receipt of a denial
and addressed to the FOIA Officer at the address specified in paragraph
(b) of this section. The appeal shall include a statement explaining the
basis for the appeal. Determinations of appeals will be set forth in writing
and signed by the Deputy Director, or his designee, within 20 days (excepting
Saturdays, Sundays, and legal public holidays). If, on appeal, the denial
is in whole or in part upheld, the written determination will also contain
a notification of the provisions for judicial review and the names of
the persons who participated in the determination.
(f)
In unusual circumstances, the time limits prescribed in paragraphs (c)
and (e) of this section may be extended for not more than 10 days (excepting
Saturdays, Sundays, or legal public holidays). Extensions may be granted
by the FOIA Officer. The extension period may be split between the initial
request and the appeal but in no instance may the total period exceed
10 working days. Extensions will be by written notice to the persons making
the request and will set forth the reasons for the extension and the date
the determination is expected.
(g)
With respect to a request for which a written notice under paragraph (f)
of this section extends the time limits prescribed under paragraph (c)
of this section, the agency shall notify the person making the request
if the request cannot be processed within the time limit specified in
paragraph (f) of this section and shall provide the person an opportunity
to limit the scope of the request so that it may be processed within that
time limit or an opportunity to arrange with the agency an alternative
time frame for processing the request or a modified request. Refusal by
the person to reasonably modify the request or arrange such an alternative
time frame shall be considered as a factor in determining whether exceptional
circumstances exist for purposes of 5 U.S.C. 552 (a)(6)(C). When OMB reasonably
believes that a requester, or a group of requestors acting in concert,
has submitted requests that constitute a single request, involving clearly
related matters, OMB may aggregate those requests for purposes of this
paragraph. One element to be considered in determining whether a belief
would be reasonable is the time period over which the requests have occurred.
(h)
As used herein, but only to the extent reasonably necessary to the proper
processing of the particular request, the term "unusual circumstances"
means:
(1)
The need to search for and collect the requested records from establishments
that are separated from the office processing the request;
(2)
The need to search for, collect, and appropriately examine a voluminous
amount of separate and distinct records which are demanded in a single
request; or
(3)
The need for consultation, which shall be conducted with all practicable
speed, with another agency having a substantial interest in the determination
of the request or among two or more components of the agency which have
a substantial subject matter interest therein.
6.
Section 1303.20 is revised to read as follows:
Sec. 1303.20
Inspection and copying.
When a request
for information has been approved pursuant to Sec. 1303.10, the person making
the request may make an appointment to inspect or copy the materials requested
during regular business hours by writing or telephoning the FOIA Officer
at the address or telephone number listed in Sec. 1303.10(b). Such materials
may be copied and reasonable facilities will be made available for that
purpose. Copies of individual pages of such materials will be made available
at the price per page specified in Sec. 1303.40(d); however, the right is
reserved to limit to a reasonable quantity the copies of such materials
which may be made available in this manner when copies also are offered
for sale by the Superintendent of Documents.
7.
Section 1303.30 (d) and (e) are revised to read as follows:
Sec. 1303.30
Definitions.
* * * * *
(d)
The term search means the process of looking for and retrieving
records or information responsive to a request. It includes page-by-page
or line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from records
maintained in electronic form or format. OMB employees should ensure that
searching for material is done in the most efficient and least expensive
manner so as to minimize costs for both the agency and the requester.
For example, employees should not engage in line-by-line search when merely
duplicating an entire document would prove the less expensive and quicker
method of complying with a request. Search should be distinguished, moreover,
from review of material in order to determine whether the material is
exempt from disclosure (see paragraph (f) of this section).
(e)
The term duplication means the making of a copy of a document,
or of the information contained in it, necessary to respond to a FOIA
request. Such copies can take the form of paper, microform, audio-visual
materials, or electronic records (e.g., magnetic tape or disk), among
others. The requester's specified preference of form or format of disclosure
will be honored if the record is readily reproducible in that format.
* * * * *
8.
In Sec. 1303.40, paragraph (f) is revised to read as follows:
Sec. 1303.40
Fees to be charged--general.
* * * * *
(f)
Remittances shall be in the form either of a personal check or bank draft
drawn on a bank in the United States, or a postal money order. Remittances
shall be made payable to the order of the Treasury of the United States
and mailed to the FOIA Officer, Office of Management and Budget, Washington,
DC 20503.
* * * * *
9.
In Sec. 1303.60, paragraph (c) is revised and the concluding text of paragraph
(d) is designated as paragraph (d)(3) and revised to read as follows:
Sec. 1303.60
Miscellaneous fee provisions.
* * * * *
(c)
Aggregating requests. A requester may not file multiple requests at the
same time, each seeking portions of a document or documents, solely in
order to avoid payment of fees. When OMB reasonably believes that a requester,
or a group of requestors acting in concert, has submitted requests that
constitute a single request, involving clearly related matters, OMB may
aggregate those requests and charge accordingly. One element to be considered
in determining whether a belief would be reasonable is the time period
over which the requests have occurred.
(d)
Advance payments. * * *
(1)
* * *
(2)
* * *
(3)
When OMB acts under paragraph (d)(1) or (2) of this section, the administrative
time limits prescribed in the FOIA, 5 U.S.C. 552(a)(6) (i.e., 20 working
days from receipt of initial requests and 20 working days from receipt
of appeals from initial denial, plus permissible extensions of these time
limits), will begin only after OMB has received fee payments described
in paragraphs (d)(1) and (2) of this section.
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