[Federal Register Volume 63, Number 148 (Monday, August 3, 1998)]
[Rules and Regulations]
[Pages 41193-41201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20643]
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LEGAL SERVICES CORPORATION
45 CFR Part 1602
Procedures for Disclosure of Information Under the Freedom of
Information Act
AGENCY: Legal Services Corporation.
ACTION: Final rule.
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SUMMARY: This final rule substantially revises the Legal Services
Corporation's (LSC or Corporation) regulation on the disclosure of
information under the Freedom of Information Act. This revised rule
implements the 1996 amendments to the FOIA regarding electronic
records, time limits, and standards for processing requests for
records. In addition, the rule is restructured for clarity, titles are
revised to better identify the purpose of the sections, and revisions
are made to incorporate procedures for Office of Inspector General
records.
DATES: This final rule is effective September 2, 1998.
FOR FURTHER INFORMATION CONTACT: Suzanne B. Glasow, 202-336-8817.
SUPPLEMENTARY INFORMATION: The Legal Services Corporation revised and
published its Freedom of Information Act (FOIA) rule as final in 1993,
principally to include the Office of Inspector General (OIG) in the
FOIA process. However, the rule was withdrawn before it became
effective. In 1996, Congress amended the FOIA. See ``Electronic Freedom
of Information Act Amendments of 1996.'' Pub. L. 104-231. The Office of
Information and Privacy of the Department of Justice has issued a final
rule and guidances on the 1996 amendments, which LSC has relied on for
many of this rule's revisions. See 63 FR 29591 (June 1, 1998).
Generally, the 1996 amendments deal with electronic records, but
changes were also made to time limits and to procedures and standards
for processing requests. On February 6, 1998, the Corporation's
Operations and Regulations Committee (Committee) of the Corporation's
Board of Directors (Board) met to consider a draft proposed rule to
revise 45 CFR Part 1602, which sets out the Corporation's procedures
for the disclosure of information under the FOIA. After making changes
to the draft rule, the Committee adopted a proposed rule that was
published in the Federal Register on March 9, 1998. See 63 FR 11303
(March 9, 1998).
The Corporation received only one comment on the proposed rule from
the Public Citizen Litigation Group (Public Citizen), a nonprofit
consumer advocacy organization. Public Citizen disagreed with the
rule's interpretation of a provision in Sec. 552(a)(2) of FOIA which
requires agencies to make their public reading room records created
after November 1, 1996, available electronically. Section 1602.5 of the
proposed rule applied this requirement only to records ``created'' by
the Corporation. Public Citizen argued that the requirement should also
apply to records obtained by the Corporation from outside sources, such
as recipient reports and grant applications. Public Citizen was
specifically concerned about the new category of reading room records
included in the 1996 FOIA amendments, that is, records released
pursuant to a request for records that the Corporation determines are
likely to become the subject of subsequent requests (subsequent request
records). See Sec. 1602.8.
The Board did not agree and the final rule continues to apply the
electronic record requirement only to records ``created by the
Corporation'' after November 1, 1996. This is consistent with the
interpretation of the Office of Information and Privacy of the
Department of Justice (DOJ) and applicable case law. The Office of
Information and Privacy, which specializes in FOIA and the Privacy Act,
advised Federal agencies in 1997 that records generated from outside
the agency ``are not created by the agency and should not be regarded
as subject to
[[Page 41194]]
the new electronic availability requirement.'' DOJ FOIA Update, Winter
1997 at 4-5. In addition, the final DOJ FOIA rule continues this
interpretation and applies the electronic records requirement only to
public reading room records created by DOJ. 63 FR 29591-29604 (June 1,
1998).
Case law also supports this interpretation. In United States Dep't
of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989), the Supreme Court
recognized that agency records subject to FOIA fall into 2 categories:
records that are ``created'' by agencies and records that are
``obtained'' by agencies. The electronic reading room requirement uses
the term ``created'' and nothing in the legislative history of the 1996
amendments requires the term ``created'' to include records obtained by
an agency. See H. R. Rep. No. 104-795 (1996). This interpretation is
consistent with the nature of reading room records. Except for
subsequent request records obtained from outside of the agency, records
required by FOIA to be maintained in an agency's public reading room
are records created by an agency. Such records include an agency's
final opinions and orders, statements of policy and interpretations
adopted by the agency, administrative staff manuals and instructions to
staff that affect the public, and an index of such records in their
public reading rooms. Sec. 552(a)(2) of FOIA.
Of course, the Corporation may choose, as a matter of discretion,
to make subsequent request records that are generated from outside the
Corporation available electronically in any case in which it determines
that to do so would be most cost effective in serving public access
needs under subsection 552(a)(2)(D) of FOIA.
Other technical changes have also been included in this final rule.
For example, headings have been added to several paragraphs for clarity
and the reference to regional offices has been deleted because the
Corporation no longer has any regional offices. A section-by-section
analysis follows.
Section-by-Section Analysis
Section 1602.1 Purpose
The purpose of this part is to set out the rules and procedures the
Corporation follows to make information available to the public under
the FOIA. This section is revised to reflect the addition of a new
section, Sec. 1602.4, that implements the FOIA requirement that certain
Corporation records be published in the Federal Register.
Section 1602.2 Definitions
Several definitions from the prior rule have been deleted in this
final rule. The definitions of ``clerical,'' ``management,''
``professional staff,'' and ``professional support,'' are deleted
because they are no longer consistent with the Corporation's personnel
system. The definition of ``direct costs'' is also deleted. It was used
in the prior rule only in Sec. 1602.4 to clarify the cost of
duplication of the index. The final rule applies the same standard
duplication charges to the index that apply to other Corporation
records.
Requirement To Use OMB Definitions
FOIA requires that agencies promulgate rules specifying a schedule
of fees based on guidance published by the Director of the Office of
Management and Budget (OMB). See 52 FR 10012 (March 27, 1987). The
terms defined in this section that are used in the section on fees,
Sec. 1602.13, were promulgated in 1988 and are based, as required, on
the OMB guidance. See 53 FR 6151-6154 (March 1, 1988).
Commercial use request. The definition of this term is based on the
OMB guidance, and the term is based on a standard for determining fees
in the FOIA. The definition eliminates a reference to looking at the
identity of the requester to help determine whether the request is for
commercial use. OMB included the references to the requester's identity
in its proposed guidance, but deleted it in the final guidance.
Duplication. The definition of this term is based on the OMB
guidance, and the term is included in the section on fees
(Sec. 1602.13) which permits charging of fees for certain duplication
of records.
Educational institution, non-commercial scientific institution,
representative of the news media. The definitions of these terms are
based on the OMB guidance and are used in the section on fees,
Sec. 1602.13. Minor technical revisions have been made.
Office of Inspector General records. The definition of this term
distinguishes OIG records from Corporation records. This definition and
other OIG provisions in this rule are proposed to provide regulatory
authority to the OIG to process and to grant or deny FOIA requests for
OIG records.
Records. The definition of records is revised to clarify that the
term includes electronic records.
Review. This term is used in the section on fees (Sec. 1602.13) and
is based on the OMB guidance. The revisions are technical. The prior
definition included a reference to commercial use requests, because
review fees are charged only for such requests. The section on fees
which uses this term, however, makes it clear that review fees are
charged only for commercial use requests, so it is redundant to include
reference to commercial use requests in the definition of review. The
first sentence of the definition describes how the review process
preliminarily identifies portions of information that clearly are
exempt. If the reviewer is not certain whether certain information is
exempt, and there is a need for qualified staff to resolve any legal or
policy issues on disclosure, the time spent resolving such issues or
policy is not included in the meaning of review, as is made clear in
the third sentence of this definition.
Search. The term ``search'' is used in the section on fees
(Sec. 1602.13). The revisions are intended to conform the definition to
the revised definition in the FOIA as amended in 1996 and includes
searching for information by automated means.
Section 1602.3 Policy
This section generally states that it is the policy of the
Corporation to make every reasonable effort to comply with the
requirements of the FOIA. The revisions to this section are technical
or eliminate unnecessary information. A reference to ``a recipient'' is
added.
Section 1602.4 Records Published in the Federal Register
This is a new section. Section 552(a)(1) of FOIA requires each
agency to currently publish in the Federal Register for the guidance of
the public a range of basic information regarding its structure and
operations, including information on the agency's organization,
functions, procedural and substantive rules, and general statements of
policy. The Corporation routinely publishes such information in the
Federal Register as it is revised or amended. Such publications include
its regulations, notices, and requests for proposals. Information on
the Corporation's structure and location is annually published in the
United States Government Manual, a special publication of the Federal
Register.
Section 1602.5 Public Reading Room
This section sets out the process by which the Corporation makes
available for public inspection and copying records listed in paragraph
(b) of this section, as required by Sec. 552(a)(2) of the FOIA. This
rule changes the title of this section from central records room to
public reading room to better describe the function of the room.
Paragraph (a)
[[Page 41195]]
provides the address and hours of business of the public reading room.
Paragraph (b) lists the types of reading room records. These
records include final opinions and orders, statements of policy and
interpretations adopted by the Corporation that are not published in
the Federal Register and administrative staff manuals and instructions
that affect the public or recipients. A new category of public reading
room record are records provided pursuant to a public request (see
Sec. 1602.8) that the Corporation determines are likely to be subject
to multiple subsequent requests. For example, the website for the
Federal Bureau of Investigation includes records on Elvis Presley,
Marilyn Monroe, Elliot Ness, Baby Face Nelson, Jackie Robinson and Will
Rodgers. Currently, the Corporation has not identified any subsequent
request records.
The use of the term ``will be made available'' in paragraph (b) is
intended to clarify that certain public reading room records will
normally be maintained in the public reading room while others will be
kept in close proximity elsewhere in the Corporation's headquarters in
Washington DC. In response to a request, any records kept in close
proximity will be made available for inspection and copying in the
public reading room.
Paragraph (c) sets out the protections from public disclosure that
may apply to certain reading room records and the process the
Corporation will use to edit or delete protected information.
Paragraph (d) provides that reading room records created by the
Corporation after November 1, 1996, and an index of such records, will
be made available electronically. The Corporation is in the process of
converting such records to electronic form. As they are so converted,
they will be made available electronically in the public reading room.
Paragraph (e) states that the Corporation will make most of its
electronic public reading room records available on its websites.
Section 1602.6 Procedures for Use of Public Reading Room
This section describes the process by which a member of the public
may inspect and copy public reading room records. Persons interested in
using the public reading room are advised to make arrangements ahead of
time to facilitate their access to the requested information.
Section 1602.7 Index of Records
The FOIA requires the Corporation to maintain and make available an
index of reading room records. This section clarifies that the index
the Corporation maintains will be made available in the Corporation's
public reading room and on the Corporation's websites. A revision is
proposed that would make the cost of duplicating the index consistent
with the charges for duplication of other Corporation records.
Section 1602.8 Requests for Records
The FOIA also addresses a third category of records, which are
records required to be made available by the Corporation upon request
by any person unless they are exempt from mandatory disclosure under
any of the FOIA exemptions. This type of record is any Corporation
record that is not a public reading room record or a record published
in the Federal Register. Such records commonly include information
obtained by the Corporation from its grantees, correspondence,
financial and statistical reports obtained or created by the
Corporation, compliance review reports and competition records.
Section 1602.8 sets out the process by which the Corporation makes
such records available. It has been restructured and revised to better
describe the procedures for submitting and processing requests for
records. Minor revisions are made to paragraph (a) to make it
consistent with other revisions to the rule.
Paragraphs (b), (c) and (d) describe how requests should be made.
In order to facilitate the location of records by Corporation staff,
requests should reasonably describe the records sought.
Paragraph (e) clarifies that the FOIA does not require the
Corporation to create a record or perform research on a matter to
satisfy a request.
Paragraph (f) requires that a requester be promptly informed of any
estimated fees that may be charged for the request as set out in the
rule's section on fees, Sec. 1602.13.
Paragraph (g) provides that any request for a fee waiver or
reduction should be included in the FOIA request, and that the
Corporation must respond promptly to such requests for a fee waiver or
reduction.
Paragraphs (i) through (l) set out the process and time limits for
responding to requests. The OIG provisions are new and are included in
recognition of the establishment of an OIG at the Corporation.
Paragraph (m) provides a process and standard for dealing with
requests for expedited treatment and implements the 1996 amendments to
the FOIA. One criterion that will be considered when determining
whether to provide expedited processing is whether there is an urgent
need to inform the public about actual or alleged Corporation or
government activity and the requester is a person primarily engaged in
disseminating information. Consistent with the DOJ rules, a person
primarily engaged in disseminating information is a full-time
representative of the news media, as defined in this part, or a person
whose primary profession is that of a representative of the news media.
Section 1602.9 Exemptions for Withholding Records
This section delineates the exemptions that protect certain records
from mandatory disclosure. All of the exemptions in this section are
based on the FOIA, although not all FOIA exemptions are included in
this rule, because certain exemptions are not applicable to the
Corporation. For example, the exemption for information on geological
information related to wells is not included. Technical changes are
made to this section to better conform the language to the FOIA.
The language for Sec. 1602.9(a)(6)(iv) is revised in recognition of
the establishment of the OIG at the Corporation. This FOIA exemption
protects documents that might identify a confidential source, and also,
in the case of a criminal investigation, that might identify the
information furnished by the source. LSC's prior rule made no reference
to information compiled for law enforcement purposes. Because the OIG
conducts investigations into criminal activities, addition of this
reference to such information is appropriate. This exemption was
included in the published rule that was withdrawn in 1993. A reference
to ``a recipient'' is also added to Sec. 1602.9(a)(6)(ii).
Paragraph (b) explains the process by which the Corporation will
segregate protected information from information that must be made
available to the requester. The 1996 amendments to the FOIA require the
Corporation to indicate the amount and location of deleted material (if
technically feasible), unless such action would harm the interest
protected by the applicable exemption.
Paragraph (c) sets out the standard by which the Corporation may
exercise discretion to release information otherwise protected from
disclosure. The consultation language is intended to address OIG
records.
[[Page 41196]]
Section 1602.10 Officials Authorized To Grant or Deny Requests for
Records
This section identifies the officials within the Corporation
authorized to grant or deny requests for records. The revisions to
paragraphs (a) and (b) are added to include the OIG in the
Corporation's processing of FOIA requests when OIG records are
requested and to be consistent with the Corporation's current
procedures.
Section 1602.11 Denials
This section sets out the process the Corporation shall follow when
a request for records is denied.
Section 1602.12 Appeals of Denials
This section describes the process by which a person may appeal a
denial. Provisions including the OIG in the appeal process have been
added.
Section 1602.13 Fees
Revisions to this section are largely technical. Paragraph (e) sets
out the schedule of charges for services regarding the production or
disclosure of the Corporation's records. Revisions to paragraph (e)
reflect changes to the Corporation's salary system. The term ``band''
in paragraph (e) refers to a specific range of pay, just as the term
``schedule'' refers to a pay range for Federal employees.
References to the Corporation have been added to paragraph (f) to
apply certain fee waiver provisions to the Corporation as well as to
governmental entities.
A revision to paragraph (j) is proposed to allow rather than
require the Corporation to charge interest, which is consistent with
the OMB guidance.
List of Subjects in 45 CFR Part 1602
Freedom of information.
For reasons set forth in the preamble, LSC revises 45 CFR part 1602
as follows:
PART 1602--PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE
FREEDOM OF INFORMATION ACT
Sec.
1602.1 Purpose.
1602.2 Definitions.
1602.3 Policy.
1602.4 Records published in the Federal Register.
1602.5 Public reading room.
1602.6 Procedures for use of public reading room.
1602.7 Index of records.
1602.8 Requests for records.
1602.9 Exemptions for withholding records.
1602.10 Officials authorized to grant or deny requests for records.
1602.11 Denials.
1602.12 Appeals of denials.
1602.13 Fees.
Authority: 42 U.S.C. 2996d(g); 5 U.S.C. 552.
Sec. 1602.1 Purpose.
This part contains the rules and procedures the Legal Services
Corporation follows in making records available to the public under the
Freedom of Information Act.
Sec. 1602.2 Definitions.
As used in this part--
(a) Commercial use request means a request from or on behalf of one
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
properly belongs in this category, the Corporation will look to the use
to which a requester will put the documents requested. When the
Corporation has reasonable cause to doubt the requester's stated use of
the records sought, or where the use is not clear from the request
itself, it will seek additional clarification before assigning the
request to a category.
(b) Duplication means the process of making a copy of a requested
record pursuant to this part. Such copies can take the form of paper
copy, microform, audio-visual materials, or machine readable electronic
documents, among others.
(c) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, or an institution of professional or
vocational education which operates a program or programs of scholarly
research.
(d) FOIA means the Freedom of Information Act, 5 U.S.C. 552.
(e) Non-commercial scientific institution means an institution that
is not operated on a ``commercial'' basis and which is operated solely
for the purpose of conducting scientific research, the results of which
are not intended to promote any particular product or industry.
(f) Office of Inspector General records means those records as
defined generally in this section which are exclusively in the
possession and control of the Office of Inspector General of the Legal
Services Corporation.
(g) Records means books, papers, maps, photographs, or other
documentary materials, regardless of whether the format is physical or
electronic, made or received by the Corporation in connection with the
transaction of the Corporation's business and preserved by the
Corporation as evidence of the organization, functions, policies,
decisions, procedures, operations, or other activities of the
Corporation, or because of the informational value of data in them. The
term does not include, inter alia, books, magazines, or other materials
acquired solely for library purposes.
(h) 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. The term ``news'' means information
that is about current events or that would be of current interest to
the public. Examples of news media entities include television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only in those instances when they can qualify as
disseminators of ``news'') who make their products available for
purchase or subscription by the general public. These examples are not
intended to be all-inclusive. Moreover, as traditional methods of news
delivery evolve (e.g., electronic dissemination of newspapers through
telecommunications services), such alternative media would be included
in this category. In the case of ``freelance'' journalists, they will
be regarded as working for a news organization if they can demonstrate
a solid basis for expecting publication through that organization, even
though not actually employed by it.
(i) Review means the process of examining documents located in
response to a request to determine whether any portion of any such
document is exempt from disclosure. It also includes processing any
such documents for disclosure. Review does not include time spent
resolving general legal or policy issues regarding the application of
exemptions.
(j) Search means the process of looking for and retrieving records
that are responsive to a request for records. It includes page-by-page
or line-by-line identification of material within documents and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Searches may be
conducted manually or by automated means and will be conducted in the
most efficient and least expensive manner.
Sec. 1602.3 Policy.
The Corporation will make records concerning its operations,
activities, and business available to the public to the
[[Page 41197]]
maximum extent reasonably possible. Records will be withheld from the
public only in accordance with the FOIA and this part. Records exempt
from disclosure under the FOIA may be made available as a matter of
discretion when disclosure is not prohibited by law, and disclosure
would not foreseeably harm a legitimate interest of the public, the
Corporation, a recipient, or any individual.
Sec. 1602.4 Records published in the Federal Register.
The Corporation routinely publishes in the Federal Register
information on its basic structure and operations necessary to inform
the public how to deal effectively with the Corporation. The
Corporation will make reasonable efforts to currently update such
information, which will include basic information on the Corporation's
location, functions, rules of procedure, substantive rules, statements
of general policy, and information regarding how the public may obtain
information, make submittals or requests, or obtain decisions.
Sec. 1602.5 Public reading room.
(a) The Corporation will maintain a public reading room at its
office at 750 First Street, NE., Washington DC 20002-4250. This room
will be supervised and will be open to the public during the regular
business hours of the Corporation for inspecting and copying records
described in paragraph (b) of this section.
(b) Subject to the limitation stated in paragraph (c) of this
section, the following records will be made available in the public
reading room:
(1) All final opinions, including concurring and dissenting
opinions, and orders issued in the adjudication of cases;
(2) Statements of policy and interpretations adopted by the
Corporation that are not published in the Federal Register;
(3) Administrative staff manuals and instructions to the staff that
affect the public or recipients;
(4) Copies of records, regardless of form or format, released to
any person in response to a public request for records pursuant to
Sec. 1602.8 which the Corporation has determined are likely to become
subject to subsequent requests for substantially the same records, and
a general index of such records;
(5) The current index required by Sec. 1602.7;
(6) To the extent feasible, other records considered to be of
general interest to recipients or members of the public in
understanding activities of the Corporation or in dealing with the
Corporation in connection with those activities.
(c) Certain records otherwise required by FOIA to be available in
the public reading room may be exempt from mandatory disclosure
pursuant to section 552(b) of the FOIA and Sec. 1602.9. Such records
will not be made available in the public reading room. Other records
maintained in the public reading room may be edited by the deletion of
identifying details concerning individuals to prevent a clearly
unwarranted invasion of personal privacy. In such cases, the record
shall have attached to it a full explanation of the deletion. The
extent of the deletion shall be indicated, unless doing so would harm
an interest protected by the exemption under which the deletion is
made. If technically feasible, the extent of the deletion shall be
indicated at the place in the record where the deletion was made.
(d) Records required by the FOIA to be maintained and made
available in the public reading room that are created by the
Corporation on or after November 1, 1996, shall be made available
electronically. This includes the index of published and reading room
records, which shall indicate which records are available
electronically.
(e) Most electronic public reading room records will also be made
available to the public on the Corporation's websites at http://
www.lsc.gov and http://oig.lsc.gov.
Sec. 1602.6 Procedures for use of public reading room.
Any member of the public may inspect or copy records described in
Sec. 1602.5(b) in the public reading room during regular business
hours. Because it will sometimes be impossible to produce records or
copies of records on short notice, a person who wishes to inspect or
copy records is advised to arrange a time in advance, by telephone or
letter request made to the Office of the General Counsel. Persons
submitting requests by telephone will be notified whether a written
request would be advisable to aid in the identification and expeditious
processing of the records sought. Written requests should identify the
records sought in the manner provided in Sec. 1602.8(b) and should
request a specific date for inspecting the records. The requester will
be advised as promptly as possible if, for any reason, it may not be
possible to make the records sought available on the date requested.
Sec. 1602.7 Index of records.
The Corporation will maintain a current index identifying any
matter within the scope of Sec. 1602.4 and Sec. 1602.5(b) (1) through
(5). The index will be maintained and made available for public
inspection and copying at the Corporation's office in Washington, DC.
The cost of a copy of the index will not exceed the standard charge for
duplication set out in Sec. 1602.13(e). The Corporation will also make
the index available on its websites.
Sec. 1602.8 Requests for records.
(a) Except for records required by the FOIA to be published in the
Federal Register (Sec. 1602.4) or to be made available in the public
reading room (Sec. 1602.5), Corporation records will be made promptly
available, upon request, to any person in accordance with this section,
unless it is determined that such records should be withheld and are
exempt from mandatory disclosure under the FOIA and Sec. 1602.9.
(b) Requests. Requests for records under this section shall be made
in writing, with the envelope and the letter or e-mail request clearly
marked Freedom of Information Request. All such requests shall be
addressed to the Corporation's Office of the General Counsel. Requests
by letter shall use the address given in Sec. 1602.5(a). E-mail
requests shall be addressed to [email protected]. Any request not
marked and addressed as specified in this paragraph will be so marked
by Corporation personnel as soon as it is properly identified, and will
be forwarded immediately to the Office of the General Counsel. A
request improperly addressed will not be deemed to have been received
for purposes of the time period set forth in paragraph (i) of this
section until it has been received by the Office of the General
Counsel. Upon receipt of an improperly addressed request, the General
Counsel or designee shall notify the requester of the date on which the
time period began.
(c) A request must reasonably describe the records requested so
that employees of the Corporation who are familiar with the subject
area of the request are able, with a reasonable amount of effort, to
determine which particular records are within the scope of the request.
If it is determined that a request does not reasonably describe the
records sought, the requester shall be so informed and provided an
opportunity to confer with Corporation personnel in order to attempt to
reformulate the request in a manner that will meet the needs of the
requester and the requirements of this paragraph.
[[Page 41198]]
(d) To facilitate the location of records by the Corporation, a
requester should try to provide the following kinds of information, if
known:
(1) The specific event or action to which the record refers;
(2) The unit or program of the Corporation which may be responsible
for or may have produced the record;
(3) The date of the record or the date or period to which it refers
or relates;
(4) The type of record, such as an application, a grant, a
contract, or a report;
(5) Personnel of the Corporation who may have prepared or have
knowledge of the record;
(6) Citations to newspapers or publications which have referred to
the record.
(e) The Corporation is not required to create a record or to
perform research to satisfy a request.
(f) Estimated fees. The Corporation shall advise the requester of
any estimated fees as promptly as possible. The Corporation may require
that fees be paid in advance, in accordance with Sec. 1602.13(i), and
the Corporation will advise a requester as promptly as possible if the
fees are estimated to exceed $25 or any limit indicated by the
requester.
(g) Any request for a waiver or reduction of fees should be
included in the FOIA request, and any such request should indicate the
grounds for a waiver or reduction of fees, as set out in
Sec. 1602.13(f). The Corporation shall respond to such request as
promptly as possible.
(h) Format. The Corporation will provide records in the form or
format indicated by the requester to the extent such records are
readily reproducible in the requested form or format.
(i)(1) The General Counsel or designee, upon request for any
records made in accordance with this section, except in the case of a
request for Office of Inspector General records, shall make an initial
determination of whether to comply with or deny such request and
dispatch such determination to the requester within 20 days (excepting
Saturdays, Sundays, and legal public holidays) after receipt of such
request, except for unusual circumstances, in which case the time limit
may be extended for up to 10 working days by written notice to the
requester setting forth the reasons for such extension and the date on
which a determination is expected to be dispatched.
(2) Initial response/delays. If the General Counsel or designee
determines that a request or portion thereof is for Office of Inspector
General records, the General Counsel or designee shall promptly refer
the request or portion thereof to the Office of Inspector General and
send notice of such referral to the requester. In such case, the
Counsel to the Inspector General or designee shall make an initial
determination of whether to comply with or deny such request and
dispatch such determination to the requester within 20 working days
after receipt of such request, except for unusual circumstances, in
which case the time limit may be extended for up to 10 working days by
written notice to the requester setting forth the reasons for such
extension and the date on which a determination is expected to be
dispatched.
(3) Unusual circumstances. As used in this part, ``unusual
circumstances'' are limited to the following, but only to the extent
reasonably necessary for the proper processing of the particular
request:
(i) The need to search for and collect the requested records from
establishments that are separate from the office processing the
request;
(ii) 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
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency or organization, such as a
recipient, having a substantial interest in the determination of the
request or among two or more components of the Corporation having
substantial subject matter interest therein.
(j) If a request is particularly broad or complex so that it cannot
be completed within the time periods stated in paragraph (i) of this
section, the Corporation may ask the requester to narrow the request or
agree to an additional delay.
(k) When no determination can be dispatched within the applicable
time limit, the General Counsel or designee or the Counsel to the
Inspector General or designee shall inform the requester of the reason
for the delay, the date on which a determination may be expected to be
dispatched, and the requester's right to treat the delay as a denial
and to appeal to the Corporation's President or Inspector General, in
accordance with Sec. 1602.12. If no determination has been dispatched
by the end of the 20-day period, or the last extension thereof, the
requester may deem the request denied, and exercise a right of appeal
in accordance with Sec. 1602.12. The General Counsel or designee or the
Counsel to the Inspector General or designee may ask the requester to
forego appeal until a determination is made.
(l) After it has been determined that a request will be granted,
the Corporation will act with due diligence in providing a substantive
response.
(m)(1) Expedited treatment. Requests and appeals will be taken out
of order and given expedited treatment whenever the requester
demonstrates a compelling need. A compelling need means:
(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
Corporation or Federal government activity and the request is 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 Corporation's or the Federal
government's integrity which affect 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. For a prompt
determination, a request for expedited processing must be properly
addressed and marked and received by the Corporation pursuant to
paragraphs (b) of this section.
(3) A requester who seeks expedited processing must submit a
statement demonstrating a compelling need that is certified by the
requester to be true and correct to the best of that person's knowledge
and belief, explaining in detail the basis for requesting expedited
processing.
(4) Within ten calendar days of its receipt of a request for
expedited processing, the General Counsel or designee or the Inspector
General or designee shall decide whether to grant the request and shall
notify the requester of the decision. If a request for expedited
treatment is granted, the request shall be given priority and shall be
processed as soon as practicable. If a request for expedited processing
is denied, any appeal of that decision shall be acted on expeditiously
by the Corporation.
Sec. 1602.9 Exemptions for withholding records.
(a) A requested record of the Corporation may be withheld from
public disclosure only if one or more of the following categories
exempted by the FOIA apply:
[[Page 41199]]
(1) Matter which is related solely to the internal personnel rules
and practices of the Corporation;
(2) Matter which is specifically exempted from disclosure by
statute (other than the exemptions under FOIA at 5 U.S.C. 552(b)),
provided that such statute requires that the matters be withheld from
the public in such a manner as to leave no discretion on the issues, or
establishes particular criteria for withholding, or refers to
particular types of matters to be withheld;
(3) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(4) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a party other than an agency in litigation
with the Corporation;
(5) Personnel and medical files and similar files, the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy;
(6) Records or information compiled for law enforcement purposes
including enforcing the Legal Services Corporation Act or any other
law, but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person or a recipient of a right to a fair
trial or an impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which 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, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(b) In the event that one or more of the exemptions in paragraph
(a) of this section apply, any reasonably segregable portion of a
record shall be provided to the requester after deletion of the
portions that are exempt. The amount of information deleted shall be
indicated on the released portion of the record, unless doing so would
harm the interest protected by the exemption under which the deletion
is made. If technically feasible, the amount of information deleted
shall be indicated at the place in the record where the deletion is
made. In appropriate circumstances, at the discretion of the
Corporation officials authorized to grant or deny a request for
records, and after appropriate consultation as provided in
Sec. 1602.10, it may be possible to provide a requester with:
(1) A summary of information in the exempt portion of a record; or
(2) An oral description of the exempt portion of a record.
(c) No requester shall have a right to insist that any or all of
the techniques in paragraph (b) of this section should be employed in
order to satisfy a request.
(d) Records that may be exempt from disclosure pursuant to
paragraph (a) of this section may be made available at the discretion
of the Corporation official authorized to grant or deny the request for
records, after appropriate consultation as provided in Sec. 1602.10.
Records may be made available pursuant to this paragraph when
disclosure is not prohibited by law, and it does not appear adverse to
legitimate interests of the Corporation, the public, a recipient, or
any person.
Sec. 1602.10 Officials authorized to grant or deny requests for
records.
(a) The General Counsel shall furnish necessary advice to
Corporation officials and staff as to their obligations under this part
and shall take such other actions as may be necessary or appropriate to
assure a consistent and equitable application of the provisions of this
part by and within the Corporation.
(b) The General Counsel or designee and the Counsel to the
Inspector General or designee are authorized to grant or deny requests
under this part. In the absence of a Counsel to the Inspector General,
the Inspector General shall name a designee who will be authorized to
grant or deny requests under this part and who will perform all other
functions of the Counsel to the Inspector General under this part. The
General Counsel or designee shall consult with the Office of Inspector
General prior to granting or denying any request for records or
portions of records which originated with the Office of Inspector
General, or which contain information which originated with the Office
of Inspector General, but which are maintained by other components of
the Corporation. The Counsel to the Inspector General or designee shall
consult with the Office of the General Counsel prior to granting or
denying any requests for records.
Sec. 1602.11 Denials.
(a) A denial of a written request for a record that complies with
the requirements of Sec. 1602.8 shall be in writing and shall include
the following:
(1) A reference to the applicable exemption or exemptions in
Sec. 1602.9 (a) upon which the denial is based;
(2) An explanation of how the exemption applies to the requested
records;
(3) A statement explaining why it is deemed unreasonable to provide
segregable portions of the record after deleting the exempt portions;
(4) An estimate of the volume of requested matter denied unless
providing such estimate would harm the interest protected by the
exemption under which the denial is made;
(5) The name and title of the person or persons responsible for
denying the request; and
(6) An explanation of the right to appeal the denial and of the
procedures for submitting an appeal, including the address of the
official to whom appeals should be submitted.
(b) Whenever the Corporation makes a record available subject to
the deletion of a portion of the record, such action shall be deemed a
denial of a record for purposes of paragraph (a) of this section.
(c) All denials shall be treated as final opinions under
Sec. 1602.5(b).
Sec. 1602.12 Appeals of denials.
(a) Any person whose written request has been denied is entitled to
appeal the denial within 90 days by writing to the President of the
Corporation or, in the case of a denial of a request for Office of
Inspector General records, the Inspector General, at the addresses
given in Sec. 1602.5(a) and Sec. 1602.8(b). The envelope and letter or
e-mail appeal should be clearly marked: ``Freedom of Information
Appeal.'' An appeal need not be in any particular form, but should
adequately identify the denial, if possible, by describing the
requested record, identifying the official who issued the denial, and
providing the date on which the denial was issued.
(b) No personal appearance, oral argument, or hearing will
ordinarily be permitted on appeal of a denial. Upon request and a
showing of special circumstances, however, this limitation may be
waived and an informal conference may be arranged with the President or
designee, or Inspector General or designee, for this purpose.
(c) The decision of the President or the Inspector General on an
appeal shall be in writing and, in the event the
[[Page 41200]]
denial is in whole or in part upheld, shall contain an explanation
responsive to the arguments advanced by the requester, the matters
described in Sec. 1602.11(a) (1) through (4), and the provisions for
judicial review of such decision under section 552(a)(4) of the FOIA.
The decision shall be dispatched to the requester within 20 working
days after receipt of the appeal, unless an additional period is
justified pursuant to Sec. 1602.8(i) and such period taken together
with any earlier extension does not exceed 10 days. The decision of the
President or the Inspector General shall constitute the final action of
the Corporation. All such decisions shall be treated as final opinions
under Sec. 1602.5(b).
(d) On an appeal, the President or designee shall consult with the
Office of Inspector General prior to reversing in whole or in part the
denial of any request for records or portions of records which
originated with the Office of Inspector General, or which contain
information which originated with the Office of Inspector General, but
which are maintained by other components of the Corporation. The
Inspector General or designee shall consult with the President prior to
reversing in whole or in part the denial.
Sec. 1602.13 Fees.
(a) No fees will be charged for information routinely provided in
the normal course of doing business.
(b) Fees shall be limited to reasonable standard charges for
document search, review, and duplication, when records are requested
for commercial use;
(c) Fees shall be limited to reasonable standard charges for
document duplication after the first 100 pages, when records are sought
by a representative of the news media or by an educational or non-
commercial scientific institution; and
(d) For all other requests, fees shall be limited to reasonable
standard charges for search time after the first 2 hours and
duplication after the first 100 pages.
(e) The schedule of charges for services regarding the production
or disclosure of the Corporation's records is as follows:
(1) Manual search for and review of records will be charged as
follows:
(i) Band 1: $10.26 per hour;
(ii) Band 2: $16.12 per hour;
(iii) Band 3: $25.22 per hour;
(iv) Band 4-5: $42 per hour;
(v) Charges for search and review time less than a full hour will
be billed by quarter-hour segments;
(2) Computer time: actual charges as incurred;
(3) Duplication by paper copy: 10 cents per page;
(4) Duplication by other methods: actual charges as incurred;
(5) Certification of true copies: $1.00 each;
(6) Packing and mailing records: no charge for regular mail;
(7) Special delivery or express mail: actual charges as incurred.
(f) Fee waivers. Fees will be waived or reduced below the fees
established under paragraph (e) of this section if disclosure of the
information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the Corporation or Federal government and is not
primarily in the commercial interest of the requester.
(1) In order to determine whether disclosure of the information is
in the public interest because it is likely to contribute significantly
to public understanding of the operations or activities of the
Corporation or Federal government, the Corporation will consider the
following four criteria:
(i) The subject of the request: Whether the subject of the
requested records concerns ``the operations or activities of the
Corporation or the Federal government'';
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of Corporation or Federal government operations or activities;
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ``public understanding'';
and
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of the Corporation or Federal government
operations or activities.
(2) In order to determine whether disclosure of the information is
not primarily in the commercial interest of the requester, the
Corporation will consider the following two factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so,
(ii) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the
requester.''
(3) These fee waiver/reduction provisions will be subject to appeal
in the same manner as appeals from denial under Sec. 1602.12.
(g) No fee will be charged under this section unless the cost of
routine collection and processing of the fee payment is likely to
exceed $6.50.
(h) Requesters must agree to pay all fees charged for services
associated with their requests. The Corporation will assume that
requesters agree to pay all charges for services associated with their
requests up to $25 unless otherwise indicated by the requester. For
requests estimated to exceed $25, the Corporation will first consult
with the requester prior to processing the request, and such requests
will not be deemed to have been received by the Corporation until the
requester agrees in writing to pay all fees charged for services.
(i) No requester will be required to make an advance payment of any
fee unless:
(1) The requester has previously failed to pay a required fee
within 30 days of the date of billing, in which case an advance deposit
of the full amount of the anticipated fee together with the fee then
due plus interest accrued may be required. (The request will not be
deemed to have been received by the Corporation until such payment is
made.); or
(2) The Corporation determines that an estimated fee will exceed
$250, in which case the requester shall be notified of the amount of
the anticipated fee or such portion thereof as can readily be
estimated. Such notification shall be transmitted as soon as possible,
but in any event within 5 working days of receipt by the Corporation,
giving the best estimate then available. The notification shall offer
the requester the opportunity to confer with appropriate
representatives of the Corporation for the purpose of reformulating the
request so as to meet the needs of the requester at a reduced cost. The
request will not be deemed to have been received by the Corporation for
purposes of the initial 20-day response period until the requester
makes a deposit on the fee in an amount determined by the Corporation.
(j) Interest may be charged to those requesters who fail to pay the
fees charged. Interest will be assessed on the amount billed, starting
on the 31st day following the day on which the billing was sent. The
rate charged will be as prescribed in 31 U.S.C. 3717.
(k) If the Corporation reasonably believes that a requester or
group of requesters is attempting to break a request into a series of
requests for the purpose of evading the assessment of fees, the
Corporation shall aggregate
[[Page 41201]]
such requests and charge accordingly. Likewise, the Corporation will
aggregate multiple requests for documents received from the same
requester within 45 days.
(l) The Corporation reserves the right to limit the number of
copies that will be provided of any document to any one requester or to
require that special arrangements for duplication be made in the case
of bound volumes or other records representing unusual problems of
handling or reproduction.
Dated: July 29, 1998.
Victor M. Fortuno,
General Counsel.
[FR Doc. 98-20643 Filed 7-31-98; 8:45 am]
BILLING CODE 7050-01-P